2003AP1690-CR State v. Dubose
Show-up
identifications
Wisconsin Supreme Court Affirmed
Evidence obtained from a showup identification procedure will not be admissible
unless, based on the totality of the circumstances, the showup was necessary;
and a showup will not be necessary unless the police lacked probable cause to
make an arrest or, as a result of other exigent circumstances, could not have
conducted a lineup or photo array.
A "showup" is an out-of-court pretrial identification procedure in which
a suspect is presented singly to a witness for identification purposes. This case
stems from a 2002 armed robbery, in which a two showups took place. The first
occurred by the officers placing the victim in the backseat of a squad car, which
was parked so that its rear window was three feet apart from the rear window of
the squad car containing Defendant Tyrone Dubose. The officers told the victim
that Dubose was possibly one of the men who had robbed him at gunpoint. The police
later conducted a second showup at the station. There, the victim identified Dubose,
alone in a room, through a two-way mirror. Dubose filed a motion to suppress all
identifications. The circuit court denied the motion, and he was subsequently
convicted. Dubose appealed, and the court of appeals affirmed. We reverse and
remand. "We begin our assessment by recognizing that much new information
has been assembled since we last reviewed the showup procedure in Wolverton. Over
the last decade, there have been extensive studies on the issue of identification
evidence, research that is now impossible for us to ignore. [Cites.] The research
strongly supports the conclusion that eyewitness misidentification is now the
single greatest source of wrongful convictions in the United States, and responsible
for more wrongful convictions than all other causes combined. [Cite.] "It
is now clear to us that the use of unnecessarily suggestive evidence resulting
from a showup procedure presents serious problems in Wisconsin criminal law cases.
…As stated, the United States Supreme Court specifically held that the 'practice
of showing suspects singly to persons for the purpose of identification . . .
has been widely condemned.' Stovall, 388 U.S. at 302 (footnote omitted). While
the Court allowed the showup evidence to be admitted in that case, its holding
was limited to situations where, based on the totality of the circumstances, the
showup was necessary…. "With Stovall as our guide, we now adopt a different
test in Wisconsin regarding the admissibility of showup identifications. We conclude
that evidence obtained from an out-of-court showup is inherently suggestive and
will not be admissible unless, based on the totality of the circumstances, the
procedure was necessary. A showup will not be necessary, however, unless the police
lacked probable cause to make an arrest or, as a result of other exigent circumstances,
could not have conducted a lineup or photo array. …. "We emphasize that
our approach, which is based to some extent on the recommendations of the Wisconsin
Innocence Project, is not a per se exclusionary rule like Dubose requests. Showups
have been a useful instrument in investigating and prosecuting criminal cases,
and there will continue to be circumstances in which such a procedure is necessary
and appropriate." When the police determine that a showup is necessary, special
care must be taken to minimize potential suggestiveness. It is important that
showups are not conducted in locations, or in a manner, that implicitly conveys
to the witness that the suspect is guilty. Showups conducted in police stations,
squad cars, or with the suspect in handcuffs that are visible to any witness,
all carry with them inferences of guilt. Next, officers investigating the matter
at issue should proceed with caution in instructing the witness. An eyewitness
should be told that the real suspect may or may not be present, and that the investigation
will continue regardless of the result of the impending identification procedure.
Finally, it is important that a suspect be shown to the witness only once. If
a suspect is identified, the police have no reason to conduct further identification
procedures. Conversely, if the suspect is not identified by the witness, he or
she should not be presented to that witness in any subsequent showups. …
"Applying this approach to the facts before us, it is clear that the showups
conducted were unnecessarily suggestive, and that the admission of identification
evidence denied Dubose a right to due process under Article I, Section 8 of the
Wisconsin Constitution. First, there existed sufficient facts at the time of Dubose's
arrest to establish probable cause for his arrest. It was not necessary for the
police to conduct the showups, since they had sufficient evidence against Dubose
to arrest him without such showups. Next, the officers handcuffed Dubose and placed
him in the back seat of a squad car. By placing a suspect in a squad car, the
police implicitly suggest that they believe the suspect is the offender. …
Third, the police officers told the witness, Hiltsley, that they may have caught
'one of the guys' who had robbed him. Such a comment is suggestive and, as studies
have shown, greatly increases the chance of misidentification. … Finally,
after the first showup was conducted and Dubose was positively identified, the
police still conducted two more identification procedures, another showup and
a photo of Dubose, at the police station shortly after Dubose's arrival. These
subsequent identification procedures were unnecessarily suggestive. Dubose had
already been arrested and positively identified by Hiltsley." BUTLER, J.(CONCURRING):
Showup identifications have been shown to be unreliable, thereby undercutting
the legal fiction that we have operated under with respect to eyewitness testimony.
… "What we have here is a legal fiction that is simply not borne out
by the facts. Unless, and until, we improve eyewitness identification procedures
so that the likelihood of irreparable misidentification is significantly reduced,
we can no longer proceed as though all is good in the Land of Oz." All of
this does not mean that eyewitness testimony cannot be a valuable piece of evidence
in a criminal trial. Showups will continue to be used where necessary and appropriate.
The goal of the majority's opinion, in my view, is to avoid a very substantial
likelihood of irreparable misidentification. WILCOX, J. (DISSENTING): I agree
with Justice Roggensack that if a constitution is to mean anything, its principles
must not be subject to change based on the prevailing winds of the time. Seven
years ago, the author of today's majority opinion recognized: "This court
has repeatedly stated that the due process clauses of the state and federal constitutions
are essentially equivalent and are subject to identical interpretation."
"Today the majority alters course and abandons this long line of well-established
precedent, contending that the Due Process Clause of the Wisconsin Constitution
now affords greater protections than its federal counterpart. In doing so, the
majority provides no legal justification for its decision other than its raw power
to do so." This is the second time this term this court has abandoned our
practice of interpreting similarly worded provisions of the state and federal
constitutions in concert. State v. Knapp, 2005 WI 127, ___Wis. 2d ___, ___N.W.2d
___. … "Furthermore, I, too, am troubled by the majority's reliance
on recent social science 'studies,' majority op., 29-30, presented by advocacy
groups, to justify its departure from stare decisis. Not only is such data disputed,
as recognized by Justice Roggensack, see Justice Roggensack's dissent, 89-91,
but, more importantly, it is not a valid basis to determine the meaning of our
constitution." PROSSER, J. (DISSENTING): "The facts in this case are
not sufficient to justify the majority's conclusion that this defendant's due
process rights were violated. Nothing in these facts is so inherently unfair or
suggestive that it justifies this court-ordered sea change in the law. "Throughout
this term, the court has repeatedly used its raw power to interpret provisions
in the Wisconsin Constitution differently from the way the United States Supreme
Court interprets provisions in the U.S. Constitution. While the court may exercise
this power, the court should pay more attention to whether it should exercise
this power. …When state courts adopt myriad different interpretations of
state constitutions, the level of uncertainty rises exponentially. A suspect's
constitutional rights may change dramatically depending on which side of a state
line he robs an acquaintance." ROGGENSACK, J. (DISSENTING): "The majority
concludes that its reading of the due process clause of Article I, Section 8 of
the Wisconsin Constitution now requires suppression of any identification obtained
through a process known as a 'showup' unless it was necessary to make identification
in that manner. By so concluding, the majority requires the suppression of identifications
of defendants charged with crimes, no matter how reliable the identification.
This holding substitutes a search for the truth, which should form the foundation
for every criminal prosecution, with one social science theory that showup identifications
are 'unnecessarily suggestive.' Id. In so doing, the majority opinion abandons
our previous jurisprudence and the United States Supreme Court's jurisprudence
concerning showup identifications, both of which have used the reliability of
the identification as the linchpin for determining admissibility. I dissent because
reliability, and not a disputed social science theory, must be the key to admissibility
of all identification testimony in criminal trials and because I conclude that
the totality of circumstances bearing on the identification in this case resulted
in a reliable identification of Dubose as the perpetrator of the armed robbery
of which he was convicted. Accordingly, I would affirm the court of appeals."
Court of Appeals, Brown County, Bischel, J., Crooks, J. Attorneys: For the Appellant:
Jefren E. Olsen For the Respondent: David H. Perlman, Peggy A. Lautenschlager
http://www.wicourts.gov/sc/opinion/DisplayDocument.html?
content=html&seqNo=19016
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