Identification
Case Analysis
May
31, 2006
The
court gives little guidance as to what sort of spontaneous identification might
result in a violation of due process, even in the absence of a state-constructed
identification procedure.
However,
the court’s express holding in the first sentence of paragraph 3 actually
provides an excellent framework for discerning when this case may be distinguishable:
“We
determine that Dubose does not directly control cases involving identification
evidence derived from ‘accidental’ confrontations resulting in ‘spontaneous’
identifications.”
One
of the problems with this area of the law is that courts and attorneys sometimes
use the terms “spontaneous identifications” and “accidental identifications”
interchangeably.
The
court in the case at bar avoids any confusion by consistently using the relevant
nouns with their appropriate adjectives: due process does not preclude admission
of the evidence if: the confrontation was accidental; and the identification was
spontaneous.
Other
courts have recognized that a confrontation can lack any police involvement, and
yet implicate due proces, where there is nothing accidental about the confrontation.
For
example, in both State v. Holliman, 570 A.2d 680 (Conn.1980)(cited by the Supreme
Court in the case at bar), and People v. Walker, 97 Misc.2d 171, 411 N.Y.S.2d
156 (N.Y.County Ct.1978)(cited by the majority in the court of appeals‘ decision),
“showup” identifications occurred that were orchestrated by private
citizens, rather than by police.
In
such cases, there may be no police procedures involved, just as in the case at
bar, but by no stretch of the imagination could anyone say that the confrontations
were “accidental.”
If
a group of citizens haul a fellow citizen before a crime victim, and ask whether
he is the perpetrator, as occurred in Holliman and Walker, the identification
could be considered just as “inherently suggestive” as the identification
in Dubose, notwithstanding the lack of police involvement, without running afoul
of the rule of law established by the court in the case at bar.
It
may be that, in any case where a court holds that due process requires exclusion
of an identification, even though no police procedure was involved, the confrontation
cannot truly be said to be “accidental.”
Cases
such as those involving citizen-conducted lineups would also be distinguishable
from the case at bar for another reason — they could be “inherently
suggestive.”
As
Judge Richard Brown noted in his dissent at the court of appeals level, “it
would be absurd to announce a categorical rule that accidental encounters are
‘inherently suggestive.’” State v. Hibl, 2005 WI App 228, 706 N.W.2d
134, 142 (Brown, J., dissenting). Brown also wrote, “by definition, the State
does not design or ‘deliberately contrive’ accidental and unplanned
confrontations.” Id., at 141.
Where citizens
arrange a showup, however, there is deliberate design, even if not by police,
and thus, could be just as suggestive as a police showup.
In
the case at bar, the Supreme Court wrote, “There may be some conceivable
set of circumstances under which the admission of highly unreliable identification
evidence could violate a defendant’s right to due process, even though a
state-constructed identification procedure is absent.”
In
practice, however, such cases are likely to be those that fall outside of the
court’s express holding in paragraph 3, because the confrontation is not
really “accidental,” rather than because of the new “phenomena”
listed by the court in paragraph 40 — the “relative judgment” process,
the stressfulness of the event for they eyewitness, etc.
It
may turn out that those factors are more relevant to the sec. 904.03 analysis
than the due process analysis.
-
David Ziemer
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David
Ziemer can be reached by email.
