Spontaneous
identifications are admissible
By
David Ziemer
Wisconsin Law Journal
May
31, 2006
| What
the court held Case:
State v. Hibl, 2004AP2936-CR. Issue:
Does State v. Dubose require exclusion of a spontaneous identification by a witness,
where the identification occurred in the hallway outside the courtroom on the
day of trial? Holding:
No. Dubose does not control cases involving identification evidence derived from
accidental confrontations resulting in spontaneous identifications. Counsel:
For plaintiff: Christopher G. Wren, Madison; For defendant: Joel H. Rosenthal,
Milwaukee. |
State
v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, which generally bars
admission of identifications made pursuant to a “showup” arranged by
police, does not apply to “spontaneous” identifications made during
“accidental” confrontations.
In
reversing a published decision of the court of appeals on May 26, State v. Hibl,
2005 WI App 228, 706 N.W.2d 134, the Wisconsin Supreme Court reaffirmed the validity
of State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979), but acknowledged
that courts still have a limited gate-keeping function to exclude such evidence
pursuant to sec. 904.03.
In
Marshall, the court had held that, in order to establish that a spontaneous identification
is unduly suggestive, the defendant must show that the government arranged the
confrontation.
In
June, 2002, a City of Muskego police officer was driving southbound, when he saw
two northbound vehicles, a red pickup truck and a white van, exceeding the speed
limit. The two vehicles appeared to jockey for position as they traveled toward
a portion of the road that narrows from two lanes to one.
After
the vehicles passed him, the officer continued to watch them in his mirrors, and
saw the pickup truck collide with something. The white van did not stop and was
not located.
Alan
R. Stuller, who was also driving southbound, witnessed the accident. Stuller identified
the van’s driver as a white male but was unable to describe him in further
detail. The police did not ask Stuller to make an identification of the van’s
driver using a photo array or a lineup procedure.
Brian
Hibl was ultimately charged with one count of causing great bodily harm to another
by reckless driving contrary to sec. 346.62(4), and two counts of causing bodily
harm to another by reckless driving contrary to sec. 346.62(3).
Fifteen
months after the incident, on the day of trial, as Stuller was speaking with the
prosecutor outside the courtroom in the hallway, he spontaneously identified Hibl
as the driver of the white van. The prosecutor informed defense counsel, who moved
for a mistrial based upon the potential identification evidence that had come
to light. The State joined in the motion, which the circuit court granted.
Hibl
subsequently moved to suppress Stuller’s pretrial identification, along with
any in-court identification the State might seek to elicit.
Applying
State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), Waukesha County Circuit
Court Judge Paul F. Reilly granted the motion.
The
State appealed, and while the case was pending, the Wisconsin Supreme Court decided
Dubose. In a published decision, the court of appeals affirmed, holding that Dubose
applied to spontaneous identifications, as well as “showup” identifications,
without citation to Marshall. Judge Richard Brown dissented.
The
Supreme Court granted review, and reversed, in a unanimous decision by Justice
Ann Walsh Bradley.
The
court held that Dubose is not directly controlling, reasoning, “The term
‘showup’ itself denotes a police procedure. The court in Dubose used
the following definition of showup: ‘an out-of-court pretrial identification
procedure in which a suspect is presented singly to a witness for identification
purposes.’” (emphasis added) (cites omitted)
The
court added that its characterization of what constitutes a “necessary”
showup — circumstances that prevent police from conducting a lineup or photo
array — reinforces that the court did not intend that Dubose control spontaneous
identifications, inasmuch as an accidental identification can never be “necessary.”
Turning
to Marshall, however, the court wrote, “At first, it might appear that Marshall
provides not only the starting point but also the ending point for ‘spontaneous’
identifications resulting from ‘accidental’ confrontations. Given developments
since the time of Marshall, however, we take this opportunity to re-examine Marshall.”
Noting
that courts have long recognized that identifications can be unreliable, the court
iterated the traditional factors courts have used to assess reliability: the opportunity
of the witness to view the criminal at the time of the crime; the witness’s
degree of attention; the accuracy of the witness’s prior description of the
criminal; the level of certainty demonstrated by the witness at the confrontation;
and the length of time between the crime and the confrontation. Neil v. Biggers,
409 U.S. 188, 199-200. See also Wolverton.
To
these factors, the court added the following more recently recognized factors:
the “relative judgment” process; the stressfulness of the event for
the eyewitness; whether the event involved “weapon focus”; the cross-racial
nature of an identification; and whether an eyewitness is given positive feedback
during or immediately following the identification.
The
court observed, “many of these phenomena do not depend on the presence of
a law enforcement procedure. To the extent that identification evidence is extremely
unreliable based on such phenomena, independent of any law enforcement procedure,
Marshall’s holding may need to be modified.”
After reviewing
case law and commentary rejecting the rule of Marshall, the court wrote, “In
light of all of the developments since the time of Marshall, we make the unremarkable
observation that in some future case presenting different circumstances Marshall
may need to be modified. 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.”
The
opinion of the court was unanimous, save for this one paragraph, which Justice
Louis B. Butler, Jr., declined to join.
Because
there was nothing suggestive in Stuller’s identification of Hibl, however,
the court declined to modify Marshall in this case, and reversed the lower courts.
Before
concluding, however, the court held that, regardless of whether there is a due
process violation, courts still have the discretion to exclude evidence under
sec. 904.03 if it is so unreliable that is probative value is substantially outweighed
by the danger of prejudice and confusion.
Because
neither the circuit court, nor the majority in the court of appeals applied Marshall,
the court remanded the case to the circuit court, with instructions to admit the
identification, unless it finds that sec. 904.03 requires that it be excluded.
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David
Ziemer can be reached by email.
