State v. Stephan I. Roberson ( 2019 )

2019 WI 102SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1894-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Stephan I. Roberson,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 384 Wis. 2d 632,922 N.W.2d 317(2018 – unpublished)
OPINION FILED: December 3, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 6, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Wood
JUDGE: Nicholas J. Brazeau Jr.
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs (except for ¶¶41-42),
joined by KELLY, J. (opinion filed)
HAGEDORN, J. concurs. (opinion filed)
DISSENTED:
NOT PARTICIPATING: DALLET, J. dissents, joined by A.W. BRADLEY, J.
(opinion filed)
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Suzanne Edwards and the Law Office of Suzanne Edwards,
Dodgeville. There was an oral argument by Suzanne Edwards.
For the plaintiff-appellant, there was a brief filed by
Donald V. Latorraca, assistant attorney generals, with whom on
the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Donald V. Latorraca.
An amicus curiae brief was filed on behalf of The Innocence
Project, Inc., and the Wisconsin Innocence Project by Keith A.
Findley and Wisconsin Innocence Project; with whom on the brief
is Sarah K. Grossnickle and Whitney Wester, Houston, Texas, and
Alyssa Musante, Los Angeles, California.
2
2019 WI 102NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1894-CR
(L.C. No. 2017CF76)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v.
DEC 3, 2019
Stephan I. Roberson,
Sheila Reiff
Defendant-Respondent-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an
unpublished decision of the court of appeals1 reversing the
circuit court's2 suppression of the victim's identification of
Stephan I. Roberson because the identification began with law
enforcement showing a single Facebook photo to the victim.
1State v. Roberson, No. 2017AP1894-CR, unpublished slip op.
(Wis. Ct. App. Oct. 4, 2018) (per curiam).
2The Honorable Nicholas J. Brazeau, Jr. of Wood County
presided.
No. 2017AP1894-CR
¶2 Roberson argues that the circuit court correctly
granted his motion to suppress the identification evidence on
the ground that the police utilized an unnecessarily suggestive
procedure, which violated his due process rights under Article
I, Section 8 of the Wisconsin Constitution as explained in State
v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.
¶3 The State urges us to overturn Dubose, and return to
our past practice of following decisions of the United States
Supreme Court in regard to criteria that are necessary to accord
due process in eyewitness identifications. We agree with the
State. Dubose was unsound in principle. Therefore, we overturn
Dubose and return to "reliability [a]s the linchpin in
determining the admissibility of identification testimony."
Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Neil v.
Biggers, 409 U.S. 188, 199 (1972). Due process does not require
the suppression of evidence with sufficient "indicia of
reliability." Perry v. New Hampshire, 565 U.S. 228, 232 (2012).
¶4 Accordingly, "a criminal defendant bears the initial
burden of demonstrating that a showup was impermissibly
suggestive." State v. Wolverton, 193 Wis. 2d 234, 264, 533
N.W.2d 167 (1995) (citing State v. Mosley, 102 Wis. 2d 636, 652
307 N.W.2d 200 (1981) and Powell v. State, 86 Wis. 2d 51, 65,
271 N.W.2d 610 (1978)). If a defendant meets this burden, the
State must prove that "under the 'totality of the circumstances'
the identification was reliable even though the confrontation
procedure was suggestive." Wolverton, 193 Wis. 2d at 264(quoting Brathwaite, 432 U.S. at 106 and citing Biggers, 409
2
No. 2017AP1894-CR
U.S. at 199). We conclude that the State has satisfied its
burden here.
¶5 Therefore, we affirm the court of appeals and remand
to the circuit court for proceedings consistent with this
opinion.
I. BACKGROUND
¶6 The State charged Roberson with first-degree reckless
injury, contrary to Wis. Stat. § 940.23(1)(a) (2017–18).3 The
charge stemmed from an incident where Roberson, allegedly, shot
C.A.S. over a drug deal that went wrong.
¶7 C.A.S., a Caucasian male, claims to have met an
African American male at a Walmart toward the end of January in
2017. At that time, C.A.S. knew him only as "P." P tapped
C.A.S. on the shoulder and asked C.A.S. if he "smoked." After
C.A.S. responded "yeah," P asked C.A.S. to obtain a "bag" of
marijuana for him. C.A.S. indicated he could. The two drove to
get marijuana and then drove back to Walmart and exchanged
numbers. This first encounter lasted approximately a half an
hour.
¶8 The following day, C.A.S. was supposed to bring P more
marijuana. For whatever reason, C.A.S. was unable to secure
any, and C.A.S. contacted P explaining his failure.
¶9 The next day, C.A.S. texted P to tell him he could get
marijuana. The two arranged for P to pick up C.A.S. after P
All subsequent references to the Wisconsin Statutes are to
3
the 2017-18 version unless otherwise indicated.
3
No. 2017AP1894-CR
finished work. Sometime after 7:00 p.m., P picked up C.A.S. and
C.A.S.'s brother and sister, and the four drove to secure the
marijuana. The group then drove back to C.A.S.'s residence. P
came inside the house, where he asked C.A.S. to sell the
marijuana for him. C.A.S. agreed. This second encounter lasted
approximately a half an hour.
¶10 P instructed C.A.S. to sell the marijuana in
"eighths," meaning an eighth of an ounce at a time. However,
C.A.S. had a potential buyer, who was interested in a half an
ounce, worth approximately $180. C.A.S. went to sell the half
an ounce, and the potential buyer robbed him at gunpoint.
C.A.S. texted P, explaining what happened. A few minutes later,
P picked up C.A.S., who had been walking on the road.
¶11 The two drove to a dog park where the situation
escalated. P took out a gun and fired a shot past C.A.S.'s
head. C.A.S. punched P in the face, and then P pointed his gun
at C.A.S. and shot him in his leg. P yelled, "Why'd you make me
shoot you?" P then asked C.A.S. if he was going to tell anyone.
C.A.S. said no and asked P to drive him home. P drove C.A.S. to
the residence of D.D., a friend of C.A.S. When C.A.S. got
there, he used two belts to create a makeshift tourniquet. He
then "got high." This third encounter lasted between an hour
and a half and two hours. C.A.S. did not contact law
enforcement because he was subject to an outstanding warrant.
¶12 C.A.S. spent between two and a half to three hours
with P over a short period of time. The evidence does not
4
No. 2017AP1894-CR
indicate that at any point during the encounters C.A.S.'s mental
state was impaired by drugs or alcohol.
¶13 Investigator Nathan Reblin learned that C.A.S. had
been injured and was cared for at D.D.'s residence. He began
trying to locate C.A.S. A confidential citizen witness gave
Reblin a cell phone that P had given to C.A.S., apparently so
the two could communicate. C.A.S. was logged into the cell
phone's Facebook app. The cell phone had text messages between
C.A.S. and a person identified in the messages as "P." Reblin
noted the phone number of the contact and searched for it on
Facebook. The search yielded one result: a profile for
Roberson.
¶14 Law enforcement obtained a warrant to search D.D.'s
residence. They found what they believed to be blood on some
boxer shorts. They also found a chair in the basement and a
quilt that both appeared to have blood stains. They did not
find C.A.S.
¶15 Later, C.A.S. was taken into custody on a probation
hold. However, before he was taken to the Wood County jail, he
was taken to a hospital for what appeared to be an old gunshot
wound to his leg.
¶16 About two weeks after the shooting, Reblin and his
partner interviewed C.A.S. at the jail. The interview was
videotaped, and the circuit court admitted a DVD of the
interview into evidence.
¶17 C.A.S. told Reblin and his partner what transpired.
Reblin asked C.A.S. if he would be able to identify P from a
5
No. 2017AP1894-CR
photograph. He responded, "Possibly, I mean, I don't know,
black people kinda" and made a shaking movement with his right
hand that indicated uncertainty. Reblin's partner brought up a
photograph of Roberson from Facebook on his phone, which he
showed to C.A.S. who immediately began nodding his head up and
down. After the non-verbal indication that the photograph was
P, Reblin asked, "That's him?" C.A.S. responded, "yup." Reblin
then asked, "100%?" C.A.S. replied, "100% yeah."
¶18 Subsequently, Roberson moved to suppress C.A.S.'s out-
of-court identification on the ground that the investigators
used a single photograph as opposed to a photograph array. At
the suppression hearing, C.A.S. testified that P looked similar
on all three occasions. He had either "dreadlocks" or
"cornrows" and had on a sweatshirt with work pants.
¶19 The circuit court generally noted the same historical
facts as are set out above. In particular, the circuit court
said:
[C.A.S.] is clearly unsure of the characteristics of
African Americans. He states the same. Objectively,
it is hard to convince ones self that [C.A.S.]
wouldn't have identified any picture of an African
American male as "P" if Reblin indicated that it was a
picture of "P." The process is shaky, and the victim
making the identification is likewise shaky, so the
[c]ourt lacks confidence that the identification of
"P" by [C.A.S.] is not a result of showing the single
photo to him. As such, [C.A.S.]'s identification of
the defendant's photo and his later identification in
court, tainted by his exposure to that photo, are
suppressed.
¶20 Although C.A.S. made a comment and a gesture
indicating that he was unsure about identifying African American
6
No. 2017AP1894-CR
people, the circuit court noted that, "The chances that a
misidentification occurred are unclear." The circuit court also
said, "This [c]ourt believes [C.A.S.] has a sufficient basis to
identify 'P' from those meetings."
¶21 Nevertheless, the circuit court granted Roberson's
motion to suppress and also held that C.A.S. could not identify
Roberson in court because the initial identification tainted any
subsequent identification.
¶22 The State filed an interlocutory appeal, arguing the
circuit court improperly suppressed the out-of-court
identification and that even if the out-of-court identification
was improper, the circuit court erroneously used that as a basis
for excluding a subsequent in-court identification. The court
of appeals reversed the circuit court. State v. Roberson,
No. 2017AP1894-CR, unpublished slip op. (Wis. Ct. App. Oct. 4,
2018) (per curiam). The court of appeals reasoned that a single
photograph is not a showup and that any decision to extend
Dubose must be left to this court. Id., ¶¶10–17.
¶23 We granted Roberson's petition for review and now
affirm the court of appeals, albeit on different grounds.
II. DISCUSSION
A. Identification Due Process
¶24 We are asked to return to our pre-Dubose standards for
pretrial identifications. Accordingly, a review of our pre-
Dubose identification decisions may be helpful to the reader
before we begin to discuss Dubose.
7
No. 2017AP1894-CR
¶25 Generally, the admissibility of evidence in state
court trials is governed by the rules of evidence. See, e.g.,
Wis. Stat. § 904.03. Once admitted, the jury determines which
evidence is credible and what weight to ascribe to it. State v.
Hibl, 2006 WI 52, ¶31, 290 Wis. 2d 595, 714 N.W.2d 194; see also
State v. Johnson, 2004 WI 94, ¶20, 273 Wis. 2d 626, 681 N.W.2d
901 (instructing that it is for the jury to assess the
credibility of witnesses).
¶26 However, due process also may restrict admission of
eyewitness testimony: "identification [evidence] infected by
improper police influence" may be excluded when "there is 'a
very substantial likelihood of irreparable misidentification'"
unless, "the indicia of reliability are strong enough to
outweigh the corrupting effect of the police-arranged suggestive
circumstances." Perry, 565 U.S. at 232.
¶27 Under its due process analysis, the United States
Supreme Court places the burden first on the defendant to show
that the method law enforcement chose to employ to identify a
suspect as the perpetrator was "an unnecessarily suggestive
identification procedure," such that there was a very
substantial likelihood of misidentification.4 Id. at 232 n.1,
4We note that this first step is not controversial.
Justice Sonia Sotomayor, in dissent with her colleagues in
Perry, explained, "the defendant has the burden of showing that
the eyewitness identification was derived through 'impermissibly
suggestive' means." Perry v. New Hampshire, 565 U.S. 228, 253-
54 (2012) (Sotomayor, J., dissenting) (citing Simmons v. United
States, 390 U.S. 377, 384 (1968)).
(continued)
8
No. 2017AP1894-CR
235. Only after a court concludes that the defendant has met
his or her burden in this regard will the court extend a
pretrial screening for reliability; otherwise, reliability of
admissible evidence is for the jury to determine in the first
instance.5 Id. at 232 & n.1.
¶28 Perry's discussion of "unnecessarily" is focused on
police conduct that is claimed to have "manufactured" a
challenged identification procedure when identification may have
been obtained by a less suggestive means. Id. at 235. Perry
explains that "due process concerns arise only when law
enforcement officers use an identification procedure that is
both suggestive and unnecessary." Id. at 238-39 (citing
Brathwaite, 432 U.S. at 107, 109). Under the federal standard,
as Justice Sonia Sotomayor explained in her dissent, "[m]ost
identifications will be admissible." Perry, 565 U.S. at 254(Sotomayor, J., dissenting). That is so because reliability is
the decisive issue under the federal due process standard.
¶29 Due process focuses on ensuring reliable
identification evidence. Accordingly, when unnecessarily
Unnecessarily suggestive and impermissibly suggestive seem
to be used interchangeably by the United States Supreme Court at
times. See Perry, 565 U.S. at 254 n.3 (Sotomayor, J.,
dissenting); Neil v. Biggers, 409 U.S. 188, 197-98 (1972).
Dubose placed the burden on the State of proving the
5
necessity of the procedure chosen. Therefore, under Dubose, if
the State cannot prove the chosen procedure was necessary, the
entire analysis stops, and the court never considers whether the
evidence is reliable. It is simply excluded. State v. Dubose,
2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582.
9
No. 2017AP1894-CR
suggestive state action occurs, the State bears the burden to
provide a factual foundation that supports the reliability of
the evidence. Necessity can become a factor when identification
is challenged; however, if a suggestive law enforcement
procedure was necessary, the state action that resulted in an
identification will not implicate due process concerns. Id. at
242 (majority opinion). As Perry explained, "The fallibility of
eyewitness evidence does not, without the taint of improper
state conduct, warrant a due process rule requiring a trial
court to screen such evidence for reliability before allowing
the jury to assess its creditworthiness." Id. at 245.
¶30 Even before Perry, we followed a similar two-step due
process analysis. Wolverton, 193 Wis. 2d at 264. Perry assists
in sharpening that analysis today.
¶31 In Wolverton, the defendant moved to suppress his
pretrial identification that resulted from two showups. Id. at
243. The showups occurred when Wolverton was sitting alone in
the back seat of a squad car. Id. at 249. Upon Wolverton's
motion to suppress his identification, we reviewed the
requirements of due process in regard to identification
evidence. Id. at 264. We explained that a "pretrial police
procedure that is 'so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable
misidentification'" violates due process. Id. (quoting Simmons
v. United States, 390 U.S. 377, 384 (1968)).
¶32 We concluded that showups were "not per se
impermissibly suggestive." Wolverton, 193 Wis. 2d at 264
10
No. 2017AP1894-CR
(citing State v. Streich, 87 Wis. 2d 209, 214, 274 N.W.2d 635(1979) and State v. Isham, 70 Wis. 2d 718, 725, 235 N.W.2d 506(1975)). We said that "a criminal defendant bears the initial
burden of demonstrating that a showup was impermissibly
suggestive." Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102
Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant
meets this burden, then the State must prove that "under the
'totality of the circumstances' the identification was reliable
even though the confrontation procedure was suggestive."
Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at
106).
¶33 Wolverton cites the Sixth and Fourteenth Amendments of
the United States Constitution when addressing the right to
counsel and due process. Wolverton, 193 Wis. 2d at 251 n.6, 7.
We did not specify the source of the due process right that
protects a defendant from unreliable identifications. However,
the cases upon which we relied in that regard are grounded in
the Fourteenth Amendment. E.g., Streich, 87 Wis. 2d at 214-15;
Brathwaite 432 U.S. at 99. Furthermore, in Mosley, while
recognizing that we could go beyond the guarantees of the
Fourteenth Amendment, we specifically declined to do so.
Mosley, 102 Wis. 2d at 667-68 (explaining that "we decline the
defendant's invitation to go beyond the federal constitutional
holding and reach a contrary result based on independent state
constitutional grounds.").
¶34 Until our decision in Dubose, we continued to use this
two-step process when evaluating motions to suppress pretrial
11
No. 2017AP1894-CR
identifications. First, the defendant must meet an initial
burden of showing that the identification procedure employed by
law enforcement was impermissibly suggestive such that there was
a very substantial likelihood of misidentification. Perry, 565
U.S. at 232; Wolverton, 193 Wis. 2d at 264.
¶35 Second, if the defendant meets that burden and the
burden shifts to the State, the State must prove that "under the
'totality of the circumstances' the identification was reliable
even though the confrontation procedure was suggestive."
Brathwaite, 432 U.S. at 106 (quoting Biggers, 409 U.S. at 199).
A nonexclusive list of reliability factors includes: (1) the
opportunity of the witness to view the suspect at the time of
the crime, (2) the witness' degree of attention, (3) the
accuracy of his prior description of the suspect, (4) the level
of certainty demonstrated at the confrontation, and (5) the time
between the crime and the confrontation. Brathwaite, 432 U.S.
at 114.
¶36 An additional factor that may be considered is the
extent to which the procedure was documented, such as by video
recording. See Howard B. Eisenberg & Bruce G. Feustal, Criminal
Law: Pretrial Identification: An Attempt to Articulate
Constitutional Criteria, 58 Marq. L. Rev. 659, 683 (1975)
(recommending videotaping lineups).
¶37 Dubose departed from the Brathwaite/Biggers analysis,
and instead, it fashioned a rule based on social science
research. However, social science research cannot be used to
12
No. 2017AP1894-CR
define the meaning of a constitutional provision. As Justice
Antonin Scalia famously stated:
The principal theoretical defect of nonoriginalism, in
my view, is its incompatibility with the very
principle that legitimizes judicial review of
constitutionality. . . . [T]he Constitution, though it
has an effect superior to other laws, is in its nature
the sort of "law" that is the business of the courts——
an enactment that has a fixed meaning ascertainable
through the usual devices familiar to those learned in
the law. If the Constitution were not that sort of a
"law," but a novel invitation to apply current
societal values, what reason would there be to believe
that the invitation was addressed to the courts rather
than to the legislature? One simply cannot say,
regarding that sort of novel enactment, that "[i]t is
emphatically the province and duty of the judicial
department" to determine its content. Quite to the
contrary, the legislature would seem a much more
appropriate expositor of social values, and its
determination that a statute is compatible with the
Constitution should, as in England, prevail.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin.
L. Rev. 849, 854 (1989).
¶38 As Justice Scalia explained, the judiciary is not in a
good position to judge social values or social science. When
social science is disputed, the institutional parameters of the
judiciary are amplified. It is the legislature that is
structured to assess the merits of competing policies and ever-
changing social science assertions.
¶39 It is no surprise that, with mounds of research
available, the State in the dispute now before us has identified
social science that supports its position. E.g., John Wixted &
Gary Wells, The Relationship Between Eyewitness Confidence and
13
No. 2017AP1894-CR
Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in
the Pub. Int. 10 (2017).
¶40 Furthermore, categorical rules of exclusion, based on
social science, are the antithesis of justice because "one of
the major tenets in the administration of justice" is "the
presentation of reliable, relevant evidence at trial." Dubose,
285 Wis. 2d 143, ¶86 (Roggensack, J., dissenting) (citing
Brathwaite, 432 U.S. at 112).
¶41 Historically, there have been times when social
science has been used by courts as an excuse to justify
disturbing decisions. Indeed, entire law review articles and
book chapters have been dedicated to analyzing how Plessy v.
Ferguson and the line of cases that followed Plessy grounded
their decisions in social science of the time. E.g., Herbert
Hovenkamp, Social Science and Segregation Before Brown, 1985
Duke L.J. 624. As explained:
[P]olicy-based adjudication was as prevalent in the
race cases of the Gilded Age and the Progressive Era
as in any area of law during the time. However, the
policies were different from those espoused by liberal
social scientists after the New Deal. According to
the prevailing social science of the 1910's and
1920's, the social value created by a comprehensive,
state-enforced plan of racial separation was far
greater than any costs imposed on its
victims. . . . [T]he law of race relations during this
period was a product of the period's social science,
just as the law of race relations developed by the
Warren Court during the Brown era was a product of the
social science of that period.
Id. at 627.
14
No. 2017AP1894-CR
¶42 The United States Supreme Court cited social science
in Brown, but it did so as a response to social science employed
at the time of Plessy. Brown v. Board of Educ., 347 U.S. 483,
494 n.11 (1954). The research at the time of Brown showed:
Segregation of white and colored children in public
schools has a detrimental effect upon colored
children. The impact is greater when it has the
sanction of the law for the policy of separating the
races is usually interpreted as denoting the
inferiority of the negro group.
Id. at 494. The Court stated, "[w]hatever may have been the
extent of psychological knowledge at the time of Plessy v.
Ferguson, this finding [of negative psychological impact] is
amply supported by modern authority." Id.¶43 Social science often embodies the subjective beliefs
of the time. When these beliefs become enshrined as
constitutional law, they have a long-lasting impact even if
proved incorrect at a later date. The contrast between Plessy
and Brown is a telling example. Plessy embodied abhorrent
social beliefs regarding the superiority and inferiority of
people based on race. This belief then became law through
United States Supreme Court decision-making that was purporting
to interpret the United States Constitution. It took more than
half a century to correct course because it is difficult to
overturn constitutional precedent.
¶44 Social science cannot change the original meaning of
the Wisconsin Constitution, any more than it can change the
meaning of the United States Constitution. Article I, Section 8
of the Wisconsin Constitution protects a defendant's right to
15
No. 2017AP1894-CR
due process, just as the federal constitution's Fourteenth
Amendment does. Due process requires that evidence infected by
improper police conduct from which there is a substantial
likelihood of misidentification will be excluded unless the
State proves that under the totality of circumstances bearing on
the identification, it is nonetheless reliable. Perry, 565 U.S.
at 232. Due process does not require that all showups be
excluded. Id. Rather, the question is whether the particular
showup under consideration is reliable. Id. We note that the
United States Supreme Court agrees, as the Court has explicitly
held, reliability must be determined on a "case-by-case" basis.
Id. at 239 (citing Biggers, 409 U.S. at 201).
¶45 Wisconsin court procedure used to evaluate showup
identifications changed substantially under Dubose. As we are
asked to overturn Dubose, we now turn our attention to that
decision and the rationales that supported or opposed it.
B. Dubose
¶46 We begin by noting that in order to reach its
conclusion that suppressing out-of-court identifications
obtained by law enforcement through an unnecessary procedure was
required, Dubose overruled Wisconsin appellate precedent that
had stood for at least 26 years. Dubose, 285 Wis. 2d 143, ¶33
n.9 withdrawing language from Wolverton, 193 Wis. 2d at 258,
Streich, 87 Wis. 2d 209 and State v. Kaelin, 196 Wis. 2d 1, 538
N.W.2d 538 (Ct. App. 1995)). As we explain below, Dubose is
unsound in principle as it was based on misunderstanding the
16
No. 2017AP1894-CR
United States Supreme Court's decisions in regard to out-of-
court identifications and on topical social science.
¶47 Dubose defined a showup as "an out-of-court pretrial
identification procedure in which a suspect is presented singly
to a witness for identification purposes." Dubose, 285 Wis. 2d
143, ¶1 n.1 (quoting Wolverton, 193 Wis. 2d at 263 n.21). We
have no quarrel with that definition. Here, the suspect,
Roberson, was presented via a single photograph as opposed to
being presented singly in person as the suspect was in Dubose.
¶48 We conclude that the State action that caused a showup
to be subject to constitutional scrutiny in Dubose may be
equally applicable to the use of a single Facebook photo for an
out-of-court identification. Therefore, we address the
continued validity of Dubose, even though the identification
employed here was not a single person showup.
¶49 We are respectful of the doctrine of stare decisis.
State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d
592. As we have previously explained:
[Adhering to precedent] ensures that existing law will
not be abandoned lightly. When existing law is open
to revision in every case, deciding cases becomes a
mere exercise of judicial will, with arbitrary and
unpredictable results. Consequently, this court has
held that any departure from the doctrine of stare
decisis demands special justification.
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d
266 (citations and quotations omitted). On the other hand, we
acknowledge that "[w]e do more damage to the rule of law by
obstinately refusing to admit errors, thereby perpetuating
17
No. 2017AP1894-CR
injustice, than by overturning an erroneous decision." Johnson
Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264
Wis. 2d 60, 665 N.W.2d 257.
¶50 When we are requested to overturn precedent, we
consider whether one or more of the following circumstances is
present:
(1) Changes or developments in the law have undermined
the rationale behind a decision; (2) there is a need
to make a decision correspond to newly ascertained
facts; (3) there is a showing that the precedent has
become detrimental to coherence and consistency in the
law; (4) the prior decision is "unsound in principle;"
or (5) the prior decision is "unworkable in practice."
Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs.
Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216. We
also may consider "whether [our past decision] has produced a
settled body of law." Id., ¶34 (quoting Johnson Controls, 264
Wis. 2d 60, ¶99).
¶51 A decision is unsound in principle when it relies on
an erroneous understanding of United States Supreme Court
decisions or misapplies the Wisconsin Constitution because the
misunderstanding and faulty application "risk[] perpetuating
erroneous declarations of the law." See Tetra Tech EC, Inc. v.
DOR, 2018 WI 75, ¶83, 382 Wis. 2d 496, 914 N.W.2d 21 (quoting
Operton v. LIRC, 2017 WI 46, 274 Wis. 2d 1, ¶73, 894 N.W.2d 426(R. Bradley, J., concurring). Dubose misunderstood United
States Supreme Court decisions and misapplied Article I, Section
8 of the Wisconsin Constitution when it concluded that evidence
obtained from an out-of-court showup "will not be admissible
18
No. 2017AP1894-CR
unless, based on the totality of the circumstances, the
procedure was necessary." Dubose, 285 Wis. 2d 143, ¶¶33, 45.
¶52 That Dubose misunderstood United State Supreme Court's
decisions is apparent from Dubose's discussion of Stovall v.
Denno, 388 U.S. 293 (1967) where Dubose reasoned:
[W]e adopt standards for the admissibility of out-of-
court identification evidence similar to those set
forth in the United States Supreme Court's decision in
Stovall. We hold that evidence obtained from such a
showup will not be admissible unless, based on the
totality of the circumstances, the showup was
necessary.
Dubose, 285 Wis. 2d 143, ¶45; (see also ¶33, for a similar
statement).
¶53 Stovall arose upon the United States Supreme Court's
consideration of whether to retroactively apply a Supreme Court
holding that required "exclusion of identification evidence
which is tainted by exhibiting the accused to identifying
witnesses before trial in the absence of his counsel." Stovall,
388 U.S. at 294. Stovall never concluded that identification
evidence must be excluded unless the showup "was necessary."
Instead, it held, "a claimed violation of due process of law in
the conduct of a confrontation depends on the totality of the
circumstances surrounding it." Id. at 302. Reliability of the
factfinding process remained the dispositive criterion for
admissibility of in-person identifications in Stovall. Id. at
298.
¶54 In addition, there was no need, and Dubose provided no
logical rationale, for departing from our past reliance on the
19
No. 2017AP1894-CR
United States Supreme Court's interpretation of due process
requirements under the federal constitution when out-of-court
identifications are challenged in Wisconsin courts.6 Simos v.
State, 83 Wis. 2d 251, 258, 265 N.W.2d 278 (1978), which relied
on United States Supreme Court precedent to conclude that under
the totality of circumstances the identification was reliable,
and Streich, 87 Wis. 2d at 214-15, which followed the United
States Supreme Court's lead on due process with regard to
avoiding misidentification in a showup, are but two examples.
¶55 As Justice Jon P. Wilcox explained:
Today the majority alters course and
abandons . . . [a] long line of well-established
precedent, contending that the Due Process Clause of
the Wisconsin Constitution now affords greater
protections than its federal counterpart. . . .
Given the nearly identical language in the two
provisions and this court's historic practice of
interpreting the two provisions in the same fashion,
the majority simply has no support for its conclusion
that the language in Article I, Section 8
"necessitates" a rejection of . . . [United States
Supreme Court decisions]."
Dubose, 285 Wis. 2d 143, ¶¶61–62 (Wilcox, J., dissenting).
6 United States Supreme Court precedent relative to
allegedly unfair pretrial identifications relies on the
Fourteenth Amendment. Perry, 565 U.S. at 237 (citing Napue v.
Illinois, 360 U.S. 264, 269 (1959)).
The Fourteenth Amendment provides in relevant part, "nor
shall any State deprive any person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV,
§ 1.
20
No. 2017AP1894-CR
¶56 Certainly, states have the power to afford greater
protection to citizens under their constitutions than the
federal constitution does. Herb v. Pitcairn, 324 U.S. 117, 125
(1945) (explaining that federal courts will refuse to review a
state court decision if the decision is based on an "adequate
and independent state ground[]"). However, the question for a
state court is whether its state constitution actually affords
greater protection. A state court does not have the power to
write into its state constitution additional protection that is
not supported by its text or historical meaning.
¶57 As Justice David T. Prosser cautioned, "While the
court may exercise this power, the court should pay more
attention to whether it should exercise this power." Dubose,
285 Wis. 2d 143, ¶75 (Prosser, J., dissenting). In particular,
we must recognize that "[b]y sheer volume of cases, the [United
States] Supreme Court has developed substantial experience
interpreting constitutional provisions." Id., ¶76.
¶58 Furthermore, Dubose explicitly relied on case law from
Massachusetts and New York when interpreting due process
guarantees under Article I, Section 8 of the Wisconsin
Constitution.7 Id., ¶¶38, 42 (majority opinion) (citing
Commonwealth v. Johnson, 650 N.E.2d 1257, 1262, 1265 (Mass.
1995) (which rejected the reliability test for admissibility and
7 Article I, Section 8 provides in relevant part, "No person
may be held to answer for a criminal offense without due process
of law." Wis. Const. art. I, § 8.
21
No. 2017AP1894-CR
required per se exclusion for showup identifications based on
due process protections of the Massachusetts Constitution);
State v. Adams, 423 N.E.2d 379, 383 (N.Y. 1981) (which relied on
the New York Constitution to conclude that excluding
identification evidence from a showup does not deprive the
prosecutor of reliable evidence)).
¶59 There is no logical nexus between how Massachusetts
and New York courts interpret their individual constitutions,
which contain constitutional provisions not found in Wisconsin's
Constitution, and how we should interpret Wisconsin's
Constitution. And, of equal importance, Dubose provides no
explanation on why the Wisconsin Constitution has a different
due process guarantee than its federal counterpart.
¶60 Dubose crafted a rule of constitutional law, largely
based on social science reports that it found persuasive.
However, by defining a constitutional provision according to
social science reports, Dubose created the capacity to prevent
identifications of perpetrators of crimes when under the
totality of circumstances surrounding the identifications, they
were reliable.
¶61 Furthermore, Dubose has not created a substantial body
of settled law.8 Rather, it created a specific rule that has not
8We are aware of states that mention Dubose, but none have
decided to follow it. For example, State v. Washington, 189
A.3d 43, 55–57 (R.I. 2018); State v. Herrera, 902 A.2d 177, 181
(N.J. 2006), overruled on other grounds by State v. Henderson,
27 A.3d 872 (N.J. 2011); State v. Ledbetter, 881 A.2d 290 (Conn.
2005) overruled on other grounds by State v. Harris, 191 A.3d
(continued)
22
No. 2017AP1894-CR
been followed by appellate courts of other jurisdictions. And
finally, Dubose has been treated negatively by several
subsequent Wisconsin appellate opinions.
¶62 For example, in 2006, shortly after Dubose was
decided, "[w]e determine[d] that Dubose does not directly
control cases involving identification evidence derived from
'accidental' confrontations resulting in 'spontaneous'
identifications." Hibl, 290 Wis. 2d 595, ¶3. We then remanded
to the circuit court to apply the rules of evidence to the
identification. Id. We noted that those rules allow circuit
courts to use their discretion to exclude evidence when its
"probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Wis. Stat.
§ 904.03; Hibl, 290 Wis. 2d 595, ¶3.
¶63 In 2007, the court of appeals "conclude[d] that Dubose
did not alter the standard for determining whether admission of
an out-of-court identification from a photo array violates due
119 (Conn. 2018). Though some state courts have permitted
defendants more protection than afforded by the United States
Constitution's guarantee of due process, and some have cited
Dubose in so doing, none have conditioned admission of the out-
of-court identification on whether the procedure that law
enforcement employed was necessary. For example in Henderson,
the New Jersey Supreme Court adopted a reliability standard it
believed was more accurate. Henderson, 27 A.3d at 919-20. In
Harris, the Connecticut Supreme Court adopted the standard
designed in Henderson. Harris, 191 A.3d at 143.
23
No. 2017AP1894-CR
process." State v. Drew, 2007 WI App 213, ¶2, 305 Wis. 2d 641,
740 N.W.2d 404.
¶64 In 2012, we held Dubose was inapplicable to an in-
court, mugshot identification. State v. Ziegler, 2012 WI 73,
¶¶81–82, 342 Wis. 2d 256, 816 N.W.2d 238. We said that we saw
"no reason to apply Dubose," and the defendant could point to
none. Id., ¶82.
¶65 In 2015, we confirmed the limited reach of Dubose in
Luedtke, 362 Wis. 2d 1, where we stated:
[P]ost-Dubose, we have held that the decision did not
create a precedential sea change with respect to the
recognition of a broader due process protection under
the Wisconsin Constitution than under the United
States Constitution. In State v. Drew, the court of
appeals held that Dubose did not alter precedent with
respect to lineups and photo arrays, explaining that
Dubose recognized those identification procedures are
preferable to a showup. In State v. Hibl, we held
that Dubose did not directly control spontaneous or
accidental identifications of a defendant by a victim
lacking police involvement. Finally, in State v.
Ziegler, we distinguished a showup from an
identification made in court through the showing of a
single mug shot.
The State correctly notes, even within the
specific context of eyewitness identification, post-
Dubose jurisprudence confirms the limited reach of its
actual holding: that due process under the Wisconsin
Constitution provides greater protection in one
identification procedure, the showup.
Id., ¶¶49–50 (citations omitted). Given that Dubose has not
created a substantial body of law, overturning it will have
minimal impact. With the above review in mind, we conclude that
stare decisis is not offended by overturning Dubose, and we now
do so.
24
No. 2017AP1894-CR
C. Standard of Review
¶66 We employ a two-step standard of review when analyzing
a motion to suppress. State v. Blatterman, 2015 WI 46, ¶16, 362
Wis. 2d 138, 864 N.W.2d 26. We first review the circuit court's
findings of historical fact, which we uphold unless they are
clearly erroneous. Id. Next, we independently apply
constitutional principles to the facts found, which presents a
question of law. Id.D. C.A.S.'s Identification
¶67 We note that not all showings of a single photo are
infected by improper police influence causing a very substantial
likelihood of misidentification. Each identification must be
evaluated based on its own facts. Perry, 565 U.S. at 239, 245
n.5. C.A.S.'s identification began with the display of a color
photo of Roberson's Facebook photo.
¶68 The first step in our evaluation is whether Roberson
can prove that the method chosen by law enforcement was
impermissibly suggestive. While it is true that it would have
been better practice for law enforcement to show Facebook photos
of more than one African American male, the officer never asked
if the picture was the man C.A.S. knew as P, even though he had
asked if C.A.S. thought he could identify P. Only after C.A.S.
gave a nonverbal indication that he recognized the man in the
Facebook photo, did Reblin ask "That's him?" However, we will
assume without deciding, that Roberson met his burden of proving
25
No. 2017AP1894-CR
an impermissibly suggestive mode of identification, as did the
court of appeals.9 Roberson, No. 2017AP1894-CR, ¶18.
¶69 The burden now shifts to the State to prove that under
the totality of the circumstances the identification was
reliable. Biggers, 409 U.S. at 199. Applying the reliability
assessment factors from Biggers, which were confirmed in
Brathwaite 432 U.S. at 106-07, 114, to the facts herein, we note
that C.A.S. had ample opportunity to view P. At a minimum,
C.A.S. spent two and a half hours with P, on three separate
occasions, over a short period of time. C.A.S. spent five times
more time with P than the victim in Biggers did with her
assailant, which the United States Supreme Court held was a
"considerable period of time." Id. at 200. Nothing in the
record suggests C.A.S. had an altered mental state or was
otherwise cognitively impaired. Additionally, while P never
The State has articulated a few reasons why the procedure
9
might not have been impermissibly suggestive. First, it points
out that the investigator used a photograph from Facebook as
opposed to a mugshot. It argues, "[u]nlike a mugshot, which
carries with it the implicit prejudicial suggestion that the
person depicted has been arrested or convicted of a
crime, . . . [the photograph in this case] does not convey this
type of suggestibility." Resp. br. at 26. Second, the State
relies heavily on a theory that "the protagonists are known to
one another." Resp. br. at 27 (quoting People v. Gissendanner,
399 N.E.2d 924, 930 (N.Y. 1979)). Apparently, some support
exists for the proposition that when two people are well-
acquainted, an identification procedure cannot be suggestive.
Resp. br. at 26-27.
26
No. 2017AP1894-CR
provided his name, we note he made no substantial effort to
conceal his identity.
¶70 The degree of attention favors reliability. C.A.S.
agreed to participate in a drug-dealer relationship with P. P
gave C.A.S. a phone, presumably so they could forward their
plans. Their interactions show they were contemplating an
ongoing relationship where it could be expected they would know
each other's faces under circumstances similar to those present
here. We also note that P came into C.A.S.'s residence,
something generally personal in nature.
¶71 During the third encounter, C.A.S. may have been
paying more attention to the situation than to P. However, the
United States Supreme Court suggested in Biggers that a victim
of a violent crime remembers more. Id. ("She was no casual
observer, but rather the victim of one of the most personally
humiliating of all crimes.").
¶72 The first two factors appear to question
identifications where a witness briefly sees a stranger, perhaps
out of a window, under poor conditions. C.A.S.'s identification
presents on facts that are completely opposite. As the State
put it, "the shooting itself was not the product of a brief,
momentary encounter between two strangers."10
¶73 Law enforcement did not obtain a detailed prior
description of P from C.A.S. before showing C.A.S. the Facebook
10 Resp. br. at 30.
27
No. 2017AP1894-CR
photo. We note that the court of appeals "assume[d] for
purposes of . . . [its] opinion only that the absence of a
description weighs somewhat against reliability." Roberson,
No. 2017AP1894-CR, ¶38. However, the State has the burden to
prove that under the totality of the circumstances the
identification is reliable, and under the Bigger's factors,
collecting evidence prior to displaying the Facebook photo of
Roberson was the State's responsibility.
¶74 The circuit court seemed to place a lot of weight on
C.A.S. not knowing the difference between dreadlocks and
cornrows when he described P. However, there is no reason the
jury cannot weigh this testimony as well as the circuit court.
Most evidence can be called into question in some way; however,
that does not give the circuit court the ability to preclude
admission. We have cross-examination for a reason; evidence
often is tested in that way.
¶75 The level of C.A.S.'s certainty favors reliability.
Immediately upon seeing the photograph, C.A.S. nodded his head
up and down. He did not wait for Reblin to ask him a question
before indicating that the photo was P. Then when he was asked
if his identification was "100%," he said that it was.
¶76 Approximately two weeks passed between C.A.S.'s
shooting and the identification. We have no reason to conclude
that two weeks is such a significant passage of time as to call
into question the identification. This is particularly true
when we consider the amount of time the two spent together on
three different days.
28
No. 2017AP1894-CR
¶77 We further note that the identification was extremely
well-documented in this case. It was videotaped in its
entirety. If a picture is worth a thousand words, a video is a
thousand pictures. The jury can watch the video, and it can
hear and see C.A.S.'s comment and gestures in regard to his
ability to identify African Americans. It can hear what C.A.S.
said and see the accompanying hand gesture. The jury also can
see the certainty on C.A.S.'s face when he is shown the Facebook
photo.
¶78 Upon consideration of the totality of the
circumstances bearing on the identification of Roberson, we
conclude that there is not a substantial likelihood of
misidentification by an unreliable identification. Therefore,
the jury should decide whether Roberson was correctly identified
as P.
¶79 Accordingly, we affirm the court of appeals and remand
to the circuit court for proceedings consistent with this
opinion.
III. CONCLUSION
¶80 In conclusion, Roberson argued that the circuit court
correctly granted his motion to suppress the identification
evidence on the ground that the police utilized an unnecessarily
suggestive procedure, which violated his due process rights
under Article I, Section 8 of the Wisconsin Constitution as
explained in Dubose.
¶81 The State urges us to overturn Dubose, and return to
our past practice of following decisions of the United States
29
No. 2017AP1894-CR
Supreme Court in regard to criteria that are necessary to accord
due process in eyewitness identifications. We agree with the
State. Dubose was unsound in principle. Therefore, we overturn
Dubose and return to "reliability [a]s the linchpin in
determining the admissibility of identification testimony."
Brathwaite, 432 U.S. at 114; see also Biggers, 409 U.S. at 199.
Due process does not require the suppression of evidence with
sufficient "indicia of reliability." Perry, 565 U.S. at 232.
¶82 Accordingly, "a criminal defendant bears the initial
burden of demonstrating that a showup was impermissibly
suggestive." Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102
Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant
meets this burden, then the State must prove that "under the
'totality of the circumstances' the identification was reliable
even though the confrontation procedure was suggestive."
Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at106 and citing Biggers, 409 U.S. at 199). We conclude that the
State has satisfied its burden here.
¶83 Therefore, we affirm the court of appeals and remand
to the circuit court for proceedings consistent with this
opinion.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2017AP1894-CR.rgb
¶84 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion in full, except to the extent paragraphs 41-42
suggest that courts may consult social science research to
interpret the Constitution. See Missouri v. Jenkins, 515 U.S.
70, 114, 119-20 (1995) (Thomas, J., concurring) (criticizing the
majority for relying on "questionable social science research
rather than constitutional principle" and noting that
assumptions and social science research "cannot form the basis
upon which we decide matters of constitutional principle").
Historically, when courts contaminate constitutional analysis
with then-prevailing notions of what is "good" for society, the
rights of the people otherwise guaranteed by the text of the
Constitution may be trampled. Departures from constitutional
text have oppressed people under all manner of pernicious
pretexts:
[T]he notion of "social harm" supporting the
police power was completely untethered from
constitutional text and ripe for misuse in the hands
of a Justice such as Holmes, who believed that the
Constitution could be reduced to ad hoc balancing.
Eugenics was built upon the notion of harm; indeed, it
thrived on a sense of imminent doom: that society was
degenerating because of what were called its
"weaklings" and "discards." The idea that society was
being swamped by incompetents was a common trope for
eugenicists: the unfit were a "menace." . . . Like the
great popular eugenicists of the day, Holmes wrote in
Buck that eugenics would prevent society from being
"swamped" by incompetents, that fewer criminals would
be executed, and that fewer imbeciles would starve.
Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a
Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added;
footnotes omitted).
1
No. 2017AP1894-CR.rgb
¶85 In rebuking his colleagues for upholding segregation,
Justice John Marshall Harlan rightly relied solely upon the
Constitution:
But in view of the constitution, in the eye of the
law, there is in this country no superior, dominant,
ruling class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his
surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are
involved.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,
dissenting).
¶86 Deplorable decisions such as Plessy v. Ferguson and
Buck v. Bell1 were rooted in evil concepts supported by social
science and elitist mores antithetical to the Constitution.
Ascertaining and faithfully applying the original meaning of the
Constitution's words precludes appalling social science-based
notions of the day from infecting constitutional analysis. Only
the Constitution can serve as a reliable bulwark of the rights
and liberty of the people. In order to emphasize that social
science has no role to play in constitutional analysis, I
respectfully concur.
¶87 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
1 274 U.S. 200 (1927).
2
No. 2017AP1894-CR.bh
¶88 BRIAN HAGEDORN, J. (concurring). I join the
majority opinion, but write separately to make three points.
¶89 First, while the dissent bemoans the policy outcome of
today's decision, the practical effect need not be the full-
throttled return of the showup evidence Dubose frowned upon.
State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.
The majority is correct that courts should not allow social
science to define new categories of constitutional protection
divorced from the text of our constitution. That said, the
latest social science research is a normal and welcome part of
fact-finding, and can play a proper role in applying the facts
to the law in these types of cases.
¶90 Going forward, I see nothing improper with circuit
courts allowing vigorous cross-examination of showup evidence,
or admitting expert testimony regarding the very social science
research presented in this case. Law enforcement can continue
to follow the same rules, and the legislature could choose to
enact related policies into law. Nothing in the court's opinion
today quibbles with best practices, police policies, and
adversarial lawyering designed to ensure defendants have a fair
shake.
¶91 It may be that the policy decision announced in Dubose
is a good one. But that's not the legal question before us.
The question here is whether our constitution requires the
exclusion of this and similar types of evidence.
1
No. 2017AP1894-CR.bh
¶92 Second, one of the great civics failures of our time
is the prevalence of the notion that everything that's bad is
unconstitutional. Not so. Policy and law are and must be
different if the judicial task is to mean anything. And the
governing law when facing a constitutional question is not
established by a public policy assessment or a social science
research paper; it is established by the written constitution
itself.
¶93 This case involves the constitutional right to due
process of law. Wis. Const. art. I, § 8. Historically, "due
process" meant having a basic process grounded in the pillars of
notice and an opportunity to be heard. Thus, as a general
matter, the original public meaning of "due process" was a
guaranteed process, and did not encompass a broad swath of
substantive rights. Modern attempts to constitutionalize every
lamentable aspect of our criminal justice system by creating new
substantive due process rights should be treated with immense
skepticism. Courts and litigants are far too eager to address
the latest social cause célèbre by turning the constitution's
weathered parchment into a weapon of policy warfare.
¶94 As Justice Clarence Thomas has noted, the whole line
of cases on eyewitness identification evidence "is premised on a
'substantive due process' right to 'fundamental fairness.'"
Perry v. New Hampshire, 565 U.S. 228, 249 (2012) (Thomas, J.,
concurring). I agree with Justice Thomas that due process "is
not a 'secret repository of substantive guarantees against
"unfairness."'" Id. (quoted source omitted). When "fundamental
2
No. 2017AP1894-CR.bh
fairness" becomes synonymous with "unconstitutional,"
opportunities for judicial policy-making, and therefore judicial
mischief, are plentiful.1 Dubose is just one example. Instead
of letting the crucible of cross-examination be the refining
fire it has always been——and due process requires little more——
Dubose short-circuited the process and designed a new
substantive right in the court's own image. Dubose was an
effort to constitutionalize the policy choices of the court's
majority without any real effort to ground those choices in the
original public meaning of the constitutional text.
Faithfulness to the law requires overturning Dubose.
¶95 Finally, it is with some irony that the dissent
criticizes us for overruling Dubose. Fidelity to the principles
of stare decisis, we are told, ensures "cases are grounded in
the law, not in the will of individual members of the court."
Dissent, ¶97. But as the majority notes, Dubose itself burned a
decades-long line of precedent to the ground. We should surely
be mindful and deferential toward precedent, but predictability
1 Justice Hugo Black recognized this very threat in his
dissent in Stovall v. Denno, 388 U.S. 293 (1967), the decision
that gave rise to this entire line of due process jurisprudence.
There, Justice Black described the Supreme Court's "concept of
due process" as its own judgment of whether the totality of the
circumstances of a particular case comport with its own
conceptions of decency, fairness, and fundamental justice.
Id. at 305 (Black, J., dissenting). The problem with this
"constitutional formula," as Justice Black rightly explained, is
that it substitutes the reviewing court's "judgment of what is
right for what the Constitution declares shall be the supreme
law of the land." Id. Put differently, the court becomes "not
a Constitution-interpreter, but a day-to-day Constitution-
maker." Id.3
No. 2017AP1894-CR.bh
and stability are not served by clinging to the creative,
atextual judicial inventions of yesteryear. It is Dubose that
departed from precedent. It is Dubose that was the product of
"the will of individual members of the court." Dubose was an
outlier and a reflection of judicial policy-making, not faithful
constitutional interpretation. Today, the court rights the
ship.
4
No. 2017AP1894-CR.rfd
¶96 REBECCA FRANK DALLET, J. (dissenting). In Dubose,
this court declared Wisconsin's approach to admission of showup
evidence1 upon a finding of reliability unsound and in violation
of Article I, Section 8 of the Wisconsin Constitution.2 State v.
Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Today,
the majority departs from the doctrine of stare decisis and
overrules Dubose, despite extensive research establishing the
prevalence and danger of mistaken eyewitness identification.
Ultimately the majority erodes the due process protection
afforded by the Wisconsin Constitution and places jurors in the
impossible position of separating the taint of a suggestive
single photo identification from its reliability. For these
reasons, I dissent.
A. The doctrine of stare decisis ensures cases are grounded in
the law, not in the will of individual members of the court.
¶97 The doctrine of stare decisis ensures the integrity of
the judicial system by developing consistency in legal
principles and establishing that cases are grounded in the law,
1A showup is "an out-of-court pretrial identification
procedure in which a suspect is presented singly to a witness
for identification purposes." State v. Wolverton, 193
Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995).
2Article I, Section 8 of the Wisconsin Constitution reads:
"[n]o person may be held to answer for a criminal offense
without due process of law, and no person for the same offense
may be put twice in jeopardy of punishment, nor may be compelled
in any criminal case to be a witness against himself or
herself."
1
No. 2017AP1894-CR.rfd
not in the will of individual members of the court. See Johnson
Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶95,
264 Wis. 2d 60, 665 N.W.2d 257. "When existing law 'is open to
revision in every case, deciding cases becomes a mere exercise
of judicial will, with arbitrary and unpredictable results.'"
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (quoted source omitted). The outcome of a case
should not turn on whether the current members of the court find
one legal argument more persuasive but, rather, on "'whether
today's [majority] has come forward with the type of
extraordinary showing that this court has historically demanded
before overruling one of its precedents.'" State v. Lynch, 2016
WI 66, ¶101, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson, J.,
concurring in part; dissenting in part) (quoting Payne v.
Tennessee, 501 U.S. 808, 848 (1991) (Marshall, J., dissenting)).
¶98 The type of extraordinary showing this court relies
upon to overturn precedent includes circumstances where:
(1) Changes or developments in the law have undermined
the rationale behind a decision; (2) there is a need
to make a decision correspond to newly ascertained
facts; (3) there is a showing that the precedent has
become detrimental to coherence and consistency in the
law; (4) the prior decision is "unsound in principle";
or (5) the prior decision is "unworkable in practice."
Bartholomew v. Wisconsin Patients Comp. Fund, 2006 WI 91, ¶33,
293 Wis. 2d 38, 717 N.W.2d 216 (quoted source omitted). The
majority hangs its hat on the fourth circumstance and declares
that Dubose is now "unsound in principle." Majority op., ¶¶3,
2
No. 2017AP1894-CR.rfd
81.3 To the contrary, I will show that Dubose remains sound in
principle and that it is only the composition of this court that
has changed.4
B. This court has afforded greater protection of citizens'
liberties under the Wisconsin Constitution.
¶99 The majority claims that Dubose is unsound because it
"misapplied" Article I, Section 8 of the Wisconsin Constitution
in providing greater due process protection in the showup
procedure than is mandated by the United States Supreme Court.
Majority op., ¶51.5 Yet, this court has historically refused to
The majority opinion favorably cites to the arguments made
3
in the dissenting opinions in State v. Dubose, 2005 WI 126, 285
Wis. 2d 143, 699 N.W.2d 582, signaling that a change in the
composition of the court is the real reason Dubose has become
unsound. See, e.g., majority op., ¶¶55, 57: "As Justice Jon P.
Wilcox explained"; "As Justice David T. Prosser cautioned."
Justice Hagedorn's concurrence incorrectly claims that
4
"Dubose itself burned a decades-long line of precedent to the
ground." Justice Hagedorn's concurrence, ¶95. Instead, Dubose
simply withdrew language from Wolverton, 193 Wis. 2d 234; State
v. Streich, 87 Wis. 2d 209, 274 N.W.2d 635 (1979); and State v.
Kaelin, 196 Wis. 2d 1, 538 N.W.2d 538 (Ct. App. 1995), that
"might be interpreted as being based on the Wisconsin
Constitution." Dubose, 285 Wis. 2d 143, ¶33 n.9. Moreover,
post-Dubose, we have confirmed the "limited reach of [Dubose's]
actual holding" and recognized that it did not "create a
precedential sea change . . . ." State v. Luedtke, 2015 WI 42,
¶¶49-50, 362 Wis. 2d 1, 863 N.W.2d 592.
The majority also claims that Dubose is unsound because it
5
"misunderstood United States Supreme Court decisions" by
adopting standards "similar" to those in Stovall v. Denno, 388
U.S. 293 (1967). Majority op., ¶¶51-52. In Stovall, the United
States Supreme Court upheld what it recognized as the "widely
condemned" practice of show-ups because it was "imperative" that
the police immediately conduct a showup for a dying eyewitness.
Stovall, 388 U.S. at 302. This court's conclusion in Dubose
that a showup is impermissibly suggestive absent necessity was
(continued)
3
No. 2017AP1894-CR.rfd
be bound by the minimum protections set by the Supreme Court.
"This court has demonstrated that it will not be bound by the
minimums which are imposed by the Supreme Court . . . [if] the
Constitution of Wisconsin and the laws of this state require
that greater protection of citizens' liberties ought to be
afforded." State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210(1977). Two significant examples described by the Doe court
include: (1) granting the right to counsel at the state's
expense one hundred years prior to the United States Supreme
Court's pronouncement of this right in Gideon v. Wainwright, 372
U.S. 335 (1963); and (2) excluding evidence recovered through
unlawful searches and seizures forty years before Mapp v. Ohio,
367 U.S. 643 (1961). See Carpenter v. Dane County, 9 Wis. 274(1859); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); see
also State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998)
(holding that Article I, Section 7 of the Wisconsin Constitution
guarantees a right to a 12-person jury in all criminal cases
notwithstanding that the right to a 12-person jury in
misdemeanor cases is not guaranteed by the United States
Constitution).
¶100 This court has particularly described the rights
defined in Article I, Section 8 as "so sacred, and the pressure
so great towards their relaxation in case[s] where suspicion of
guilt is strong and evidence obscure, that it is the duty of the
courts to liberally construe the prohibition [against self-
appropriately guided by the "imperativeness" justification
relied upon in Stovall.
4
No. 2017AP1894-CR.rfd
incrimination] in favor of private rights." Thornton v. State,
117 Wis. 338, 341, 93 N.W. 1107 (1903). The Thornton court
reminds us that courts must be vigilant "to refuse to permit
those first and doubtful steps which may invade [Article I,
Section 8] in any respect." Id. Just as in Thornton where we
construed Article I, Section 8 to afford greater protection of a
defendant's right against self-incrimination, in Dubose we
applied the same constitutional provision to afford greater
protection of a defendant's right to due process.
¶101 The majority opinion claims that because the wording
of Article I, Section 8 of the Wisconsin Constitution is nearly
identical to the Due Process Clause of the United States
Constitution, the Wisconsin Constitution does not provide any
additional protection. Majority op., ¶¶55-56. In Knapp, this
court warned against this "lock-step" theory of interpreting the
Wisconsin Constitution no broader than its federal counterpart:
[w]hile textual similarity or identity is important
when determining when to depart from federal
constitutional jurisprudence, it cannot be conclusive,
lest this court forfeit its power to interpret its own
constitution to the federal judiciary. The people of
this state shaped our constitution, and it is our
solemn responsibility to interpret it.
State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d 86, 700 N.W.2d
899; see also State v. Ward, 2000 WI 3, ¶59, 231 Wis. 2d 723,
604 N.W.2d 517 ("[I]t would be a sad irony for this court
to . . . act as mere rubber stamps ourselves when interpreting
our Wisconsin Constitution."). In now limiting a protection
previously afforded under Article I, Section 8, the majority
5
No. 2017AP1894-CR.rfd
ignores the warning from Knapp and shirks this court's solemn
responsibility to interpret the Wisconsin Constitution.
C. Extensive social science research establishing the
prevalence and danger of mistaken eyewitness identification is a
proper consideration to support a shift in constitutional law.
¶102 The majority insinuates that the extensive social
science research relied upon in Dubose is irrelevant and
unreliable. The majority ignores the body of United States
Supreme Court precedent that considered social science research
in cases premised on constitutional interpretation and
application. Social science research has formed the basis for
the United States Supreme Court to overturn notable decisions
including: criminalization of consensual same sex intimate
conduct in Lawrence v. Texas, 539 U.S. 558 (2003), and
imposition of the death penalty on the mentally ill and
juveniles in Atkins v. Virginia, 536 U.S. 304 (2002), and Roper
v. Simmons, 543 U.S. 551 (2005).
¶103 Additionally, the majority discounts the seminal case
of Brown v. Board of Educ., 347 U.S. 483 (1954), where the
United States Supreme Court held that "separate but equal"
education of children of color, as the doctrine was mandated by
Plessy v. Ferguson, 163 U.S. 537 (1896), violated the
Constitution based upon comprehensive studies demonstrating the
fallacy of that concept in practice. In Dubose, this court
"follow[ed] the lead of Brown" and determined that current
social science research demanded a "much-needed change to our
jurisprudence" in the area of eyewitness identification.
Dubose, 285 Wis. 2d 143, ¶44.
6
No. 2017AP1894-CR.rfd
¶104 There is no support for the notion that the social
science research relied upon in Dubose has become unreliable.
There is no dispute that social science research establishes the
prevalence and danger of mistaken eyewitness identification
where inherently suggestive identification procedures like a
showup are used. The lone study cited by the majority
recognizes the danger of suggestive identification procedures
and only reports an increase in the accuracy of identification
when procedures include safeguards, like those imposed in the
wake of Dubose. See majority op., ¶39 (citing John Wixted &
Gary Wells, The Relationship Between Eyewitness Confidence and
Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in
the Pub. Int. 10, 2017.6
¶105 Mistaken eyewitness identification is still the
leading cause of wrongful convictions in the United States.
According to the Innocence Project, sixty-nine percent of DNA
exoneration cases in the United States involved convictions
based on eyewitness misidentifications. See https: //www.
innocenceproject.org/dna-exonerations-in-the-united states; see
also Michael D. Cicchini, Joseph G. Easton, Reforming the Law on
Show-Up Identifications, 100 J. Crim. L. & Criminology 381, 390
(2010) ("[o]ne study revealed that 'when the identification was
6 The study evaluated the level of confidence in lineups
done under "pristine conditions," which included the use of
multiple fillers, double-blind testing, cautionary statements to
eyewitnesses and a confidence statement made at the time of the
lineup. John Wixted & Gary Wells, The Relationship Between
Eyewitness Confidence and Identification Accuracy: A New
Synthesis, 18 Psychol. Sci. in the Pub. Int. 12-17, 2017.
7
No. 2017AP1894-CR.rfd
conducted twenty-four hours afterwards, fourteen percent of
those who viewed a lineup made a mistaken identification,
whereas fifty-three percent of those who viewed a show-up made a
mistaken identification.'") The risk of mistaken eyewitness
identification is even greater when the identification involves
a suspect of a different race. See, e.g., Cunningham v. Peters,
941 F.2d 535, 541 (7th Cir. 1991) (Easterbrook, J. dissenting)
("All eyewitness testimony is problematic, given the frailties of
human memory. Identification by members of other races is
especially so.") (citing Sheri Lynn Johnson, Cross-Racial
Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934(1984)). As was the case when Dubose was decided, current
social science research establishes the frequency and danger of
mistaken eyewitness identification and is therefore "impossible
for us to ignore." Dubose, 285 Wis. 2d 143, ¶29.
D. Dubose had a crucial impact in deterring the use of
suggestive identification procedures and excluding
inherently unreliable showup evidence.
¶106 The majority claims that overruling Dubose will have
"minimal impact." Majority op., ¶65. The majority overlooks
Dubose's influence on the implementation of statewide policies,
exaggerates "negative treatment" of Dubose, and ignores the fact
that many states have provided more due process protection for
showup procedures post-Dubose. Most significantly, the majority
fails to recognize the inherent unreliability of suggestive
identification procedures like showups.
¶107 Dubose led to the implementation of statewide policies
to reduce the frequency of mistaken eyewitness identifications
8
No. 2017AP1894-CR.rfd
above and beyond the showup. Five months after Dubose was
decided, the legislature enacted Wis. Stat. § 175.50, requiring
law enforcement agencies to adopt model policies to minimize the
possibility of mistaken eyewitness identifications. In
formulating these policies, law enforcement agencies are to
consider practices that "[t]o the extent feasible, show[]
individuals or representations sequentially rather than
simultaneously to an eyewitness" and "[m]inimiz[e] factors that
influence an eyewitness to identify a suspect." §§ 175.50(5)(b)
& (c). Accordingly, in 2010, the Wisconsin Department of
Justice published its Model Policy and Procedures for Eyewitness
Identifications recommending that law enforcement officials
"conduct double-blind, sequential photo arrays and lineups with
non-suspect fillers chosen to minimize suggestiveness, nonbiased
instructions to eyewitnesses, and assessments of confidence
immediately after identifications." Wis. Dep't of Justice,
Model Policy and Procedure for Eyewitness Identification at 1
(Apr. 1, 2010). In adopting these policies, the Department of
Justice recognized that suggestive law enforcement procedures
could increase the likelihood of mistaken eyewitness
identification, as this court emphasized in Dubose.
¶108 The majority claims that overruling Dubose will have
little impact because it has "not created a substantial body of
settled law" and because it "has been treated negatively by
several subsequent Wisconsin appellate opinions." Majority op.,
¶61. While it is true that subsequent decisions from this court
have not extended Dubose's safeguards beyond that of a showup, a
9
No. 2017AP1894-CR.rfd
decision not to extend Dubose is not equivalent to negative
treatment. Just four years ago in Luedtke, we reaffirmed that
"due process under the Wisconsin Constitution provides greater
protection in one identification procedure, the showup." State
v. Luedtke, 2015 WI 42, ¶50, 362 Wis. 2d 1, 863 N.W.2d 592.
Moreover, there is no published Wisconsin appellate decision
that treats Dubose negatively.
¶109 The majority attempts to paint Dubose as an anomaly
and criticizes it for "explicitly rel[ying] on case law from
Massachusetts and New York." Majority op., ¶58. Yet, the
majority fails to discuss the increase in nationwide recognition
of the danger of suggestive identification procedures post-
Dubose. Seven states have significantly diverged from the
federal doctrine, and in doing so have acknowledged the risk of
suggestive identification procedures.7 See J.P. Christian Milde,
7The majority disputes the extent to which earlier case law
from two of these states has been overruled: State v.
Ledbetter, 881 A.2d 290 (Conn. 2005) and State v. Herrera, 902
A.2d 177, 181 (N.J. 2006). See majority op., ¶61 n.8.
Ledbetter was explicitly overruled by the Supreme Court of
Connecticut in State v. Harris, 191 A.3d 119 (Conn. 2018). The
Harris court concluded "we agree with the defendant that the
Biggers framework is insufficiently protective of the
defendant's due process rights under the state constitution. We
therefore overrule our conclusion to the contrary in Ledbetter."
Harris, 191 A.3d at 143 (emphasis added). Similarly, the New
Jersey Supreme Court in State v. Henderson, 27 A.3d 872 (N.J.
2011), abandoned its previous application of the
Brathwaite/Biggers reliability factors, in cases like Herrera,
and provided more protection pursuant to the New Jersey
constitution. See Henderson, 27 A.3d at 892 ("As we noted in
Herrera, '[u]ntil we are convinced that a different approach is
required after a proper record has been made in the trial court,
we continue to follow the [Braithwaite] approach.' . . . That
record is now before us.") In overruling Ledbetter and Herrera,
(continued)
10
No. 2017AP1894-CR.rfd
Bare Necessity: Simplifying the Standard for Admitting Showup
Identifications, 60 B.C. L. Rev. 1771, 1789-1806 (2019).
Additionally, five states have adhered to the federal standard
but have developed additions, modifications, or semantic
distinctions providing additional protections. Id. at 1806-12.
¶110 Most importantly, the majority and concurring opinions
overlook the inherent unreliability of identification evidence
from showups and other suggestive procedures. The burden will
now be placed on jurors to separate the taint of a suggestive
identification procedure from the reliability of the
identification. As this court in Dubose recognized, this is an
impossible task: "[b]ecause a witness can be influenced by the
suggestive procedure itself, a court cannot know exactly how
reliable the identification would have been without the
suggestiveness." Dubose, 285 Wis. 2d 143, ¶31. The
suggestibility of an identification procedure can affect what a
witness remembers and their confidence in that memory, rendering
a subsequent reliability determination by a juror meaningless.
See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and
Criminal 69 (4th ed. 2007) ("[h]uman recollection can be
supplemented, partly restructured, and even completely altered
by postevent inputs."); see also Benjamin E. Rosenberg,
Rethinking the Right to Due Process in Connection With Pretrial
Identification Procedures: An Analysis and a Proposal, 79 Ky.
these states have followed Dubose's lead in providing more
protection to defendants, as opposed to the standard that the
majority reverts to today.
11
No. 2017AP1894-CR.rfd
L.J. 259, 291 (1991) ("[A]n unnecessarily suggestive
identification procedure simply creates unreliable evidence
where reliable evidence could have been gathered.")
¶111 The adversarial process does not protect against the
admission into evidence of mistaken eyewitness identification.
"When an unconscious and innocent mistake causes the
misidentification, cross-examination becomes a less useful tool
because it only causes the witness to reassert confidence."
Susan M. Campers, Time to Blow Up the Showup: Who Are Witnesses
Really Identifying?, 48 Suffolk U. L. Rev. 845, 848–49 (2015).
Further, "this exaggerated witness confidence produces a
tendency in jurors to 'almost unquestionably accept eyewitness
testimony." Id. at 849 (quoted source omitted). The majority
and concurring opinions condone the return to inherently
unreliable and suggestive identification procedures like the
showup, and thus increase the risk of wrongful convictions
caused by mistaken eyewitness identification.
E. A defendant's right to due process is implicated when
a single photo eyewitness identification procedure is not
purely confirmatory.
¶112 Since I conclude that the foundation of Dubose is
sound, I turn to the question presented in this case: under
what conditions, if any, does a single photo identification
procedure implicate a defendant's right to due process under
Article I, Section 8? We have defined a showup as: "'an out-
of-court pretrial identification procedure in which a suspect is
presented singly to a witness for identification purposes.'"
12
No. 2017AP1894-CR.rfd
Dubose, 285 Wis. 2d 143, ¶1 n.1 (quoting State v. Wolverton, 193
Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995)). While not a one-
on-one confrontation, a single photo identification procedure
involving an unknown suspect presents the same risk of mistaken
identification as a showup.8 The Dubose court determined that a
subsequent single photo identification procedure, showing the
victim a mug shot of Dubose, "was also unnecessarily suggestive
and that out-of-court identification should have been
suppressed." Dubose, 285 Wis. 2d 143, ¶37. Whether an unknown
suspect is presented singly to a witness in person or in a
photograph, there is no material difference: law enforcement
only suggests one suspect to the witness for identification.
Therefore, the constitutional scrutiny this court applied in
Dubose should also apply to a single photo identification that
is not purely confirmatory.9
¶113 A purely confirmatory single photo identification does
not carry with it the same risk of mistaken eyewitness
identification as that of an unknown suspect, and therefore is
not inherently suggestive. See State v. Greene, 201 A.3d 43, 52
(2019) ("[A] mere 'confirmatory identification' does not
generate the myriad risks of misidentification that frequently
8Without any analysis, the majority declares "[w]e conclude
that the State action that caused a showup to be subject to
constitutional scrutiny in Dubose may be equally applicable to
the use of a single Facebook photo for an out-of-court
identification." Majority op., ¶48 (emphasis added).
9Dubose did not address the use of a showup procedure for a
suspect that was known to the eyewitness.
13
No. 2017AP1894-CR.rfd
attend a selective identification made under suggestive
circumstances.") A purely confirmatory identification is used
by law enforcement when a witness knows or is acquainted with a
suspect but cannot identify that person by name. See, e.g.,
National Research Council of the National Academies, Identifying
the Culprit: Assessing Eyewitness Identification 22, 28 (2014)
("Police typically limit [displaying a single photograph] to
situations in which the perpetrator is previously known to or
acquainted with the witness."); Sides v. Senkowski, 281
F.Supp.2d 649, 654 (W.D.N.Y. 2003) (describing an identification
as merely confirmatory when the "parties knew each other
previously"). Due to the relationship or familiarity between
the people involved, a purely confirmatory identification
procedure minimizes the risk that law enforcement's suggestion
of a single suspect would lead to a mistaken eyewitness
identification.
¶114 Accordingly, I would remand the case for an
evidentiary hearing to determine whether C.A.S.'s identification
of Roberson was purely confirmatory. If the identification was
not purely confirmatory, it was suggestive and the State must
prove the necessity of the procedure, just as in Dubose.
¶115 For the foregoing reasons, I respectfully dissent.
¶116 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
14
No. 2017AP1894-CR.rfd
1