Under Wisconsin law, once a defendant shows that an out-of-court identification procedure is impermissibly suggestive, the State has the burden of demonstrating that the identification was still reliable and should be admitted into evidence. Powell v. State, 86 Wis. 2d 51, 66 271 N.W.2d 610 (1978). In this case, the court of appeal held that the circuit court improperly shifted the burden of proof to the State, and so reversed.
At the suppression hearing, the trial court repeatedly invited both parties to put on evidence. Nash said he would stipulate to the facts alleged in his suppression motion but offered nothing else. The State elected to call a detective to testify, but upon losing claimed that the circuit court had shifted the burden of proof to it.
The court of appeals held that Nash never met his initial burden of proving the lineup was impermissibly suggestive. But even if he had, the circuit court still failed to assess the lineup’s reliability. It did not consider the witness’s opportunity to view the accused at the time of the crime, his degree of attention, the accuracy of his prior description of the accused, his level of certainty at the confrontation, and the length of time between the crime and the confrontation. Opinion, ¶¶27-28 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
The court of appeals also highlighted the circuit court’s incorrect statements that Nash had a right to counsel during the lineup, that police should have used a photo array instead of a lineup, and that allegedly there was no way to test the reliability of the lineup without a video of it. Opinion, ¶¶ 23, 25, 29.