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§ 904.01, relevance – Failure to Identify Defendant as Bearing on Suggestiveness of Lineup

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry


¶43. Wright argues that Lomack’s testimony was relevant on the issue of whether the police lineup was suggestive. In assessing relevance, the trial court must determine whether the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Wis. Stat. § 904.01. Here, Lomack’s testimony was proffered for the purpose of describing the lineup and stating his belief that he had mistakenly identified Wright in the lineup. However, our examination of the Lomack offer of proof reveals nothing that impugns the integrity of either the lineup procedure or the in-court identifications by the State’s eyewitnesses. In summary, without more, Lomack’s inability to identify Wright at a preliminary hearing some eight months after he identified Wright at a lineup does not render the identifications of the other eyewitnesses suspect. We agree with the trial court that Lomack’s testimony on the dismissed robbery charge as to the lineup procedure and his mistaken identification did not tend to make Wright’s involvement in the other robberies, at which Lomack was not present, more or less probable.

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