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Attenuation of Taint — In-Court Identification, Witness’s Independent Recollection

State v. David J. Roberson, 2006 WI 80, affirming 2005 WI App 195

For Roberson: Richard D. Martin, SPD, Madison Appellate


¶34      An in-court identification is admissible, therefore, if the court determines that the identification is based on an independent source. … In other words, the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect. Walker, 154 Wis.  2d at 188.

¶36      The in-court identifications by Wagner and Terrell were based on their independent recollections of their observations of and encounters with Roberson outside the liquor store prior to the drug transaction, as well as during the drug transaction, and were not related to the identification of Roberson outside of his home.  This determination finds ample support in the record. Both Wagner and Terrell’s in-court identifications followed their testimony regarding their observations of Roberson in full daylight outside the liquor store and during the drug buy. Their in-court identifications were made prior to any testimony about the out-of-court identifications. These in-court identifications occurred less than three months after the officers’ observations of and interaction with Roberson.


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