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Due Process – Identifcation Procedure – In-Court ID as Untainted by Impermissible Showup

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger


¶29      Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source.” Dubose, 285 Wis. 2d 143, ¶38 (citation omitted).¶30      The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether “the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Roberson, 292 Wis. 2d 280, ¶34 (quoting State v. Walker, 154 Wis. 2d 158, 186, 453 N.W.2d 127 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))). To be admissible, “the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect.” Roberson, 292 Wis. 2d 280, ¶34 (citations omitted). The party seeking admission of the in-court identification carries the burden of demonstrating by clear and convincing evidence that the in-court identification was not tainted by the inadmissible out-of-court identification. See id., ¶35 (citation omitted).

The court proceeds to conclude that fact-finding is required, necessitating remand:

¶38      While Gerhardt’s testimony raises questions about whether his in-court identification actually rests on his recollection of his initial encounter with the assailant, we cannot decide this issue on the record before us. The critical question not fully answered in the record is whether, during the robbery, Gerhardt got a good enough look at the assailant to identify the person as Nawrocki. We therefore remand for the circuit court to hold an evidentiary hearing for the purpose of determining whether the in-court identification was based on an independent source untainted by the impermissible showup identification. When making its determination, the circuit court should take into account the following seven factors adopted from United States v. Wade, 388 U.S. 218, 241 (1967):

(1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused’s actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed concerning the conduct of the lineup.

State v. McMorris, 213 Wis. 2d 156, 168, 570 N.W.2d 384 (1997) (citing Wade, 388 U.S. at 241).


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