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Due Process – Identifcation Procedure – Photo Array: Analysis Unchanged by Dubose Show-up Standard<

State v. Ryan W. Drew, 2007 WI App 213, PFR filed 9/27/07
For Drew: Steven Zaleski

Issue/Holding: Analysis of admissibility of photo array ID remains unchanged by the new standard for show-ups set by State v. Tyrone L. Dubose, 2005 WI 126:

¶2 We conclude that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due process. Because the court applied the correct standard and because Drew concedes the identification from the photo array was admissible under this standard, we conclude that admission of the out-of-court identification did not violate Drew’s right to due process. Because the inadmissibility of the out-of-court identification is the only ground on which Drew challenges the in-court identification, we conclude the in-court identification did not violate his right to due process. Accordingly, we affirm.…

¶13 The standard for the admissibility of identification based on photo arrays was articulated in Powell v. State, 86 Wis. 2d 51, 271 N.W.2d 610 (1978), and reaffirmed in State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200. The standard is the same as that for showups under Wolverton. First, the defendant has the burden to demonstrate the out-of-court photo identification was impermissibly suggestive; if the defendant meets this burden, the State has the burden to show that the identification is nonetheless reliable under the totality of the circumstances. Mosley, 102 Wis. 2d at 652 (citing Powell, 86 Wis. 2d at 64-66).

¶15 Drew argues that, in light of Dubose, the first step in the inquiry for photo arrays has changed and is now whether they are “unnecessarily suggestive,” rather than “impermissibly suggestive.” Drew asserts that the photo array procedure used in this case was “unnecessarily suggestive” because of the process-of-elimination method Bubb used and because of other ways in which the procedure did not conform to the OAG Model Policy. [3] He asserts that the photos themselves were unnecessarily suggestive because he was the only person in the array wearing “jail-issued clothing.” According to Drew, because of this unnecessary suggestiveness and because the State presented no evidence of reliability, the circuit court erred in admitting the photo identification.

¶17 We do not adopt the position Drew advances for the following reasons. First, while some of the Dubose court’s discussion of the unreliability of eyewitness identification would appear to apply to procedures other than showups, the only procedure for which the court expressly adopts a new test is for showups. 285 Wis. 2d 143, ¶33. Second, the new test adopted in Dubose—based as it is on the necessity of having a showup in the first place—provides no guidance for what “unnecessarily suggestive” might mean in the context of a photo array. Third, in discussing the necessity of a showup, the Dubose court expressly states that a “lineup or photo array is generally fairer than a show up…,” id., which raises the question whether that court sees a need to impose a stricter standard for those two types of identification procedures.

¶18 Fourth, the supreme court has recently characterized Dubose’s holding as being limited to showups[, i]n State v. Hibl, 2006 WI 52, ¶32, 290 Wis. 2d 595, 714 N.W.2d 194 ….

¶19 We recognize that the photo array here, unlike the spontaneous encounter in Hibl, is a law enforcement procedure and therefore that distinction between Hibl and Dubose does not apply here. Nonetheless, we read Hibl as emphasizing the limited nature of the actual holding in Dubose. …

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