State v. Brian Hibl, 2006 WI 52, reversing 2005 WI App 228
For Hibl: Joel H. Rosenthal
Issue: Whether an identification resulting from an “accidental” encounter between witness and defendant in a courthouse hallway immediately before trial is suppressible, in the absence of any evidence that this incident involved a law enforcement procedure directed at obtaining an identification.
¶31 For the reasons stated below, we determine that Dubose does not directly control cases involving evidence derived from “accidental” confrontations resulting in “spontaneous” identifications. However, we further determine that in light of developments since the time of Marshall, including those recognized in Dubose,Marshall does not necessarily resolve all such cases. Although most such identifications will be for the jury to assess, the circuit court still has a limited gate-keeping function. It may exclude such evidence under § 904.03 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. …¶39 Courts have traditionally employed several factors to assess reliability, based on common sense notions of human perception and memory. Those factors are the ones recited in Wolverton that the circuit court applied here: the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.
¶40 More recently, other phenomena that may affect the reliability of eyewitness identifications have been widely proffered or recognized. These phenomena may not be within the common knowledge of many jurors or judges. They include the “relative judgment” process;  the stressfulness of the event for the eyewitness;  whether the event involved “weapon focus”;  the cross-racial nature of an identification;  and whether an eyewitness is given positive feedback during or immediately following the identification. 
¶41 Many of the phenomena said to affect the reliability of eyewitness identification are the subject of ongoing debate.  One thing not subject to debate is that evenunintentional suggestiveness can become a key factor in identification errors. See State of Wisconsin, Office of the Attorney General, Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005 ) at p. 2 (emphasis added). What is important for our examination here is that many of these phenomena do not depend on the presence of a law enforcement procedure. To the extent that identification evidence is extremely unreliable based on such phenomena, independent of any law enforcement procedure,Marshall‘s holding may need to be modified.
¶47 Based on the record before us, however, we are not prepared to declare that the admission of the identification evidence in this case would violate Hibl’s right to due process. The circumstances of Stuller’s identification of Hibl in the courthouse hallway are not sufficiently suggestive. Thus, we need not and do not modify Marshall at this time. …
¶50 Despite the right to a trial by jury, the law permits and sometimes requires that a trial court keep evidence from the jury. …
¶54 In exercising its gate-keeping function, the court should consider whether cross-examination or a jury instruction will fairly protect the defendant from the unreliability of the identification. The court may take a number of other factors into consideration, including those we have articulated in ¶¶38-40, if appropriate, but litigants and trial courts should not be bound to an inflexible list of factors. We urge circuit courts, with assistance from the litigants before them, to take into consideration the evolving body of law on eyewitness identification. Any tests for reliability and suggestiveness in the eyewitness identification context should accommodate this still-evolving jurisprudence, along with the developing scientific research that forms some of its underpinnings.
 See State v. Shomberg, 2006 WI 9, ¶28, ¶49 (Abrahamson, C.J., dissenting), ___ Wis. 2d ___, 709 N.W.2d 370; State of Wisconsin, Office of the Attorney General,Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005) at p. 2 (footnotes omitted). The “relative judgment” process refers to “the tendency when viewing a simultaneous presentation (viewing an entire photo array or lineup at once) for eyewitnesses to identify the person who looks the most like the real perpetrator relative to the other people.” Model Policy and Procedure, at 2.  See United States v. Sebetich, 776 F.2d 412, 419 (3d Cir. 1985); see also Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).
 Shomberg, 2006 WI 9, ¶70 (Butler, J., dissenting).
 See State v. McMorris, 213 Wis. 2d 156, 170 n.9, 570 N.W.2d 384 (1997).
 Shomberg, 2006 WI 9, ¶71 (Butler, J., dissenting).
 There is also debate over the traditional factors from Biggers. At least one of those factors, eyewitness certainty in the identification, has come under serious attack. The Wisconsin Innocence Project, amicus in this case, provided a copy of an amicus brief recently submitted to the United States Supreme Court in Ledbetter v. Connecticut, No. 05-9500, on behalf of numerous university professors who hold themselves out as experts in the field. They assert that the certainty factor has no scientific basis. In support of this assertion, they engage in an extensive review of research suggesting that the relationship between eyewitness certainty and eyewitness accuracy is generally weak and easily subject to corruption. The State maintains, however, that research shows certainty remains a reliable predictor of accuracy.
The immediate holding can be efficiently stated as: where there’s no state involvement in a show-up identification, then the State v. Dubose, 2005 WI 126, ¶16, 285 Wis. 2d 143, 699 N.W.2d 582 necessity-of-procedure test simply isn’t triggered; the trial court does retain a limited gatekeeper function to screen the identification from the jury, with a heavy bias (¶31) toward letting the jury resolve the issue of ID reliability. Why, then, such a lengthy summary? Largely to reproduce the “phenomena that may affect the reliability of eyewitness identifications” listed by the court. These factors are probably not static—the court is clearly open to considering new developments in the field, which the practitioner therefore will have to track assiduously—but for the near term these will have to do.Although the trial court retains authority to exclude the identification under § 904.03, it’s not clear how Hibl could attain such a result. The court says that exclusion is appropriate if the evidence is so unreliable that the resulting danger of prejudice and confusion substantially outweighs probative value, ¶48. And yet, in the immediately preceding paragraphs (¶¶46-47) the court baldly declares that Hibl’s identification was not “highly unreliable.” Maybe you can have evidence that is not highly unreliable but still be so unreliable as to warrant exclusion. Maybe. But it would seem that this is a jury instruction case in all but name (this appeal is pre-trial, so instructions aren’t at issue) and in that sense the various factors listed by the court might assist in crafting a special instruction. Indeed, even in a DuBose case much thought will have to be given to the instruction on identification. Couple of recent examples: State v. Ledbetter, 275 Conn. 534; 881 A.2d 290 (2005) (court invokes supervisory authority to “direct the trial courts of this state to incorporate an instruction in the charge to the jury, warning the jury of the risk of misidentification, in those cases where: (1) the state has offered eyewitness identification evidence; (2) that evidence resulted from an identification procedure; and (3) the administrator of that procedure failed to instruct the witness that the perpetrator may or may not be present in the procedure.” (Text of instruction in linked opinion file.); Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) (“In light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification, and the critical importance of accurate jury instructions as ‘the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict,’ we can no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification”).