State v. Tyrone L. Dubose, 2005 WI 126
For Dubose: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether the test for admissibility of a pretrial showup should be changed. (“A ‘showup’ is an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.” ¶1, n. 1, quoting State v. Wolverton, 193 Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995).)
¶2 We agree with Dubose that the circuit court erred in denying his motion to suppress the out-of-court identification evidence. However, we decline to adopt his proposed per se exclusionary rule regarding such evidence. Instead, we adopt standards for the admissibility of out-of-court identification evidence similar to those set forth in the United States Supreme Court’s decision in Stovall v. Denno, 388 U.S. 293 (1967). We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. Since the motion to suppress the out-of-court identifications of Dubose should have been granted here, because such identifications were unnecessarily suggestive, we reverse the decision of the court of appeals and remand the case to the circuit court for further proceedings consistent with the standards adopted herein….
¶33 With Stovall as our guide, we now adopt a different test in Wisconsin regarding the admissibility of showup identifications.  We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array. A lineup or photo array is generally fairer than a showup, because it distributes the probability of identification among the number of persons arrayed, thus reducing the risk of a misidentification. See Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. of Personality & Soc. Psych. 525, 527 (1993). In a showup, however, the only option for the witness is to decide whether to identify the suspect.  See id.
¶34 We emphasize that our approach, which is based to some extent on the recommendations of the Wisconsin Innocence Project, is not a per se exclusionary rule like Dubose requests. Showups have been a useful instrument in investigating and prosecuting criminal cases, and there will continue to be circumstances in which such a procedure is necessary and appropriate. 
¶35 If and when the police determine that a showup is necessary, special care must be taken to minimize potential suggestiveness. …
¶38 On remand, we recognize that the 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. And properly conducted pretrial viewings can still be proven at trial and, would be encouraged by the rule prohibiting use of suggestive ones.” People v. Adams, 423 N.E.2d 379, 384 (N.Y. 1981). … The court may uphold any in-court identification if the circuit court determines that it “had an origin independent of the lineup or was ‘sufficiently distinguishable to be purged of the primary taint.'” State v. McMorris, 213 Wis. 2d 156, 175, 570 N.W.2d 384 (1997) (quoting Wade, 388 U.S. at 241). In other words, if the circuit court determines that any in-court identification of Dubose was not tainted by out-of-court identifications, then the conviction should stand. “[T]he in-court identification is admissible if the State carries the burden of showing ‘by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the [out-of-court] identification.'” McMorris, 213 Wis. 2d at 167 (quoting Wade, 388 U.S. at 240.
 “‘There is a great potential for misidentification when a witness identifies a stranger based solely upon a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement.'” State v. Cromedy, 727 A.2d 457, 463 (N.J. 1999) (citation omitted).
 An example of this would be when the police apprehend a suspect during a Terrystop. If that person is suspected of committing a crime, but the police do not have the requisite probable cause to arrest and then to conduct a lineup or photo array, a showup could be considered necessary.
To the extent the decision reasserts the self-evident idea that a showup is inherently suggestive, its reformation of identification law is probably just incremental – see, e.g., U.S. v. Newman, 144 F.3d 531, 535 (7th Cir. 1998) (“We have noted many times that a show-up identification, in which witnesses confront only one suspect, is inherently suggestive and should be employed only if compelled by extraordinary circumstances”); Rodriguez v. Young, 906 F.2d 1153, 1162 n. 6 (7th Cir. 1990) (“Showups, however, will almost always lead to undue suggestion”); Brisco v. Phillips, 2005 U.S. Dist. LEXIS 14181 (E.D. N.Y. 7/16/05) (quoting LaFave, to effect that a showup is “the most grossly suggestive identification procedure now or ever used by the police”). However, the change is much more profound than that. Indeed, the decision is as noteworthy for what remains unresolved as for what it does say. Here are some of the more obvious points that will require clarifying litigation:
- Fourth amendment concepts. By holding that probable cause to arrest renders a showup “unnecessary” the court has seemingly imported into due process reliability analysis 4th A principles that ultimately exclude perfectly reliable evidence. (This point is made, somewhat discordantly, by one of the very authorities cited by Dubose, People v. Adams (rule suppressing showups and their derivative evidence “different in purpose and effect from” suppression rule relating to illegal searches and seizures). Maybe this makes sense, maybe it doesn’t, but it’s going to create a host of analytical problems, beginning with the idea that there isn’t a clearly marked border between reasonable suspicion and probable cause. See, e.g., U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (“the line between a lawful Terry stop and an unlawful arrest is not bright”). Should, then, the courts give benefit of doubt to the police in close cases? Maybe, but that’s hard to square with the court’s skepticism about eyewitness IDs (¶¶29-31). And that skepticism creates a real conundrum, one that, to be frank, the majority simply ignored but was adduced by the dissent with brutal efficiency: “the majority opinion provides those suspects for whom law enforcement has less evidence of guilt with less constitutional protection when that person comes to trial,” ¶87. Or, to put the matter this way: a showup doesn’t become any more accurate simply because it’s necessary; rather, a showup may be necessary despite its inherent problems. Systemic costs of unreliable evidence (conviction of the innocent; letting the guilty go unpunished; loss of public confidence, etc., etc.) very strongly suggest that all doubt be resolved against necessity, otherwise you’re just encouraging the use of unreliable evidence. And what this means is perhaps a sort of hydraulic pressure on lower courts to find that maybe the police had reasonable suspicion but they didn’t have PC, so the procedure was “necessary.” And what if the suspect “consents” to the showup (even if the police had ample PC but did not, within the meaning of State v. Swanson, place the suspect in custody tantamount to arrest)?
- Burden of proof. Who has the burden of proving what, and by what standard? You won’t find the answers in the opinion. Necessity is inextricably bound up in search & seizure law, which is to say, whether the police had PC to arrest (if so, the showup was unnecessary; if not, then presumably necessary). The State has the burden of proving PC for a (warrantless) arrest. It makes no sense to require the defendant to prove PC to arrest when that’s paradigmatically a matter of State’s proof. Besides, just on a practical level it’s not fair; the State’s going to have access to records such as police logs that the defendant may not. In other words, the entanglement of 4th A (PC to arrest) with due process (reliability of ID) law has significant procedural implications. The burden ought to be on the State to prove the showup necessary. Yet, it’s not quite that simple, because the typical 4th A stances will be inverted: the defendant will seek to show that the police did have PC, the State that they didn’t. And, what happens when the defendant also raises an illegal-arrest argument? (Of course, identification evidence may be suppressible if derived from an illegal seizure, e.g., State v. Walker, 154 Wis.2d 158, 185-88, 453 N.W.2d 127 (1990).) Both sides will have to argue in the alternative: the defendant that the showup was unnecessary because there was PC for arrest, but maybe there wasn’t PC and the ID should be suppressed as fruit of an illegal arrest. None of this is, to use a word, necessrily bad. The net effect may be to halt the steady erosion of the test for probable cause. It’s just the practitioner will have to be sensitive to the potential for role-reversing sort of argumentation.
- Other ID procedure.
- In-court ID. Why is an in-court ID any less inadmissible (because suggestive) than a showup? For one thing, an in-court ID is a showup, for that matter is even more of a set-piece. The accusatory machinery of the State, not the mere investigatory efforts of a handful of its agents, is now formally arrayed against the lone individual sitting in the defendant’s chair. How is that meaningfully distinguishable from a pretrial “procedure in which a suspect is presented singly to a witness for identification purposes”? And just how is such an undeniably suggestive procedure necessary, at least as defined byDubose? By the time it gets to trial, the case has long since passed through PC filters finer than that needed for arrest. The logic of Dubose inexorably rules out in-court IDs. Ought to, anyway, though the court plainly doesn’t seem to think so. (See below, re: reservation of admissibility of in-court ID notwithstanding unnecessarily suggestive showup.)
- Line-ups and photo arrays. These are, the court says, “generally fairer than a showup,” ¶33, and it seems pretty obvious that the decision is meant to deter the use of showups so as to encourage use of lineups and arrays. And yet, it’s not as if the court seems quite sold on these alternative, putatively “fairer” procedures, either. To the contrary, the court appears skepical of any eyewitness ID. Thus, the court laments “that eyewitness testimony is often ‘hopelessly unreliable,” ¶30, such that “it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and indetifications that were unreliable,” ¶31. Not quite a ringing endorsement. And so, the court’s generalized skepticism could reflect an inclination toward much more exacting scrutiny of fairness in lineup / array procedures. The court may well accept intimations of suggestiveness that would have been summarily dismissed before. In short, the court’s tolerance for any suggestion of suggestiveness appears to have undergone a sea-change.
- Nor should any of this agonizing over mistaken IDs (cross-racial or not) be limited, of course, to suppression issues. Whether expert testimony and jury instructions are affected by Dubose will simply have to be played out. See, e.g, 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 follows, 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”).
- Taint analysis. What happens when you prove unnecessary suggestiveness (or, perhaps, the State fails to prove necessity), so that the showup is suppressed? The court says that in-court ID is nonetheless permissible, if “based on an independent source,” that is, if the State proves that the ID is based on observations “other than” the showup, ¶38, citing State v. McMorris. The court thus confidently implies that a reliable, admissible ID may well follow the taint of a showup. This part of the holding is a bit terse but the only reasonable reading is that the court is uncritically adopting McMorris and its 7-factor test for attenuating the taint of a Wadeviolation (denial of counsel at a post-charge lineup), ¶26. This approach could prove seriouslyflawed: “independent source” analysis is suitable for 4th amendment taint analysis, asMcMorris expressly recognizes, and makes sense when the goal is to deter police practices that, though improper, lead to reliable evidence, while the goal in this context is to suppressunreliable ID evidence. These are not necessarily compatible goals, and do not necessarily lead to compatible analyses. Does the mere fact that a lawyer isn’t at a lineup make the procedure unreliable? Of course not; the lineup is still reliable, it’s just that we want to discourage the practice of excluding counsel from the procedure. The 7 McMorris attenuation-factors, then, are more or less aimed at determining whether the witness could have ID’ed the person anyway, given that the lineup wasn’t suggestive or otherwise unreliable. But these factors have little if anything to do with a suggestive and therefore presumptively unreliable ID. (The whole idea, if you take the opinion literally, as you must, is that a showup creates grave risk ofirreparable misidentification; in the rare instance where some exigency is present, then that risk is presumably overridden.) The importation of 4th amendment law into this context may prove ill-advised. Still, the meta-message is that the court is now very receptive to arguments based on deterrence of illicit police practices.
- Relevant research. Dubose relies heavily on scientific research on eyewitness identifications, see, e.g. ¶35. Defense lawyers now have a responsibility to be fully aware of that research, and the various model guidelines on eyewitness identification promulgated by such organizations as the Wisconsin Department of Justice, the Avery Task Force, and the National Institute of Justice. Counsel should be arguing that, any time police deviate significantly from those guidelines, and where the deviation cannot be justified by some “necessity,” the identification procedure was unnecessarily suggestive and hence inadmissible.
But: see State v. Forest S. Shomberg, 2006 WI 9 ¶17 (expert testimony re: frailties of ID probably admissible by today’s, Dubose-type standards, but exclusion upheld under 2002 standards).