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Due Process – Right to Present Defense – Expert Testimony, Identification Procedure

State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman


 ¶27     In St. George, this court held that the circuit court’s exclusion of testimony of a defense expert about the victim’s recantation, and about interview techniques particular to child sexual assault cases, unconstitutionally deprived the defendant of his right to present a defense. St. George, 252 Wis. 2d 499, ¶73. In St. George, this court applied a two-part inquiry ….¶28      Applying the facts of this case to the first part of the inquiry, we conclude that even though the first, second and fourth factors are arguably met (making no assessment as to the qualification of the individual to testify as an expert), Shomberg failed to establish that the expert eyewitness testimony was necessary to his case. Although the expert himself did not testify, Shomberg’s counsel was able to convey adequately the concepts of relative judgment and recognition memory, as well as the factors present in this case that would tend to render the eyewitness’ testimony unreliable in his cross-examinations of both S.B. and Ferguson.

¶32      The facts of St. George are distinguishable from this case in three critical respects. First, St. George involved the recantation of an alleged victim of child sexual assault. Recantation is a subject clearly beyond the common knowledge or understanding of a jury or other fact finder. …

¶33      In contrast, Shomberg’s expert was to testify on eyewitness identifications. The difficulties with eyewitness identification are something we all have some appreciation for as part of our common knowledge and understanding. In addition, in this case, the State of Wisconsin presented no expert testimony supporting the accuracy of the eyewitness identifications. Therefore, unlike the defendant in St. George, there was no expert testimony to rebut, and no inference of guilt due to the absence of rebuttal.

But … the holding is much more limited than that, as the court itself explicitly indicates, ¶17:

Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory. However, the issue before us is not what we would have done, or what a court might do today. The issue is whether, at the time of the decision, the bases upon which the circuit court decided to exclude Shomberg’s expert testimony constituted an erroneous exercise of discretion. …

And, critically, this was a bench trial. Had a the trial court precluded a jury from hearing such evidence a different result might well have obtained on appeal. See also U.S. v. Brownlee, 3rd Cir No. 04-4134, 7/18/06 (“Given that ‘witnesses ofttimes profess considerable confidence in erroneous identifications,’ expert testimony was the only method of imparting the knowledge concerning confidenceaccuracy correlation to the jury.”)

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