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Opinion & Expert Testimony – Eyewitness Identification – Sequential vs. Simultaneous Lineup

State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision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

Issue/Holding: Trial court’s refusal to admit expert testimony on factors influencing witness’s ability to identify a stranger during a lineup procedure, in particular the distorting effect of a simultaneous as opposed to sequential procedure, was not an erroneous exercise of discretion:

¶15     In 2002, at the time of the circuit court’s decision to exclude testimony from Shomberg’s expert, New Jersey was the only state to mandate sequential rather than simultaneous lineup procedures. In the intervening years, much has been learned about the processes and limitations of memory. There has been a wealth of information that has come to the public that has increased awareness of some of the inherent difficulties with eyewitness identification. …

¶16     In State v. Dubose, this court recognized that “[t]he research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined.” State v. Dubose, 2005 WI 126, ¶30, ___ Wis. 2d ___, 699 N.W.2d 582. …

¶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. The court clearly felt that the limitations of eyewitness identification, as articulated by counsel for Shomberg, were known and understood by the court. [6] Neither counsel’s written motion nor oral advocacy at the motion hearing was sufficient to satisfy the court that Shomberg’s eyewitness expert would assist the trier of fact “to determine a fact in issue,” especially since the arguments were known and understood by the court. [7] Wis. Stat. § 907.02. We conclude that the “‘court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of the record,'” and therefore it was not an erroneous exercise of discretion for the circuit court to deny Shomberg’s motion to admit expert eyewitness testimony. Martindale, 246 Wis. 2d 67, ¶29 (citations omitted). [8]

Elided from quoted passage above: reference to legislative and prosecutorial efforts to assure reliable identifications. For pre-2003 cases, such as the hapless Shomberg’s, there’s a different standard, as the court frankly suggests, ¶17 (“…today … it is highly likely that the judge would have allowed the expert to testify”). You’d think that subsequent developments casting doubt on the very foundation of the ruling would be a ground for reversal, not affirmance. And that is just one of the more curious features of this result. Unreliable by today’s standards but not by yesterday’s is good enough; would not have assisted the trier of fact in 2002 but would do so today is an adequate basis to keep evidence out; it’s almost as if the court is applying a retroactivity analysis—something which makes no sense for a case on direct appeal with a preserved issue. Perhaps the court has one eye on stemming collateral attacks based on Dubose-type arguments. You might also think that, if a changed perception of reliability doesn’t penetrate the shield thrown up by deferential review, interest-of-justice review is sufficiently malleable to accommodate a different result. Isn’t that the purpose, really, of authority to reverse in the interest of justice? You’d be wrong there, too: the court goes on to hold that through cross-examination and closing argument the issue was fully tried notwithstanding inadmissibility of the expert, ¶38. The court also, and relatedly, holds that any error would be harmless, ¶¶18-25. But that in turn raises this question: if any error would be harmless, and if the entire way we look at identification testimony is different now, why not just dismiss this case as improvidently granted? What precedential value is there in saying that the trial court ruling was good enough for 2002 but would come out differently today? Not much. Or perhaps it is just that, at least if you’re looking for a positive spin: the result would be different today. Thus, the not-so-subtle message to trial courts is that they should be inclined to admit expert testimony on identification procedure. (See ¶¶42-43: court declines to adopt presumption of admissibility of expert eyewitness testimony, but   “encourage(s) circuit court judges to carefully consider” whether such testimony would be helpful.) Then again, perhaps this also brings us back to the idea that “older” convictions aren’t going to be reopened just because of new-fangled science.

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