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SCOW to decide whether an out-of-court identification using a single photo is a showup

State v. Stephan I. Roberson, 2017AP1894-CR, petition for review of per curiam opinion granted 2/12/19; case activity (including briefs)

Issue (from the petition for review):

Whether a pretrial out-of-court identification using a single photo is a showup and thus inadmissible at trial unless the State proves necessity under the totality of the circumstances?

In State v. Dubose, 2005 WI 126, ¶30, 285 Wis. 2d 143, 688 N.W.2d 582 SCOW cited research which strongly suggests “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.” It held that evidence obtained from an out-of-court showup is inherently suggestive and inadmissible unless, based on the totality of the circumstances, the procedure was necessary. So Roberson wants to extend that rule to the “single photo” situation, which makes sense. Here’s the wrinkle. Dubose, now 14 years oldrests on the idea that Wisconsin’s constitution provides greater protection than the United States Constitution (a.k.a “New Federalism.”) Is it curtains for Dubose? We shall soon find out.


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