State v. Roberson

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Justia Opinion Summary

The Supreme Court affirmed the decision of the court of appeals reversing the judgment of the circuit court suppressing the victim's identification of Defendant, holding that State v. Dubose, 699 N.W.2d 582 (Wis. 2005), was unsound in principle and is thus overturned and that the State satisfied its burden that the identification was reliable.

The identification in this case began with law enforcement showing a single Facebook photo to the victim. Defendant argued on appeal that his suppression motion was correctly granted on the ground that the police utilized an unnecessarily suggestive procedure in violation of his due process rights as explained in Dubose. The Supreme Court overturned Dubose and held (1) due process does not require the suppression of evidence with sufficient indicia of reliability; (2) if a criminal defendant meets the initial burden of demonstrating that a showup was impermissibly suggestive, the State must prove under the totality of the circumstances that the identification was reliable even though the confrontation procedure was suggestive; and (3) under the totality of the circumstances of this case, the State satisfied its burden.

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2019 WI 102 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP1894-CR State of Wisconsin, Plaintiff-Appellant, v. Stephan I. Roberson, Defendant-Respondent-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 384 Wis. 2d 632,922 N.W.2d 317 (2018 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: December 3, 2019 October 6, 2019 Circuit Wood Nicholas J. Brazeau Jr. R.G. BRADLEY, J. concurs (except for ¶¶41-42), joined by KELLY, J. (opinion filed) HAGEDORN, J. concurs. (opinion filed) DALLET, J. dissents, joined by A.W. BRADLEY, J. (opinion filed) ATTORNEYS: For the defendant-respondent-petitioner, there were briefs filed by Suzanne Edwards and the Law Office of Suzanne Edwards, Dodgeville. There was an oral argument by Suzanne Edwards. For the plaintiff-appellant, there was a brief filed by Donald V. Latorraca, assistant attorney generals, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Donald V. Latorraca. An amicus curiae brief was filed on behalf of The Innocence Project, Inc., and the Wisconsin Innocence Project by Keith A. Findley and Wisconsin Innocence Project; with whom on the brief is Sarah K. Grossnickle and Whitney Wester, Houston, Texas, and Alyssa Musante, Los Angeles, California. 2 2019 WI 102 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP1894-CR (L.C. No. 2017CF76) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Appellant, FILED v. DEC 3, 2019 Stephan I. Roberson, Sheila Reiff Clerk of Supreme Court Defendant-Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 PATIENCE unpublished decision DRAKE of ROGGENSACK, the court of C.J. Affirmed. We appeals1 review an reversing the circuit court's2 suppression of the victim's identification of Stephan I. Roberson because the identification began with law enforcement showing a single Facebook photo to the victim. State v. Roberson, No. 2017AP1894-CR, unpublished slip op. (Wis. Ct. App. Oct. 4, 2018) (per curiam). 1 The Honorable Nicholas J. Brazeau, Jr. of presided. 2 Wood County No. ¶2 Roberson argues that the circuit 2017AP1894-CR court correctly granted his motion to suppress the identification evidence on the ground that the police utilized an unnecessarily suggestive procedure, which violated his due process rights under Article I, Section 8 of the Wisconsin Constitution as explained in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. ¶3 The State urges us to overturn Dubose, and return to our past practice of following decisions of the United States Supreme Court in regard to criteria that are necessary to accord due process in eyewitness identifications. State. Dubose was unsound in principle. Dubose and return determining the to "reliability admissibility of We agree with the Therefore, we overturn [a]s the identification linchpin in testimony." Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Neil v. Biggers, 409 U.S. 188, 199 (1972). the suppression reliability." ¶4 burden of evidence Due process does not require with sufficient "indicia of Perry v. New Hampshire, 565 U.S. 228, 232 (2012). Accordingly, "a criminal defendant bears the initial of demonstrating suggestive." that a showup was impermissibly State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995) (citing State v. Mosley, 102 Wis. 2d 636, 652 307 N.W.2d 200 (1981) and Powell v. State, 86 Wis. 2d 51, 65, 271 N.W.2d 610 (1978)). If a defendant meets this burden, the State must prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at 106 and citing Biggers, 409 2 No. U.S. at 199). 2017AP1894-CR We conclude that the State has satisfied its burden here. ¶5 to Therefore, we affirm the court of appeals and remand the circuit court for proceedings consistent with this opinion. I. ¶6 BACKGROUND The State charged Roberson with first-degree reckless injury, contrary to Wis. Stat. § 940.23(1)(a) (2017–18).3 The charge stemmed from an incident where Roberson, allegedly, shot C.A.S. over a drug deal that went wrong. ¶7 C.A.S., a Caucasian male, claims to have met an African American male at a Walmart toward the end of January in 2017. At that time, C.A.S. knew him only as "P." P tapped C.A.S. on the shoulder and asked C.A.S. if he "smoked." After C.A.S. responded "yeah," P asked C.A.S. to obtain a "bag" of marijuana for him. C.A.S. indicated he could. get then marijuana numbers. and drove back to The two drove to Walmart and exchanged This first encounter lasted approximately a half an hour. ¶8 The following day, C.A.S. was supposed to bring P more marijuana. For whatever reason, C.A.S. was unable to secure any, and C.A.S. contacted P explaining his failure. ¶9 The next day, C.A.S. texted P to tell him he could get marijuana. The two arranged for P to pick up C.A.S. after P All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 3 3 No. finished work. 2017AP1894-CR Sometime after 7:00 p.m., P picked up C.A.S. and C.A.S.'s brother and sister, and the four drove to secure the marijuana. came The group then drove back to C.A.S.'s residence. inside the house, marijuana for him. where he asked C.A.S. agreed. C.A.S. to sell P the This second encounter lasted approximately a half an hour. ¶10 P instructed C.A.S. to sell the marijuana "eighths," meaning an eighth of an ounce at a time. in However, C.A.S. had a potential buyer, who was interested in a half an ounce, worth approximately $180. an ounce, and the potential C.A.S. went to sell the half buyer robbed C.A.S. texted P, explaining what happened. him at gunpoint. A few minutes later, P picked up C.A.S., who had been walking on the road. ¶11 The escalated. head. two drove to a dog park where the situation P took out a gun and fired a shot past C.A.S.'s C.A.S. punched P in the face, and then P pointed his gun at C.A.S. and shot him in his leg. shoot you?" P yelled, "Why'd you make me P then asked C.A.S. if he was going to tell anyone. C.A.S. said no and asked P to drive him home. P drove C.A.S. to the residence of D.D., a friend of C.A.S. When C.A.S. got there, he used two belts to create a makeshift tourniquet. He then "got high." This third encounter lasted between an hour and two a half and hours. C.A.S. did not contact law enforcement because he was subject to an outstanding warrant. ¶12 C.A.S. spent between two and a half to three hours with P over a short period of time. 4 The evidence does not No. 2017AP1894-CR indicate that at any point during the encounters C.A.S.'s mental state was impaired by drugs or alcohol. ¶13 Investigator Nathan Reblin learned that C.A.S. been injured and was cared for at D.D.'s residence. trying to locate C.A.S. had He began A confidential citizen witness gave Reblin a cell phone that P had given to C.A.S., apparently so the two could communicate. phone's Facebook app. C.A.S. was logged into the cell The cell phone had text messages between C.A.S. and a person identified in the messages as "P." Reblin noted the phone number of the contact and searched for it on Facebook. The search yielded one result: a profile for Roberson. ¶14 Law enforcement obtained a warrant to search D.D.'s residence. They found what they believed to be blood on some boxer shorts. They also found a chair in the basement and a quilt that both appeared to have blood stains. They did not find C.A.S. ¶15 hold. Later, C.A.S. was taken into custody on a probation However, before he was taken to the Wood County jail, he was taken to a hospital for what appeared to be an old gunshot wound to his leg. ¶16 partner About two weeks after the shooting, Reblin and his interviewed videotaped, and the C.A.S. at circuit the court jail. The admitted interview a DVD of was the interview into evidence. ¶17 C.A.S. told Reblin and his partner what transpired. Reblin asked C.A.S. if he would be able to identify P from a 5 No. photograph. 2017AP1894-CR He responded, "Possibly, I mean, I don't know, black people kinda" and made a shaking movement with his right hand that indicated uncertainty. Reblin's partner brought up a photograph of Roberson from Facebook on his phone, which he showed to C.A.S. who immediately began nodding his head up and down. After the non-verbal indication that the photograph was P, Reblin asked, "That's him?" then asked, "100%?" ¶18 of-court C.A.S. responded, "yup." Reblin C.A.S. replied, "100% yeah." Subsequently, Roberson moved to suppress C.A.S.'s outidentification on the ground that the investigators used a single photograph as opposed to a photograph array. At the suppression hearing, C.A.S. testified that P looked similar on all three occasions. He had either "dreadlocks" or "cornrows" and had on a sweatshirt with work pants. ¶19 The circuit court generally noted the same historical facts as are set out above. In particular, the circuit court said: [C.A.S.] is clearly unsure of the characteristics of African Americans. He states the same. Objectively, it is hard to convince ones self that [C.A.S.] wouldn't have identified any picture of an African American male as "P" if Reblin indicated that it was a picture of "P." The process is shaky, and the victim making the identification is likewise shaky, so the [c]ourt lacks confidence that the identification of "P" by [C.A.S.] is not a result of showing the single photo to him. As such, [C.A.S.]'s identification of the defendant's photo and his later identification in court, tainted by his exposure to that photo, are suppressed. ¶20 Although C.A.S. made a comment and a gesture indicating that he was unsure about identifying African American 6 No. people, the circuit court noted that, misidentification occurred are unclear." "The 2017AP1894-CR chances that a The circuit court also said, "This [c]ourt believes [C.A.S.] has a sufficient basis to identify 'P' from those meetings." ¶21 Nevertheless, the circuit court granted Roberson's motion to suppress and also held that C.A.S. could not identify Roberson in court because the initial identification tainted any subsequent identification. ¶22 The State filed an interlocutory appeal, arguing the circuit court improperly suppressed the out-of-court identification and that even if the out-of-court identification was improper, the circuit court erroneously used that as a basis for excluding a subsequent in-court identification. The court of Roberson, appeals reversed the circuit court. State v. No. 2017AP1894-CR, unpublished slip op. (Wis. Ct. App. Oct. 4, 2018) (per curiam). photograph is not The court of appeals reasoned that a single a showup and Dubose must be left to this court. ¶23 We granted Roberson's that any decision to extend Id., ¶¶10–17. petition for review and now affirm the court of appeals, albeit on different grounds. II. A. ¶24 DISCUSSION Identification Due Process We are asked to return to our pre-Dubose standards for pretrial identifications. Accordingly, a review of our pre- Dubose identification decisions may be helpful to the reader before we begin to discuss Dubose. 7 No. ¶25 Generally, the admissibility of 2017AP1894-CR evidence in court trials is governed by the rules of evidence. Wis. Stat. § 904.03. state See, e.g., Once admitted, the jury determines which evidence is credible and what weight to ascribe to it. State v. Hibl, 2006 WI 52, ¶31, 290 Wis. 2d 595, 714 N.W.2d 194; see also State v. Johnson, 2004 WI 94, ¶20, 273 Wis. 2d 626, 681 N.W.2d 901 (instructing that it is for the jury to assess the credibility of witnesses). ¶26 However, due process also may restrict admission of eyewitness testimony: "identification [evidence] infected by improper police influence" may be excluded when "there is 'a very substantial likelihood of irreparable misidentification'" unless, "the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances." ¶27 Under Perry, 565 U.S. at 232. its due process analysis, the United States Supreme Court places the burden first on the defendant to show that the method law enforcement chose to employ to identify a suspect as the identification perpetrator procedure," was such "an unnecessarily that there substantial likelihood of misidentification.4 suggestive was a very Id. at 232 n.1, We note that this first step is not controversial. Justice Sonia Sotomayor, in dissent with her colleagues in Perry, explained, "the defendant has the burden of showing that the eyewitness identification was derived through 'impermissibly suggestive' means." Perry v. New Hampshire, 565 U.S. 228, 25354 (2012) (Sotomayor, J., dissenting) (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). 4 (continued) 8 No. 235. his 2017AP1894-CR Only after a court concludes that the defendant has met or her burden in this regard will pretrial screening for reliability; the court extend a otherwise, reliability of admissible evidence is for the jury to determine in the first instance.5 ¶28 police Id. at 232 & n.1. Perry's discussion of "unnecessarily" is focused on conduct that is claimed to have "manufactured" a challenged identification procedure when identification may have been obtained by a less suggestive means. explains that enforcement both "due officers suggestive and process use an concerns arise identification unnecessary." Brathwaite, 432 U.S. at 107, 109). Id. at 235. Id. only when procedure at Perry 238-39 that law is (citing Under the federal standard, as Justice Sonia Sotomayor explained in her dissent, "[m]ost identifications will be admissible." (Sotomayor, J., dissenting). Perry, 565 U.S. at 254 That is so because reliability is the decisive issue under the federal due process standard. ¶29 Due identification process evidence. focuses on Accordingly, ensuring when reliable unnecessarily Unnecessarily suggestive and impermissibly suggestive seem to be used interchangeably by the United States Supreme Court at times. See Perry, 565 U.S. at 254 n.3 (Sotomayor, J., dissenting); Neil v. Biggers, 409 U.S. 188, 197-98 (1972). Dubose placed the burden on the State of proving the necessity of the procedure chosen. Therefore, under Dubose, if the State cannot prove the chosen procedure was necessary, the entire analysis stops, and the court never considers whether the evidence is reliable. It is simply excluded. State v. Dubose, 2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582. 5 9 No. 2017AP1894-CR suggestive state action occurs, the State bears the burden to provide a factual foundation that supports the reliability of the evidence. is Necessity can become a factor when identification challenged; however, if a suggestive law enforcement procedure was necessary, the state action that resulted in an identification will not implicate due process concerns. 242 (majority opinion). eyewitness evidence Id. at As Perry explained, "The fallibility of does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness." ¶30 Id. at 245. Even before Perry, we followed a similar two-step due process analysis. Wolverton, 193 Wis. 2d at 264. Perry assists in sharpening that analysis today. ¶31 In Wolverton, the defendant moved to suppress pretrial identification that resulted from two showups. 243. his Id. at The showups occurred when Wolverton was sitting alone in the back seat of a squad car. motion to suppress requirements evidence. of his due Id. at 264. Id. at 249. identification, process in regard Upon Wolverton's we reviewed the to identification We explained that a "pretrial police procedure that is 'so impermissibly suggestive as to give rise to a very substantial likelihood misidentification'" violates due process. of irreparable Id. (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). ¶32 We impermissibly concluded that suggestive." showups Wolverton, 10 were "not per se 193 Wis. 2d at 264 No. 2017AP1894-CR (citing State v. Streich, 87 Wis. 2d 209, 214, 274 N.W.2d 635 (1979) and State v. Isham, 70 Wis. 2d 718, 725, 235 N.W.2d 506 (1975)). burden We said that "a criminal defendant bears the initial of demonstrating suggestive." that a showup was impermissibly Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102 Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant meets this burden, then the State must prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at 106). ¶33 the Wolverton cites the Sixth and Fourteenth Amendments of United States Constitution counsel and due process. when addressing the right to Wolverton, 193 Wis. 2d at 251 n.6, 7. We did not specify the source of the due process right that protects a defendant from unreliable identifications. However, the cases upon which we relied in that regard are grounded in the Fourteenth Amendment. Brathwaite recognizing Fourteenth 432 U.S. that we Amendment, at E.g., Streich, 87 Wis. 2d at 214-15; 99. could we Furthermore, go beyond specifically the in Mosley, guarantees declined to while of the do so. Mosley, 102 Wis. 2d at 667-68 (explaining that "we decline the defendant's invitation to go beyond the federal constitutional holding and reach a contrary result based on independent state constitutional grounds."). ¶34 Until our decision in Dubose, we continued to use this two-step process when evaluating motions to suppress pretrial 11 No. identifications. First, the defendant must meet 2017AP1894-CR an initial burden of showing that the identification procedure employed by law enforcement was impermissibly suggestive such that there was a very substantial likelihood of misidentification. Perry, 565 U.S. at 232; Wolverton, 193 Wis. 2d at 264. ¶35 Second, if the defendant meets that burden and the burden shifts to the State, the State must prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Brathwaite, 432 U.S. at 106 (quoting Biggers, 409 U.S. at 199). A nonexclusive list of reliability factors includes: (1) the opportunity of the witness to view the suspect at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the suspect, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Brathwaite, 432 U.S. at 114. ¶36 An additional factor that may be considered is the extent to which the procedure was documented, such as by video recording. Law: See Howard B. Eisenberg & Bruce G. Feustal, Criminal Pretrial Constitutional Identification: Criteria, 58 An Attempt Marq. L. Rev. to 659, Articulate 683 (1975) (recommending videotaping lineups). ¶37 and Dubose departed from the Brathwaite/Biggers analysis, instead, research. it fashioned a rule based on social science However, social science research cannot be used to 12 No. 2017AP1894-CR define the meaning of a constitutional provision. As Justice Antonin Scalia famously stated: The principal theoretical defect of nonoriginalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. . . . [T]he Constitution, though it has an effect superior to other laws, is in its nature the sort of "law" that is the business of the courts—— an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. If the Constitution were not that sort of a "law," but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature? One simply cannot say, regarding that sort of novel enactment, that "[i]t is emphatically the province and duty of the judicial department" to determine its content. Quite to the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989). ¶38 As Justice Scalia explained, the judiciary is not in a good position to judge social values or social science. When social science is disputed, the institutional parameters of the judiciary are amplified. It is the legislature that is structured to assess the merits of competing policies and everchanging social science assertions. ¶39 It is no surprise that, with mounds of research available, the State in the dispute now before us has identified social science that supports its position. E.g., John Wixted & Gary Wells, The Relationship Between Eyewitness Confidence and 13 No. Identification Accuracy: 2017AP1894-CR A New Synthesis, 18 Psychol. Sci. in the Pub. Int. 10 (2017). ¶40 Furthermore, categorical rules of exclusion, based on social science, are the antithesis of justice because "one of the major tenets in the administration of justice" is "the presentation of reliable, relevant evidence at trial." Dubose, 285 (citing Wis. 2d 143, ¶86 (Roggensack, J., dissenting) Brathwaite, 432 U.S. at 112). ¶41 science Historically, has been used disturbing decisions. there by have courts been as an times excuse when social to justify Indeed, entire law review articles and book chapters have been dedicated to analyzing how Plessy v. Ferguson and the line of cases that followed Plessy grounded their decisions in social science of the time. Hovenkamp, Social Duke L.J. 624. Science and Segregation Before E.g., Herbert Brown, As explained: [P]olicy-based adjudication was as prevalent in the race cases of the Gilded Age and the Progressive Era as in any area of law during the time. However, the policies were different from those espoused by liberal social scientists after the New Deal. According to the prevailing social science of the 1910's and 1920's, the social value created by a comprehensive, state-enforced plan of racial separation was far greater than any costs imposed on its victims. . . . [T]he law of race relations during this period was a product of the period's social science, just as the law of race relations developed by the Warren Court during the Brown era was a product of the social science of that period. Id. at 627. 14 1985 No. ¶42 2017AP1894-CR The United States Supreme Court cited social science in Brown, but it did so as a response to social science employed at the time of Plessy. 494 n.11 (1954). Brown v. Board of Educ., 347 U.S. 483, The research at the time of Brown showed: Segregation of white and colored children in public schools has a detrimental effect upon colored children. The impact is greater when it has the sanction of the law for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. Id. at 494. extent of Ferguson, The Court stated, "[w]hatever may have been the psychological this finding knowledge [of at negative amply supported by modern authority." ¶43 of the time. When law, they these of psychological Plessy v. impact] is Id. have beliefs a proved incorrect at a later date. Brown time Social science often embodies the subjective beliefs constitutional and the is a social beliefs people based on telling regarding race. long-lasting This enshrined impact even as if The contrast between Plessy example. the become Plessy embodied superiority and belief became then abhorrent inferiority law of through United States Supreme Court decision-making that was purporting to interpret the United States Constitution. It took more than half a century to correct course because it is difficult to overturn constitutional precedent. ¶44 Social science cannot change the original meaning of the Wisconsin Constitution, any more than it can change the meaning of the United States Constitution. Article I, Section 8 of the Wisconsin Constitution protects a defendant's right to 15 No. due process, just as the federal constitution's 2017AP1894-CR Fourteenth Amendment does. Due process requires that evidence infected by improper conduct police likelihood of from which misidentification there will be is a excluded substantial unless the State proves that under the totality of circumstances bearing on the identification, it is nonetheless reliable. Perry, 565 U.S. at all 232. Due excluded. process Id. does not require that showups be Rather, the question is whether the particular showup under consideration is reliable. Id. We note that the United States Supreme Court agrees, as the Court has explicitly held, reliability must be determined on a "case-by-case" basis. Id. at 239 (citing Biggers, 409 U.S. at 201). ¶45 Wisconsin court procedure used to evaluate identifications changed substantially under Dubose. showup As we are asked to overturn Dubose, we now turn our attention to that decision and the rationales that supported or opposed it. B. ¶46 We conclusion begin that by noting Dubose that suppressing in order out-of-court to reach its identifications obtained by law enforcement through an unnecessary procedure was required, Dubose overruled Wisconsin appellate precedent that had stood for at least 26 years. Dubose, 285 Wis. 2d 143, ¶33 n.9 withdrawing language from Wolverton, 193 Wis. 2d at 258, Streich, 87 Wis. 2d 209 and State v. Kaelin, 196 Wis. 2d 1, 538 N.W.2d 538 (Ct. App. 1995)). As we explain below, Dubose is unsound in principle as it was based on misunderstanding the 16 No. 2017AP1894-CR United States Supreme Court's decisions in regard to out-ofcourt identifications and on topical social science. ¶47 Dubose defined a showup as "an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes." Dubose, 285 Wis. 2d 143, ¶1 n.1 (quoting Wolverton, 193 Wis. 2d at 263 n.21). have no quarrel with that definition. Here, the We suspect, Roberson, was presented via a single photograph as opposed to being presented singly in person as the suspect was in Dubose. ¶48 to be We conclude that the State action that caused a showup subject to constitutional scrutiny in Dubose may be equally applicable to the use of a single Facebook photo for an out-of-court continued identification. validity of Therefore, Dubose, even though we the address the identification employed here was not a single person showup. ¶49 We are respectful of the doctrine of stare decisis. State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592. As we have previously explained: [Adhering to precedent] ensures that existing law will not be abandoned lightly. When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results. Consequently, this court has held that any departure from the doctrine of stare decisis demands special justification. Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (citations and quotations omitted). On the other hand, we acknowledge that "[w]e do more damage to the rule of law by obstinately refusing to admit 17 errors, thereby perpetuating No. 2017AP1894-CR injustice, than by overturning an erroneous decision." Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665 N.W.2d 257. ¶50 When we are requested to overturn precedent, we consider whether one or more of the following circumstances is present: (1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is "unsound in principle;" or (5) the prior decision is "unworkable in practice." Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216. We also may consider "whether [our past decision] has produced a settled body of law." Id., ¶34 (quoting Johnson Controls, 264 Wis. 2d 60, ¶99). ¶51 an A decision is unsound in principle when it relies on erroneous understanding of United States Supreme Court decisions or misapplies the Wisconsin Constitution because the misunderstanding and faulty application erroneous declarations of the law." "risk[] perpetuating See Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶83, 382 Wis. 2d 496, 914 N.W.2d 21 (quoting Operton v. LIRC, 2017 WI 46, 274 Wis. 2d 1, ¶73, 894 N.W.2d 426 (R. Bradley, J., concurring). Dubose misunderstood United States Supreme Court decisions and misapplied Article I, Section 8 of the Wisconsin Constitution when it concluded that evidence obtained from an out-of-court showup "will not be admissible 18 No. unless, based on the totality procedure was necessary." ¶52 of the 2017AP1894-CR circumstances, the Dubose, 285 Wis. 2d 143, ¶¶33, 45. That Dubose misunderstood United State Supreme Court's decisions is apparent from Dubose's discussion of Stovall v. Denno, 388 U.S. 293 (1967) where Dubose reasoned: [W]e adopt standards for the admissibility of out-ofcourt identification evidence similar to those set forth in the United States Supreme Court's decision in Stovall. 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. Dubose, 285 Wis. 2d 143, ¶45; (see also ¶33, for a similar statement). ¶53 Stovall arose upon the United States Supreme Court's consideration of whether to retroactively apply a Supreme Court holding which is that required tainted by "exclusion exhibiting of the identification accused to identifying witnesses before trial in the absence of his counsel." 388 U.S. at 294. evidence Stovall, Stovall never concluded that identification evidence must be excluded unless the showup "was necessary." Instead, it held, "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it." Id. at 302. factfinding the process remained Reliability of the dispositive criterion admissibility of in-person identifications in Stovall. for Id. at 298. ¶54 In addition, there was no need, and Dubose provided no logical rationale, for departing from our past reliance on the 19 No. United States Supreme Court's interpretation of 2017AP1894-CR due process requirements under the federal constitution when out-of-court identifications are challenged in Wisconsin courts.6 Simos v. State, 83 Wis. 2d 251, 258, 265 N.W.2d 278 (1978), which relied on United States Supreme Court precedent to conclude that under the totality of circumstances the identification was reliable, and Streich, 87 Wis. 2d at 214-15, which followed the United States Supreme Court's lead on due process with regard to avoiding misidentification in a showup, are but two examples. ¶55 As Justice Jon P. Wilcox explained: Today the majority alters course and abandons . . . [a] long line of well-established precedent, contending that the Due Process Clause of the Wisconsin Constitution now affords greater protections than its federal counterpart. . . . Given the nearly identical language in the two provisions and this court's historic practice of interpreting the two provisions in the same fashion, the majority simply has no support for its conclusion that the language in Article I, Section 8 "necessitates" a rejection of . . . [United States Supreme Court decisions]." Dubose, 285 Wis. 2d 143, ¶¶61–62 (Wilcox, J., dissenting). United States Supreme Court precedent relative to allegedly unfair pretrial identifications relies on the Fourteenth Amendment. Perry, 565 U.S. at 237 (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). 6 The Fourteenth Amendment provides in relevant part, "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. 20 No. ¶56 Certainly, protection to states citizens have the under federal constitution does. power their to 2017AP1894-CR afford constitutions greater than the Herb v. Pitcairn, 324 U.S. 117, 125 (1945) (explaining that federal courts will refuse to review a state court decision if the decision is based on an "adequate and independent state ground[]"). However, the question for a state court is whether its state constitution actually affords greater protection. A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning. ¶57 court As may Justice exercise David this T. Prosser power, the cautioned, court "While should pay attention to whether it should exercise this power." 285 Wis. 2d 143, ¶75 (Prosser, J., dissenting). the more Dubose, In particular, we must recognize that "[b]y sheer volume of cases, the [United States] Supreme Court has developed substantial interpreting constitutional provisions." ¶58 experience Id., ¶76. Furthermore, Dubose explicitly relied on case law from Massachusetts guarantees and under Constitution.7 Commonwealth New Article Id., v. York I, ¶¶38, Johnson, 650 when interpreting Section 42 8 (majority N.E.2d 1257, of due the process Wisconsin opinion) 1262, 1265 (citing (Mass. 1995) (which rejected the reliability test for admissibility and Article I, Section 8 provides in relevant part, "No person may be held to answer for a criminal offense without due process of law." Wis. Const. art. I, § 8. 7 21 No. 2017AP1894-CR required per se exclusion for showup identifications based on due process protections of the Massachusetts Constitution); State v. Adams, 423 N.E.2d 379, 383 (N.Y. 1981) (which relied on the New York identification Constitution evidence from to a conclude showup does that not excluding deprive the prosecutor of reliable evidence)). ¶59 There is no logical nexus between how Massachusetts and New York courts interpret their individual constitutions, which contain constitutional provisions not found in Wisconsin's Constitution, and how Constitution. And, of we equal should interpret importance, Wisconsin's Dubose provides no explanation on why the Wisconsin Constitution has a different due process guarantee than its federal counterpart. ¶60 based on However, Dubose crafted a rule of constitutional law, largely social by science defining a reports that constitutional it found provision persuasive. according to social science reports, Dubose created the capacity to prevent identifications of perpetrators of crimes when under the totality of circumstances surrounding the identifications, they were reliable. ¶61 Furthermore, Dubose has not created a substantial body of settled law.8 Rather, it created a specific rule that has not We are aware of states that mention Dubose, but none have decided to follow it. For example, State v. Washington, 189 A.3d 43, 55–57 (R.I. 2018); State v. Herrera, 902 A.2d 177, 181 (N.J. 2006), overruled on other grounds by State v. Henderson, 27 A.3d 872 (N.J. 2011); State v. Ledbetter, 881 A.2d 290 (Conn. 2005) overruled on other grounds by State v. Harris, 191 A.3d (continued) 8 22 No. 2017AP1894-CR been followed by appellate courts of other jurisdictions. finally, Dubose has been treated negatively by And several subsequent Wisconsin appellate opinions. ¶62 decided, control For example, "[w]e cases 'accidental' in 2006, determine[d] involving Dubose identification confrontations identifications." that shortly after does evidence resulting Hibl, 290 Wis. 2d 595, ¶3. in Dubose not was directly derived from 'spontaneous' We then remanded to the circuit court to apply the rules of evidence to the identification. Id. We noted that those rules allow circuit courts to use their discretion to exclude evidence when its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Wis. Stat. § 904.03; Hibl, 290 Wis. 2d 595, ¶3. ¶63 In 2007, the court of appeals "conclude[d] that Dubose did not alter the standard for determining whether admission of an out-of-court identification from a photo array violates due 119 (Conn. 2018). Though some state courts have permitted defendants more protection than afforded by the United States Constitution's guarantee of due process, and some have cited Dubose in so doing, none have conditioned admission of the outof-court identification on whether the procedure that law enforcement employed was necessary. For example in Henderson, the New Jersey Supreme Court adopted a reliability standard it believed was more accurate. Henderson, 27 A.3d at 919-20. In Harris, the Connecticut Supreme Court adopted the standard designed in Henderson. Harris, 191 A.3d at 143. 23 No. process." 2017AP1894-CR State v. Drew, 2007 WI App 213, ¶2, 305 Wis. 2d 641, 740 N.W.2d 404. ¶64 In 2012, we held Dubose was inapplicable to an in- court, mugshot identification. State v. Ziegler, 2012 WI 73, ¶¶81–82, 342 Wis. 2d 256, 816 N.W.2d 238. We said that we saw "no reason to apply Dubose," and the defendant could point to none. Id., ¶82. ¶65 In 2015, we confirmed the limited reach of Dubose in Luedtke, 362 Wis. 2d 1, where we stated: [P]ost-Dubose, we have held that the decision did not create a precedential sea change with respect to the recognition of a broader due process protection under the Wisconsin Constitution than under the United States Constitution. In State v. Drew, the court of appeals held that Dubose did not alter precedent with respect to lineups and photo arrays, explaining that Dubose recognized those identification procedures are preferable to a showup. In State v. Hibl, we held that Dubose did not directly control spontaneous or accidental identifications of a defendant by a victim lacking police involvement. Finally, in State v. Ziegler, we distinguished a showup from an identification made in court through the showing of a single mug shot. The State correctly notes, even within the specific context of eyewitness identification, postDubose jurisprudence confirms the limited reach of its actual holding: that due process under the Wisconsin Constitution provides greater protection in one identification procedure, the showup. Id., ¶¶49–50 (citations omitted). Given that Dubose has not created a substantial body of law, overturning it will have minimal impact. With the above review in mind, we conclude that stare decisis is not offended by overturning Dubose, and we now do so. 24 No. C. ¶66 2017AP1894-CR Standard of Review We employ a two-step standard of review when analyzing a motion to suppress. State v. Blatterman, 2015 WI 46, ¶16, 362 Wis. 2d 138, 864 N.W.2d 26. We first review the circuit court's findings of historical fact, which we uphold unless they are clearly erroneous. Id. Next, we independently apply constitutional principles to the facts found, which presents a question of law. Id. D. ¶67 C.A.S.'s Identification We note that not all showings of a single photo are infected by improper police influence causing a very substantial likelihood of misidentification. Each identification must be evaluated based on its own facts. Perry, 565 U.S. at 239, 245 n.5. C.A.S.'s identification began with the display of a color photo of Roberson's Facebook photo. ¶68 can The first step in our evaluation is whether Roberson prove that the method impermissibly suggestive. chosen by law enforcement was While it is true that it would have been better practice for law enforcement to show Facebook photos of more than one African American male, the officer never asked if the picture was the man C.A.S. knew as P, even though he had asked if C.A.S. thought he could identify P. Only after C.A.S. gave a nonverbal indication that he recognized the man in the Facebook photo, did Reblin ask "That's him?" However, we will assume without deciding, that Roberson met his burden of proving 25 No. 2017AP1894-CR an impermissibly suggestive mode of identification, as did the court of appeals.9 ¶69 the Roberson, No. 2017AP1894-CR, ¶18. The burden now shifts to the State to prove that under totality reliable. assessment of the circumstances the Biggers, 409 U.S. at 199. factors from Biggers, identification was Applying the reliability which were confirmed in Brathwaite 432 U.S. at 106-07, 114, to the facts herein, we note that C.A.S. had ample opportunity to view P. At a minimum, C.A.S. spent two and a half hours with P, on three separate occasions, over a short period of time. more time with P than the victim in C.A.S. spent five times Biggers did with her assailant, which the United States Supreme Court held was a "considerable period of time." Id. at 200. record altered suggests otherwise C.A.S. cognitively had an impaired. mental Additionally, Nothing in the state while or P was never The State has articulated a few reasons why the procedure might not have been impermissibly suggestive. First, it points out that the investigator used a photograph from Facebook as opposed to a mugshot. It argues, "[u]nlike a mugshot, which carries with it the implicit prejudicial suggestion that the person depicted has been arrested or convicted of a crime, . . . [the photograph in this case] does not convey this type of suggestibility." Resp. br. at 26. Second, the State relies heavily on a theory that "the protagonists are known to one another." Resp. br. at 27 (quoting People v. Gissendanner, 399 N.E.2d 924, 930 (N.Y. 1979)). Apparently, some support exists for the proposition that when two people are wellacquainted, an identification procedure cannot be suggestive. Resp. br. at 26-27. 9 26 No. 2017AP1894-CR provided his name, we note he made no substantial effort to conceal his identity. ¶70 The degree of attention favors reliability. C.A.S. agreed to participate in a drug-dealer relationship with P. gave C.A.S. a phone, presumably so they plans. Their interactions show they P could forward their were contemplating an ongoing relationship where it could be expected they would know each other's faces under circumstances similar to those present here. We also note that P came into C.A.S.'s residence, something generally personal in nature. ¶71 During the third encounter, C.A.S. may paying more attention to the situation than to P. have been However, the United States Supreme Court suggested in Biggers that a victim of a violent crime remembers more. Id. ("She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes."). ¶72 The first two factors appear to question identifications where a witness briefly sees a stranger, perhaps out of a window, under poor conditions. C.A.S.'s identification presents on facts that are completely opposite. As the State put it, "the shooting itself was not the product of a brief, momentary encounter between two strangers."10 ¶73 Law enforcement did not obtain a detailed prior description of P from C.A.S. before showing C.A.S. the Facebook 10 Resp. br. at 30. 27 No. photo. We purposes of . . . [its] description note that weighs the court opinion somewhat of appeals only that against the 2017AP1894-CR "assume[d] absence reliability." for of a Roberson, No. 2017AP1894-CR, ¶38. However, the State has the burden to prove totality that under identification is the reliable, and of the under the circumstances Bigger's the factors, collecting evidence prior to displaying the Facebook photo of Roberson was the State's responsibility. ¶74 C.A.S. The circuit court seemed to place a lot of weight on not knowing the difference cornrows when he described P. between dreadlocks and However, there is no reason the jury cannot weigh this testimony as well as the circuit court. Most evidence can be called into question in some way; however, that does not give the circuit court the ability to preclude admission. We have cross-examination for a reason; evidence often is tested in that way. ¶75 The level of C.A.S.'s certainty favors reliability. Immediately upon seeing the photograph, C.A.S. nodded his head up and down. He did not wait for Reblin to ask him a question before indicating that the photo was P. Then when he was asked if his identification was "100%," he said that it was. ¶76 Approximately two weeks shooting and the identification. passed between C.A.S.'s We have no reason to conclude that two weeks is such a significant passage of time as to call into question the identification. This is particularly true when we consider the amount of time the two spent together on three different days. 28 No. ¶77 2017AP1894-CR We further note that the identification was extremely well-documented entirety. in this case. It was videotaped in its If a picture is worth a thousand words, a video is a thousand pictures. The jury can watch the video, and it can hear and see C.A.S.'s comment and gestures in regard to his ability to identify African Americans. It can hear what C.A.S. said and see the accompanying hand gesture. The jury also can see the certainty on C.A.S.'s face when he is shown the Facebook photo. ¶78 Upon circumstances conclude consideration bearing on there is that of the the totality identification not a of substantial of the Roberson, likelihood misidentification by an unreliable identification. we of Therefore, the jury should decide whether Roberson was correctly identified as P. ¶79 to the Accordingly, we affirm the court of appeals and remand circuit court for proceedings III. CONCLUSION consistent with this opinion. ¶80 In conclusion, Roberson argued that the circuit court correctly granted his motion to suppress the identification evidence on the ground that the police utilized an unnecessarily suggestive procedure, which violated his due process rights under Article I, Section 8 of the Wisconsin Constitution as explained in Dubose. ¶81 The State urges us to overturn Dubose, and return to our past practice of following decisions of the United States 29 No. 2017AP1894-CR Supreme Court in regard to criteria that are necessary to accord due process in eyewitness identifications. State. Dubose was unsound in principle. Dubose and determining return the to "reliability admissibility of We agree with the Therefore, we overturn [a]s the linchpin identification in testimony." Brathwaite, 432 U.S. at 114; see also Biggers, 409 U.S. at 199. Due process does not require the suppression of evidence with sufficient "indicia of reliability." ¶82 burden Perry, 565 U.S. at 232. Accordingly, "a criminal defendant bears the initial of suggestive." demonstrating that a showup was impermissibly Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102 Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant meets this burden, then the State must prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive." Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at 106 and citing Biggers, 409 U.S. at 199). We conclude that the State has satisfied its burden here. ¶83 to the Therefore, we affirm the court of appeals and remand circuit court for proceedings consistent with this opinion. By the Court.—The decision affirmed. 30 of the court of appeals is No. ¶84 REBECCA GRASSL BRADLEY, J. 2017AP1894-CR.rgb (concurring). I join the majority opinion in full, except to the extent paragraphs 41-42 suggest that courts may consult interpret the Constitution. social science research to See Missouri v. Jenkins, 515 U.S. 70, 114, 119-20 (1995) (Thomas, J., concurring) (criticizing the majority for relying on "questionable social science research rather than constitutional principle" and noting that assumptions and social science research "cannot form the basis upon which we Historically, decide when matters courts of constitutional contaminate principle"). constitutional analysis with then-prevailing notions of what is "good" for society, the rights of the people otherwise guaranteed by the text of the Constitution may be trampled. text have oppressed people Departures from constitutional under all manner of pernicious pretexts: [T]he notion of "social harm" supporting the police power was completely untethered from constitutional text and ripe for misuse in the hands of a Justice such as Holmes, who believed that the Constitution could be reduced to ad hoc balancing. Eugenics was built upon the notion of harm; indeed, it thrived on a sense of imminent doom: that society was degenerating because of what were called its "weaklings" and "discards." The idea that society was being swamped by incompetents was a common trope for eugenicists: the unfit were a "menace." . . . Like the great popular eugenicists of the day, Holmes wrote in Buck that eugenics would prevent society from being "swamped" by incompetents, that fewer criminals would be executed, and that fewer imbeciles would starve. Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added; footnotes omitted). 1 No. ¶85 Justice 2017AP1894-CR.rgb In rebuking his colleagues for upholding segregation, John Marshall Harlan rightly relied solely upon the Constitution: But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). ¶86 Deplorable decisions such as Plessy v. Ferguson and Buck v. Bell1 were rooted in evil concepts supported by social science and elitist mores antithetical to the Constitution. Ascertaining and faithfully applying the original meaning of the Constitution's words precludes appalling social science-based notions of the day from infecting constitutional analysis. Only the Constitution can serve as a reliable bulwark of the rights and liberty of the people. In order to emphasize that social science has no role to play in constitutional analysis, I respectfully concur. ¶87 I am authorized to state that Justice DANIEL KELLY joins this concurrence. 1 274 U.S. 200 (1927). 2 No. ¶88 BRIAN HAGEDORN, J. (concurring). 2017AP1894-CR.bh I join the majority opinion, but write separately to make three points. ¶89 First, while the dissent bemoans the policy outcome of today's decision, the practical effect need not be the fullthrottled return of the showup evidence Dubose frowned upon. State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. The majority is correct that courts should not allow social science to define new categories of constitutional protection divorced from the text of our constitution. That said, the latest social science research is a normal and welcome part of fact-finding, and can play a proper role in applying the facts to the law in these types of cases. ¶90 Going forward, I see nothing improper with circuit courts allowing vigorous cross-examination of showup evidence, or admitting expert testimony regarding the very social science research presented in this case. Law enforcement can continue to follow the same rules, and the legislature could choose to enact related policies into law. today quibbles with best Nothing in the court's opinion practices, police policies, and adversarial lawyering designed to ensure defendants have a fair shake. ¶91 It may be that the policy decision announced in Dubose is a good one. The question But that's not the legal question before us. here is whether our constitution exclusion of this and similar types of evidence. 1 requires the No. ¶92 2017AP1894-CR.bh Second, one of the great civics failures of our time is the prevalence of the notion that everything that's bad is unconstitutional. Not so. Policy and law are and must be different if the judicial task is to mean anything. governing law when facing a constitutional And the question is not established by a public policy assessment or a social science research paper; it is established by the written constitution itself. ¶93 This case process of law. involves the constitutional Wis. Const. art. I, § 8. right to due Historically, "due process" meant having a basic process grounded in the pillars of notice and an opportunity to be heard. matter, the guaranteed original process, substantive rights. public and did meaning not of Thus, as a general "due encompass a process" broad was swath a of Modern attempts to constitutionalize every lamentable aspect of our criminal justice system by creating new substantive due process rights should be treated with immense skepticism. Courts and litigants are far too eager to address the latest social cause célèbre by turning the constitution's weathered parchment into a weapon of policy warfare. ¶94 As Justice Clarence Thomas has noted, the whole line of cases on eyewitness identification evidence "is premised on a 'substantive due process' right to 'fundamental fairness.'" Perry v. New Hampshire, 565 U.S. 228, 249 (2012) (Thomas, J., concurring). not a I agree with Justice Thomas that due process "is 'secret "unfairness."'" repository of substantive Id. (quoted source omitted). 2 guarantees against When "fundamental No. fairness" becomes synonymous with 2017AP1894-CR.bh "unconstitutional," opportunities for judicial policy-making, and therefore judicial mischief, are plentiful.1 Dubose is just one example. Instead of letting the crucible of cross-examination be the refining fire it has always been——and due process requires little more—— Dubose short-circuited substantive right in the the process court's own and designed image. Dubose a new was an effort to constitutionalize the policy choices of the court's majority without any real effort to ground those choices in the original public meaning of the constitutional text. Faithfulness to the law requires overturning Dubose. ¶95 Finally, it is with some criticizes us for overruling Dubose. irony that the dissent Fidelity to the principles of stare decisis, we are told, ensures "cases are grounded in the law, not in the will of individual members of the court." Dissent, ¶97. But as the majority notes, Dubose itself burned a decades-long line of precedent to the ground. We should surely be mindful and deferential toward precedent, but predictability Justice Hugo Black recognized this very threat in his dissent in Stovall v. Denno, 388 U.S. 293 (1967), the decision that gave rise to this entire line of due process jurisprudence. There, Justice Black described the Supreme Court's "concept of due process" as its own judgment of whether the totality of the circumstances of a particular case comport with its own conceptions of decency, fairness, and fundamental justice. Id. at 305 (Black, J., dissenting). The problem with this "constitutional formula," as Justice Black rightly explained, is that it substitutes the reviewing court's "judgment of what is right for what the Constitution declares shall be the supreme law of the land." Id. Put differently, the court becomes "not a Constitution-interpreter, but a day-to-day Constitutionmaker." Id. 1 3 No. and stability are not served by clinging atextual judicial inventions of yesteryear. departed from precedent. to 2017AP1894-CR.bh the creative, It is Dubose that It is Dubose that was the product of "the will of individual members of the court." Dubose was an outlier and a reflection of judicial policy-making, not faithful constitutional interpretation. Today, ship. 4 the court rights the No. ¶96 REBECCA FRANK DALLET, J. 2017AP1894-CR.rfd (dissenting). In Dubose, this court declared Wisconsin's approach to admission of showup evidence1 upon a finding of reliability unsound and in violation of Article I, Section 8 of the Wisconsin Constitution.2 State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Today, the majority departs from the doctrine of stare decisis and overrules Dubose, despite extensive research establishing the prevalence and Ultimately the danger of majority mistaken erodes eyewitness the due identification. process protection afforded by the Wisconsin Constitution and places jurors in the impossible position of separating the taint of a single photo identification from its reliability. suggestive For these reasons, I dissent. A. The doctrine of stare decisis ensures cases are grounded in the law, not in the will of individual members of the court. ¶97 the The doctrine of stare decisis ensures the integrity of judicial system by developing consistency in legal principles and establishing that cases are grounded in the law, A showup is "an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes." State v. Wolverton, 193 Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995). 1 Article I, Section 8 of the Wisconsin Constitution reads: "[n]o person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself." 2 1 No. 2017AP1894-CR.rfd not in the will of individual members of the court. See Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257. "When existing law 'is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.'" Schultz v. N.W.2d 266 Natwick, (quoted 2002 source WI 125, omitted). ¶37, The 257 Wis. 2d 19, outcome of a 653 case should not turn on whether the current members of the court find one legal argument more persuasive but, rather, on "'whether today's [majority] has come forward with the type of extraordinary showing that this court has historically demanded before overruling one of its precedents.'" State v. Lynch, 2016 WI 66, ¶101, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson, J., concurring in part; dissenting in part) (quoting Payne v. Tennessee, 501 U.S. 808, 848 (1991) (Marshall, J., dissenting)). ¶98 The type of extraordinary showing this court relies upon to overturn precedent includes circumstances where: (1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is "unsound in principle"; or (5) the prior decision is "unworkable in practice." Bartholomew v. Wisconsin Patients Comp. Fund, 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216 (quoted source omitted). The majority hangs its hat on the fourth circumstance and declares that Dubose is now "unsound in principle." 2 Majority op., ¶¶3, No. 81.3 2017AP1894-CR.rfd To the contrary, I will show that Dubose remains sound in principle and that it is only the composition of this court that has changed.4 B. This court has afforded greater protection of citizens' liberties under the Wisconsin Constitution. ¶99 The majority claims that Dubose is unsound because it "misapplied" Article I, Section 8 of the Wisconsin Constitution in providing greater due process protection in the showup procedure than is mandated by the United States Supreme Court. Majority op., ¶51.5 Yet, this court has historically refused to The majority opinion favorably cites to the arguments made in the dissenting opinions in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, signaling that a change in the composition of the court is the real reason Dubose has become unsound. See, e.g., majority op., ¶¶55, 57: "As Justice Jon P. Wilcox explained"; "As Justice David T. Prosser cautioned." 3 Justice Hagedorn's concurrence incorrectly claims that "Dubose itself burned a decades-long line of precedent to the ground." Justice Hagedorn's concurrence, ¶95. Instead, Dubose simply withdrew language from Wolverton, 193 Wis. 2d 234; State v. Streich, 87 Wis. 2d 209, 274 N.W.2d 635 (1979); and State v. Kaelin, 196 Wis. 2d 1, 538 N.W.2d 538 (Ct. App. 1995), that "might be interpreted as being based on the Wisconsin Constitution." Dubose, 285 Wis. 2d 143, ¶33 n.9. Moreover, post-Dubose, we have confirmed the "limited reach of [Dubose's] actual holding" and recognized that it did not "create a precedential sea change . . . ." State v. Luedtke, 2015 WI 42, ¶¶49-50, 362 Wis. 2d 1, 863 N.W.2d 592. 4 The majority also claims that Dubose is unsound because it "misunderstood United States Supreme Court decisions" by adopting standards "similar" to those in Stovall v. Denno, 388 U.S. 293 (1967). Majority op., ¶¶51-52. In Stovall, the United States Supreme Court upheld what it recognized as the "widely condemned" practice of show-ups because it was "imperative" that the police immediately conduct a showup for a dying eyewitness. Stovall, 388 U.S. at 302. This court's conclusion in Dubose that a showup is impermissibly suggestive absent necessity was (continued) 3 5 No. 2017AP1894-CR.rfd be bound by the minimum protections set by the Supreme Court. "This court has demonstrated that it will not be bound by the minimums which are imposed by the Supreme Court . . . [if] the Constitution of Wisconsin and the laws of this state require that greater afforded." (1977). protection of citizens' liberties ought to be State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 Two significant examples described by the Doe court include: (1) granting the right to counsel at the state's expense one hundred years prior to the United States Supreme Court's pronouncement of this right in Gideon v. Wainwright, 372 U.S. 335 (1963); and (2) excluding evidence recovered through unlawful searches and seizures forty years before Mapp v. Ohio, 367 U.S. 643 (1961). See Carpenter v. Dane County, 9 Wis. 274 (1859); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); see also State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998) (holding that Article I, Section 7 of the Wisconsin Constitution guarantees a right to a 12-person jury in all criminal cases notwithstanding misdemeanor that the right is not guaranteed court has particularly cases to a 12-person by the jury United in States Constitution). ¶100 This described the rights defined in Article I, Section 8 as "so sacred, and the pressure so great towards their relaxation in case[s] where suspicion of guilt is strong and evidence obscure, that it is the duty of the courts to liberally construe appropriately guided by relied upon in Stovall. the the prohibition "imperativeness" 4 [against self- justification No. incrimination] in favor of private rights." 117 Wis. 338, 341, 93 N.W. 1107 (1903). 2017AP1894-CR.rfd Thornton v. State, The Thornton court reminds us that courts must be vigilant "to refuse to permit those first and doubtful steps which may invade [Article I, Section 8] in any respect." Id. Just as in Thornton where we construed Article I, Section 8 to afford greater protection of a defendant's applied right the same against self-incrimination, constitutional provision to in Dubose afford we greater protection of a defendant's right to due process. ¶101 The majority opinion claims that because the wording of Article I, Section 8 of the Wisconsin Constitution is nearly identical to the Due Process Clause of the United States Constitution, the Wisconsin Constitution does not provide any additional protection. Majority op., ¶¶55-56. In Knapp, this court warned against this "lock-step" theory of interpreting the Wisconsin Constitution no broader than its federal counterpart: [w]hile textual similarity or identity is important when determining when to depart from federal constitutional jurisprudence, it cannot be conclusive, lest this court forfeit its power to interpret its own constitution to the federal judiciary. The people of this state shaped our constitution, and it is our solemn responsibility to interpret it. State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d 86, 700 N.W.2d 899; see also State v. Ward, 2000 WI 3, ¶59, 231 Wis. 2d 723, 604 N.W.2d 517 ("[I]t would be a sad irony for this court to . . . act as mere rubber stamps ourselves when interpreting our Wisconsin Constitution."). In now limiting a protection previously afforded under Article I, Section 8, the majority 5 No. 2017AP1894-CR.rfd ignores the warning from Knapp and shirks this court's solemn responsibility to interpret the Wisconsin Constitution. C. Extensive social science research establishing the prevalence and danger of mistaken eyewitness identification is a proper consideration to support a shift in constitutional law. ¶102 The science majority research unreliable. insinuates relied upon that in the Dubose extensive is social irrelevant and The majority ignores the body of United States Supreme Court precedent that considered social science research in cases premised application. on constitutional interpretation and Social science research has formed the basis for the United States Supreme Court to overturn notable decisions including: criminalization conduct Lawrence in imposition of the v. of consensual Texas, death 539 penalty same U.S. on the sex 558 intimate (2003), mentally ill and and juveniles in Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005). ¶103 Additionally, the majority discounts the seminal case of Brown v. Board of Educ., 347 U.S. 483 (1954), where the United States Supreme Court held that "separate but equal" education of children of color, as the doctrine was mandated by Plessy v. Ferguson, 163 U.S. 537 (1896), violated the Constitution based upon comprehensive studies demonstrating the fallacy of that concept in practice. "follow[ed] the lead of Brown" and In Dubose, this court determined that current social science research demanded a "much-needed change to our jurisprudence" in the area of Dubose, 285 Wis. 2d 143, ¶44. 6 eyewitness identification. No. 2017AP1894-CR.rfd ¶104 There is no support for the notion that the social science research relied upon in Dubose has become unreliable. There is no dispute that social science research establishes the prevalence where and danger inherently showup are recognizes of mistaken suggestive used. The eyewitness identification lone study the danger of suggestive identification procedures cited by the identification like a majority procedures and only reports an increase in the accuracy of identification when procedures include safeguards, like those imposed in the wake of Dubose. See majority op., ¶39 (citing John Wixted & Gary Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in the Pub. Int. 10, 2017.6 ¶105 Mistaken leading cause of eyewitness wrongful identification convictions in is the still United the States. According to the Innocence Project, sixty-nine percent of DNA exoneration based on cases in eyewitness the United States misidentifications. involved See innocenceproject.org/dna-exonerations-in-the-united convictions https: //www. states; see also Michael D. Cicchini, Joseph G. Easton, Reforming the Law on Show-Up Identifications, 100 J. Crim. L. & Criminology 381, 390 (2010) ("[o]ne study revealed that 'when the identification was The study evaluated the level of confidence in lineups done under "pristine conditions," which included the use of multiple fillers, double-blind testing, cautionary statements to eyewitnesses and a confidence statement made at the time of the lineup. John Wixted & Gary Wells, The Relationship Between Eyewitness Confidence and Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in the Pub. Int. 12-17, 2017. 6 7 No. conducted those twenty-four who viewed a hours afterwards, lineup made a 2017AP1894-CR.rfd fourteen mistaken percent of identification, whereas fifty-three percent of those who viewed a show-up made a mistaken identification.'") The risk of mistaken eyewitness identification is even greater when the identification involves a suspect of a different race. See, e.g., Cunningham v. Peters, 941 F.2d 535, 541 (7th Cir. 1991) (Easterbrook, J. dissenting) ("All eyewitness testimony is problematic, given the frailties of human memory. especially Identification so.") (citing by Sheri members Lynn of other Johnson, races is Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984)). As was the case when Dubose was decided, current social science research establishes the frequency and danger of mistaken eyewitness identification and is therefore "impossible for us to ignore." D. Dubose, 285 Wis. 2d 143, ¶29. Dubose had a crucial impact in deterring the use of suggestive identification procedures and excluding inherently unreliable showup evidence. ¶106 The majority claims that overruling Dubose will have "minimal impact." Majority op., ¶65. The majority overlooks Dubose's influence on the implementation of statewide policies, exaggerates "negative treatment" of Dubose, and ignores the fact that many states have provided more due process protection for showup procedures post-Dubose. fails to recognize the Most significantly, the majority inherent unreliability of suggestive identification procedures like showups. ¶107 Dubose led to the implementation of statewide policies to reduce the frequency of mistaken eyewitness identifications 8 No. above and beyond the showup. Five months 2017AP1894-CR.rfd after Dubose was decided, the legislature enacted Wis. Stat. § 175.50, requiring law enforcement agencies to adopt model policies to minimize the possibility formulating consider of mistaken these policies, practices individuals or eyewitness that law "[t]o identifications. enforcement the representations extent agencies are feasible, sequentially In to show[] rather than simultaneously to an eyewitness" and "[m]inimiz[e] factors that influence an eyewitness to identify a suspect." & (c). Accordingly, in 2010, the §§ 175.50(5)(b) Wisconsin Department of Justice published its Model Policy and Procedures for Eyewitness Identifications recommending that law enforcement officials "conduct double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, nonbiased instructions immediately to after eyewitnesses, and identifications." assessments Wis. of Dep't confidence of Justice, Model Policy and Procedure for Eyewitness Identification at 1 (Apr. 1, 2010). In adopting these policies, the Department of Justice recognized that suggestive could increase the likelihood law enforcement of mistaken procedures eyewitness identification, as this court emphasized in Dubose. ¶108 The majority claims that overruling Dubose will have little impact because it has "not created a substantial body of settled law" and because it "has been treated negatively by several subsequent Wisconsin appellate opinions." ¶61. Majority op., While it is true that subsequent decisions from this court have not extended Dubose's safeguards beyond that of a showup, a 9 No. decision not to extend treatment. 2017AP1894-CR.rfd Dubose is not equivalent to negative Just four years ago in Luedtke, we reaffirmed that "due process under the Wisconsin Constitution provides greater protection in one identification procedure, the showup." State v. Luedtke, 2015 WI 42, ¶50, 362 Wis. 2d 1, 863 N.W.2d 592. Moreover, there is no published Wisconsin appellate decision that treats Dubose negatively. ¶109 The majority attempts to paint Dubose as an anomaly and criticizes it for "explicitly rel[ying] on case law from Massachusetts and New York." Majority op., ¶58. Yet, the majority fails to discuss the increase in nationwide recognition of the Dubose. danger Seven of suggestive states have identification significantly procedures diverged post- from the federal doctrine, and in doing so have acknowledged the risk of suggestive identification procedures.7 See J.P. Christian Milde, The majority disputes the extent to which earlier case law from two of these states has been overruled: State v. Ledbetter, 881 A.2d 290 (Conn. 2005) and State v. Herrera, 902 A.2d 177, 181 (N.J. 2006). See majority op., ¶61 n.8. Ledbetter was explicitly overruled by the Supreme Court of Connecticut in State v. Harris, 191 A.3d 119 (Conn. 2018). The Harris court concluded "we agree with the defendant that the Biggers framework is insufficiently protective of the defendant's due process rights under the state constitution. We therefore overrule our conclusion to the contrary in Ledbetter." Harris, 191 A.3d at 143 (emphasis added). Similarly, the New Jersey Supreme Court in State v. Henderson, 27 A.3d 872 (N.J. 2011), abandoned its previous application of the Brathwaite/Biggers reliability factors, in cases like Herrera, and provided more protection pursuant to the New Jersey constitution. See Henderson, 27 A.3d at 892 ("As we noted in Herrera, '[u]ntil we are convinced that a different approach is required after a proper record has been made in the trial court, we continue to follow the [Braithwaite] approach.' . . . That record is now before us.") In overruling Ledbetter and Herrera, (continued) 10 7 No. 2017AP1894-CR.rfd Bare Necessity: Simplifying the Standard for Admitting Showup Identifications, 60 B.C. L. Rev. 1771, 1789-1806 (2019). Additionally, five states have adhered to the federal standard but have developed additions, modifications, distinctions providing additional protections. or semantic Id. at 1806-12. ¶110 Most importantly, the majority and concurring opinions overlook the inherent unreliability of identification evidence from showups and other suggestive procedures. The burden will now be placed on jurors to separate the taint of a suggestive identification procedure identification. As this court in Dubose recognized, this is an impossible task: from the reliability of the "[b]ecause a witness can be influenced by the suggestive procedure itself, a court cannot know exactly how reliable the identification suggestiveness." Dubose, would 285 have been Wis. 2d 143, without the ¶31. The suggestibility of an identification procedure can affect what a witness remembers and their confidence in that memory, rendering a subsequent reliability determination by a juror meaningless. See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal 69 (4th ed. 2007) ("[h]uman recollection can be supplemented, partly restructured, and even completely altered by postevent inputs."); see also Benjamin E. Rosenberg, Rethinking the Right to Due Process in Connection With Pretrial Identification Procedures: An Analysis and a Proposal, 79 Ky. these states have followed Dubose's lead in providing more protection to defendants, as opposed to the standard that the majority reverts to today. 11 No. L.J. 259, 291 identification (1991) ("[A]n procedure simply 2017AP1894-CR.rfd unnecessarily creates suggestive unreliable evidence where reliable evidence could have been gathered.") ¶111 The adversarial process does not protect against the admission into evidence of mistaken eyewitness identification. "When an unconscious and innocent mistake causes the misidentification, cross-examination becomes a less useful tool because it only causes the witness to reassert confidence." Susan M. Campers, Time to Blow Up the Showup: Who Are Witnesses Really Identifying?, 48 Suffolk U. L. Rev. 845, 848–49 (2015). Further, "this exaggerated witness confidence produces a tendency in jurors to 'almost unquestionably accept eyewitness testimony." and Id. at 849 (quoted source omitted). concurring unreliable showup, and and opinions suggestive thus increase condone the return identification the risk of The majority to inherently procedures wrongful like the convictions caused by mistaken eyewitness identification. E. A defendant's right to due process is implicated when a single photo eyewitness identification procedure is not purely confirmatory. ¶112 Since I conclude that the foundation of Dubose sound, I turn to the question presented in this case: what conditions, if any, does a single photo is under identification procedure implicate a defendant's right to due process under Article I, Section 8? We have defined a showup as: "'an out- of-court pretrial identification procedure in which a suspect is presented singly to a witness 12 for identification purposes.'" No. 2017AP1894-CR.rfd Dubose, 285 Wis. 2d 143, ¶1 n.1 (quoting State v. Wolverton, 193 Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995)). on-one confrontation, a While not a one- single photo identification procedure involving an unknown suspect presents the same risk of mistaken identification as a showup.8 subsequent single photo The Dubose court determined that a identification procedure, showing the victim a mug shot of Dubose, "was also unnecessarily suggestive and that out-of-court suppressed." identification should Dubose, 285 Wis. 2d 143, ¶37. have been Whether an unknown suspect is presented singly to a witness in person or in a photograph, there is no material difference: law enforcement only suggests one suspect to the witness for identification. Therefore, the constitutional scrutiny this court applied in Dubose should also apply to a single photo identification that is not purely confirmatory.9 ¶113 A purely confirmatory single photo identification does not carry with it the same risk of mistaken eyewitness identification as that of an unknown suspect, and therefore is not inherently suggestive. (2019) ("[A] mere See State v. Greene, 201 A.3d 43, 52 'confirmatory identification' does not generate the myriad risks of misidentification that frequently Without any analysis, the majority declares "[w]e conclude that the State action that caused a showup to be subject to constitutional scrutiny in Dubose may be equally applicable to the use of a single Facebook photo for an out-of-court identification." Majority op., ¶48 (emphasis added). 8 Dubose did not address the use of a showup procedure for a suspect that was known to the eyewitness. 9 13 No. attend a selective circumstances.") identification made 2017AP1894-CR.rfd under suggestive A purely confirmatory identification is used by law enforcement when a witness knows or is acquainted with a suspect but cannot identify that person by name. See, e.g., National Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification 22, 28 (2014) ("Police typically limit [displaying a single photograph] to situations in which the perpetrator is previously known to or acquainted with the witness."); Sides v. Senkowski, 281 F.Supp.2d 649, 654 (W.D.N.Y. 2003) (describing an identification as merely confirmatory previously"). the people when the "parties knew each other Due to the relationship or familiarity between involved, a purely confirmatory identification procedure minimizes the risk that law enforcement's suggestion of a single suspect would lead to a mistaken eyewitness identification. ¶114 Accordingly, I would remand the case for an evidentiary hearing to determine whether C.A.S.'s identification of Roberson was purely confirmatory. If the identification was not purely confirmatory, it was suggestive and the State must prove the necessity of the procedure, just as in Dubose. ¶115 For the foregoing reasons, I respectfully dissent. ¶116 I am authorized to state BRADLEY joins this dissent. 14 that Justice ANN WALSH No. 1 2017AP1894-CR.rfd
Primary Holding

The Supreme Court affirmed the court of appeals' decision reversing the circuit court's judgment suppressing the victim's identification of Defendant, holding that State v. Dubose was unsound in principle and is therefore overturned and that the State satisfied its burden that the identification was reliable.


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