Petitioner Tyrone Dubose (Dubose) seeks review of an unpublished decision of the court of appeals that affirmed the circuit court's judgment of conviction for armed robbery. The main issue presented to us is whether the circuit court erred in denying Dubose's motion to suppress the
¶ 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.
¶ 3. Timothy Hiltsley (Hiltsley) and Ryan Boyd (Boyd) left the Camelot Bar in Green Bay, Wisconsin, at approximately 1:00 a.m. on January 9, 2002. Hiltsley
¶ 4. When they arrived at Hiltsley's apartment, Hiltsley sat down on the couch to pack a bowl of marijuana. At that time, Dubose allegedly held a gun to Hiltsley's right temple and demanded money. After Hiltsley emptied his wallet and gave the men his money, the two men, both African-Americans, left his apartment.
¶ 5. Within minutes after the incident, at approximately 1:21 a.m., one of Hiltsley's neighbors called the police to report a possible burglary. She described two African-American men fleeing from the area, one of whom was wearing a large hooded flannel shirt. At the same time, Hiltsley and Boyd attempted to chase the men. They searched for the men in Boyd's car and hoped to cut them off. After driving nearly two blocks, Hiltsley got out of the car and searched for the men on foot. During his search, Hiltsley flagged down a police officer that was responding to the burglary call. Hiltsley told the officer that he had just been robbed at gun-point. He described the suspects as African-American, one standing about 5-feet 6-inches, and the other man standing a little taller.
¶ 6. Another police officer also responded to the burglary call. As he neared the scene, he observed two men walking about one-half block from Hiltsley's apartment. This officer, Jeffrey Engelbrecht, was unable to determine the race of the individuals, but noted that
¶ 7. The officer subsequently requested headquarters to dispatch a canine unit to help search for the men. While he waited at the perimeter for the canine unit, police headquarters reported another call in regard to an armed robbery at Hiltsley's apartment. The report indicated that the two suspects were African-American males, that one was possibly armed, and that the two calls were probably related. Upon their arrival, the canine unit officer and his dog began tracking the suspects within the perimeter. The dog began barking near a wooden backyard fence, and the officer demanded that the person behind the fence come out and show his hands. A male voice responded that he was going to surrender and asked why the police were chasing him. The male who came out from behind the fence was Dubose, who was subsequently arrested.
¶ 8. Dubose, who was not wearing a flannel shirt, told the police that he had been in an argument with his girlfriend and that he had just left her house. He thought she might have called the police on him, which is why he ran when he saw the squad car. After his arrest, he was searched. The search did not uncover any weapons, money, or contraband.
¶ 10. The squad cars separated and took both Hiltsley and Dubose to the police station. Approximately 10 to 15 minutes after the first showup, the police conducted a second showup. There, Hiltsley identified Dubose, alone in a room, through a two-way mirror. Hiltsley told police that Dubose was the same man he observed at the previous showup, and that he believed Dubose was the man who robbed him. A short time after the second showup, the police showed Hiltsley a mug shot of Dubose, and he identified him for a third time.
¶ 11. The State of Wisconsin (State) charged Dubose with armed robbery. Dubose filed a motion to suppress all identifications of him in connection with the case, specifically asserting that the first showup was "unnecessarily suggestive and conducive to an irreparable mistaken identification. . . ." He also claimed that the identifications were the fruits of an unlawful arrest, which denied him due process of law. The Brown
¶ 12. Dubose appealed his conviction to the court of appeals. In an unpublished opinion, the court of appeals affirmed the judgment of the circuit court. The court held that the totality of the circumstances demonstrated that Dubose's arrest was lawful, and that Dubose had not met his burden to prove the impermissible suggestiveness of the out-of-court identifications. In concluding that there was probable cause for arrest, the appellate court relied on several factors, including the time of the arrest, the proximity of Dubose's location to Hiltsley's apartment, Dubose's similarity to the description provided by dispatch, and Dubose's flight after seeing the police car.
¶ 13. The court of appeals also determined that the first showup was not impermissibly suggestive. Dubose's argument concerning suggestiveness relied on the fact that he sat alone in the police vehicle, the witness had been drinking and was "buzzed," the identification occurred shortly after the robbery occurred while Hiltsley was upset, and the officers suggested to Hiltsley before the showup they had possibly caught "one of the guys." The court of appeals held that the showup was not impermissibly suggestive based on the totality of the factors involved.
¶ 14. Likewise, the court rejected Dubose's challenge to the second showup at the police station. The court was not persuaded by Dubose's argument that he
State v. Dubose, 2003AP1690-CR, unpublished slip op., ¶¶ 36-37 (Wis. Ct. App. March 2, 2004).
¶ 15. Dubose petitioned this court for review. We granted his petition on October 19, 2004, and now, for the reasons set forth herein, reverse the decision of the court of appeals. Accordingly, we remand this case to the circuit court for further proceedings consistent with this opinion.
¶ 16. On review of a motion to suppress, this court employs a two-step analysis. State v. Eason, 2001 WI 98, ¶ 9, 245 Wis.2d 206, 629 N.W.2d 625. First, we review the circuit court's findings of fact. We will uphold these findings unless they are against the great weight and clear preponderance of the evidence. State v. Martwick, 2000 WI 5, ¶ 18, 231 Wis.2d 801, 604 N.W.2d 552. "In reviewing an order suppressing evidence, appellate courts will uphold findings of evidentiary or historical fact unless they are clearly erroneous." State v. Kieffer, 217 Wis.2d 531, 541, 577 N.W.2d 352 (1998); see also State v. Harris, 206 Wis.2d 243, 249-50, 557 N.W.2d 245 (1996). Next, we must review independently the application of relevant constitutional principles to those facts. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis.2d 537, 648 N.W.2d 829. Such a review presents a question of law, which we review de novo, but with the benefit of analyses of the circuit court and court of appeals. See Kieffer, 217 Wis. 2d at 541.
¶ 17. Our analysis begins with a summary of the law relating to the right to due process in out-of-court identification procedures. In Stovall, the United States Supreme Court considered for the first time whether, and under what circumstances, out-of-court identification procedures could implicate a defendant's right to due process.
¶ 18. The United States Supreme Court considered whether the confrontation in the hospital room was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Id. at 302. The Court concluded that due process was a recognized ground of attack under such circumstances, as "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." Id. (footnote omitted). Nevertheless, the Supreme Court held that the existence of a due process violation "depends on the totality of the circumstances
Id. (citation omitted). Thus, while the out-of-court identification was not suppressed in that case, Stovall "established a due process right of criminal suspects to be free from confrontations that, under all circumstances, are unnecessarily suggestive. The right was enforceable by exclusion at trial of evidence of the constitutionally invalid identification." Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (Marshall, J., dissenting).
¶ 19. On the same day that the United States Supreme Court decided Stovall, it also decided United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967). These decisions all reflected the Court's concern about the reliability of out-of-court eyewitness identification evidence. See
Wade, 388 U.S. at 228 (footnote omitted). The foundation of this "trilogy" of cases was "the Court's recognition of the `high incidence of miscarriage of justice' resulting from the admission of mistaken eyewitness identification evidence at criminal trials." Brathwaite, 432 U.S. at 119 (Marshall, J., dissenting) (citation omitted).
¶ 20. After Stovall, Wade, and Gilbert, the United States Supreme Court next considered the identification issue in Simmons v. United States, 390 U.S. 377 (1968). In that case, the defendant was convicted of armed robbery based on in-court identification. However, the in-court identification witnesses had been shown photographs of the defendant prior to trial. The defendant argued that the in-court identifications were tainted, because the out-of-court photo identification was suggestive.
¶ 21. The Court, attempting to follow the "totality test" developed in Stovall, determined that the in-court identification was not tainted. However, "the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with
¶ 22. The United States Supreme Court nevertheless held in Simmons "that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384. In so holding, however, the Supreme Court "delineated a more expansive definition of totality than the one established in Stovall." David E. Paseltiner, Twenty-Years of Diminishing Protection: A Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra L. Rev. 583, 589 (1987). "Substitution of the word `permissible' for `unnecessarily' creates the impression that what may be `unnecessary' could still be `permissible.' Moreover, replacing `conducive to irreparable mistaken identification' with `a very substantial likelihood of irreparable misidentification' requires a much higher level of proof on the part of the defendant." Id. (footnote omitted). As a result, Stovall and Simmons established two different due process tests for two different factual scenarios. See Brathwaite, 432 U.S. at 122 (Marshall, J., dissenting).
¶ 24. The Supreme Court determined that an improper out-of-court identification alone does not require the exclusion of the evidence. The Court concluded that evidence from a suggestive identification would be admissible if a court can find it reliable under the totality of the circumstances. In order to determine if an identification is reliable under the totality of the circumstances, the Court developed a five-part test: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the defendant; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. See Biggers, 409 U.S. at 199-200.
¶ 26. With guidance from the United States Supreme Court, this court has adopted the test set forth in Biggers and Brathwaite in an attempt to minimize the misidentification of defendants in Wisconsin. See State v. Wolverton, 193 Wis.2d 234, 533 N.W.2d 167 (1995); Fells v. State, 65 Wis.2d 525, 223 N.W.2d 507 (1974) (in a case involving lineup and photo identifications, the-proper
¶ 27. In relying on Biggers and Brathwaite, we held that if the criminal defendant demonstrates that the showup was impermissibly suggestive, the burden "shifts to the state to demonstrate that `under the "totality of the circumstances"' the identification was reliable. . . ." Wolverton, 193 Wis. 2d at 264. Accordingly, we upheld the admissibility of the out-of-court identifications, not under standards involving due process and necessity as set forth in Stovall, but because under the totality of the circumstances, such identifications were determined to be reliable.
¶ 28. This case presents us with an opportunity to revisit our position with regard to the United States Supreme Court decisions in Biggers and Brathwaite. The State urges us to reaffirm our adherence to these holdings, and again conclude that evidence from an impermissibly suggestive out-of-court identification can still be used at trial if, based on the totality of the circumstances, the identification was reliable. In contrast, Dubose asks us to abandon this approach and apply a per se exclusionary rule in cases where out-of-court identifications were impermissibly suggestive.
¶ 30. These studies confirm that eyewitness testimony is often "hopelessly unreliable." Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995). The research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible
¶ 31. In light of such evidence, we recognize that our current approach to eyewitness identification has significant flaws.
¶ 32. It is now clear to us that the use of unnecessarily suggestive evidence resulting from a showup procedure presents serious problems in Wisconsin criminal law cases.
Brathwaite, 432 U.S. at 125-26 (Marshall, J., dissenting) (footnote omitted) (citation omitted). We agree with him that many of the concerns regarding unnecessarily suggestive procedures were addressed in Stovall and Wade. Stovall recognized that the risk of misidentification is too great to allow the jury to hear evidence from unnecessarily suggestive showup procedures. As stated, the United States Supreme Court specifically held that the "practice of showing suspects singly to persons for the purpose of identification . . . has been widely condemned." Stovall, 388 U.S. at 302 (footnote omitted). While the Court allowed the showup evidence to be admitted in that case, its holding was limited to situations where, based on the totality of the circumstances, the showup was necessary. Such a strict requirement helped ensure that the police would take precautions when considering the use of a showup and, if a showup was appropriate, conduct the procedure in a non-suggestive manner.
¶ 33. With Stovall as our guide, we now adopt a different test in Wisconsin regarding the admissibility of showup identifications.
¶ 35. If and when the police determine that a showup is necessary, special care must be taken to minimize potential suggestiveness. We recommend procedures similar to those proposed by the Wisconsin Innocence Project to help make showup identifications as non-suggestive as possible. For example, it is important that showups are not conducted in locations, or in a manner, that implicitly conveys to the witness that the suspect is guilty. Showups conducted in police stations, squad cars, or with the suspect in handcuffs that are visible to any witness, all carry with them inferences of guilt, and thus should be considered suggestive.
¶ 36. Applying this approach to the facts before us, it is clear that the showups conducted were unnecessarily suggestive, and that the admission of identification evidence denied Dubose a right to due process under Article I, Section 8 of the Wisconsin Constitution. First, there existed sufficient facts at the time of Dubose's arrest to establish probable cause for his arrest.
¶ 37. Finally, after the first showup was conducted and Dubose was positively identified, the police still conducted two more identification procedures, another showup and a photo of Dubose, at the police station shortly after Dubose's arrival. These subsequent identification procedures were unnecessarily suggestive. Dubose had already been arrested and positively identified by Hiltsley. The record does not show that any exigent circumstances existed making the out-of-court identification procedures used here necessary. Therefore, we conclude, based on the totality of the circumstances, that "[t]he suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [the defendant] whether or not he was in fact `the man.' In effect, the police repeatedly said to the witness `This is the man.'" Foster v. California, 394 U.S. 440, 443 (1969) (citation omitted). For similar reasons, as discussed above, we reverse the court of appeals and remand this case to the circuit court for further proceedings, consistent with the standards adopted herein. While our focus is on the two showups that occurred here, the photo identification by showing Hiltsley a mug shot of Dubose, was also
¶ 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). In this case, we do not now vacate the circuit court's judgment of conviction, since the circuit court must review any identification of Dubose made by a witness during the trial. If the court determines that any such identification was based on the unnecessarily suggestive showups and the photo identification, then the conviction must be set aside and a new trial ordered, unless any in-court identification was independent or untainted. 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.
¶ 39. We find strong support for the adoption of these standards in the Due Process Clause of the Wisconsin Constitution, Article I, Section 8.
¶ 41. Even though the Due Process Clause of Article I, Section 8 of the Wisconsin Constitution uses language that is somewhat similar, but not identical, to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, we retain the right to interpret our constitution to provide greater protections than its federal counterpart. See Knapp II, 285 Wis.2d 86, ¶ 59; State v. Hansford, 219 Wis.2d 226, 242, 580 N.W.2d 171 (1998); State v. Doe, 78 Wis.2d 161, 171-72, 254 N.W.2d 210 (1977); Hoyer v. State, 180 Wis. 407
¶ 42. We gain support for our reliance on the Wisconsin Constitution by noting that the federal standard in out-of-court eyewitness identifications has also not been accepted, on state constitutional grounds, in two prominent states—New York and Massachusetts. See Johnson, 650 N.E.2d at 1257; Adams, 423 N.E.2d at 379.
¶ 43. We also recognize that this case is not the first to result in a change in principles based on extensive new studies completed after a court decision that was premised on constitutional interpretation and application. For example, in Brown v. Board of Education, 347 U.S. 483 (1954), the United States Supreme Court relied on comprehensive studies to support its legal conclusion that the doctrine of separate but equal was violative of the United States Constitution and, thus, that Plessy v. Ferguson, 163 U.S. 537 (1896) should be overruled. For support of this much-needed shift in constitutional law, the United States Supreme Court based its decision on several modern studies and on the effects of segregation in public education.
¶ 44. In agreeing with the position that "Negro children, as a class, receiv(e) educational opportunities which are substantially inferior to those available to white children otherwise similarly situated," id. at 494 n.10 (quoting Belton v. Gebhart, 87 A.2d 862, 865 (Del. Ch. 1952)), the United States Supreme Court based its holding on "modern authority." Id. at 494. Because we also base our decision, in part, on "modern authority," we have no trouble following the lead of Brown and making a much-needed change to our jurisprudence based on the application of the Due Process Clause of Article I, Section 8 of the Wisconsin Constitution.
¶ 45. In sum, 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
By the Court.—The decision of the court of appeals is reversed, and the cause is remanded to the circuit court.
¶ 46. LOUIS B. BUTLER, JR., J. (concurring).
I join the majority opinion in all respects. I write separately to respond to the concerns raised by one of the dissenting opinions. See Roggensack, J., dissenting.
¶ 47. I agree with Justice Roggensack that with respect to identification testimony in criminal trials, reliability should be the key to admissibility. Roggensack, J., dissenting, ¶ 79. I also agree that a criminal defendant is denied due process when identification testimony admitted at trial from a showup is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Roggensack, J., dissenting, ¶ 82 (citing State v. Wolverton, 193 Wis.2d 234, 264, 533 N.W.2d 167 (1995); Simmons v. United States, 390 U.S. 377, 384 (1968)). Finally, I agree that we should not impede "the presentation of reliable, relevant evidence at trial." Roggensack, J., dissenting,
¶ 48. Some of the very research relied upon by the dissent to illustrate the "disagreements about the unreliability of showups" (Roggensack, J., dissenting, ¶ 90) sets forth an overall accuracy rate of 69 percent for showups, compared to 51 percent for lineups. Id. (citing Nancy Steblay, et al., Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law and Human Behavior 523, 535 (2003)). Although not mentioned by the dissent, that research further indicates that when the target is in the display, a correct identification occurs only 47 percent of the time in showups, compared to 45 percent of the time in lineups. Steblay at 530. Moreover, when the target is not in the display, a false identification of an innocent suspect (minus foil Ids) occurs 23 percent of the time in showups, as opposed to 17 percent of the time in lineups. Id.
¶ 49. This is not "disputed social science theory." Roggensack, J., dissenting, ¶ 79. This is data relied upon by the dissent. Id., ¶ 90. What we are dealing with is a serious failure rate with respect to eyewitness identifications. Whether we are looking at the dissent's failure rate for showups of 53 percent, 31 percent, 23 percent, or 16 percent, that rate is simply unacceptable. Steblay, at 530, 532-33, 535. See also Roggensack, J., dissenting, ¶ 90. The dissent cannot seriously argue that any of these statistical misidentification rates lead to the conclusion that eyewitness identifications are inherently reliable. What we have here is a legal fiction that is simply not borne out by the facts. Unless, and
¶ 50. All of this does not mean that eyewitness testimony cannot be a valuable piece of evidence in a criminal trial. Showups will continue to be used where necessary and appropriate. Majority op., ¶ 34. The goal of the majority's opinion, in my view, is to avoid a very substantial likelihood of irreparable misidentification. Id., ¶ 35.
¶ 51. The reasons supporting our approach should be readily apparent. If the wrong person is incorrectly identified, an innocent person faces potential prosecution, incarceration, and conviction.
¶ 52. For the foregoing reasons, I respectfully concur.
¶ 53. I am authorized to state that Justice N. PATRICK CROOKS joins this concurrence.
¶ 54. JON P. WILCOX, J. (dissenting).
I agree with Justice Roggensack that if a constitution is to mean anything, its principles must not be subject to change based on the prevailing winds of the time. See Justice Roggensack's dissent, ¶ 80.
¶ 55. The Fourteenth Amendment to the United States Constitution provides, in relevant part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Wisconsin equivalent of the Federal Due Process Clause, Article I, Section 8 of the Wisconsin Constitution, provides, in relevant part: "No person may be held to answer for a criminal offense without due process of law[.] Both clauses are virtually identical.
¶ 57. Likewise, in Thorp v. Town of Lebanon, 2000 WI 60, ¶ 35 n.11, 235 Wis.2d 610, 612 N.W.2d 59, this court ruled:
¶ 58. In sum, our decisions have recognized that because the language of the two provisions is almost identical, there is simply no basis to conclude that the drafters of the Wisconsin Constitution intended our Due Process Clause to mean anything different than its federal analogue. Furthermore, this court has repeatedly recognized that the unwritten due process protection in Article I, Section 1 of the Wisconsin Constitution is the same as that accorded under the Fourteenth Amendment to the United States Constitution.
¶ 59. As this court explained in Reginald D. v. State, 193 Wis.2d 299, 306-07, 533 N.W.2d 181 (1995):
¶ 60. The legitimacy of this parallel interpretation of the due process clauses of the Wisconsin Constitution and the federal constitution has been recognized by this court throughout Wisconsin's history. As this court discussed in Sonneborn, 26 Wis. 2d at 49-50:
¶ 61. Today the majority alters course and abandons this long line of well-established precedent, contending that the Due Process Clause of the Wisconsin Constitution now affords greater protections than its federal counterpart. In doing so, the majority provides no legal justification for its decision other than its raw power to do so. See majority op., ¶ 40. The majority even recognizes that as a result, the exact same words in the federal and state constitutions now mean different things according to this court. Id., ¶ 41. Yet, the majority fails to articulate a rationale for how identical language in the two documents can mean the same thing for a number of years and now suddenly mean something different. Simply stating that a majority of the court disagrees with a United States Supreme Court decision and has the power to construe our state constitution more broadly is not a principled basis for suddenly rejecting our long history of interpreting the due process clauses of the federal and state constitutions in concert.
¶ 62. 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 the United States Supreme Court's opinions in Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977), and that the these opinions "do not satisfy" the requirements of Wisconsin's due process clause. Majority op., ¶ 39.
¶ 64. This is the second time this term this court has abandoned our practice of interpreting similarly worded provisions of the state and federal constitutions in concert. In State v. Knapp, 2005 WI 127, 285 Wis.2d 86, 700 N.W.2d 899, this court abandoned our previous jurisprudence holding that Article I, Section 8 of the Wisconsin Constitution does not create broader rights than those provided by the Fifth Amendment of the United States Constitution. Thus, a majority of this court has not only twice unjustifiably rejected the strictures of stare decisis, but it has needlessly called in question countless opinions of this court that have relied on a parallel interpretation of the Wisconsin and federal constitutions.
¶ 65. Furthermore, I, too, am troubled by the majority's reliance on recent social science "studies," majority op., ¶¶ 29-30, presented by advocacy groups, to justify its departure from stare decisis. Not only is such data disputed, as recognized by Justice Roggensack, see Justice Roggensack's dissent, ¶¶ 89-91, but, more importantly, it is not a valid basis to determine the meaning of our constitution. The majority fails to adequately explain how the meaning of the text of the constitution can change every time a new series of
¶ 66. It is not the function of this court to create what it considers to be good social policy based on data from social science "studies." That is the province of the legislature. Our task is to render decisions based on legal principles and constitutional authority. See Panzer v. Doyle, 2004 WI 52, ¶ 39, 271 Wis.2d 295, 680 N.W.2d 666.
¶ 67. There must be consistency in our jurisprudence if our decisions are to have any semblance as law and not simply the unfettered will of a majority of the members of this court. Because I agree that "constitutional principles are not to change depending on what social science theory is in fashion[,]" Justice Roggensack's dissent, ¶ 80, and because the mere ability of the court to construe the Due Process Clause of the state constitution more broadly than its federal counterpart does not justify the majority's decision to abandon our history of according both provisions an identical interpretation, I dissent.
¶ 68. DAVID T. PROSSER, J. (dissenting).
Nothing in the facts of this case justifies the precipitous departure from state and federal precedent the majority undertakes.
¶ 69. As in any case, the facts are critical. After committing an armed robbery against Timothy Hiltsley, two men fled from Hiltsley's residence in Green Bay. A
¶ 70. The police immediately set up a perimeter around the block. By all accounts, this took less than 90 seconds. Upon searching the area, the police quickly discovered Dubose. The officers placed Dubose in the back of a squad car and drove him to Hiltsley's location, where they conducted a showup. Hiltsley immediately identified Dubose as the man who robbed him at gunpoint, mentioning that he recognized Dubose due to his build and hairstyle.
¶ 71. All of this occurred within minutes after the robbery.
¶ 72. Shortly thereafter, other officers located a semi-automatic pistol within the perimeter, near the houses where the two unidentified men ran after being pursued by the police.
¶ 73. The majority opinion spends most of its energy discussing the studies it relies on to depart from state and federal precedent. It devotes only two paragraphs to the application of its theory to this case.
¶ 74. The facts in this case are not sufficient to justify the majority's conclusion that this defendant's due process rights were violated. Nothing in these facts is so inherently unfair or suggestive that it justifies this court-ordered sea change in the law.
¶ 75. Throughout this term, the court has repeatedly used its raw power to interpret provisions in the
¶ 76. By sheer volume of cases, the Supreme Court has developed substantial experience interpreting constitutional provisions. Matters reaching the Supreme Court are of such import that they are also likely to be better briefed and argued than issues in the state court system. When state courts adopt myriad different interpretations of state constitutions, the level of uncertainty rises exponentially. A suspect's constitutional rights may change dramatically depending on which side of a state line he robs an acquaintance.
¶ 77. It is apparent that the majority opinion is out of step not only with the United States Supreme Court, but also with most other state courts. It proudly proclaims as much. It is curious that a court so confident in the wisdom and superiority of its analysis should consistently attempt to insulate its decisions from review.
¶ 78. For the reasons stated, I respectfully dissent.
¶ 79. PATIENCE DRAKE ROGGENSACK, J. (dissenting).
The majority concludes that its reading of the due process clause of Article I, Section 8 of the Wisconsin Constitution
¶ 80. The term "due process of law" comes from the Magna Carta's promise of a trial directed by the "law of the land" as established by the legislative body of government. Stovall v. Denno, 388 U.S. 293, 305 (1967) (Black, J., dissenting). One of the four paintings in the Wisconsin Supreme Court hearing room depicts the signing of the Magna Carta. And though many of the Magna Carta's provisions were subsequently repealed, my understanding is that the subject of the painting was chosen because of the significance of the foundational principle of due process that the Magna Carta promised in 1215 and that Wisconsin courts were to preserve. I note this because constitutional principles are not to change depending on what social science theory is in fashion.
Manson v. Brathwaite, 432 U.S. 98, 112 (1977). And, as we have explained, "`the admission of evidence of a showup without more does not violate due process.'" State v. Streich, 87 Wis.2d 209, 214, 274 N.W.2d 635 (1979) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). We have also held that a one-to-one identification is not per se suggestive, and because such an identification is often done while the witness's memory is fresh, it actually promotes fairness by assuring reliability and preventing the holding of an innocent suspect. Streich, 87 Wis. 2d at 215-16 (citing State v. Isham, 70 Wis.2d 718, 724-25, 235 N.W.2d 506 (1975); see also Johnson v. State, 47 Wis.2d 13, 18, 176 N.W.2d 332 (1970).
¶ 82. Prior to today's ruling, Wisconsin courts have held that a criminal defendant was denied due process only when identification evidence admitted at trial stemmed from a showup that was "`so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Wolverton, 193 Wis.2d 234, 264, 533 N.W.2d 167 (1995)
Wolverton, 193 Wis. 2d at 264-65 (quoting Brathwaite, 432 U.S. at 114; see also Biggers, 409 U.S. at 199-200; Powell v. State, 86 Wis.2d 51, 65, 271 N.W.2d 610 (1978). The court's examinations of all eyewitness identifications focused on reliability, because it is the absence of reliability that violates due process. Stovall, 388 U.S. at 301-02.
¶ 83. There are many factors that bear on whether an identification is reliable. Showup identifications that are done soon after the commission of the crime, while the appearance of the perpetrator is fresh in a witness's mind, have more reliability than identifications done after the passage of considerable time.
¶ 84. The majority opinion asserts that it is relying on Stovall. Majority op., ¶ 32. It contends that Stovall is "limited to situations where, based on the totality of the circumstances, the showup was necessary." Majority op., ¶ 32. This is a misreading of Stovall because there is nothing in Stovall that limits the use of showup identifications to those circumstances where that mode of identification was "necessary." Instead, Stovall defines its task as determining whether "the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Stovall, 388 U.S. at 301-02. The United States Supreme Court then further explained, "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. Therefore, Stovall expressly focuses on the reliability of the identification, not on whether it was "necessary" to do a showup, as the majority opinion represents.
¶ 85. The majority opinion also relies on United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967), which were decided the same day as Stovall. Majority op., ¶ 19. However, Wade
¶ 86. By banning all showups unless there is a "necessity," the majority completely overrides one of the major tenets in the administration of justice: the presentation of reliable, relevant evidence at trial. Brathwaite, 432 U.S. at 112. The United States Supreme Court has reasoned that inflexible rules of exclusion may frustrate justice, rather than promote it. Id. at 113. I agree completely.
¶ 87. The rule of law announced today is not based on constitutional principle. This is demonstrated in part by the majority opinion's decision that if officers lack probable cause to arrest, then a showup is permissible. Majority op., ¶ 34 n.11. What follows from this is that at the trial of such a defendant later prosecuted for the crime, suppression of the showup identification will not occur unless the defendant is able to meet the current test showing the identification was unreliable.
¶ 88. In the case before us, Dubose's showup identification was done in person, within 30 minutes of his commission of the armed robbery, which occurred in a well-lighted apartment, when he wore no mask, the victim had a significant period of time to view him and Dubose had been seen by the victim prior to the date of the robbery. There is no indication of unreliability in this identification.
¶ 89. The majority's main basis for holding that showups must be suppressed is "extensive studies on the issue of identification evidence" that assert that eyewitness testimony is "`hopelessly unreliable.'" Majority op., ¶¶ 29-30 (quoting Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995)).
¶ 90. The research cited by the majority does not represent the only social science theory on the subject of identifications. Hard data that social scientists have analyzed have resulted in disagreements about the unreliability of showups. One social science study reports that "[o]verall, the results present surprising commonality in outcome between [showups and line-ups]
¶ 91. Another study reports, "[O]ur results suggest that the formal task structure of a one-person showup does not create an unacceptable increase in the risk that an innocent suspect will be identified as the perpetrator." Richard Gonzalez, et al., Response Biases in Lineups and Showups, 64 Journal of Pers. and Soc. Psychol. 525, 533 (1993). One of the experiments that Gonzalez conducted showed "a striking tendency for subjects to respond no to the showup but yes to the lineup." Id. at 528.
¶ 92. The majority opinion attempts to gain support for its reliance on a disputed social science theory by paralleling its use of social science data with the reference to social science reports in the landmark
¶ 93. However, the Brown holding was not made in reliance on a social science theory, nor was Brown the earliest or the latest case to refer to a social science report. See, e.g., Roper v. Simmons, 125 S.Ct. 1183 (2005); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Muller v. Oregon, 208 U.S. 412 (1908). The reports in Brown were listed in one footnote and used without discussion to support one sentence in the entire opinion. Brown, 347 U.S. at 494 n.11. Rather, Brown is preeminent because it judicially proclaimed that the enormity of suffering that generation after generation of African-Americans were forced to endure by the doctrine of "separate but equal" simply because they were a different color, was unconstitutional. I object to the manner in which the majority opinion uses Brown because it trades on Brown's prestigious position in American jurisprudence to support the majority opinion's reliance on a disputed social science theory.
¶ 94. No one wants the wrong person identified as the perpetrator of a crime. However, where I part company with the majority opinion and the concurrence is that I am not willing to throw out identifications like the one now before us that are reliable, as the means of addressing those identifications that are not reliable. Suppressing the use of a reliable identification is not necessary in order to guarantee due process of law because it is only an unreliable identification that violates due process. Stovall, 388 U.S. at 301-02.
¶ 95. All identification procedures, from showups to lineups to photo arrays, can be improved by crafting
¶ 97. Accordingly, I respectfully dissent from the majority opinion.
David E. Paseltiner, Twenty-Years of Diminishing Protection: A Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra L. Rev. 583, 592 (1987)(footnotes omitted).
Rosenburg, Rethinking the Right to Due Process, 79 Ky. L.J. at 291 (footnote omitted).
In Wisconsin, there are several criteria that should be considered in regard to whether to adhere to precedent. See Johnson Controls, Inc. v. Employers Ins., 2003 WI 108, 264 Wis.2d 60, 665 N.W.2d 257. One such factor relates to the need to reach a decision that corresponds to newly ascertained facts. Id., ¶ 98. Another factor is whether the prior decisions have become unsound, because they are based on principles that are no longer valid. Id., ¶ 99. We conclude, in light of the compelling research discussed herein, that these criteria have now been satisfied.
Id. We wholeheartedly agree with this analysis by the court of appeals.
Likewise, we fully expect that our experimentation with this test will be successful in Wisconsin and later adopted elsewhere.
Id. (citations omitted).