concluding that, in light of studies that undermine reliability factors examined under Diggers and Manson, court no longer would analyze reliability prong after determining that show-up procedure was unnecessarily suggestive and only would consider whether procedure was necessary
How later courts described this case
- concluding that, in light of studies that undermine reliability factors examined under Diggers and Manson, court no longer would analyze reliability prong after determining that show-up procedure was unnecessarily suggestive and only would consider whether procedure was necessary
- concluding that, in light of studies that undermine reliability factors examined under Biggers and Manson, court no longer would analyze reliability prong after determining that show-up procedure was unnecessarily suggestive and only would consider whether procedure was necessary
- holding that “evidence obtained from [an out-of-court] showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary”
- recognizing that "research strongly supports the conclusion that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined”
Written by the judges who cited it.
Distinguished
Distinguished by State v. Terry, 384 Wis. 2d 271 (2018)
We conclude that the Dubose showup standard is inapplicable here because unlike the showup addressed in Dubose that involved a witness presented with a single suspect, the out-of-court identification made here involved a witness presented with three suspects.
The opinion
LOUIS B. BUTLER, JR., J.
¶ 46. (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. Roggen-sack, 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 imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Roggen-sack, 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, *178 ¶ 86. However, I part ways with the dissent precisely because showup identifications have been shown to be unreliable, thereby undercutting the legal fiction that we have operated under with respect to eyewitness testimony.
¶ 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 *179 until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the Land of Oz.
¶ 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. 1 More *180 important, however, is the fact that the guilty perpetrator remains at large, able to wreak havoc upon an unsuspecting populace. See Tom Kertscher, Wrongly Convicted Man Freed, Milwaukee Journal Sentinel Online, available at http://www.jsonline.com/news/state/ sep03/169169.asp. No one wants that. I therefore join the majority opinion in this matter.
¶ 52. For the foregoing reasons, I respectfully concur.
¶ 53. I am authorized to state that Justice N. PATRICK CROOKS joins this concurrence.