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
DAVID T. PROSSER, J.
¶ 68. (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 *187 few minutes later, at about 1:21 A.M., a neighbor called the police to report the two men fleeing the scene. Police officers arrived immediately, and one of the responding officers observed two men walking near the apartment. When the officer turned his vehicle around to investigate, the men fled between two houses, into the middle of a residential block.
¶ 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. 1
¶ 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 *188 Wisconsin Constitution differently from the way the United States Supreme Court interprets provisions in the U.S. Constitution. While the court may exercise this power, the court should pay more attention to whether it should exercise this power.
¶ 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.
Majority op., ¶¶ 36-37.