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Accidental ID may be inadmissible

An “accidental identification” of a defendant, out-of-court, is unreliable and must be suppressed, the Wisconsin Court of Appeals held on Sept 28, where it occurs just outside the courtroom on a day when the witness expects to see the alleged perpetrator.

“Principles of fairness dictate that identification evidence, even absent police involvement, must be scrutinized to determine whether suppression is required.”

Hon. Harry G. Snyder
Wisconsin Court of Appeals

In 2002, a Muskego detective saw two vehicles — a white van and a red pickup truck — speeding and driving recklessly. An accident resulted from the reckless driving, and the driver of the white van left the scene.

Alan R. Stuller witnessed the accident, but could only identify the driver of the van as a white male. He was not asked to make an identification of the driver from any photo array or lineup procedure.

Brian Hibl was arrested, admitted being the driver of the white van, and acknowledged he may have contributed to the accident. Hibl was charged with one count of causing great bodily harm to another by reckless driving, and two counts of causing bodily harm by reckless driving.

Stuller was subpoenaed as a witness for trial. Prior to trial, in a hallway outside of the courtroom, Stuller identified Hibl as the driver of the white van. He subsequently identified Hibl in the courtroom during the trial.

Hibl moved for a mistrial, the State did not object, and the circuit court declared a mistrial. Hibl then moved to suppress the pretrial and in-court identifications. Waukesha County Circuit Court Judge Paul F. Reilly granted the motion.

The State appealed, but the court of appeals affirmed in a decision written by Judge Harry G. Snyder and joined by Judge Daniel P. Anderson. Judge Richard S. Brown dissented.

“I can think of no standard that logically distinguishes among encounters in a courtroom or courthouse hallway and those that occur outside the courthouse, in a donut shop across the street from the courthouse, or at an intersection just blocks away from the courthouse.”

Hon. Richard S. Brown

The court began with a discussion of the Wisconsin Supreme Court’s recent decision in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, which abrogated the methodology for determining admissibility of out-of-court identifications that had been established in State v. Wolverton, 193 Wis.2d 234, 533 N.W.2d 167 (1995)(Dubose was decided after the trial court’s holding).

In Dubose, the court held that a showup identification is inadmissible unless the showup procedure was necessary.

In light of Dubose, the court of appeals concluded, had the police or the prosecutor arranged the confrontation between Hibl and Stuller, the identification would have to be suppressed as an unnecessary and suggestive action.

However, the circuit court found that the encounter was accidental, rather than intentional, and the Dubose analysis concerning necessity is inapplicable.

Addressing accidental identifications, the court acknowledged a split in authority, with some jurisdictions holding that a pretrial encounter must be intentional for it to be suppressed, because, without government involvement, there can be no violation of due process. Other courts place the focus on the likelihood of misidentification, and thus conclude that an identification can be suppressed, even if accidental.

What the court held

Case: State of Wisconsin v. Brian Hibl, No. 2004AP2936-CR.

Issue: Is a witness’ identification of a defendant in the hallway outside the courtroom admissible?

Holding: No. The identification is impermissibly suggestive, and applying the five Wolverton factors, the identification was not reliable.

Counsel: Ted Szczupakiewicz, Waukesha; Gregory M. Weber, Madison, for appellant; Joel H. Rosenthal, Milwaukee, for respondent.

The court adopted that latter position, concluding that, in Dubose, the Supreme Court aligned itself with that view, by focusing on the likelihood of misidentification. The court concluded, “Although Dubose addressed a police showup procedure, concerns about misidentification are not limited to those situations where the police arranged the confrontation. Principles of fairness dictate that identification evidence, even absent police involvement, must be scrutinized to determine whether suppression is required (footnotes omitted).”

The court iterated and adopted the rationale of the trial court as follows:

“Mr. Stuller first identified the defendant in the hallway outside of the courtroom with approximately nine other people in the hallway; this occurred on the day Mr. Stuller knew he would see the alleged defendant. … Just prior to identifying the defendant, Mr. Stuller spoke with the police officer assigned to the case and to the Assistant District Attorney assigned to the case…. There is no evidence that the police or District Attorney’s office intentionally or unintentionally suggested the identification of the Defendant to Mr. Stuller; however, Mr. Stuller’s juxtaposition in the courtroom hallway with the ADA, anticipating the alleged defendant in court in a few minutes, constitutes an identification that occurred in an impermissibly suggestive manner. …”

“Mr. Stuller observed the driver/defendant on June 25, 2002, from 50 feet away while he was traveling 35 to 40 miles per hour, and the driver/defendant was traveling toward him in a white van at a high rate of speed… On the day of the alleged offense, Mr. Stuller could not identify the driver’s facial features, height, weight, or whether or not he wore glasses…. Mr. Stuller could only identify the driver as a ‘white male.’ Mr. Stuller’s identification of Defendant occurred fifteen months after he witnessed the incident.”

Calling the analysis sound, the court of appeals added, “In Dubose, our Supreme Court turned the focus from the reliability of eyewitness identification to that of necessity in cases where police procedure is involved Dubose, 699 N.W.2d 582, par. 33. Here, where necessity is not an issue, the only consideration left for the circuit court is that of reliability. The circuit court’s analysis demonstrates that Stuller’s courthouse hallway identification of Hibl was not reliable; therefore, we affirm the court’s order granting Hibl’s motion to suppress the pretrial and in-court identification evidence.”

Accordingly, the court affirmed.

The Dissent

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Case Analysis

Judge Brown dissented, concluding “I read Dubose as being limited to the context of pretrial showups, thus leaving prevailing rules intact with respect to other pretrial encounters. One of those prevailing rules, not even acknowledged by the majority, is the rule announced in State v. Marshall, 92 Wis. 2d 101, 117-18, 284 N.W.2d 592 (1979), abrogated on other grounds by State v. Dean, 103 Wis. 2d 228, 307 N.W.2d 628 (1981), superceded in part by statute, 1995 Wis. Act 440. In Marshall, our Supreme Court first reiterated the two-part test that existed at the time to determine admissibility of identification evidence under federal due process standards. First, the courts were to decide whether the confrontation procedure was unnecessarily suggestive. Marshall, 92 Wis. 2d at 117. If so, then they were to turn to whether the evidence was nonetheless reliable. Id. Only when the pretrial encounter was both unnecessarily suggestive and unreliable did the court exclude the evidence. Id.”

Noting that the Supreme Court in Dubose made no mention of Marshall, and held only that showups were “inherently suggestive,” Brown concluded the rationale in Dubose was inapposite to accidental or spontaneous identifications: “First, it would be absurd to announce a categorical rule that accidental encounters are ‘inherently suggestive.’ Second, I do not see how the courts could reasonably expect the State to guard against unplanned encounters. Even if the courts were to impose such a duty with respect to only unplanned confrontations factually similar to the one here, I cannot envision any logical stopping point to the rule. I can think of no standard that logically distinguishes among encounters in a courtroom or courthouse hallway and those that occur outside the courthouse, in a donut shop across the street from the courthouse, or at an intersection just blocks away from the courthouse. I simply cannot believe that Dubose provides authority for courts to prohibit identifications made based on fortuity.”

In the absence of police action in arranging the encounter, Brown concluded the only question was whether the identification was relevant evidence under Rule 904.01.

Click here for Case Analysis.

David Ziemer can be reached by email.

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