Whether the Supreme Court in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, implicitly overruled State v. Marshall, 92 Wis.2d 101, 284 N.W.2d 592 (1979), is an important question that demands consideration by the Supreme Court, and prosecutors adversely affected by this decision should preserve the issue for potential review.
In the interim, State v. Wolverton, 193 Wis.2d 234, 533 N.W.2d 167 (1995), which was expressly overruled in Dubose this summer, is once again valid law, with which attorneys need to be familiar, albeit, only for accidental or spontaneous identifications.
Under that framework, the first question is whether the identification was impermissibly suggestive. If it was, the burden shifts to the state to show that the identification is nevertheless reliable.
The second half of that framework is one that attorneys and courts have performed for decades, and will have no difficulty continuing to do so.
Where future cases turn on that part of the analysis, the decision in the case at bar will be easily distinguishable in many cases. Stuller’s identification at the time of the crime consisted solely of white male. Looking at factor three of the Wolverton analysis the accuracy of his prior description of the criminal that may be technically accurate, but the only way it could possibly be more inadequate would be if he identified only the race, or only the sex of the offender; Stuller could not even state to police whether the driver was wearing glasses.
The 15-month interim between the crime and the identification will also frequently be much longer than in future cases, and will be an additional basis for distinguishing the case.
Applying the first prong, however impermissible suggestiveness will be very difficult in future cases. The only fact that the court finds to be suggestive is that the identification occurred on the day Stuller knew he would see the alleged defendant, in a hallway just outside the courtroom.
Drawing a line in future cases between what is suggestive and is not will be difficult, as Judge Brown noted in dissent.
The number of persons in the hallway is a fact that will frequently be problematic. Here, there were approximately nine persons. If all were white males, that would undercut the court’s conclusion that the identification was suggestive; it is more than is found in a proper photo array or lineup.
However, if the other eight were women, or members of ethnic minorities, then it would buttress the court’s conclusion. But the decision does not discuss that aspect, so we don’t even know whether that is a fact weighing in favor of the defendant or the State.
If a spontaneous identification occurs in a very large crowded courthouse like Milwaukee County’s, where there will generally be more than nine persons milling in the hallway before court, courts will have a difficult time deciding whether to distinguish the holding in this case or to extend it.
Even with the minimal description by the witness such as here white male if a witness picked the defendant out among twenty other white males outside a Milwaukee County courtroom, the gut reaction, at least, is that the identification is very reliable, although studies cited by the court in this case and by the Supreme Court in Dubose may suggest otherwise.
The cases cited by the majority for support will provide no assistance in deciding whether an identification was suggestive, either.
In Commonwealth v. Jones, 666 N.E.2d 994 (Mass.1996), a crime was committed by two black males, and two Vietnamese males. On two occasions, a witness saw the defendant, the only black male in the room, shackled to a Vietnamese co-defendant, while in the courtroom. Id., at 997. Clearly, those identifications are far more tainted than the one in the case at bar.
Under those facts, arguably, the identification is not even properly classified as accidental or spontaneous, and will not assist trial courts in deciding the close cases that may arise.
People v. Walker, 411 N.Y.S.2d 156 (N.Y.County Ct. 1978), is even less helpful. The court merely held that an identification may be suppressed even in the absence of any official action in causing the identification, but did not hold the actual identification admissible or not.
– David Ziemer
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David Ziemer can be reached by email.