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Court denies new trial in ID case

What the court held

Case: State v. Shomberg, No. 2004AP630-CR.

Issue: Was it an abuse of discretion, in 2002, for the trial court to refuse to allow a defendant to present expert testimony that eyewitness identifications re unreliable?

Did the exclusion violate the defendant’s right to present a defense to disallow the testimony?

Holdings: No. In 2002, the trial court’s decision was a reasonable exercise of discretion.

No. The testimony was not necessary, because defense counsel was able to cast doubt on the reliability of the identification through cross-examination.

Counsel: Charles W. Giesen, Morris D. Berman, Madison, for appellant; Christopher G. Wren, Peggy A. Lautenschlager, Madison, for respondent.

The Wisconsin Supreme Court held on Jan. 31 that a trial court’s refusal to allow a defendant to present expert testimony on eyewitness identification does not entitle the defendant to a new trial, although the court acknowledged that the result may be different if the trial were held today.

In 2002, S.B., a University of Wisconsin student, was sexually assaulted in Madison. Ferguson, a private security guard, heard her screams for help, and saw the assailant, although he was unable to apprehend him.

Forest S. Shomberg was arrested nearly a month later, and both S.B. and Ferguson identified him as the assailant in lineups.

Prior to trial, Shomberg sought to introduce expert testimony about the unreliability of eyewitness identifications, but the court refused to admit the evidence.

Shomberg waived his right to a jury trial and was found guilty of second-degree sexual assault, false imprisonment, and two counts of bail jumping, all as a habitual offender, after a bench trial before Dane County Circuit Court Judge Patrick J. Fiedler.

Shomberg appealed, but the court of appeals affirmed in an unpublished opinion. The Supreme Court accepted review, but also affirmed in a decision by Justice N. Patrick Crooks. Both Chief Justice Shirley S. Abrahamson and Justice Louis B. Butler, Jr., wrote dissents.

The court noted that, at the time of the trial in 2002, only New Jersey mandated sequential, as opposed to simultaneous, lineup procedures, although, as the court recognized in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, research in the interim supports sequential lineups as more reliable. The recently signed Criminal Justice Reform Act also recommends sequential lineups.

Recognizing those intervening events, the court concluded, “Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory.”

Nevertheless, the court concluded that, back in 2002, it was not an erroneous exercise of discretion on the circuit court’s part to exclude the testimony, and even if it were, the error was harmless.

The court also found that the ruling did not deny Shomberg’s constitutional right to present a defense, distinguishing State v. St. George, 2002 WI 50, 252 Wis.2d 499, 643 N.W.2d 777.

To establish that the exclusion of a defense expert’s testimony violated the right to present a defense, a defendant must first establish four elements: (1) the testimony meets the standards of sec. 907.02 for the admission of expert testimony; (2) the testimony must be clearly relevant to a material issue; (3) the testimony must be “necessary to the defendant’s case”; and (4) the probative value must outweigh its prejudicial effect.

The court assumed, without deciding, that Shomberg met elements one, two, and four, but held that he failed to satisfy element three, concluding, “Although the expert himself did not testify, Shomberg’s counsel was able to convey adequately the concepts of relative judgment and recognition memory, as well as the factors present in this case that would tend to render the eyewitness’ testimony unreliable in his cross-examinations of both S.B. and Ferguson.”

The court devoted many pages to reproducing the cross-examinations of S.B., Ferguson, and the officer who conducted the identifications, verbatim.

During cross-examination, S.B. ack-nowledged that the lighting was poor, that she saw her assailant for only a split second, and that she was not 100 percent sure of her identification.

In addition, she acknowledged that she eliminated three of the six people in the lineup because they were too large, and two more because they were too old. Counsel asked, “What did that leave?” and S.B. answered “Five [Shomberg].”

Cross-examination of the officer who conducted the lineup also cast doubt on the reliability of eyewitness identifications.

The officer acknowledged that he had attended training on eyewitness identification given by Shomberg’s expert, at which the expert explained why simultaneous lineups are not as reliable as sequential ones. The officer also acknowledged that the City of Madison was doing a training program in sequential lineups.

Because Shomberg’s counsel was able to discredit the lineup, even without expert testimony, the court concluded the expert was not necessary, and Shomberg failed to satisfy the third element.

The court also noted that the State presented no expert testimony of its own to support the accuracy of eyewitness identifications,
while in St. George, the court allowed the State to present expert testimony on child sexual assault, while disallowing the defendant’s testimony.

The court concluded with the following guidance, “In its amicus brief, the Innocence Project of the Frank J. Remington Center, University of Wisconsin Law School, asked this court to adopt a presumption of admissibility of expert eyewitness testimony in cases involving eyewitness identification. We decline to do so. Our concern is that adopting a presumption would all but eliminate the discretion of the circuit court on such evidentiary matters. Most troubling is that if we did adopt such a presumption, there is no clear guidance as to when and how such presumption could be overcome.

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Case Analysis

“However, we encourage circuit court judges to carefully consider, in each case, whether the admissibility of eyewitness expert testimony would be helpful to the trier of fact. Because of our growing appreciation for the difficulties inherent in eyewitness identification, we appreciate the work of the Department of Justice and the legislative task force in the development, education and promotion of better practices and procedures for eyewitness identification including, but not limited to, lineups.”

The Dissents

Chief Justice Abrahamson dissented, concluding, “As I see it, that the expert opinion offered was relatively unknown information is the very reason the circuit court should have admitted the testimony in the present case. The subject of the expert testimony was not generally known to triers of fact in Wisconsin in 2002. The proffered testimony was apparently specialized knowledge at the time of Shomberg’s trial. These factors are precisely why the expert testimony would have been of assistance to the trier of fact in the present case, was essential to the defense, and should have been admitted.”

Justice Butler also dissented, arguing, “Because the scientific analysis of perception and memory recollection is beyond the general knowledge and experience of the average juror, as well as many judges, there can be no doubt that the testimony of the expert would have assisted the trier of fact. Cross-examining the eyewitness is simply no substitute for expert testimony regarding the witness’s ability to make a correct identification.”

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David Ziemer can be reached by email.

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