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New ID case tests breadth of Dubose

Once again, the Wisconsin Supreme Court is taking up the issue of eyewitness identification. During its last term, the state’s high court issued a key decision opposing the police practice of showup identification by witnesses.

In a case heard earlier this month, the Supreme Court will decide if the 2005 decision controls the admissibility of an eyewitness identification, which resulted from an unplanned confrontation.

On April 5, the Supreme Court heard oral arguments in State v. Hibl. The identification in the case took place when a witness encountered the defendant in the courthouse hallway prior to trial. Counsel for defendant Brian Hibl maintains that the situation was inherently suggestive; therefore, the identification was unreliable and the trial judge appropriately suppressed the identification. State prosecutors argue that the spontaneous nature of the encounter increases reliability, which is a question that should go to the jury.

Van Flees Accident

The case arose from an accident on June 25, 2002. A Muskego police officer was driving southbound on Racine Avenue in Muskego, when he saw a red pickup truck and white van heading northbound and jockeying for position as the road narrowed from two lanes to one. The officer did not see the collision, but the red truck spun out of control and the white van fled the scene.

Alan R. Stuller witnessed the accident, but was unable to provide a description of the white van’s driver beyond “white male.” Two days later a man told police that his employee, Hibl, had admitted seeing the accident. Police questioned Hibl and he eventually admitted to being the driver of the van.

Hibl was charged with one count of causing great bodily harm by reckless driving and two counts of causing bodily harm by reckless driving.

Prosecutors subpoenaed Stuller to testify at trial 15 months later. Stuller observed Hibl in the hallway prior to trial and identified him as the driver of the van.

The trial court granted Hibl’s request for a mistrial. It later granted a motion to suppress Stuller’s identification of Hibl, which had taken place in the hallway. The state appealed and the Wisconsin Court of Appeals upheld the suppression in a 2-1 decision.

Court Releases Dubose Decision

In the interim, the Supreme Court last July issued a decision in State v. Dubose, where it determined police should avoid the use of one-on-one, showup identification practices, which were inherently suggestive.

The majority court in Dubose wrote, “We conclude the evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of circumstances, the procedure was necessary. A showup will not be necessary, however, unless police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array.”

During the Hibl oral argument, Assistant Attorney General Christopher G. Wren told justices this was the first opportunity for the Supreme Court to determine the scope of Dubose. Wren said Dubose should not apply to Hibl because the case did not involve a planned encounter. Stuller’s identification of Hibl in the courthouse hallway was spontaneous and unplanned.

Support for Marshall Decision

Instead, he said the court should rely on its 1979 decision in State v. Marshall. In Marshall, the court established a two-part test to determine admissibility of identification evidence — whether the confrontation was unnecessarily suggestive and whether the evidence was nonetheless reliable. If the evidence failed both parts, then it should be excluded.

“Dubose concerned a police-initiated, a police-conducted procedure that had long been criticized for its suggestiveness,” Wren told the court. That was not the case in Hibl, he said; therefore, the question of reliability should go to a jury.

“Because there is no planned encounter, the issue of reliability is one that gets decided by a jury,” Wren said.

Milwaukee attorney Joel H. Rosenthal, representing Hibl during the oral argument, challenged the characterization of Stuller’s encounter with Hibl as spontaneous and unplanned. Instead, he said, the state had subpoenaed Stuller to appear at Hibl’s trial. When he arrived, Rosenthal said, there was an expectation on the witness’ part that he would see the van driver.

The reliability of the identification was further undermined by Stuller’s limited description, the few seconds that he observed the van as it passed him and the length of time since the incident, Rosenthal said. He also noted that the state never brought Stuller in to view a lineup or photo array.

“When there is the potential for an identification, they need to attempt before trial to determine whether the witness can identify someone,” Rosenthal said.

He explained that Marshall could be distinguished because in that case the state had attempted a pretrial identification by photo.

Excessive Limits?

Several justices questioned the limitations Rosenthal suggested for witness identification. Justice Patience Drake Roggensack asked whether the identification would have been more reliable if the encounter between Stuller and Hibl had taken place in the courthouse parking lot. Rosenthal acknowledged that would not set as strong a case for excluding the identification, but added that you would need to know more about the hypothetical situation.

Justice Louis B. Butler Jr. asked what steps the state should have taken to separate Stuller and Hibl. He also asked about what that would mean for witnesses coming into the courtroom and identifying a person sitting at the defense table.

“My concern is
the scope of the decision and what you are asking the court to do,” Butler said.

Rosenthal reiterated that the state should have attempted an identification ahead of time. He characterized the case as one involving a false confession with no identification of the defendant prior to trial.

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Spontaneous Encounter?

During oral arguments, Justices Jon P. Wilcox and N. Patrick Crooks questioned Wren about his characterization of the encounter between Stuller and Hibl as spontaneous and the issues of reliability.

Wren maintained that the identification was reliable based on the spontaneous nature of the encounter, the speed of Stuller’s identification of Hibl and his degree of conviction about the identification.

He noted that the Dubose decision and all of the social science research related to the reliability of eyewitness identification dealt with planned encounters where witnesses expected to see the perpetrator; therefore, they were suggestive.

The court is expected to release a decision in this case before its current session ends in July.

Tony Anderson can be reached by email.

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