Please ensure Javascript is enabled for purposes of website accessibility

Spontaneous identifications are admissible

By: dmc-admin//May 31, 2006//

Spontaneous identifications are admissible

By: dmc-admin//May 31, 2006//

Listen to this article

What the court held

Case: State v. Hibl, 2004AP2936-CR.

Issue: Does State v. Dubose require exclusion of a spontaneous identification by a witness, where the identification occurred in the hallway outside the courtroom on the day of trial?

Holding: No. Dubose does not control cases involving identification evidence derived from accidental confrontations resulting in spontaneous identifications.

Counsel: For plaintiff: Christopher G. Wren, Madison; For defendant: Joel H. Rosenthal, Milwaukee.

State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, which generally bars admission of identifications made pursuant to a “showup” arranged by police, does not apply to “spontaneous” identifications made during “accidental” confrontations.

In reversing a published decision of the court of appeals on May 26, State v. Hibl, 2005 WI App 228, 706 N.W.2d 134, the Wisconsin Supreme Court reaffirmed the validity of State v. Marshall, 92 Wis. 2d 101, 284 N.W.2d 592 (1979), but acknowledged that courts still have a limited gate-keeping function to exclude such evidence pursuant to sec. 904.03.

In Marshall, the court had held that, in order to establish that a spontaneous identification is unduly suggestive, the defendant must show that the government arranged the confrontation.

In June, 2002, a City of Muskego police officer was driving southbound, when he saw two northbound vehicles, a red pickup truck and a white van, exceeding the speed limit. The two vehicles appeared to jockey for position as they traveled toward a portion of the road that narrows from two lanes to one.

After the vehicles passed him, the officer continued to watch them in his mirrors, and saw the pickup truck collide with something. The white van did not stop and was not located.

Alan R. Stuller, who was also driving southbound, witnessed the accident. Stuller identified the van’s driver as a white male but was unable to describe him in further detail. The police did not ask Stuller to make an identification of the van’s driver using a photo array or a lineup procedure.

Brian Hibl was ultimately charged with one count of causing great bodily harm to another by reckless driving contrary to sec. 346.62(4), and two counts of causing bodily harm to another by reckless driving contrary to sec. 346.62(3).

Fifteen months after the incident, on the day of trial, as Stuller was speaking with the prosecutor outside the courtroom in the hallway, he spontaneously identified Hibl as the driver of the white van. The prosecutor informed defense counsel, who moved for a mistrial based upon the potential identification evidence that had come to light. The State joined in the motion, which the circuit court granted.

Hibl subsequently moved to suppress Stuller’s pretrial identification, along with any in-court identification the State might seek to elicit.

Applying State v. Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), Waukesha County Circuit Court Judge Paul F. Reilly granted the motion.

The State appealed, and while the case was pending, the Wisconsin Supreme Court decided Dubose. In a published decision, the court of appeals affirmed, holding that Dubose applied to spontaneous identifications, as well as “showup” identifications, without citation to Marshall. Judge Richard Brown dissented.

The Supreme Court granted review, and reversed, in a unanimous decision by Justice Ann Walsh Bradley.

The court held that Dubose is not directly controlling, reasoning, “The term ‘showup’ itself denotes a police procedure. The court in Dubose used the following definition of showup: ‘an out-of-court pretrial identification procedure in which a suspect is presented singly to a witness for identification purposes.’” (emphasis added) (cites omitted)

The court added that its characterization of what constitutes a “necessary” showup — circumstances that prevent police from conducting a lineup or photo array — reinforces that the court did not intend that Dubose control spontaneous identifications, inasmuch as an accidental identification can never be “necessary.”

Turning to Marshall, however, the court wrote, “At first, it might appear that Marshall provides not only the starting point but also the ending point for ‘spontaneous’ identifications resulting from ‘accidental’ confrontations. Given developments since the time of Marshall, however, we take this opportunity to re-examine Marshall.”

Noting that courts have long recognized that identifications can be unreliable, the court iterated the traditional factors courts have used to assess reliability: the opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of the witness’s prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200. See also Wolverton.

To these factors, the court added the following more recently recognized factors: the “relative judgment” process; the stressfulness of the event for the eyewitness; whether the event involved “weapon focus”; the cross-racial nature of an identification; and whether an eyewitness is given positive feedback during or immediately following the identification.

The court observed, “many of these phenomena do not depend on the presence of a law enforcement procedure. To the extent that identification evidence is extremely unreliable based on such phenomena, independent of an
y law enforcement procedure, Marshall’s holding may need to be modified.”

Related Links

Wisconsin Court System

Related Article

Case Analysis

After reviewing case law and commentary rejecting the rule of Marshall, the court wrote, “In light of all of the developments since the time of Marshall, we make the unremarkable observation that in some future case presenting different circumstances Marshall may need to be modified. There may be some conceivable set of circumstances under which the admission of highly unreliable identification evidence could violate a defendant’s right to due process, even though a state-constructed identification procedure is absent.”

The opinion of the court was unanimous, save for this one paragraph, which Justice Louis B. Butler, Jr., declined to join.

Because there was nothing suggestive in Stuller’s identification of Hibl, however, the court declined to modify Marshall in this case, and reversed the lower courts.

Before concluding, however, the court held that, regardless of whether there is a due process violation, courts still have the discretion to exclude evidence under sec. 904.03 if it is so unreliable that is probative value is substantially outweighed by the danger of prejudice and confusion.

Because neither the circuit court, nor the majority in the court of appeals applied Marshall, the court remanded the case to the circuit court, with instructions to admit the identification, unless it finds that sec. 904.03 requires that it be excluded.

Click here for Case Analysis.

David Ziemer can be reached by email.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests