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Supreme Court overturns ‘unsound’ eyewitness identification ruling

The Wisconsin Supreme Court is realigning state law with U.S. Supreme Court decisions concerning the necessary criteria that must be made to ensure due process is carried out in eyewitness identifications. A majority of the state Supreme Court justices ruled Tuesday to overturn the burden placed on the state in State v. Dubose, calling the ruling “unsound in principle.”

At the heart of Dubose was a case involving a man charged in a drug deal gone wrong. The state charged Stephan Roberson with first-degree reckless injury after a victim had identified Roberson as the man who shot him during an attempted drug deal.

A police investigator linked a phone number to Roberson’s Facebook profile two weeks after the shooting. Police interrogated the victim and asked if he’d be able to use a photo to identify the man who shot him. Court documents say the man answered “possibly, I mean, I don’t know, black people kinda,” but then said he was 100 percent sure Roberson was the man who shot him when he saw Roberson’s picture.

The defense argued the victim was “clearly unsure of the characteristics of African-Americans” and called the identification shaky. The circuit court granted Roberson’s motion to suppress the identification and said the victim couldn’t identify Roberson in court because the initial identification tainted any subsequent identification.

The court of appeals reversed the ruling and said a decision about Dubose would be left to the state Supreme Court.

Dubose gave the state the burden of proving the necessity chosen identification procedures. If the state can’t prove that a chosen procedure was necessary, the entire procedure stops, and courts won’t consider whether provided evidence is reliable.

The decision differs from the U.S. Supreme Court’s due-process analysis. Under this analysis, defendants have to show that the methods law-enforcement officials use to identify a suspect as a perpetrator were “an unnecessarily suggestive identification procedure.”

Chief Justice Pat Roggensack and justices Rebecca Bradley, Brian Hagedorn and Dan Kelly affirmed the appellate court’s decision to reverse the ruling in Roberson’s case and overturn Dubose. In the opinion, Roggensack wrote that the state was right to ask the justices to return to the past practice of following the U.S. Supreme Court’s decisions about necessary criteria for carrying out due process in eyewitness identifications.

“(Dubose) fashioned a rule based on social science research,” Roggensack wrote. “Historically, there have been times when social science has been used by courts as an excuse to justify disturbing decisions. When these beliefs become enshrined as constitutional law, they have a long-lasting impact even if proved incorrect at a later date.”

Justice Rebecca Bradley referred to Plessy v. Ferguson as an example of “deplorable decisions … rooted in evil concepts supported by social science.”

Justices Rebecca Dallet and Ann Walsh Bradley dissented, citing a statistic from the Innocence Project that found 69 percent of DNA exoneration cases in the U.S. involved convictions relying on eyewitness misidentifications.

“The majority erodes the due process protection afforded by the Wisconsin Constitution and places jurors in the impossible position of separating the taint of a suggestive single photo identification from its reliability,” Dallet wrote.

She and Bradley supported the court’s using social science research, writing it has “formed the basis for the United States Supreme Court to overturn notable decisions.”

The complete opinion is on the state Supreme Court’s website.

About Michaela Paukner,

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at

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