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Court Error – Burden of Proof

By: Derek Hawkins//February 4, 2020//

Court Error – Burden of Proof

By: Derek Hawkins//February 4, 2020//

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Andre David Nash

Case No.: 2018AP1595-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Court Error – Burden of Proof

The State appeals an order of the trial court granting Andre David Nash’s motion to suppress identification evidence obtained in a lineup. The State argues that it was Nash’s burden to prove that the lineup was impermissibly suggestive, but that the trial court improperly shifted that burden to the State and effectively required that it prove the lineup was not impermissibly suggestive. Furthermore, the State contends that the trial court failed to address the reliability of the lineup, which is required upon finding that a lineup is impermissibly suggestive.

We agree that the trial court did not properly apply the relevant case law with regard to determining whether a lineup is impermissibly suggestive. Furthermore, we conclude that Nash did not meet his burden of proving impermissible suggestiveness. Therefore, we reverse the order of the trial court and remand this matter with instructions to deny Nash’s suppression motion and continue the proceedings.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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