Due Process Violation.

Byline: Derek Hawkins

WI Supreme Court

Case Name: State of Wisconsin v. Stephan I. Roberson

Case No.: 2019 WI 102

Focus: Due Process Violation

We review an unpublished decision of the court of appeals reversing the circuit court's suppression of the victim's identification of Stephan I. Roberson because the identification began with law enforcement showing a single Facebook photo to the victim.

Roberson argues that the circuit court correctly granted his motion to suppress the identification evidence on the ground that the police utilized an unnecessarily suggestive procedure, which violated his due process rights under Article I, Section 8 of the Wisconsin Constitution as explained in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.

The State urges us to overturn Dubose, and return to our past practice of following decisions of the United States Supreme Court in regard to criteria that are necessary to accord due process in eyewitness identifications. We agree with the State. Dubose was unsound in principle. Therefore, we overturn Dubose and return to "reliability [a]s the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Neil v. Biggers, 409 U.S. 188, 199 (1972). Due process does not require the suppression of evidence with sufficient "indicia of reliability." Perry v. New Hampshire, 565 U.S. 228, 232 (2012).

Accordingly, "a criminal defendant bears the initial burden of demonstrating that a show up was impermissibly suggestive." State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995) (citing State v. Mosley, 102 Wis. 2d 636, 652 307 N.W.2d 200 (1981) and Powell v. State, 86 Wis. 2d 51, 65, 271 N.W.2d 610 (1978)). If a defendant meets this burden, the State must prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was...