Wisconsin Supreme Court denies new trial in ID case.

Byline: David Ziemer

The Wisconsin Supreme Court held on Jan. 31 that a trial court's refusal to allow a defendant to present expert testimony on eyewitness identification does not entitle the defendant to a new trial, although the court acknowledged that the result may be different if the trial were held today.In 2002, S.B., a University of Wisconsin student, was sexually assaulted in Madison. Ferguson, a private security guard, heard her screams for help, and saw the assailant, although he was unable to apprehend him.Forest S. Shomberg was arrested nearly a month later, and both S.B. and Ferguson identified him as the assailant in lineups.Prior to trial, Shomberg sought to introduce expert testimony about the unreliability of eyewitness identifications, but the court refused to admit the evidence.Shomberg waived his right to a jury trial and was found guilty of second-degree sexual assault, false imprisonment, and two counts of bail jumping, all as a habitual offender, after a bench trial before Dane County Circuit Court Judge Patrick J. Fiedler.Shomberg appealed, but the court of appeals affirmed in an unpublished opinion. The Supreme Court accepted review, but also affirmed in a decision by Justice N. Patrick Crooks. Both Chief Justice Shirley S. Abrahamson and Justice Louis B. Butler, Jr., wrote dissents.The court noted that, at the time of the trial in 2002, only New Jersey mandated sequential, as opposed to simultaneous, lineup procedures, although, as the court recognized in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, research in the interim supports sequential lineups as more reliable. The recently signed Criminal Justice Reform Act also recommends sequential lineups.Recognizing those intervening events, the court concluded, "Were this case to come before the circuit court today, given the developments that have occurred in the interim, it is highly likely that the judge would have allowed the expert to testify on factors that influence identification and memory."Nevertheless, the court concluded that, back in 2002, it was not an erroneous exercise of discretion on the circuit court's part to exclude the testimony, and even if it were, the error was harmless.The court also found that the ruling did not deny Shomberg's constitutional right to present a defense, distinguishing State v. St. George, 2002 WI 50, 252 Wis.2d 499, 643 N.W.2d 777.To establish that the exclusion of a defense expert's testimony violated the right to present a defense, a defendant must first...