2019 WI 102

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP1894-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Appellant,

 v.

Stephan I. Roberson,

 Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 384 Wis. 2d 632,922 N.W.2d 317

(2018 – unpublished)

OPINION FILED: December 3, 2019

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: October 6, 2019

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Wood

JUDGE: Nicholas J. Brazeau Jr.

JUSTICES:

CONCURRED: R.G. BRADLEY, J. concurs (except for ¶¶41-42), 

joined by KELLY, J. (opinion filed)

HAGEDORN, J. concurs. (opinion filed)

DISSENTED:

NOT PARTICIPATING: DALLET, J. dissents, joined by A.W. BRADLEY, J. 

(opinion filed) 

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs 

filed by Suzanne Edwards and the Law Office of Suzanne Edwards, 

Dodgeville. There was an oral argument by Suzanne Edwards.

For the plaintiff-appellant, there was a brief filed by 

Donald V. Latorraca, assistant attorney generals, with whom on 

the brief was Joshua L. Kaul, attorney general. There was an 

oral argument by Donald V. Latorraca.

An amicus curiae brief was filed on behalf of The Innocence 

Project, Inc., and the Wisconsin Innocence Project by Keith A. 
2

Findley and Wisconsin Innocence Project; with whom on the brief 

is Sarah K. Grossnickle and Whitney Wester, Houston, Texas, and 

Alyssa Musante, Los Angeles, California.
2019 WI 102

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP1894-CR

(L.C. No. 2017CF76)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin, 

Plaintiff-Appellant, 

v.

Stephan I. Roberson, 

Defendant-Respondent-Petitioner. 

FILED

DEC 3, 2019

Sheila Reiff

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an 

unpublished decision of the court of appeals1 reversing the 

circuit court's2 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. 

 

1 State v. Roberson, No. 2017AP1894-CR, unpublished slip op. 

(Wis. Ct. App. Oct. 4, 2018) (per curiam).

2 The Honorable Nicholas J. Brazeau, Jr. of Wood County

presided.
No. 2017AP1894-CR 

2

¶2 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. 

¶3 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).

¶4 Accordingly, "a criminal defendant bears the initial 

burden of demonstrating that a showup 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 suggestive." Wolverton, 193 Wis. 2d at 264

(quoting Brathwaite, 432 U.S. at 106 and citing Biggers, 409 
No. 2017AP1894-CR 

3

U.S. at 199). We conclude that the State has satisfied its 

burden here.

¶5 Therefore, we affirm the court of appeals and remand 

to the circuit court for proceedings consistent with this 

opinion. 

I. BACKGROUND

¶6 The State charged Roberson with first-degree reckless 

injury, contrary to Wis. Stat. § 940.23(1)(a) (2017–18).3 The 

charge stemmed from an incident where Roberson, allegedly, shot 

C.A.S. over a drug deal that went wrong.

¶7 C.A.S., a Caucasian male, claims to have met an 

African American male at a Walmart toward the end of January in 

2017. At that time, C.A.S. knew him only as "P." P tapped 

C.A.S. on the shoulder and asked C.A.S. if he "smoked." After 

C.A.S. responded "yeah," P asked C.A.S. to obtain a "bag" of 

marijuana for him. C.A.S. indicated he could. The two drove to 

get marijuana and then drove back to Walmart and exchanged 

numbers. This first encounter lasted approximately a half an 

hour.

¶8 The following day, C.A.S. was supposed to bring P more 

marijuana. For whatever reason, C.A.S. was unable to secure 

any, and C.A.S. contacted P explaining his failure.

¶9 The next day, C.A.S. texted P to tell him he could get 

marijuana. The two arranged for P to pick up C.A.S. after P 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2017AP1894-CR 

4

finished work. Sometime after 7:00 p.m., P picked up C.A.S. and 

C.A.S.'s brother and sister, and the four drove to secure the 

marijuana. The group then drove back to C.A.S.'s residence. P 

came inside the house, where he asked C.A.S. to sell the 

marijuana for him. C.A.S. agreed. This second encounter lasted 

approximately a half an hour.

¶10 P instructed C.A.S. to sell the marijuana in 

"eighths," meaning an eighth of an ounce at a time. However, 

C.A.S. had a potential buyer, who was interested in a half an 

ounce, worth approximately $180. C.A.S. went to sell the half 

an ounce, and the potential buyer robbed him at gunpoint. 

C.A.S. texted P, explaining what happened. A few minutes later, 

P picked up C.A.S., who had been walking on the road.

¶11 The two drove to a dog park where the situation 

escalated. P took out a gun and fired a shot past C.A.S.'s 

head. C.A.S. punched P in the face, and then P pointed his gun 

at C.A.S. and shot him in his leg. P yelled, "Why'd you make me 

shoot you?" P then asked C.A.S. if he was going to tell anyone. 

C.A.S. said no and asked P to drive him home. P drove C.A.S. to 

the residence of D.D., a friend of C.A.S. When C.A.S. got 

there, he used two belts to create a makeshift tourniquet. He 

then "got high." This third encounter lasted between an hour 

and a half and two hours. C.A.S. did not contact law 

enforcement because he was subject to an outstanding warrant.

¶12 C.A.S. spent between two and a half to three hours 

with P over a short period of time. The evidence does not 
No. 2017AP1894-CR 

5

indicate that at any point during the encounters C.A.S.'s mental 

state was impaired by drugs or alcohol.

¶13 Investigator Nathan Reblin learned that C.A.S. had 

been injured and was cared for at D.D.'s residence. He began 

trying to locate C.A.S. A confidential citizen witness gave 

Reblin a cell phone that P had given to C.A.S., apparently so 

the two could communicate. C.A.S. was logged into the cell 

phone's Facebook app. The cell phone had text messages between 

C.A.S. and a person identified in the messages as "P." Reblin 

noted the phone number of the contact and searched for it on 

Facebook. The search yielded one result: a profile for 

Roberson.

¶14 Law enforcement obtained a warrant to search D.D.'s 

residence. They found what they believed to be blood on some 

boxer shorts. They also found a chair in the basement and a 

quilt that both appeared to have blood stains. They did not 

find C.A.S.

¶15 Later, C.A.S. was taken into custody on a probation 

hold. However, before he was taken to the Wood County jail, he 

was taken to a hospital for what appeared to be an old gunshot 

wound to his leg.

¶16 About two weeks after the shooting, Reblin and his 

partner interviewed C.A.S. at the jail. The interview was 

videotaped, and the circuit court admitted a DVD of the 

interview into evidence. 

¶17 C.A.S. told Reblin and his partner what transpired. 

Reblin asked C.A.S. if he would be able to identify P from a 
No. 2017AP1894-CR 

6

photograph. He responded, "Possibly, I mean, I don't know, 

black people kinda" and made a shaking movement with his right 

hand that indicated uncertainty. Reblin's partner brought up a 

photograph of Roberson from Facebook on his phone, which he 

showed to C.A.S. who immediately began nodding his head up and 

down. After the non-verbal indication that the photograph was 

P, Reblin asked, "That's him?" C.A.S. responded, "yup." Reblin 

then asked, "100%?" C.A.S. replied, "100% yeah."

¶18 Subsequently, Roberson moved to suppress C.A.S.'s outof-court identification on the ground that the investigators 

used a single photograph as opposed to a photograph array. At 

the suppression hearing, C.A.S. testified that P looked similar 

on all three occasions. He had either "dreadlocks" or 

"cornrows" and had on a sweatshirt with work pants.

¶19 The circuit court generally noted the same historical

facts as are set out above. In particular, the circuit court 

said:

[C.A.S.] is clearly unsure of the characteristics of 

African Americans. He states the same. Objectively, 

it is hard to convince ones self that [C.A.S.] 

wouldn't have identified any picture of an African 

American male as "P" if Reblin indicated that it was a 

picture of "P." The process is shaky, and the victim 

making the identification is likewise shaky, so the 

[c]ourt lacks confidence that the identification of 

"P" by [C.A.S.] is not a result of showing the single 

photo to him. As such, [C.A.S.]'s identification of 

the defendant's photo and his later identification in 

court, tainted by his exposure to that photo, are 

suppressed.

¶20 Although C.A.S. made a comment and a gesture 

indicating that he was unsure about identifying African American 
No. 2017AP1894-CR 

7

people, the circuit court noted that, "The chances that a 

misidentification occurred are unclear." The circuit court also 

said, "This [c]ourt believes [C.A.S.] has a sufficient basis to 

identify 'P' from those meetings." 

¶21 Nevertheless, the circuit court granted Roberson's 

motion to suppress and also held that C.A.S. could not identify 

Roberson in court because the initial identification tainted any 

subsequent identification.

¶22 The State filed an interlocutory appeal, arguing the 

circuit court improperly suppressed the out-of-court 

identification and that even if the out-of-court identification 

was improper, the circuit court erroneously used that as a basis 

for excluding a subsequent in-court identification. The court 

of appeals reversed the circuit court. State v. Roberson, 

No. 2017AP1894-CR, unpublished slip op. (Wis. Ct. App. Oct. 4, 

2018) (per curiam). The court of appeals reasoned that a single 

photograph is not a showup and that any decision to extend 

Dubose must be left to this court. Id., ¶¶10–17. 

¶23 We granted Roberson's petition for review and now 

affirm the court of appeals, albeit on different grounds.

II. DISCUSSION

A. Identification Due Process

¶24 We are asked to return to our pre-Dubose standards for 

pretrial identifications. Accordingly, a review of our preDubose identification decisions may be helpful to the reader 

before we begin to discuss Dubose.
No. 2017AP1894-CR 

8

¶25 Generally, the admissibility of evidence in state 

court trials is governed by the rules of evidence. See, e.g., 

Wis. Stat. § 904.03. Once admitted, the jury determines which 

evidence is credible and what weight to ascribe to it. State v. 

Hibl, 2006 WI 52, ¶31, 290 Wis. 2d 595, 714 N.W.2d 194; see also

State v. Johnson, 2004 WI 94, ¶20, 273 Wis. 2d 626, 681 N.W.2d 

901 (instructing that it is for the jury to assess the 

credibility of witnesses). 

¶26 However, due process also may restrict admission of 

eyewitness testimony: "identification [evidence] infected by 

improper police influence" may be excluded when "there is 'a 

very substantial likelihood of irreparable misidentification'" 

unless, "the indicia of reliability are strong enough to 

outweigh the corrupting effect of the police-arranged suggestive 

circumstances." Perry, 565 U.S. at 232. 

¶27 Under its due process analysis, the United States 

Supreme Court places the burden first on the defendant to show 

that the method law enforcement chose to employ to identify a 

suspect as the perpetrator was "an unnecessarily suggestive 

identification procedure," such that there was a very 

substantial likelihood of misidentification.4 Id. at 232 n.1, 

 

4 We note that this first step is not controversial. 

Justice Sonia Sotomayor, in dissent with her colleagues in 

Perry, explained, "the defendant has the burden of showing that 

the eyewitness identification was derived through 'impermissibly 

suggestive' means." Perry v. New Hampshire, 565 U.S. 228, 253-

54 (2012) (Sotomayor, J., dissenting) (citing Simmons v. United 

States, 390 U.S. 377, 384 (1968)).

(continued)
No. 2017AP1894-CR 

9

235. Only after a court concludes that the defendant has met 

his or her burden in this regard will the court extend a 

pretrial screening for reliability; otherwise, reliability of 

admissible evidence is for the jury to determine in the first 

instance.5 Id. at 232 & n.1. 

¶28 Perry's discussion of "unnecessarily" is focused on 

police conduct that is claimed to have "manufactured" a 

challenged identification procedure when identification may have 

been obtained by a less suggestive means. Id. at 235. Perry

explains that "due process concerns arise only when law 

enforcement officers use an identification procedure that is 

both suggestive and unnecessary." Id. at 238-39 (citing 

Brathwaite, 432 U.S. at 107, 109). Under the federal standard, 

as Justice Sonia Sotomayor explained in her dissent, "[m]ost 

identifications will be admissible." Perry, 565 U.S. at 254 

(Sotomayor, J., dissenting). That is so because reliability is 

the decisive issue under the federal due process standard. 

¶29 Due process focuses on ensuring reliable

identification evidence. Accordingly, when unnecessarily 

 

Unnecessarily suggestive and impermissibly suggestive seem 

to be used interchangeably by the United States Supreme Court at 

times. See Perry, 565 U.S. at 254 n.3 (Sotomayor, J., 

dissenting); Neil v. Biggers, 409 U.S. 188, 197-98 (1972).

5 Dubose placed the burden on the State of proving the 

necessity of the procedure chosen. Therefore, under Dubose, if 

the State cannot prove the chosen procedure was necessary, the 

entire analysis stops, and the court never considers whether the 

evidence is reliable. It is simply excluded. State v. Dubose, 

2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582. 
No. 2017AP1894-CR 

10

suggestive state action occurs, the State bears the burden to 

provide a factual foundation that supports the reliability of 

the evidence. Necessity can become a factor when identification 

is challenged; however, if a suggestive law enforcement 

procedure was necessary, the state action that resulted in an 

identification will not implicate due process concerns. Id. at 

242 (majority opinion). As Perry explained, "The fallibility of 

eyewitness evidence does not, without the taint of improper 

state conduct, warrant a due process rule requiring a trial 

court to screen such evidence for reliability before allowing 

the jury to assess its creditworthiness." Id. at 245.

¶30 Even before Perry, we followed a similar two-step due 

process analysis. Wolverton, 193 Wis. 2d at 264. Perry assists 

in sharpening that analysis today. 

¶31 In Wolverton, the defendant moved to suppress his 

pretrial identification that resulted from two showups. Id. at 

243. The showups occurred when Wolverton was sitting alone in 

the back seat of a squad car. Id. at 249. Upon Wolverton's 

motion to suppress his identification, we reviewed the 

requirements of due process in regard to identification 

evidence. Id. at 264. We explained that a "pretrial police 

procedure that is 'so impermissibly suggestive as to give rise 

to a very substantial likelihood of irreparable 

misidentification'" violates due process. Id. (quoting Simmons 

v. United States, 390 U.S. 377, 384 (1968)). 

¶32 We concluded that showups were "not per se 

impermissibly suggestive." Wolverton, 193 Wis. 2d at 264
No. 2017AP1894-CR 

11

(citing State v. Streich, 87 Wis. 2d 209, 214, 274 N.W.2d 635 

(1979) and State v. Isham, 70 Wis. 2d 718, 725, 235 N.W.2d 506 

(1975)). We said that "a criminal defendant bears the initial 

burden of demonstrating that a showup was impermissibly 

suggestive." Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102 

Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant 

meets this burden, then the State must prove that "under the 

'totality of the circumstances' the identification was reliable 

even though the confrontation procedure was suggestive." 

Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at

106). 

¶33 Wolverton cites the Sixth and Fourteenth Amendments of 

the United States Constitution when addressing the right to 

counsel and due process. Wolverton, 193 Wis. 2d at 251 n.6, 7. 

We did not specify the source of the due process right that 

protects a defendant from unreliable identifications. However, 

the cases upon which we relied in that regard are grounded in 

the Fourteenth Amendment. E.g., Streich, 87 Wis. 2d at 214-15; 

Brathwaite 432 U.S. at 99. Furthermore, in Mosley, while 

recognizing that we could go beyond the guarantees of the 

Fourteenth Amendment, we specifically declined to do so. 

Mosley, 102 Wis. 2d at 667-68 (explaining that "we decline the 

defendant's invitation to go beyond the federal constitutional 

holding and reach a contrary result based on independent state 

constitutional grounds."). 

¶34 Until our decision in Dubose, we continued to use this 

two-step process when evaluating motions to suppress pretrial 
No. 2017AP1894-CR 

12

identifications. First, the defendant must meet an initial 

burden of showing that the identification procedure employed by 

law enforcement was impermissibly suggestive such that there was 

a very substantial likelihood of misidentification. Perry, 565 

U.S. at 232; Wolverton, 193 Wis. 2d at 264.

¶35 Second, if the defendant meets that burden and the 

burden shifts to the State, the State must prove that "under the 

'totality of the circumstances' the identification was reliable 

even though the confrontation procedure was suggestive." 

Brathwaite, 432 U.S. at 106 (quoting Biggers, 409 U.S. at 199). 

A nonexclusive list of reliability factors includes: (1) the 

opportunity of the witness to view the suspect at the time of 

the crime, (2) the witness' degree of attention, (3) the 

accuracy of his prior description of the suspect, (4) the level 

of certainty demonstrated at the confrontation, and (5) the time 

between the crime and the confrontation. Brathwaite, 432 U.S. 

at 114.

¶36 An additional factor that may be considered is the 

extent to which the procedure was documented, such as by video 

recording. See Howard B. Eisenberg & Bruce G. Feustal, Criminal 

Law: Pretrial Identification: An Attempt to Articulate 

Constitutional Criteria, 58 Marq. L. Rev. 659, 683 (1975) 

(recommending videotaping lineups). 

¶37 Dubose departed from the Brathwaite/Biggers analysis, 

and instead, it fashioned a rule based on social science 

research. However, social science research cannot be used to 
No. 2017AP1894-CR 

13

define the meaning of a constitutional provision. As Justice 

Antonin Scalia famously stated:

The principal theoretical defect of nonoriginalism, in 

my view, is its incompatibility with the very 

principle that legitimizes judicial review of 

constitutionality. . . . [T]he Constitution, though it

has an effect superior to other laws, is in its nature 

the sort of "law" that is the business of the courts——

an enactment that has a fixed meaning ascertainable 

through the usual devices familiar to those learned in 

the law. If the Constitution were not that sort of a 

"law," but a novel invitation to apply current 

societal values, what reason would there be to believe 

that the invitation was addressed to the courts rather 

than to the legislature? One simply cannot say, 

regarding that sort of novel enactment, that "[i]t is 

emphatically the province and duty of the judicial 

department" to determine its content. Quite to the 

contrary, the legislature would seem a much more 

appropriate expositor of social values, and its

determination that a statute is compatible with the 

Constitution should, as in England, prevail.

Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. 

L. Rev. 849, 854 (1989). 

¶38 As Justice Scalia explained, the judiciary is not in a 

good position to judge social values or social science. When 

social science is disputed, the institutional parameters of the 

judiciary are amplified. It is the legislature that is 

structured to assess the merits of competing policies and everchanging social science assertions.

¶39 It is no surprise that, with mounds of research 

available, the State in the dispute now before us has identified 

social science that supports its position. E.g., John Wixted & 

Gary Wells, The Relationship Between Eyewitness Confidence and 
No. 2017AP1894-CR 

14

Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in 

the Pub. Int. 10 (2017).

¶40 Furthermore, categorical rules of exclusion, based on 

social science, are the antithesis of justice because "one of 

the major tenets in the administration of justice" is "the 

presentation of reliable, relevant evidence at trial." Dubose, 

285 Wis. 2d 143, ¶86 (Roggensack, J., dissenting) (citing 

Brathwaite, 432 U.S. at 112).

¶41 Historically, there have been times when social 

science has been used by courts as an excuse to justify 

disturbing decisions. Indeed, entire law review articles and 

book chapters have been dedicated to analyzing how Plessy v. 

Ferguson and the line of cases that followed Plessy grounded 

their decisions in social science of the time. E.g., Herbert 

Hovenkamp, Social Science and Segregation Before Brown, 1985 

Duke L.J. 624. As explained:

[P]olicy-based adjudication was as prevalent in the 

race cases of the Gilded Age and the Progressive Era 

as in any area of law during the time. However, the 

policies were different from those espoused by liberal 

social scientists after the New Deal. According to 

the prevailing social science of the 1910's and 

1920's, the social value created by a comprehensive, 

state-enforced plan of racial separation was far 

greater than any costs imposed on its 

victims. . . . [T]he law of race relations during this 

period was a product of the period's social science, 

just as the law of race relations developed by the 

Warren Court during the Brown era was a product of the 

social science of that period.

Id. at 627.
No. 2017AP1894-CR 

15

¶42 The United States Supreme Court cited social science 

in Brown, but it did so as a response to social science employed 

at the time of Plessy. Brown v. Board of Educ., 347 U.S. 483, 

494 n.11 (1954). The research at the time of Brown showed:

Segregation of white and colored children in public 

schools has a detrimental effect upon colored 

children. The impact is greater when it has the 

sanction of the law for the policy of separating the 

races is usually interpreted as denoting the 

inferiority of the negro group.

Id. at 494. The Court stated, "[w]hatever may have been the 

extent of psychological knowledge at the time of Plessy v. 

Ferguson, this finding [of negative psychological impact] is

amply supported by modern authority." Id.

¶43 Social science often embodies the subjective beliefs 

of the time. When these beliefs become enshrined as 

constitutional law, they have a long-lasting impact even if 

proved incorrect at a later date. The contrast between Plessy

and Brown is a telling example. Plessy embodied abhorrent 

social beliefs regarding the superiority and inferiority of 

people based on race. This belief then became law through 

United States Supreme Court decision-making that was purporting 

to interpret the United States Constitution. It took more than 

half a century to correct course because it is difficult to 

overturn constitutional precedent.

¶44 Social science cannot change the original meaning of 

the Wisconsin Constitution, any more than it can change the 

meaning of the United States Constitution. Article I, Section 8 

of the Wisconsin Constitution protects a defendant's right to 
No. 2017AP1894-CR 

16

due process, just as the federal constitution's Fourteenth 

Amendment does. Due process requires that evidence infected by 

improper police conduct from which there is a substantial 

likelihood of misidentification will be excluded unless the 

State proves that under the totality of circumstances bearing on 

the identification, it is nonetheless reliable. Perry, 565 U.S. 

at 232. Due process does not require that all showups be 

excluded. Id. Rather, the question is whether the particular 

showup under consideration is reliable. Id. We note that the 

United States Supreme Court agrees, as the Court has explicitly 

held, reliability must be determined on a "case-by-case" basis. 

Id. at 239 (citing Biggers, 409 U.S. at 201).

¶45 Wisconsin court procedure used to evaluate showup 

identifications changed substantially under Dubose. As we are 

asked to overturn Dubose, we now turn our attention to that 

decision and the rationales that supported or opposed it.

B. Dubose

¶46 We begin by noting that in order to reach its 

conclusion that suppressing out-of-court identifications 

obtained by law enforcement through an unnecessary procedure was 

required, Dubose overruled Wisconsin appellate precedent that 

had stood for at least 26 years. Dubose, 285 Wis. 2d 143, ¶33 

n.9 withdrawing language from Wolverton, 193 Wis. 2d at 258, 

Streich, 87 Wis. 2d 209 and State v. Kaelin, 196 Wis. 2d 1, 538 

N.W.2d 538 (Ct. App. 1995)). As we explain below, Dubose is 

unsound in principle as it was based on misunderstanding the 
No. 2017AP1894-CR 

17

United States Supreme Court's decisions in regard to out-ofcourt identifications and on topical social science. 

¶47 Dubose defined a showup as "an out-of-court pretrial 

identification procedure in which a suspect is presented singly 

to a witness for identification purposes." Dubose, 285 Wis. 2d 

143, ¶1 n.1 (quoting Wolverton, 193 Wis. 2d at 263 n.21). We 

have no quarrel with that definition. Here, the suspect, 

Roberson, was presented via a single photograph as opposed to 

being presented singly in person as the suspect was in Dubose. 

¶48 We conclude that the State action that caused a showup 

to be subject to constitutional scrutiny in Dubose may be 

equally applicable to the use of a single Facebook photo for an 

out-of-court identification. Therefore, we address the 

continued validity of Dubose, even though the identification 

employed here was not a single person showup.

¶49 We are respectful of the doctrine of stare decisis. 

State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 

592. As we have previously explained:

[Adhering to precedent] ensures that existing law will 

not be abandoned lightly. When existing law is open 

to revision in every case, deciding cases becomes a 

mere exercise of judicial will, with arbitrary and 

unpredictable results. Consequently, this court has 

held that any departure from the doctrine of stare 

decisis demands special justification.

Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 

266 (citations and quotations omitted). On the other hand, we 

acknowledge that "[w]e do more damage to the rule of law by 

obstinately refusing to admit errors, thereby perpetuating 
No. 2017AP1894-CR 

18

injustice, than by overturning an erroneous decision." Johnson 

Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 

Wis. 2d 60, 665 N.W.2d 257.

¶50 When we are requested to overturn precedent, we 

consider whether one or more of the following circumstances is 

present:

(1) Changes or developments in the law have undermined 

the rationale behind a decision; (2) there is a need 

to make a decision correspond to newly ascertained 

facts; (3) there is a showing that the precedent has 

become detrimental to coherence and consistency in the 

law; (4) the prior decision is "unsound in principle;" 

or (5) the prior decision is "unworkable in practice."

Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. 

Ins. Corp., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216. We 

also may consider "whether [our past decision] has produced a 

settled body of law." Id., ¶34 (quoting Johnson Controls, 264 

Wis. 2d 60, ¶99).

¶51 A decision is unsound in principle when it relies on 

an erroneous understanding of United States Supreme Court 

decisions or misapplies the Wisconsin Constitution because the 

misunderstanding and faulty application "risk[] perpetuating 

erroneous declarations of the law." See Tetra Tech EC, Inc. v. 

DOR, 2018 WI 75, ¶83, 382 Wis. 2d 496, 914 N.W.2d 21 (quoting 

Operton v. LIRC, 2017 WI 46, 274 Wis. 2d 1, ¶73, 894 N.W.2d 426 

(R. Bradley, J., concurring). Dubose misunderstood United 

States Supreme Court decisions and misapplied Article I, Section 

8 of the Wisconsin Constitution when it concluded that evidence 

obtained from an out-of-court showup "will not be admissible 
No. 2017AP1894-CR 

19

unless, based on the totality of the circumstances, the 

procedure was necessary." Dubose, 285 Wis. 2d 143, ¶¶33, 45. 

¶52 That Dubose misunderstood United State Supreme Court's 

decisions is apparent from Dubose's discussion of Stovall v. 

Denno, 388 U.S. 293 (1967) where Dubose reasoned: 

[W]e adopt standards for the admissibility of out-ofcourt identification evidence similar to those set 

forth in the United States Supreme Court's decision in 

Stovall. We hold that evidence obtained from such a 

showup will not be admissible unless, based on the 

totality of the circumstances, the showup was 

necessary.

Dubose, 285 Wis. 2d 143, ¶45; (see also ¶33, for a similar 

statement). 

¶53 Stovall arose upon the United States Supreme Court's 

consideration of whether to retroactively apply a Supreme Court 

holding that required "exclusion of identification evidence 

which is tainted by exhibiting the accused to identifying 

witnesses before trial in the absence of his counsel." Stovall, 

388 U.S. at 294. Stovall never concluded that identification 

evidence must be excluded unless the showup "was necessary." 

Instead, it held, "a claimed violation of due process of law in 

the conduct of a confrontation depends on the totality of the 

circumstances surrounding it." Id. at 302. Reliability of the 

factfinding process remained the dispositive criterion for 

admissibility of in-person identifications in Stovall. Id. at 

298. 

¶54 In addition, there was no need, and Dubose provided no 

logical rationale, for departing from our past reliance on the 
No. 2017AP1894-CR 

20

United States Supreme Court's interpretation of due process

requirements under the federal constitution when out-of-court 

identifications are challenged in Wisconsin courts.6 Simos v. 

State, 83 Wis. 2d 251, 258, 265 N.W.2d 278 (1978), which relied 

on United States Supreme Court precedent to conclude that under 

the totality of circumstances the identification was reliable, 

and Streich, 87 Wis. 2d at 214-15, which followed the United 

States Supreme Court's lead on due process with regard to 

avoiding misidentification in a showup, are but two examples. 

¶55 As Justice Jon P. Wilcox explained:

Today the majority alters course and 

abandons . . . [a] long line of well-established 

precedent, contending that the Due Process Clause of 

the Wisconsin Constitution now affords greater 

protections than its federal counterpart. . . .

Given the nearly identical language in the two 

provisions and this court's historic practice of 

interpreting the two provisions in the same fashion, 

the majority simply has no support for its conclusion 

that the language in Article I, Section 8 

"necessitates" a rejection of . . . [United States 

Supreme Court decisions]."

Dubose, 285 Wis. 2d 143, ¶¶61–62 (Wilcox, J., dissenting).

 

6 United States Supreme Court precedent relative to 

allegedly unfair pretrial identifications relies on the 

Fourteenth Amendment. Perry, 565 U.S. at 237 (citing Napue v. 

Illinois, 360 U.S. 264, 269 (1959)). 

The Fourteenth Amendment provides in relevant part, "nor 

shall any State deprive any person of life, liberty, or 

property, without due process of law." U.S. Const. amend. XIV, 

§ 1.
No. 2017AP1894-CR 

21

¶56 Certainly, states have the power to afford greater 

protection to citizens under their constitutions than the 

federal constitution does. Herb v. Pitcairn, 324 U.S. 117, 125 

(1945) (explaining that federal courts will refuse to review a 

state court decision if the decision is based on an "adequate

and independent state ground[]"). However, the question for a 

state court is whether its state constitution actually affords 

greater protection. A state court does not have the power to 

write into its state constitution additional protection that is 

not supported by its text or historical meaning. 

¶57 As Justice David T. Prosser cautioned, "While the 

court may exercise this power, the court should pay more 

attention to whether it should exercise this power." Dubose, 

285 Wis. 2d 143, ¶75 (Prosser, J., dissenting). In particular, 

we must recognize that "[b]y sheer volume of cases, the [United 

States] Supreme Court has developed substantial experience 

interpreting constitutional provisions." Id., ¶76. 

¶58 Furthermore, Dubose explicitly relied on case law from 

Massachusetts and New York when interpreting due process 

guarantees under Article I, Section 8 of the Wisconsin 

Constitution.7 Id., ¶¶38, 42 (majority opinion) (citing 

Commonwealth v. Johnson, 650 N.E.2d 1257, 1262, 1265 (Mass. 

1995) (which rejected the reliability test for admissibility and 

 

7 Article I, Section 8 provides in relevant part, "No person 

may be held to answer for a criminal offense without due process 

of law." Wis. Const. art. I, § 8.
No. 2017AP1894-CR 

22

required per se exclusion for showup identifications based on 

due process protections of the Massachusetts Constitution); 

State v. Adams, 423 N.E.2d 379, 383 (N.Y. 1981) (which relied on 

the New York Constitution to conclude that excluding 

identification evidence from a showup does not deprive the 

prosecutor of reliable evidence)). 

¶59 There is no logical nexus between how Massachusetts 

and New York courts interpret their individual constitutions, 

which contain constitutional provisions not found in Wisconsin's 

Constitution, and how we should interpret Wisconsin's 

Constitution. And, of equal importance, Dubose provides no 

explanation on why the Wisconsin Constitution has a different 

due process guarantee than its federal counterpart. 

¶60 Dubose crafted a rule of constitutional law, largely 

based on social science reports that it found persuasive. 

However, by defining a constitutional provision according to 

social science reports, Dubose created the capacity to prevent 

identifications of perpetrators of crimes when under the 

totality of circumstances surrounding the identifications, they 

were reliable. 

¶61 Furthermore, Dubose has not created a substantial body 

of settled law.8 Rather, it created a specific rule that has not 

 

8 We are aware of states that mention Dubose, but none have

decided to follow it. For example, State v. Washington, 189 

A.3d 43, 55–57 (R.I. 2018); State v. Herrera, 902 A.2d 177, 181 

(N.J. 2006), overruled on other grounds by State v. Henderson, 

27 A.3d 872 (N.J. 2011); State v. Ledbetter, 881 A.2d 290 (Conn. 

2005) overruled on other grounds by State v. Harris, 191 A.3d 

(continued)
No. 2017AP1894-CR 

23

been followed by appellate courts of other jurisdictions. And 

finally, Dubose has been treated negatively by several 

subsequent Wisconsin appellate opinions. 

¶62 For example, in 2006, shortly after Dubose was 

decided, "[w]e determine[d] that Dubose does not directly 

control cases involving identification evidence derived from 

'accidental' confrontations resulting in 'spontaneous' 

identifications." Hibl, 290 Wis. 2d 595, ¶3. We then remanded 

to the circuit court to apply the rules of evidence to the 

identification. Id. We noted that those rules allow circuit 

courts to use their discretion to exclude evidence when its 

"probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence." Wis. Stat. 

§ 904.03; Hibl, 290 Wis. 2d 595, ¶3. 

¶63 In 2007, the court of appeals "conclude[d] that Dubose

did not alter the standard for determining whether admission of 

an out-of-court identification from a photo array violates due 

 

119 (Conn. 2018). Though some state courts have permitted 

defendants more protection than afforded by the United States 

Constitution's guarantee of due process, and some have cited 

Dubose in so doing, none have conditioned admission of the outof-court identification on whether the procedure that law 

enforcement employed was necessary. For example in Henderson, 

the New Jersey Supreme Court adopted a reliability standard it 

believed was more accurate. Henderson, 27 A.3d at 919-20. In 

Harris, the Connecticut Supreme Court adopted the standard 

designed in Henderson. Harris, 191 A.3d at 143. 
No. 2017AP1894-CR 

24

process." State v. Drew, 2007 WI App 213, ¶2, 305 Wis. 2d 641, 

740 N.W.2d 404.

¶64 In 2012, we held Dubose was inapplicable to an incourt, mugshot identification. State v. Ziegler, 2012 WI 73, 

¶¶81–82, 342 Wis. 2d 256, 816 N.W.2d 238. We said that we saw 

"no reason to apply Dubose," and the defendant could point to 

none. Id., ¶82.

¶65 In 2015, we confirmed the limited reach of Dubose in 

Luedtke, 362 Wis. 2d 1, where we stated:

[P]ost-Dubose, we have held that the decision did not 

create a precedential sea change with respect to the 

recognition of a broader due process protection under 

the Wisconsin Constitution than under the United 

States Constitution. In State v. Drew, the court of 

appeals held that Dubose did not alter precedent with 

respect to lineups and photo arrays, explaining that 

Dubose recognized those identification procedures are 

preferable to a showup. In State v. Hibl, we held 

that Dubose did not directly control spontaneous or 

accidental identifications of a defendant by a victim 

lacking police involvement. Finally, in State v. 

Ziegler, we distinguished a showup from an 

identification made in court through the showing of a 

single mug shot.

The State correctly notes, even within the 

specific context of eyewitness identification, postDubose jurisprudence confirms the limited reach of its 

actual holding: that due process under the Wisconsin 

Constitution provides greater protection in one 

identification procedure, the showup.

Id., ¶¶49–50 (citations omitted). Given that Dubose has not 

created a substantial body of law, overturning it will have 

minimal impact. With the above review in mind, we conclude that 

stare decisis is not offended by overturning Dubose, and we now 

do so. 
No. 2017AP1894-CR 

25

C. Standard of Review

¶66 We employ a two-step standard of review when analyzing 

a motion to suppress. State v. Blatterman, 2015 WI 46, ¶16, 362 

Wis. 2d 138, 864 N.W.2d 26. We first review the circuit court's 

findings of historical fact, which we uphold unless they are 

clearly erroneous. Id. Next, we independently apply 

constitutional principles to the facts found, which presents a 

question of law. Id.

D. C.A.S.'s Identification

¶67 We note that not all showings of a single photo are 

infected by improper police influence causing a very substantial 

likelihood of misidentification. Each identification must be 

evaluated based on its own facts. Perry, 565 U.S. at 239, 245 

n.5. C.A.S.'s identification began with the display of a color 

photo of Roberson's Facebook photo. 

¶68 The first step in our evaluation is whether Roberson 

can prove that the method chosen by law enforcement was 

impermissibly suggestive. While it is true that it would have 

been better practice for law enforcement to show Facebook photos 

of more than one African American male, the officer never asked 

if the picture was the man C.A.S. knew as P, even though he had 

asked if C.A.S. thought he could identify P. Only after C.A.S. 

gave a nonverbal indication that he recognized the man in the 

Facebook photo, did Reblin ask "That's him?" However, we will 

assume without deciding, that Roberson met his burden of proving 
No. 2017AP1894-CR 

26

an impermissibly suggestive mode of identification, as did the 

court of appeals.9 Roberson, No. 2017AP1894-CR, ¶18. 

¶69 The burden now shifts to the State to prove that under 

the totality of the circumstances the identification was 

reliable. Biggers, 409 U.S. at 199. Applying the reliability 

assessment factors from Biggers, which were confirmed in 

Brathwaite 432 U.S. at 106-07, 114, to the facts herein, we note 

that C.A.S. had ample opportunity to view P. At a minimum, 

C.A.S. spent two and a half hours with P, on three separate 

occasions, over a short period of time. C.A.S. spent five times 

more time with P than the victim in Biggers did with her 

assailant, which the United States Supreme Court held was a 

"considerable period of time." Id. at 200. Nothing in the 

record suggests C.A.S. had an altered mental state or was 

otherwise cognitively impaired. Additionally, while P never 

 

9 The State has articulated a few reasons why the procedure 

might not have been impermissibly suggestive. First, it points 

out that the investigator used a photograph from Facebook as 

opposed to a mugshot. It argues, "[u]nlike a mugshot, which 

carries with it the implicit prejudicial suggestion that the 

person depicted has been arrested or convicted of a 

crime, . . . [the photograph in this case] does not convey this 

type of suggestibility." Resp. br. at 26. Second, the State 

relies heavily on a theory that "the protagonists are known to 

one another." Resp. br. at 27 (quoting People v. Gissendanner, 

399 N.E.2d 924, 930 (N.Y. 1979)). Apparently, some support 

exists for the proposition that when two people are wellacquainted, an identification procedure cannot be suggestive. 

Resp. br. at 26-27. 
No. 2017AP1894-CR 

27

provided his name, we note he made no substantial effort to 

conceal his identity.

¶70 The degree of attention favors reliability. C.A.S. 

agreed to participate in a drug-dealer relationship with P. P 

gave C.A.S. a phone, presumably so they could forward their 

plans. Their interactions show they were contemplating an 

ongoing relationship where it could be expected they would know 

each other's faces under circumstances similar to those present 

here. We also note that P came into C.A.S.'s residence, 

something generally personal in nature. 

¶71 During the third encounter, C.A.S. may have been 

paying more attention to the situation than to P. However, the 

United States Supreme Court suggested in Biggers that a victim 

of a violent crime remembers more. Id. ("She was no casual 

observer, but rather the victim of one of the most personally 

humiliating of all crimes.").

¶72 The first two factors appear to question 

identifications where a witness briefly sees a stranger, perhaps 

out of a window, under poor conditions. C.A.S.'s identification 

presents on facts that are completely opposite. As the State 

put it, "the shooting itself was not the product of a brief, 

momentary encounter between two strangers."10

¶73 Law enforcement did not obtain a detailed prior 

description of P from C.A.S. before showing C.A.S. the Facebook 

 

10 Resp. br. at 30.
No. 2017AP1894-CR 

28

photo. We note that the court of appeals "assume[d] for 

purposes of . . . [its] opinion only that the absence of a 

description weighs somewhat against reliability." Roberson, 

No. 2017AP1894-CR, ¶38. However, the State has the burden to 

prove that under the totality of the circumstances the 

identification is reliable, and under the Bigger's factors, 

collecting evidence prior to displaying the Facebook photo of 

Roberson was the State's responsibility. 

¶74 The circuit court seemed to place a lot of weight on 

C.A.S. not knowing the difference between dreadlocks and 

cornrows when he described P. However, there is no reason the 

jury cannot weigh this testimony as well as the circuit court. 

Most evidence can be called into question in some way; however, 

that does not give the circuit court the ability to preclude 

admission. We have cross-examination for a reason; evidence 

often is tested in that way.

¶75 The level of C.A.S.'s certainty favors reliability. 

Immediately upon seeing the photograph, C.A.S. nodded his head 

up and down. He did not wait for Reblin to ask him a question 

before indicating that the photo was P. Then when he was asked 

if his identification was "100%," he said that it was. 

¶76 Approximately two weeks passed between C.A.S.'s 

shooting and the identification. We have no reason to conclude 

that two weeks is such a significant passage of time as to call 

into question the identification. This is particularly true 

when we consider the amount of time the two spent together on 

three different days.
No. 2017AP1894-CR 

29

¶77 We further note that the identification was extremely 

well-documented in this case. It was videotaped in its 

entirety. If a picture is worth a thousand words, a video is a 

thousand pictures. The jury can watch the video, and it can 

hear and see C.A.S.'s comment and gestures in regard to his 

ability to identify African Americans. It can hear what C.A.S. 

said and see the accompanying hand gesture. The jury also can 

see the certainty on C.A.S.'s face when he is shown the Facebook 

photo.

¶78 Upon consideration of the totality of the 

circumstances bearing on the identification of Roberson, we 

conclude that there is not a substantial likelihood of 

misidentification by an unreliable identification. Therefore, 

the jury should decide whether Roberson was correctly identified 

as P.

¶79 Accordingly, we affirm the court of appeals and remand 

to the circuit court for proceedings consistent with this 

opinion.

III. CONCLUSION

¶80 In conclusion, Roberson argued 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 Dubose. 

¶81 The State urges us to overturn Dubose, and return to 

our past practice of following decisions of the United States 
No. 2017AP1894-CR 

30

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." 

Brathwaite, 432 U.S. at 114; see also Biggers, 409 U.S. at 199. 

Due process does not require the suppression of evidence with 

sufficient "indicia of reliability." Perry, 565 U.S. at 232.

¶82 Accordingly, "a criminal defendant bears the initial 

burden of demonstrating that a showup was impermissibly 

suggestive." Wolverton, 193 Wis. 2d at 264 (citing Mosley, 102 

Wis. 2d at 652 and Powell, 86 Wis. 2d at 65). If a defendant 

meets this burden, then the State must prove that "under the 

'totality of the circumstances' the identification was reliable 

even though the confrontation procedure was suggestive." 

Wolverton, 193 Wis. 2d at 264 (quoting Brathwaite, 432 U.S. at

106 and citing Biggers, 409 U.S. at 199). We conclude that the 

State has satisfied its burden here.

¶83 Therefore, we affirm the court of appeals and remand 

to the circuit court for proceedings consistent with this 

opinion. 

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2017AP1894-CR.rgb

1

¶84 REBECCA GRASSL BRADLEY, J. (concurring). I join the 

majority opinion in full, except to the extent paragraphs 41-42 

suggest that courts may consult social science research to 

interpret the Constitution. See Missouri v. Jenkins, 515 U.S. 

70, 114, 119-20 (1995) (Thomas, J., concurring) (criticizing the 

majority for relying on "questionable social science research 

rather than constitutional principle" and noting that 

assumptions and social science research "cannot form the basis 

upon which we decide matters of constitutional principle"). 

Historically, when courts contaminate constitutional analysis 

with then-prevailing notions of what is "good" for society, the 

rights of the people otherwise guaranteed by the text of the 

Constitution may be trampled. Departures from constitutional 

text have oppressed people under all manner of pernicious 

pretexts:

[T]he notion of "social harm" supporting the 

police power was completely untethered from 

constitutional text and ripe for misuse in the hands 

of a Justice such as Holmes, who believed that the 

Constitution could be reduced to ad hoc balancing. 

Eugenics was built upon the notion of harm; indeed, it 

thrived on a sense of imminent doom: that society was 

degenerating because of what were called its 

"weaklings" and "discards." The idea that society was 

being swamped by incompetents was a common trope for 

eugenicists: the unfit were a "menace." . . . Like the 

great popular eugenicists of the day, Holmes wrote in 

Buck that eugenics would prevent society from being 

"swamped" by incompetents, that fewer criminals would 

be executed, and that fewer imbeciles would starve.

Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a 

Lost World, 39 Pepp. L. Rev. 101, 114-15 (2011) (emphasis added; 

footnotes omitted). 
No. 2017AP1894-CR.rgb

2

¶85 In rebuking his colleagues for upholding segregation, 

Justice John Marshall Harlan rightly relied solely upon the 

Constitution:

But in view of the constitution, in the eye of the 

law, there is in this country no superior, dominant, 

ruling class of citizens. There is no caste here. Our 

constitution is color-blind, and neither knows nor 

tolerates classes among citizens. In respect of civil 

rights, all citizens are equal before the law. The 

humblest is the peer of the most powerful. The law 

regards man as man, and takes no account of his 

surroundings or of his color when his civil rights as 

guaranteed by the supreme law of the land are 

involved. 

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., 

dissenting).

¶86 Deplorable decisions such as Plessy v. Ferguson and 

Buck v. Bell1 were rooted in evil concepts supported by social 

science and elitist mores antithetical to the Constitution. 

Ascertaining and faithfully applying the original meaning of the 

Constitution's words precludes appalling social science-based 

notions of the day from infecting constitutional analysis. Only 

the Constitution can serve as a reliable bulwark of the rights 

and liberty of the people. In order to emphasize that social 

science has no role to play in constitutional analysis, I 

respectfully concur. 

¶87 I am authorized to state that Justice DANIEL KELLY 

joins this concurrence. 

 

1 274 U.S. 200 (1927).
No. 2017AP1894-CR.bh

1

¶88 BRIAN HAGEDORN, J. (concurring). I join the 

majority opinion, but write separately to make three points.

¶89 First, while the dissent bemoans the policy outcome of 

today's decision, the practical effect need not be the fullthrottled return of the showup evidence Dubose frowned upon. 

State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. 

The majority is correct that courts should not allow social 

science to define new categories of constitutional protection 

divorced from the text of our constitution. That said, the 

latest social science research is a normal and welcome part of 

fact-finding, and can play a proper role in applying the facts 

to the law in these types of cases.

¶90 Going forward, I see nothing improper with circuit 

courts allowing vigorous cross-examination of showup evidence, 

or admitting expert testimony regarding the very social science 

research presented in this case. Law enforcement can continue 

to follow the same rules, and the legislature could choose to 

enact related policies into law. Nothing in the court's opinion 

today quibbles with best practices, police policies, and 

adversarial lawyering designed to ensure defendants have a fair 

shake.

¶91 It may be that the policy decision announced in Dubose

is a good one. But that's not the legal question before us. 

The question here is whether our constitution requires the 

exclusion of this and similar types of evidence.
No. 2017AP1894-CR.bh

2

¶92 Second, one of the great civics failures of our time 

is the prevalence of the notion that everything that's bad is 

unconstitutional. Not so. Policy and law are and must be 

different if the judicial task is to mean anything. And the 

governing law when facing a constitutional question is not 

established by a public policy assessment or a social science 

research paper; it is established by the written constitution 

itself.

¶93 This case involves the constitutional right to due 

process of law. Wis. Const. art. I, § 8. Historically, "due 

process" meant having a basic process grounded in the pillars of 

notice and an opportunity to be heard. Thus, as a general

matter, the original public meaning of "due process" was a 

guaranteed process, and did not encompass a broad swath of 

substantive rights. Modern attempts to constitutionalize every 

lamentable aspect of our criminal justice system by creating new 

substantive due process rights should be treated with immense 

skepticism. Courts and litigants are far too eager to address 

the latest social cause célèbre by turning the constitution's 

weathered parchment into a weapon of policy warfare.

¶94 As Justice Clarence Thomas has noted, the whole line 

of cases on eyewitness identification evidence "is premised on a 

'substantive due process' right to 'fundamental fairness.'" 

Perry v. New Hampshire, 565 U.S. 228, 249 (2012) (Thomas, J., 

concurring). I agree with Justice Thomas that due process "is 

not a 'secret repository of substantive guarantees against 

"unfairness."'" Id. (quoted source omitted). When "fundamental 
No. 2017AP1894-CR.bh

3

fairness" becomes synonymous with "unconstitutional," 

opportunities for judicial policy-making, and therefore judicial 

mischief, are plentiful.1 Dubose is just one example. Instead 

of letting the crucible of cross-examination be the refining 

fire it has always been——and due process requires little more——

Dubose short-circuited the process and designed a new 

substantive right in the court's own image. Dubose was an 

effort to constitutionalize the policy choices of the court's 

majority without any real effort to ground those choices in the 

original public meaning of the constitutional text. 

Faithfulness to the law requires overturning Dubose.

¶95 Finally, it is with some irony that the dissent 

criticizes us for overruling Dubose. Fidelity to the principles 

of stare decisis, we are told, ensures "cases are grounded in 

the law, not in the will of individual members of the court." 

Dissent, ¶97. But as the majority notes, Dubose itself burned a 

decades-long line of precedent to the ground. We should surely 

be mindful and deferential toward precedent, but predictability 

 

1 Justice Hugo Black recognized this very threat in his 

dissent in Stovall v. Denno, 388 U.S. 293 (1967), the decision 

that gave rise to this entire line of due process jurisprudence. 

There, Justice Black described the Supreme Court's "concept of 

due process" as its own judgment of whether the totality of the 

circumstances of a particular case comport with its own 

conceptions of decency, fairness, and fundamental justice. 

Id. at 305 (Black, J., dissenting). The problem with this 

"constitutional formula," as Justice Black rightly explained, is 

that it substitutes the reviewing court's "judgment of what is 

right for what the Constitution declares shall be the supreme 

law of the land." Id. Put differently, the court becomes "not 

a Constitution-interpreter, but a day-to-day Constitutionmaker." Id.
No. 2017AP1894-CR.bh

4

and stability are not served by clinging to the creative, 

atextual judicial inventions of yesteryear. It is Dubose that 

departed from precedent. It is Dubose that was the product of 

"the will of individual members of the court." Dubose was an 

outlier and a reflection of judicial policy-making, not faithful 

constitutional interpretation. Today, the court rights the 

ship.
No. 2017AP1894-CR.rfd

1

¶96 REBECCA FRANK DALLET, J. (dissenting). In Dubose, 

this court declared Wisconsin's approach to admission of showup 

evidence1 upon a finding of reliability unsound and in violation 

of Article I, Section 8 of the Wisconsin Constitution.2 State v. 

Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Today,

the majority departs from the doctrine of stare decisis and 

overrules Dubose, despite extensive research establishing the 

prevalence and danger of mistaken eyewitness identification. 

Ultimately 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. For these 

reasons, I dissent. 

A. The doctrine of stare decisis ensures cases are grounded in 

the law, not in the will of individual members of the court.

¶97 The doctrine of stare decisis ensures the integrity of 

the judicial system by developing consistency in legal 

principles and establishing that cases are grounded in the law, 

 

1 A showup is "an out-of-court pretrial identification 

procedure in which a suspect is presented singly to a witness 

for identification purposes." State v. Wolverton, 193 

Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995). 

2 Article I, Section 8 of the Wisconsin Constitution reads: 

"[n]o person may be held to answer for a criminal offense 

without due process of law, and no person for the same offense 

may be put twice in jeopardy of punishment, nor may be compelled 

in any criminal case to be a witness against himself or 

herself."
No. 2017AP1894-CR.rfd

2

not in the will of individual members of the court. See Johnson 

Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶95, 

264 Wis. 2d 60, 665 N.W.2d 257. "When existing law 'is open to 

revision in every case, deciding cases becomes a mere exercise 

of judicial will, with arbitrary and unpredictable results.'" 

Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653 

N.W.2d 266 (quoted source omitted). The outcome of a case 

should not turn on whether the current members of the court find 

one legal argument more persuasive but, rather, on "'whether 

today's [majority] has come forward with the type of 

extraordinary showing that this court has historically demanded 

before overruling one of its precedents.'" State v. Lynch, 2016 

WI 66, ¶101, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson, J., 

concurring in part; dissenting in part) (quoting Payne v. 

Tennessee, 501 U.S. 808, 848 (1991) (Marshall, J., dissenting)). 

¶98 The type of extraordinary showing this court relies 

upon to overturn precedent includes circumstances where:

(1) Changes or developments in the law have undermined 

the rationale behind a decision; (2) there is a need 

to make a decision correspond to newly ascertained 

facts; (3) there is a showing that the precedent has 

become detrimental to coherence and consistency in the 

law; (4) the prior decision is "unsound in principle"; 

or (5) the prior decision is "unworkable in practice."

Bartholomew v. Wisconsin Patients Comp. Fund, 2006 WI 91, ¶33, 

293 Wis. 2d 38, 717 N.W.2d 216 (quoted source omitted). The 

majority hangs its hat on the fourth circumstance and declares 

that Dubose is now "unsound in principle." Majority op., ¶¶3, 
No. 2017AP1894-CR.rfd

3

81.3 To the contrary, I will show that Dubose remains sound in 

principle and that it is only the composition of this court that 

has changed.4 

B. This court has afforded greater protection of citizens' 

liberties under the Wisconsin Constitution. 

¶99 The majority claims that Dubose is unsound because it 

"misapplied" Article I, Section 8 of the Wisconsin Constitution

in providing greater due process protection in the showup 

procedure than is mandated by the United States Supreme Court. 

Majority op., ¶51.5 Yet, this court has historically refused to 

 

3 The majority opinion favorably cites to the arguments made 

in the dissenting opinions in State v. Dubose, 2005 WI 126, 285 

Wis. 2d 143, 699 N.W.2d 582, signaling that a change in the 

composition of the court is the real reason Dubose has become 

unsound. See, e.g., majority op., ¶¶55, 57: "As Justice Jon P. 

Wilcox explained"; "As Justice David T. Prosser cautioned." 

4 Justice Hagedorn's concurrence incorrectly claims that 

"Dubose itself burned a decades-long line of precedent to the 

ground." Justice Hagedorn's concurrence, ¶95. Instead, Dubose

simply withdrew language from Wolverton, 193 Wis. 2d 234; State 

v. Streich, 87 Wis. 2d 209, 274 N.W.2d 635 (1979); and State v. 

Kaelin, 196 Wis. 2d 1, 538 N.W.2d 538 (Ct. App. 1995), that 

"might be interpreted as being based on the Wisconsin 

Constitution." Dubose, 285 Wis. 2d 143, ¶33 n.9. Moreover, 

post-Dubose, we have confirmed the "limited reach of [Dubose's] 

actual holding" and recognized that it did not "create a 

precedential sea change . . . ." State v. Luedtke, 2015 WI 42, 

¶¶49-50, 362 Wis. 2d 1, 863 N.W.2d 592. 

5 The majority also claims that Dubose is unsound because it 

"misunderstood United States Supreme Court decisions" by 

adopting standards "similar" to those in Stovall v. Denno, 388 

U.S. 293 (1967). Majority op., ¶¶51-52. In Stovall, the United 

States Supreme Court upheld what it recognized as the "widely 

condemned" practice of show-ups because it was "imperative" that 

the police immediately conduct a showup for a dying eyewitness. 

Stovall, 388 U.S. at 302. This court's conclusion in Dubose

that a showup is impermissibly suggestive absent necessity was 

(continued)
No. 2017AP1894-CR.rfd

4

be bound by the minimum protections set by the Supreme Court. 

"This court has demonstrated that it will not be bound by the 

minimums which are imposed by the Supreme Court . . . [if] the 

Constitution of Wisconsin and the laws of this state require 

that greater protection of citizens' liberties ought to be 

afforded." State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 

(1977). Two significant examples described by the Doe court 

include: (1) granting the right to counsel at the state's 

expense one hundred years prior to the United States Supreme 

Court's pronouncement of this right in Gideon v. Wainwright, 372

U.S. 335 (1963); and (2) excluding evidence recovered through 

unlawful searches and seizures forty years before Mapp v. Ohio, 

367 U.S. 643 (1961). See Carpenter v. Dane County, 9 Wis. 274

(1859); Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); see 

also State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998)

(holding that Article I, Section 7 of the Wisconsin Constitution 

guarantees a right to a 12-person jury in all criminal cases 

notwithstanding that the right to a 12-person jury in 

misdemeanor cases is not guaranteed by the United States 

Constitution). 

¶100 This court has particularly described the rights 

defined in Article I, Section 8 as "so sacred, and the pressure 

so great towards their relaxation in case[s] where suspicion of 

guilt is strong and evidence obscure, that it is the duty of the 

courts to liberally construe the prohibition [against self-

 

appropriately guided by the "imperativeness" justification 

relied upon in Stovall.
No. 2017AP1894-CR.rfd

5

incrimination] in favor of private rights." Thornton v. State, 

117 Wis. 338, 341, 93 N.W. 1107 (1903). The Thornton court 

reminds us that courts must be vigilant "to refuse to permit 

those first and doubtful steps which may invade [Article I, 

Section 8] in any respect." Id. Just as in Thornton where we 

construed Article I, Section 8 to afford greater protection of a 

defendant's right against self-incrimination, in Dubose we 

applied the same constitutional provision to afford greater 

protection of a defendant's right to due process.

¶101 The majority opinion claims that because the wording 

of Article I, Section 8 of the Wisconsin Constitution is nearly 

identical to the Due Process Clause of the United States 

Constitution, the Wisconsin Constitution does not provide any 

additional protection. Majority op., ¶¶55-56. In Knapp, this 

court warned against this "lock-step" theory of interpreting the 

Wisconsin Constitution no broader than its federal counterpart: 

[w]hile textual similarity or identity is important 

when determining when to depart from federal 

constitutional jurisprudence, it cannot be conclusive, 

lest this court forfeit its power to interpret its own 

constitution to the federal judiciary. The people of 

this state shaped our constitution, and it is our 

solemn responsibility to interpret it.

State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d 86, 700 N.W.2d 

899; see also State v. Ward, 2000 WI 3, ¶59, 231 Wis. 2d 723, 

604 N.W.2d 517 ("[I]t would be a sad irony for this court 

to . . . act as mere rubber stamps ourselves when interpreting 

our Wisconsin Constitution."). In now limiting a protection

previously afforded under Article I, Section 8, the majority 
No. 2017AP1894-CR.rfd

6

ignores the warning from Knapp and shirks this court's solemn 

responsibility to interpret the Wisconsin Constitution. 

C. Extensive social science research establishing the 

prevalence and danger of mistaken eyewitness identification is a 

proper consideration to support a shift in constitutional law.

¶102 The majority insinuates that the extensive social 

science research relied upon in Dubose is irrelevant and 

unreliable. The majority ignores the body of United States 

Supreme Court precedent that considered social science research 

in cases premised on constitutional interpretation and 

application. Social science research has formed the basis for 

the United States Supreme Court to overturn notable decisions 

including: criminalization of consensual same sex intimate 

conduct in Lawrence v. Texas, 539 U.S. 558 (2003), and 

imposition of the death penalty on the mentally ill and 

juveniles in Atkins v. Virginia, 536 U.S. 304 (2002), and Roper 

v. Simmons, 543 U.S. 551 (2005). 

¶103 Additionally, the majority discounts the seminal case 

of Brown v. Board of Educ., 347 U.S. 483 (1954), where the 

United States Supreme Court held that "separate but equal" 

education of children of color, as the doctrine was mandated by 

Plessy v. Ferguson, 163 U.S. 537 (1896), violated the 

Constitution based upon comprehensive studies demonstrating the 

fallacy of that concept in practice. In Dubose, this court 

"follow[ed] the lead of Brown" and determined that current 

social science research demanded a "much-needed change to our 

jurisprudence" in the area of eyewitness identification. 

Dubose, 285 Wis. 2d 143, ¶44.
No. 2017AP1894-CR.rfd

7

¶104 There is no support for the notion that the social 

science research relied upon in Dubose has become unreliable. 

There is no dispute that social science research establishes the 

prevalence and danger of mistaken eyewitness identification 

where inherently suggestive identification procedures like a 

showup are used. The lone study cited by the majority 

recognizes the danger of suggestive identification procedures 

and only reports an increase in the accuracy of identification 

when procedures include safeguards, like those imposed in the 

wake of Dubose. See majority op., ¶39 (citing John Wixted & 

Gary Wells, The Relationship Between Eyewitness Confidence and 

Identification Accuracy: A New Synthesis, 18 Psychol. Sci. in 

the Pub. Int. 10, 2017.6

¶105 Mistaken eyewitness identification is still the 

leading cause of wrongful convictions in the United States. 

According to the Innocence Project, sixty-nine percent of DNA 

exoneration cases in the United States involved convictions 

based on eyewitness misidentifications. See https: //www. 

innocenceproject.org/dna-exonerations-in-the-united states; see

also Michael D. Cicchini, Joseph G. Easton, Reforming the Law on 

Show-Up Identifications, 100 J. Crim. L. & Criminology 381, 390

(2010) ("[o]ne study revealed that 'when the identification was 

 

6 The study evaluated the level of confidence in lineups 

done under "pristine conditions," which included the use of

multiple fillers, double-blind testing, cautionary statements to 

eyewitnesses and a confidence statement made at the time of the 

lineup. John Wixted & Gary Wells, The Relationship Between 

Eyewitness Confidence and Identification Accuracy: A New 

Synthesis, 18 Psychol. Sci. in the Pub. Int. 12-17, 2017. 
No. 2017AP1894-CR.rfd

8

conducted twenty-four hours afterwards, fourteen percent of 

those who viewed a lineup made a mistaken identification, 

whereas fifty-three percent of those who viewed a show-up made a 

mistaken identification.'") The risk of mistaken eyewitness 

identification is even greater when the identification involves 

a suspect of a different race. See, e.g., Cunningham v. Peters, 

941 F.2d 535, 541 (7th Cir. 1991) (Easterbrook, J. dissenting) 

("All eyewitness testimony is problematic, given the frailties of 

human memory. Identification by members of other races is 

especially so.") (citing Sheri Lynn Johnson, Cross-Racial 

Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 

(1984)). As was the case when Dubose was decided, current 

social science research establishes the frequency and danger of 

mistaken eyewitness identification and is therefore "impossible 

for us to ignore." Dubose, 285 Wis. 2d 143, ¶29.

D. Dubose had a crucial impact in deterring the use of 

suggestive identification procedures and excluding 

inherently unreliable showup evidence.

¶106 The majority claims that overruling Dubose will have 

"minimal impact." Majority op., ¶65. The majority overlooks

Dubose's influence on the implementation of statewide policies, 

exaggerates "negative treatment" of Dubose, and ignores the fact 

that many states have provided more due process protection for 

showup procedures post-Dubose. Most significantly, the majority 

fails to recognize the inherent unreliability of suggestive 

identification procedures like showups.

¶107 Dubose led to the implementation of statewide policies 

to reduce the frequency of mistaken eyewitness identifications 
No. 2017AP1894-CR.rfd

9

above and beyond the showup. Five months after Dubose was 

decided, the legislature enacted Wis. Stat. § 175.50, requiring 

law enforcement agencies to adopt model policies to minimize the 

possibility of mistaken eyewitness identifications. In 

formulating these policies, law enforcement agencies are to 

consider practices that "[t]o the extent feasible, show[]

individuals or representations sequentially rather than 

simultaneously to an eyewitness" and "[m]inimiz[e] factors that 

influence an eyewitness to identify a suspect." §§ 175.50(5)(b)

& (c). Accordingly, in 2010, the Wisconsin Department of 

Justice published its Model Policy and Procedures for Eyewitness 

Identifications recommending that law enforcement officials 

"conduct double-blind, sequential photo arrays and lineups with 

non-suspect fillers chosen to minimize suggestiveness, nonbiased 

instructions to eyewitnesses, and assessments of confidence 

immediately after identifications." Wis. Dep't of Justice, 

Model Policy and Procedure for Eyewitness Identification at 1 

(Apr. 1, 2010). In adopting these policies, the Department of 

Justice recognized that suggestive law enforcement procedures 

could increase the likelihood of mistaken eyewitness 

identification, as this court emphasized in Dubose.

¶108 The majority claims that overruling Dubose will have 

little impact because it has "not created a substantial body of 

settled law" and because it "has been treated negatively by 

several subsequent Wisconsin appellate opinions." Majority op., 

¶61. While it is true that subsequent decisions from this court 

have not extended Dubose's safeguards beyond that of a showup, a 
No. 2017AP1894-CR.rfd

10

decision not to extend Dubose is not equivalent to negative 

treatment. Just four years ago in Luedtke, we reaffirmed that 

"due process under the Wisconsin Constitution provides greater 

protection in one identification procedure, the showup." State 

v. Luedtke, 2015 WI 42, ¶50, 362 Wis. 2d 1, 863 N.W.2d 592. 

Moreover, there is no published Wisconsin appellate decision 

that treats Dubose negatively. 

¶109 The majority attempts to paint Dubose as an anomaly 

and criticizes it for "explicitly rel[ying] on case law from 

Massachusetts and New York." Majority op., ¶58. Yet, the 

majority fails to discuss the increase in nationwide recognition 

of the danger of suggestive identification procedures postDubose. Seven states have significantly diverged from the 

federal doctrine, and in doing so have acknowledged the risk of 

suggestive identification procedures.7 See J.P. Christian Milde, 

 

7 The majority disputes the extent to which earlier case law 

from two of these states has been overruled: State v. 

Ledbetter, 881 A.2d 290 (Conn. 2005) and State v. Herrera, 902 

A.2d 177, 181 (N.J. 2006). See majority op., ¶61 n.8. 

Ledbetter was explicitly overruled by the Supreme Court of 

Connecticut in State v. Harris, 191 A.3d 119 (Conn. 2018). The 

Harris court concluded "we agree with the defendant that the 

Biggers framework is insufficiently protective of the 

defendant's due process rights under the state constitution. We 

therefore overrule our conclusion to the contrary in Ledbetter." 

Harris, 191 A.3d at 143 (emphasis added). Similarly, the New 

Jersey Supreme Court in State v. Henderson, 27 A.3d 872 (N.J. 

2011), abandoned its previous application of the 

Brathwaite/Biggers reliability factors, in cases like Herrera, 

and provided more protection pursuant to the New Jersey 

constitution. See Henderson, 27 A.3d at 892 ("As we noted in 

Herrera, '[u]ntil we are convinced that a different approach is 

required after a proper record has been made in the trial court, 

we continue to follow the [Braithwaite] approach.' . . . That 

record is now before us.") In overruling Ledbetter and Herrera, 

(continued)
No. 2017AP1894-CR.rfd

11

Bare Necessity: Simplifying the Standard for Admitting Showup 

Identifications, 60 B.C. L. Rev. 1771, 1789-1806 (2019). 

Additionally, five states have adhered to the federal standard 

but have developed additions, modifications, or semantic 

distinctions providing additional protections. Id. at 1806-12.

¶110 Most importantly, the majority and concurring opinions 

overlook the inherent unreliability of identification evidence 

from showups and other suggestive procedures. The burden will 

now be placed on jurors to separate the taint of a suggestive 

identification procedure from the reliability of the 

identification. As this court in Dubose recognized, this is an 

impossible task: "[b]ecause a witness can be influenced by the 

suggestive procedure itself, a court cannot know exactly how 

reliable the identification would have been without the 

suggestiveness." Dubose, 285 Wis. 2d 143, ¶31. The 

suggestibility of an identification procedure can affect what a 

witness remembers and their confidence in that memory, rendering 

a subsequent reliability determination by a juror meaningless. 

See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and 

Criminal 69 (4th ed. 2007) ("[h]uman recollection can be 

supplemented, partly restructured, and even completely altered 

by postevent inputs."); see also Benjamin E. Rosenberg, 

Rethinking the Right to Due Process in Connection With Pretrial 

Identification Procedures: An Analysis and a Proposal, 79 Ky. 

 

these states have followed Dubose's lead in providing more 

protection to defendants, as opposed to the standard that the 

majority reverts to today.
No. 2017AP1894-CR.rfd

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L.J. 259, 291 (1991) ("[A]n unnecessarily suggestive 

identification procedure simply creates unreliable evidence 

where reliable evidence could have been gathered.")

¶111 The adversarial process does not protect against the 

admission into evidence of mistaken eyewitness identification. 

"When an unconscious and innocent mistake causes the 

misidentification, cross-examination becomes a less useful tool 

because it only causes the witness to reassert confidence." 

Susan M. Campers, Time to Blow Up the Showup: Who Are Witnesses 

Really Identifying?, 48 Suffolk U. L. Rev. 845, 848–49 (2015). 

Further, "this exaggerated witness confidence produces a 

tendency in jurors to 'almost unquestionably accept eyewitness 

testimony." Id. at 849 (quoted source omitted). The majority 

and concurring opinions condone the return to inherently 

unreliable and suggestive identification procedures like the 

showup, and thus increase the risk of wrongful convictions 

caused by mistaken eyewitness identification. 

E. A defendant's right to due process is implicated when

a single photo eyewitness identification procedure is not

purely confirmatory.

¶112 Since I conclude that the foundation of Dubose is 

sound, I turn to the question presented in this case: under 

what conditions, if any, does a single photo identification 

procedure implicate a defendant's right to due process under

Article I, Section 8? We have defined a showup as: "'an outof-court pretrial identification procedure in which a suspect is 

presented singly to a witness for identification purposes.'" 
No. 2017AP1894-CR.rfd

13

Dubose, 285 Wis. 2d 143, ¶1 n.1 (quoting State v. Wolverton, 193 

Wis. 2d 234, 263 n.21, 533 N.W.2d 167 (1995)). While not a oneon-one confrontation, a single photo identification procedure

involving an unknown suspect presents the same risk of mistaken 

identification as a showup.8 The Dubose court determined that a 

subsequent single photo identification procedure, showing the 

victim a mug shot of Dubose, "was also unnecessarily suggestive 

and that out-of-court identification should have been 

suppressed." Dubose, 285 Wis. 2d 143, ¶37. Whether an unknown

suspect is presented singly to a witness in person or in a 

photograph, there is no material difference: law enforcement 

only suggests one suspect to the witness for identification. 

Therefore, the constitutional scrutiny this court applied in 

Dubose should also apply to a single photo identification that 

is not purely confirmatory.9

¶113 A purely confirmatory single photo identification does 

not carry with it the same risk of mistaken eyewitness 

identification as that of an unknown suspect, and therefore is 

not inherently suggestive. See State v. Greene, 201 A.3d 43, 52

(2019) ("[A] mere 'confirmatory identification' does not 

generate the myriad risks of misidentification that frequently 

 

8 Without any analysis, the majority declares "[w]e conclude 

that the State action that caused a showup to be subject to 

constitutional scrutiny in Dubose may be equally applicable to 

the use of a single Facebook photo for an out-of-court 

identification." Majority op., ¶48 (emphasis added).

9 Dubose did not address the use of a showup procedure for a 

suspect that was known to the eyewitness. 
No. 2017AP1894-CR.rfd

14

attend a selective identification made under suggestive 

circumstances.") A purely confirmatory identification is used 

by law enforcement when a witness knows or is acquainted with a 

suspect but cannot identify that person by name. See, e.g., 

National Research Council of the National Academies, Identifying 

the Culprit: Assessing Eyewitness Identification 22, 28 (2014) 

("Police typically limit [displaying a single photograph] to 

situations in which the perpetrator is previously known to or 

acquainted with the witness."); Sides v. Senkowski, 281 

F.Supp.2d 649, 654 (W.D.N.Y. 2003) (describing an identification 

as merely confirmatory when the "parties knew each other 

previously"). Due to the relationship or familiarity between 

the people involved, a purely confirmatory identification 

procedure minimizes the risk that law enforcement's suggestion 

of a single suspect would lead to a mistaken eyewitness 

identification. 

¶114 Accordingly, I would remand the case for an 

evidentiary hearing to determine whether C.A.S.'s identification 

of Roberson was purely confirmatory. If the identification was 

not purely confirmatory, it was suggestive and the State must 

prove the necessity of the procedure, just as in Dubose. 

¶115 For the foregoing reasons, I respectfully dissent. 

¶116 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2017AP1894-CR.rfd

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