                                                            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                                     (2018 – unpublished)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.
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.




                                2
                                                                          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,
                                                                        FILED
      v.
                                                                    DEC 3, 2019
Stephan I. Roberson,
                                                                        Sheila Reiff
            Defendant-Respondent-Petitioner.                       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.


      1State v. Roberson, No. 2017AP1894-CR, unpublished slip op.
(Wis. Ct. App. Oct. 4, 2018) (per curiam).
      2The Honorable Nicholas J. Brazeau, Jr. of                        Wood County
presided.
                                                                  No.     2017AP1894-CR



      ¶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
                                          2
                                                                 No.     2017AP1894-CR



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

       All subsequent references to the Wisconsin Statutes are to
       3

the 2017-18 version unless otherwise indicated.


                                             3
                                                                                No.        2017AP1894-CR



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


                                                  4
                                                                  No.     2017AP1894-CR



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
                                           5
                                                            No.     2017AP1894-CR



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 out-

of-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

                                    6
                                                                     No.    2017AP1894-CR



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 pre-

Dubose identification decisions may be helpful to the reader

before we begin to discuss Dubose.


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                                                                        No.     2017AP1894-CR



      ¶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,

      4We 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)
                                             8
                                                                         No.     2017AP1894-CR



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).

       Dubose placed the burden on the State of proving the
       5

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.


                                               9
                                                                           No.     2017AP1894-CR



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
                                               10
                                                                       No.     2017AP1894-CR



(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
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                                                                    No.     2017AP1894-CR



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


                                            12
                                                               No.    2017AP1894-CR



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 ever-

changing 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



                                        13
                                                                   No.    2017AP1894-CR



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.



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                                                                            No.    2017AP1894-CR



      ¶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

                                                 15
                                                                         No.   2017AP1894-CR



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


                                            16
                                                                  No.     2017AP1894-CR



United States Supreme Court's decisions in regard to out-of-

court 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


                                         17
                                                                  No.    2017AP1894-CR



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


                                         18
                                                                         No.    2017AP1894-CR



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-of-
       court 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


                                            19
                                                           No.    2017AP1894-CR



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.


                                      20
                                                                           No.    2017AP1894-CR



     ¶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.


                                                21
                                                                         No.    2017AP1894-CR



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


      8We 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)
                                              22
                                                               No.     2017AP1894-CR



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 out-
of-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.


                                         23
                                                      No.   2017AP1894-CR



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 in-

court, 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, post-
    Dubose 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.

                                   24
                                                               No.   2017AP1894-CR



                            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




                                          25
                                                                   No.     2017AP1894-CR



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




       The State has articulated a few reasons why the procedure
       9

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 well-
acquainted, an identification procedure cannot be suggestive.
Resp. br. at 26-27.



                                            26
                                                                     No.    2017AP1894-CR



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.


                                            27
                                                                 No.    2017AP1894-CR



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.
                                        28
                                                                            No.     2017AP1894-CR



      ¶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
                                              29
                                                                      No.      2017AP1894-CR



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.




                                            30
                                                                No.   2017AP1894-CR.rgb


       ¶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).

                                           1
                                                                  No.   2017AP1894-CR.rgb


    ¶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).


                                            2
                                                             No.   2017AP1894-CR.bh




      ¶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 full-

throttled 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.



                                         1
                                                                  No.   2017AP1894-CR.bh


      ¶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

                                              2
                                                                 No.    2017AP1894-CR.bh


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 Constitution-
maker." Id.


                                          3
                                                           No.   2017AP1894-CR.bh


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.




                                       4
                                                          No.     2017AP1894-CR.rfd




      ¶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,



      1A 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).
      2Article 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."


                                       1
                                                             No.   2017AP1894-CR.rfd


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,




                                          2
                                                     No.   2017AP1894-CR.rfd


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


       The majority opinion favorably cites to the arguments made
        3

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."

       Justice Hagedorn's concurrence incorrectly claims that
        4

"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.

       The majority also claims that Dubose is unsound because it
        5

"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)
                                3
                                                                 No.    2017AP1894-CR.rfd


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.


                                              4
                                                                No.    2017AP1894-CR.rfd


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


                                            5
                                                                      No.    2017AP1894-CR.rfd


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.
                                              6
                                                                    No.    2017AP1894-CR.rfd


     ¶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.


                                               7
                                                                         No.    2017AP1894-CR.rfd


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
                                             8
                                                               No.   2017AP1894-CR.rfd


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

                                          9
                                                          No.   2017AP1894-CR.rfd


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   post-

Dubose.      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,

      7The 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)
                                10
                                                                      No.    2017AP1894-CR.rfd


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.


                                                11
                                                                           No.   2017AP1894-CR.rfd


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 out-

of-court pretrial identification procedure in which a suspect is
presented      singly       to    a   witness         for       identification         purposes.'"
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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 one-

on-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


      8Without 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).
      9Dubose did not address the use of a showup procedure for a
suspect that was known to the eyewitness.


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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.




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