State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs)

The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those where the police present a witness with only one suspect–were inherently suggestive, and identifications so obtained would be inadmissible unless circumstances rendered the procedure “necessary.” So, now, Wisconsin courts will review claims that a show-up identification should be excluded under the test of State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995): a defendant must carry the initial burden to show the procedure was impermissibly suggestive, and if he or she does, the state must then prove that the identification is nevertheless reliable under the totality of the circumstances.

What’s more troubling, and perhaps a bit unexpected, are some of the arguments made in the first two opinions (which state the views of four of the five justices in the majority). These opinions include a set of tendentious musings on Plessy v. Ferguson, 163 U.S. 537 (1896) and Brown v. Board of Education (this is, again, a case about police show-ups) and evince an unshakable faith in the power of judges to know–and to know better than anyone else–what is reliable and what is not.

To hear these opinions tell it, the real villain in this story (which is about police show-ups) is the dread “social science”–at least, when considered as a part of judicial decision-making. (¶¶37-45, ¶¶84-87). Social science is a set of disciplines that seeks to discover, by experiment and study, how the human world works. Which would seem like a valuable source of information if one were asking, for example, whether people do a good job of identifying other people under a given set of circumstances–whether their identifications are, you might say, “reliable.” (Even under the Wolverton test, determining reliability remains the task facing both trial and appellate judges.) You might even think some kind of empirical knowledge necessary for such a task.

Not so, say these four justices. “Reliability”–again, whether people are good or bad at identifying other people under a given set of circumstances–can be assessed only by reference to case law, i.e. the writings of judges. What’s more, the writings of these judges are useful only insofar as they are uninformed by empirical understanding of how the world works. See, e.g., ¶¶38, 44. So, while we can’t consult the considerable body of research on the effect of stressful situations on memory, we can say that “a victim of a violent crime remembers more.” How do we know this? Because, in 1972, a Supreme Court case “suggested” it. (¶71). Take that, science.

Which brings us to Plessy and Brown (as relevant to the reliability of police showups). Social scientists–rather than, say, the political concerns and racial attitudes of the justices sitting in 1896–were again to blame for the execrable result in the former case. And though Brown itself cited social science, see n.11, this doesn’t count because it was in “response” to that cited in Plessy. (¶42). Before you quibble with this reading of history, recall that history is, by some accounts, a social science itself! Best steer clear.

All in all, the first two opinions (about the reliability of police showups) are remarkable for a dearth of consideration of the reliability of police showups. The Court’s newest member, Justice Hagedorn, chimes in with a third opinion defending social science in the courtroom, and even as a means to inform appellate decision-making. He goes on to quote Justice Clarence Thomas en route to arguing that “due process requires little more” than the right to notice, the opportunity to be heard, and cross-examination. (¶¶88-95).