Witness Identification: Powerful and Flawed

When a witness takes the stand and points to the defendant as the perpetrator of a crime, that identification can be very powerful. It can also be fraught with errors.

In Wisconsin, the policy and procedure for eyewitness identification recommends that law enforcement officials “conduct double-blind, sequential photo arrays and lineups with non-suspect fillers chosen to minimize suggestiveness, non-biased instructions to eyewitnesses, and assessments of confidence immediately after identifications.”

The admissibility of witness identification testimony was the subject of Wisconsin v. Roberson. In this case, the Wisconsin Supreme Court considered whether a victim’s out-of-court identification using a single photo from Facebook was admissible.

Stephan I. Roberson allegedly shot another individual over a drug deal that went wrong, and Roberson was charged with first-degree reckless injury.

During the investigation, the victim was shown a single Facebook photo of the defendant for identification purposes. Roberson moved to suppress this out-of-court identification on the ground that investigators used a single photograph as opposed to a photograph array. The circuit court granted Roberson’s motion and held that the victim could not identify Roberson in court because the initial out-of-court identification with the Facebook photo tainted any subsequent identification.

The Wisconsin Court of Appeals reversed that decision, holding that the Facebook identification was admissible. Roberson argued that law enforcement officers used an “unnecessarily suggestive procedure that violated his due-process rights.”

The Wisconsin Supreme Court, in reviewing the case, considered the viability of a previous witness identification case, Wisconsin v. Dubose. The Supreme Court overturned Dubose and reaffirmed long-established standards concerning witness identification, holding that due process does not prevent the admission of such out-of-court identification when the state established sufficient reliable evidence to outweigh any corrupting effect of the suggestive identification method.

Eyewitness misidentification contributes to an overwhelming majority of wrongful convictions, according to the Innocence Project. If you or a loved one has been charged with a crime in Wisconsin, call the criminal defense attorneys at the Cohen Law Offices, the top criminal defense firm in Northwest Wisconsin, at 715-514-5051