State v. Dubose

¶1¶ 54. {dissenting). I agree with Justice Roggensack that if a constitution is to mean anything, its principles must not be subject to change based on the prevailing winds of the time. See Justice Roggensack's dissent, ¶ 80.

¶2¶ 55. The Fourteenth Amendment to the United States Constitution provides, in relevant part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Wisconsin equivalent of the Federal Due Process Clause, Article I, Section 8 of the Wisconsin Constitution, provides, in relevant part: "No person may be held to answer for a criminal offense without due process of law[.] Both clauses are virtually identical.1

¶3*181¶ 56. Seven years ago, the author of today's majority opinion recognized: "This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation." State v. Hezzie R., 219 Wis. 2d 848, 891, 580 N.W.2d 660 (1998) (emphasis added). See also State v. Harris, 2004 WI 64, ¶ 2 n.1, 272 Wis. 2d 80, 680 N.W.2d 737 (accord); County of Kenosha v. C& S Mgmt., Inc., 223 Wis. 2d 373, 393, 588 N.W.2d 236 (1999) ("On more than a few occasions we have expressly held that the due process and equal protection clauses of our state constitution and the United States Constitution are essentially the same[.]"); State v. Greenwold, 189 Wis. 2d 59, 71, 525 N.W.2d 294 (Ct. App. 1994) ("[I]t is well established that the due process clause of the Wisconsin Constitution is the substantial equivalent of its respective clause in the federal constitution.").

¶4¶ 57. Likewise, in Thorp v. Town of Lebanon, 2000 WI 60, ¶ 35 n.11, 235 Wis. 2d 610, 612 N.W.2d 59, this court ruled:

We treat the Thorps' claims under the federal Constitution consistently with their claims under the state constitution because ordinarily there is no discernible difference in intent between the Equal Protection and Due Process Clauses under the Wisconsin Constitution and the United States Constitution. Compare U.S. Const, amend. XIV with Wis. Const, art. I, §§ 1, 8. State v. Agnello, 226 Wis. 2d 164, 180-81, 593 N.W.2d 427 (1999) (stating that "[w]here ... the language of the provision in the state constitution is *182'virtually identical1 to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court's construction of the federal constitution") (citing State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988)).

¶5¶ 58. In sum, our decisions have recognized that because the language of the two provisions is almost identical, there is simply no basis to conclude that the drafters of the Wisconsin Constitution intended our Due Process Clause to mean anything different than its federal analogue. Furthermore, this court has repeatedly recognized that the unwritten due process protection in Article I, Section 1 of the Wisconsin Constitution is the same as that accorded under the Fourteenth Amendment to the United States Constitution.

¶6¶ 59. As this court explained in Reginald D. v. State, 193 Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995):

The Fourteenth Amendment to the United States Constitution provides "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The functional equivalent of this clause is found in Article I, sec. 1, of the Wisconsin Constitution: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." As noted in State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49-50, 132 N.W.2d 249 (1965), even though Article I, sec. 1, is based on the Declaration of Independence, "there is no substantial difference" between its equal protection and due process protections and that of the Fourteenth Amendment." See also *183[State v. McManus, 152 Wis. 2d 113, 130, 447 N.W.2d 654 (1989)] ("This court has held that the due process and equal protection clauses of the Wisconsin Constitution are substantial equivalents of their respective clauses in the federal constitution); Funk v. Wollin Silo & Equipment, Inc., 148 Wis. 2d 59, 61 n.2, 435 N.W.2d 244 (1989) ('We have given the equal-protection provision of the Wisconsin Constitution and the parallel clause of the United States Constitution identical interpretation.").

¶7¶ 60. The legitimacy of this parallel interpretation of the due process clauses of the Wisconsin Constitution and the federal constitution has been recognized by this court throughout Wisconsin's history. As this court discussed in Sonneborn, 26 Wis. 2d at 49-50:

Preliminarily, we point out that sec. 1, art. I of the Wisconsin constitution is framed in language of a Declaration of Rights and reminiscent of the Declaration of Independence, and many times has been held to be substantially equivalent of the due-process and the equal-protection clauses of the Fourteenth amendment to the United States constitution. In Black v. State (1902), 113 Wis. 205, 89 N.W. 522, the court said that the section must mean "equality before the law, if it means anything," and, "The idea is expressed more happily in the Fourteenth amendment." Again, in Pauly v. Keebler (1921), 175 Wis. 428, 185 N.W. 554, it was said in referring to the Fourteenth amendment that the first article of the Declaration of Rights in our constitution was a substantially equivalent limitation of legislative power and "our legislature is bound to accord all persons within its jurisdiction the equal protection of the laws." More recently we reaffirmed the concept that sec. 1, art. I, is to be equated with the Fourteenth amendment in Boden v. Milwaukee (1959), 8 Wis. 2d 318, 99 N.W.2d 156; Lathrop v. Donohue (1960), 10 Wis. 2d 230, 102 N.W.2d 404; and Haase v. Sawicki (1963), *18420 Wis. 2d 308, 121 N.W.2d 876. Since there is no substantial difference between the two constitutions, we will henceforth refer only to the Fourteenth amendment of the United States constitution.

¶8¶ 61. Today the majority alters course and abandons this long line of well-established precedent, contending that the Due Process Clause of the Wisconsin Constitution now affords greater protections than its federal counterpart. In doing so, the majority provides no legal justification for its decision other than its raw power to do so. See majority op., ¶ 40. The majority even recognizes that as a result, the exact same words in the federal and state constitutions now mean different things according to this court. Id., ¶ 41. Yet, the majority fails to articulate a rationale for how identical language in the two documents can mean the same thing for a number of years and now suddenly mean something different. Simply stating that a majority of the court disagrees with a United States Supreme Court decision and has the power to construe our state constitution more broadly is not a principled basis for suddenly rejecting our long history of interpreting the due process clauses of the federal and state constitutions in concert.

¶9¶ 62. 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 the United States Supreme Court's opinions in Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977), and that the these opinions "do[ ] not satisfy" the requirements of Wisconsin's due process clause. Majority op., ¶ 39.

¶10*185¶ 63. The majority thus has no legal basis for its conclusion that Article I, Section 8 of the Wisconsin Constitution requires a radical change in our law governing showups. Simply put, Article I, Section 8 "necessitates" the rule announced by the court only because a majority of justices on this court wills it to be so. Thus, I agree with Justice Roggensack that "[t]he rule of law announced today is not based on constitutional principle." Justice Roggensack's dissent, ¶ 87.

¶11¶ 64. This is the second time this term this court has abandoned our practice of interpreting similarly worded provisions of the state and federal constitutions in concert. In State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, this court abandoned our previous jurisprudence holding that Article I, Section 8 of the Wisconsin Constitution does not create broader rights than those provided by the Fifth Amendment of the United States Constitution. Thus, a majority of this court has not only twice unjustifiably rejected the strictures of stare decisis, but it has needlessly called in question countless opinions of this court that have relied on a parallel interpretation of the Wisconsin and federal constitutions.

¶12¶ 65. Furthermore, I, too, am troubled by the majority's reliance on recent social science "studies," majority op., ¶¶ 29-30, presented by advocacy groups, to justify its departure from stare decisis. Not only is such data disputed, as recognized by Justice Roggen-sack, see Justice Roggensack's dissent, ¶¶ 89-91, but, more importantly, it is not a valid basis to determine the meaning of our constitution. The majority fails to adequately explain how the meaning of the text of the constitution can change every time a new series of *186social science "studies" is presented to the court.2 If the text is so fluid, then our constitution is no constitution at all, merely a device to be invoked whenever four members of this court wish to change the law.

¶13¶ 66. It is not the function of this court to create what it considers to be good social policy based on data from social science "studies." That is the province of the legislature. Our task is to render decisions based on legal principles and constitutional authority. See Panzer v. Doyle, 2004 WI 52, ¶ 39, 271 Wis. 2d 295, 680 N.W.2d 666.

¶14¶ 67. There must be consistency in our jurisprudence if our decisions are to have any semblance as law and not simply the unfettered will of a majority of the members of this court. Because I agree that "constitutional principles are not to change depending on what social science theory is in fashion[,]" Justice Roggensack's dissent, ¶ 80, and because the mere ability of the court to construe the Due Process Clause of the state constitution more broadly than its federal counterpart does not justify the majority's decision to abandon our history of according both provisions an identical interpretation, I dissent.

¶17¶ 68. (dissenting). Nothing in the facts of this case justifies the precipitous departure from state and federal precedent the majority undertakes.

¶18¶ 69. As in any case, the facts are critical. After committing an armed robbery against Timothy Hiltsley, two men fled from Hiltsley's residence in Green Bay. A *187few minutes later, at about 1:21 A.M., a neighbor called the police to report the two men fleeing the scene. Police officers arrived immediately, and one of the responding officers observed two men walking near the apartment. When the officer turned his vehicle around to investigate, the men fled between two houses, into the middle of a residential block.

¶19¶ 70. The police immediately set up a perimeter around the block. By all accounts, this took less than 90 seconds. Upon searching the area, the police quickly discovered Dubose. The officers placed Dubose in the back of a squad car and drove him to Hiltsley's location, where they conducted a showup. Hiltsley immediately identified Dubose as the man who robbed him at gunpoint, mentioning that he recognized Dubose due to his build and hairstyle.

¶20¶ 71. All of this occurred within minutes after the robbery.

¶21¶ 72. Shortly thereafter, other officers located a semi-automatic pistol within the perimeter, near the houses where the two unidentified men ran after being pursued by the police.

¶22¶ 73. The majority opinion spends most of its energy discussing the studies it relies on to depart from state and federal precedent. It devotes only two paragraphs to the application of its theory to this case.1

¶23¶ 74. The facts in this case are not sufficient to justify the majority's conclusion that this defendant's due process rights were violated. Nothing in these facts is so inherently unfair or suggestive that it justifies this court-ordered sea change in the law.

¶24¶ 75. Throughout this term, the court has repeatedly used its raw power to interpret provisions in the *188Wisconsin Constitution differently from the way the United States Supreme Court interprets provisions in the U.S. Constitution. While the court may exercise this power, the court should pay more attention to whether it should exercise this power.

¶25¶ 76. By sheer volume of cases, the Supreme Court has developed substantial experience interpreting constitutional provisions. Matters reaching the Supreme Court are of such import that they are also likely to be better briefed and argued than issues in the state court system. When state courts adopt myriad different interpretations of state constitutions, the level of uncertainty rises exponentially. A suspect's constitutional rights may change dramatically depending on which side of a state line he robs an acquaintance.

¶26¶ 77. It is apparent that the majority opinion is out of step not only with the United States Supreme Court, but also with most other state courts. It proudly proclaims as much. It is curious that a court so confident in the wisdom and superiority of its analysis should consistently attempt to insulate its decisions from review.

¶27¶ 78. For the reasons stated, I respectfully dissent.

¶29¶ 79. (dissenting). The majority concludes that its reading of the due process clause of Article I, Section 8 of the Wisconsin Constitution1 now requires suppression of any identification obtained through a process known as a "showup"2 unless it was necessary to make identifica*189tion in that manner. Majority op., ¶ 2. By so concluding, the majority requires the suppression of identifications of defendants charged with crimes, no matter how reliable the identification. This holding substitutes a search for the truth, which should form the foundation for every criminal prosecution, with one social science theory that showup identifications are "unnecessarily suggestive." Id. In so doing, the majority opinion abandons our previous jurisprudence and the United States Supreme Court's jurisprudence concerning showup identifications, both of which have used the reliability of the identification as the linchpin for determining admissibility. I dissent because reliability, and not a disputed social science theory, must be the key to admissibility of all identification testimony in criminal trials and because I conclude that the totality of circumstances bearing on the identification in this case resulted in a rehable identification of Dubose as the perpetrator of the armed robbery of which he was convicted. Accordingly, I would affirm the court of appeals.

¶30¶ 80. The term "due process of law" comes from the Magna Carta's promise of a trial directed by the "law of the land" as established by the legislative body of government. Stovall v. Denno, 388 U.S. 293, 305 (1967) (Black, J., dissenting). One of the four paintings in the Wisconsin Supreme Court hearing room depicts the signing of the Magna Carta. And though many of the Magna Carta's provisions were subsequently repealed, my understanding is that the subject of the painting was chosen because of the significance of the foundational principle of due process that the Magna Carta promised in 1215 and that Wisconsin courts were to preserve. I note this because constitutional principles are not to change depending on what social science theory is in fashion.

¶31*190¶ 81. The United States Supreme Court addressed constitutional due process in the context of a showup eyewitness identification in Stovall. It held that a claim to suppress an out-of-court identification implicates a defendant's constitutional right to procedural due process. Stovall, 388 U.S. at 299. However, the United States Supreme Court also explained that blanket suppressions of identifications are not in keeping with the promotion of justice.

The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.

¶32Manson v. Brathwaite, 432 U.S. 98, 112 (1977). And, as we have explained, " 'the admission of evidence of a showup without more does not violate due process.'" State v. Streich, 87 Wis. 2d 209, 214, 274 N.W.2d 635 (1979) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972)). We have also held that a one-to-one identification is not per se suggestive, and because such an identification is often done while the witness's memory is fresh, it actually promotes fairness by assuring reliability and preventing the holding of an innocent suspect. Streich, 87 Wis. 2d at 215-16 (citing State v. Isham, 70 Wis. 2d 718, 724-25, 235 N.W.2d 506 (1975); see also Johnson v. State, 47 Wis. 2d 13, 18, 176 N.W.2d 332 (1970).

¶33¶ 82. Prior to today's ruling, Wisconsin courts have held that a criminal defendant was denied due process only when identification evidence admitted at trial stemmed from a showup that was " 'so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995) *191(quoting Simmons v. United States, 390 U.S. 377, 384 (1968). "A criminal defendant [bore] the initial burden of demonstrating that a showup was impermissibly suggestive." Wolverton, 193 Wis. 2d at 264. If this burden was met, the State was required to prove that "under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," using the following five factors:

"(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation."

¶34Wolverton, 193 Wis. 2d at 264-65 (quoting Brathwaite, 432 U.S. at 114; see also Biggers, 409 U.S. at 199-200; Powell v. State, 86 Wis. 2d 51, 65, 271 N.W.2d 610 (1978). The court's examinations of £¿1 eyewitness identifications focused on reliability, because it is the absence of reliability that violates due process. Stovall, 388 U.S. at 301-02.

¶35¶ 83. There are many factors that bear on whether an identification is reliable. Showup identifications that are done soon after the commission of the crime, while the appearance of the perpetrator is fresh in a -witness's mind, have more reliability than identifications done after the passage of considerable time.3Wolverton, 193 Wis. 2d at 267; State v. Russell, 60 Wis. 2d 712, 721, 211 N.W.2d 637 (1973); Johnson, 47 Wis. 2d *192at 18. As we explained in Johnson, a "fresh identification" promotes fairness "by assuring reliability." Id.Additionally, showup identifications are done in-person, and corporeal identifications are generally held more reliable than photo identifications. Simmons, 390 U.S. at 386 n.6 (citing E Wall, Eye-Witness Identification in Criminal Cases 83 (1965); Williams, Identification Parades, [1955] Crim. L. Rev. 525, 531).

¶36¶ 84. The majority opinion asserts that it is relying on Stovall. Majority op., ¶ 32. It contends that Stovallis "limited to situations where, based on the totality of the circumstances, the showup was necessary." Majority op., ¶ 32. This is a misreading of Stovallbecause there is nothing in Stovallthat limits the use of showup identifications to those circumstances where that mode of identification was "necessary." Instead, Stovalldefines its task as determining whether "the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Stovall, 388 U.S. at 301-02. The United States Supreme Court then further explained, "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. Therefore, Stovallexpressly focuses on the reliability of the identification, not on whether it was "necessary" to do a showup, as the majority opinion represents.

¶37¶ 85. The majority opinion also relies on United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967), which were decided the same day as Stovall. Majority op., ¶ 19. However, Wade*193and Gilbertare not due process cases. Instead, they are Sixth Amendment cases, where the United States Supreme Court concluded that post-indictment identifications could not be conducted without notice to and the presence of counsel. Wade, 388 U.S. at 219-21; Gilbert, 388 U.S. at 272. The concern in Wadeand in Gilbertwas the right to the assistance of counsel at all critical phases of a criminal prosecution, and the Court concluded that an identification conducted after indictment was a critical phase of a prosecution. Wade, 388 U.S. at 236-37; Gilbert, 388 U.S. at 272. The showup identification of Dubose was not a post-indictment identification, so Wadeand Gilberthave no application.

¶38¶ 86. By banning all showups unless there is a "necessity," the majority completely overrides one of the major tenets in the administration of justice: the presentation of reliable, relevant evidence at trial. Brathwaite, 432 U.S. at 112. The United States Supreme Court has reasoned that inflexible rules of exclusion may frustrate justice, rather than promote it. Id. at 113.1 agree completely.

¶39¶ 87. The rule of law announced today is not based on constitutional principle. This is demonstrated in part by the majority opinion's decision that if officers lack probable cause to arrest, then a showup is permissible. Majority op., ¶ 34 n.ll. What follows from this is that at the trial of such a defendant later prosecuted for the crime, suppression of the showup identification will not occur unless the defendant is able to meet the current test showing the identification was unreliable.4 If the due process clause of Article I, Section 8 of the *194Wisconsin Constitution truly requires the suppression of identifications made through the use of a showup, the majority opinion provides those suspects for whom law enforcement has less evidence of guilt with less constitutional protection when that person comes to trial. The majority opinion may also place a defendant in the unusual position of arguing that law enforcement had probable cause to arrest, so the showup identification was unnecessary and accordingly should be suppressed. This is an odd position in which to place a defendant whose defense is, "It wasn't me."

¶40¶ 88. In the case before us, Dubose's showup identification was done in person, within 30 minutes of his commission of the armed robbery, which occurred in a well-lighted apartment, when he wore no mask, the victim had a significant period of time to view him and Dubose had been seen by the victim prior to the date of the robbery. There is no indication of unreliability in this identification.5 Nevertheless, in the event of a new trial, the majority opinion will deny a jury the right to *195hear this relevant, reliable evidence, and unless the circuit court concludes that there is an independent basis for the identification of Dubose that the victim made at trial, that identification will be suppressed also. Majority op., ¶ 38. By so doing, the majority sets up a process where witnesses will be prevented from identifying the perpetrator of the crime for the jury. How does due process require and how is justice served by refusing to permit the admission of this relevant, reliable evidence? In my view, due process does not require it and justice is not served. Instead, the perpetrator of a violent armed robbery may be set free to victimize others.

¶41¶ 89. The majority's main basis for holding that showups must be suppressed is "extensive studies on the issue of identification evidence" that assert that eyewitness testimony is " 'hopelessly unreliable.'" Majority op., ¶¶ 29-30 (quoting Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995)).6 In my view, the majority opinion errs by adopting a disputed social science theory as a requirement for constitutionally sufficient due process instead of continuing to focus on the reliability of the evidence.

¶42¶ 90. The research cited by the majority does not represent the only social science theory on the subject of identifications. Hard data that social scientists have analyzed have resulted in disagreements about the unreliability of showups. One social science study reports that "[ojverall, the results present surprising commonality in outcome between [showups and line*196ups] and ... an apparent contradiction of the ambient knowledge that showups are more dangerous for innocent suspects than are lineups." Nancy Steblay, et al., Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law and Human Behavior 523, 535 (2003). Steblay reported that

[w]hen overall identification decisions are tabulated, showups produce an accuracy advantage over lineups (69% vs. 51%). This initial result is qualified by subsequent analyses. As anticipated, a consideration of specific subject choices provides a more complete picture. Correct identification (hit) rate within the context of a target-present condition is nearly identical for the two types of procedures: Approximately 46% of witnesses shown either a lineup or a showup correctly identified the perpetrator when he or she was present. False suspect identification rates in a target-absent display are also approximately equal between showups and lineups, at about 16%.

¶43Id.

¶44¶ 91. Another study reports, "[0]ur results suggest that the formal task structure of a one-person showup does not create an unacceptable increase in the risk that an innocent suspect will be identified as the perpetrator." Richard Gonzalez, et al., Response Biases in Lineups and Showups, 64 Journal of Pers. and Soc. Psychol. 525, 533 (1993). One of the experiments that Gonzalez conducted showed "a striking tendency for subjects to respond no to the showup but yes to the lineup." Id. at 528.

¶45¶ 92. The majority opinion attempts to gain support for its reliance on a disputed social science theory by paralleling its use of social science data with the reference to social science reports in the landmark *197decision by the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954). Majority op., ¶¶ 43-44. The majority opinion asserts, "we have no trouble following the lead of Brown." Majority op., ¶ 44.

¶46¶ 93. However, the Brownholding was not made in reliance on a social science theory, nor was Brownthe earliest or the latest case to refer to a social science report. See, e.g., Roper v. Simmons, 125 S. Ct. 1183 (2005); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Muller v. Oregon, 208 U.S. 412 (1908). The reports in Brownwere listed in one footnote and used without discussion to support one sentence in the entire opinion. Brown, 347 U.S. at 494 n.ll. Rather, Brownis preeminent because it judicially proclaimed that the enormity of suffering that generation after generation of African-Americans were forced to endure by the doctrine of "separate but equal" simply because they were a different color, was unconstitutional. I object to the manner in which the majority opinion uses Brownbecause it trades on Brown's prestigious position in American jurisprudence to support the majority opinion's reliance on a disputed social science theory.

¶47¶ 94. No one wants the wrong person identified as the perpetrator of a crime. However, where I part company with the majority opinion and the concurrence is that I am not willing to throw out identifications like the one now before us that are reliable, as the means of addressing those identifications that are not reliable. Suppressing the use of a reliable identification is not necessary in order to guarantee due process of law because it is only an unreliable identification that violates due process. Stovall, 388 U.S. at 301-02.

¶48¶ 95. All identification procedures, from showups to lineups to photo arrays, can be improved by crafting *198better techniques for these methods to reduce suggestiveness and increase reliability.7 Proposed improvements include videotaping eyewitness identifications and making standard the need for officers to inform eyewitnesses that the suspect in the showup may not be the perpetrator or that the perpetrator may not be included in the lineup or array. See Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 286 (2003). Research and common sense agree with former United States Attorney General Janet Reno's statement that, "Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory." United States Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement, at iii (1999), available at http://www.ncjrs.org/pdf filesl/nij/178240.pdf. Other proposed enhancements include allowing expert testimony on the reliability of eyewitness identifications or jury instructions on eyewitness identification. None of these well-respected sources advocate the ban of showup identifications as the majority opinion has done. Instead, they advocate for law enforcement education on how to better conduct eyewitness identifications and for a more complete presentation of the problems with eyewitness identification at trial.

¶49*199¶ 96. In sum, because reliability, and not a disputed social science theory, must be the key to admissibility of all identification testimony in criminal trials and because I conclude that the totality of circumstances bearing on the identification in this case resulted in a reliable identification of Dubose as the perpetrator of the armed robbery of which he was convicted, I would affirm the court of appeals.

¶50¶ 97. Accordingly, I respectfully dissent from the majority opinion.