Mike Gousha: Do you think Justice Abrahamson has been legislating from the bench?A showup identification is kind of like a police lineup, except the only person in it is the suspect, often handcuffed and sitting in the back of a squad car and appearing already an awful lot like ... a criminal.
Randy Koschnick: I do.
Gousha: Can you give us an example of where you think she's done that.
Koschnick: Sure. In the Dubose case. It's a criminal case, State v. Dubose, decided about three years ago. She was part of the majority that decided that police officers in Wisconsin could no longer conduct these showup procedures in most circumstances. That had been a long-used crime fighting tool.
When there was a crime reported — for example a robbery — if the police could locate a suspect who matched the description in the vicinity, they'd put him in a squad car and show him to the victim and identify him and either let him go or arrest him. And under this decision, Justice Abrahamson has overturned years of precedent and prohibited police from engaging in that procedure.
Dubose doesn't "prohibit" any police procedure. It's an evidence case, decided according to the requirements of Due Process. Police officers can still conduct a showup and the State can still attempt to have the results admitted as evidence in court.
While it's true that Dubose made the State's burden more onerous than it was previously in having such evidence admitted, these showups can be highly suggestive and thereby often unreliable.
That's mostly what Dubose is about: reliability of evidence.
But if Dubose "prohibited" anything, then its author, Justice Patrick Crooks, wouldn't have written this:
[W]e decline to adopt [Dubose's] proposed per se exclusionary rule regarding such evidence.Per se in this context means evidence obtained from an out-of-court showup identification would be inadmissible in court no matter what.
And even if all evidence obtained from any showup identification was per se inadmissible, that still wouldn't "prohibit" law enforcement from using the procedure as a "crime fighting tool."
As for legislating from the bench, Dubose is hardly that. It's rulemaking, which is what appeals court judges do all the time, despite Koschnick's claim that they only "call balls and strikes."