Fundamental Cases in Procedural Law
Adam J. McKee
JUSTICE BRENNAN delivered the opinion of the Court.
The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to, and in the absence of, the accused’s appointed counsel.
The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice-president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank’s money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself.
Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later, an FBI agent, without notice to Wade’s lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber, and, upon direction, each said something like “put the money in the bag,” the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.
At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. At the close of testimony, Wade’s counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials’ courtroom identifications on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted.
The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade’s Fifth Amendment rights, “the lineup, held as it was, in the absence of counsel already chosen to represent appellant, was a violation of his Sixth Amendment rights. . . .” We granted certiorari, and set the case for oral argument with No. 223, Gilbert v. California, and No. 254, Stovall v. Denno, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege
“protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. . . .”
We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse, and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege.
The Court rejected the claim as “an extravagant extension of the Fifth Amendment,” Mr. Justice Holmes saying for the Court:
“The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”
The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, “we need not consider how far a court would go in compelling a man to exhibit himself.”
We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a “testimonial” nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused’s “communications,” in whatever form, vocal or physical, and “compulsion which makes a suspect or accused the source of real or physical evidence,'” We recognized that
“both federal and state courts have usually held that . . . the privilege offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.”
None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.
Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no such evidence as part of its case, and what came out about the lineup proceedings on Wade’s cross-examination of the bank employees involved no violation of Wade’s privilege.
The fact that the lineup involved no violation of Wade’s privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to, and in the absence of, his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that “no issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented.” In contrast, in this case, it is urged that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.
The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in “matters of law,” and eschewing any responsibility for “matters of fact.” The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction.
“Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that, if a defendant were forced to stand alone against the state, his case was foredoomed.”
This background is reflected in the scope given by our decisions to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to “critical” stages of the proceedings. The guarantee reads:
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.“
The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful “defence.”
As early as Powell v. Alabama, we recognized that the period from arraignment to trial was “perhaps the most critical period of the proceedings . . . ,” during which the accused “requires the guiding hand of counsel . . . ,” if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment—for example, that provided by Alabama—where certain rights might be sacrificed or lost: “What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted. . . .” The principle was also applied in Massiah v. United States where we held that incriminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant’s lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. New York that
“anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.”
In Escobedo v. Illinois, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel’s presence if the accused was to have a fair opportunity to present a defense at the trial itself:
“The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation, and the “right to use counsel at the formal trial would be a very hollow thing if, for all practical purposes, the conviction is already assured by pretrial examination.” . . . “One can imagine a cynical prosecutor saying: Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.”
Finally, in Miranda v. Arizona, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.
Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather, those decisions “no more than reflect a constitutional principle established as long ago as Powell v. Alabama. . . .” It is central to that principle that, in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment—the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution.
In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different—for Sixth Amendment purposes— from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages’ being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages, since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.
But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said:
“What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent— not due to the brutalities of ancient criminal procedure.”
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that
“the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined.”
Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
“it is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that, in practice, the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.”
The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno. It is obvious that risks of suggestion attend either form of confrontation, and increase the dangers inhering in eyewitness identification. But, as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. “Privacy results in secrecy, and this, in turn, results in a gap in our knowledge as to what, in fact, goes on. . . .”
For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions, and present a particular hazard that a victim’s understandable outrage may excite vengeful or spiteful motives. In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect, since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.
Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal record, he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present. In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.
What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:
“In a Canadian case . . . the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were forty or over.”
Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.
The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade “standing in the hall” within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice-president testified that he saw a person in the hall in the custody of the agent who “resembled the person that we identified as the one that had entered the bank.”
The lineup in Gilbert was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other’s presence, a procedure said to be fraught with dangers of suggestion. And the vice of suggestion created by the identification in Stovall, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.
The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused, and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather, we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said,
“The fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief preoccupation is with the problem of getting sufficient proof because he has not ‘come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way. . . .”
Insofar as the accused’s conviction may rest on a courtroom identification, in fact, the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself.
The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness—”that’s the man.”
Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that, for Wade, the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid [of counsel] . . . as at the trial itself.” Thus, both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.” No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel.
Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that, in the two cases in which the right to counsel is today held to apply, counsel had already been appointed, and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay. And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. Arizona concerning presence of counsel during custodial interrogation:
“An attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath—to protect to the extent of his ability the rights of his client. In fulfilling this responsibility, the attorney plays a vital role in the administration of criminal justice under our Constitution.”
In our view, counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration of taint in the prosecution’s identification evidence. That result cannot help the guilty avoid conviction, but can only help assure that the right man has been brought to justice.
Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as “critical.” But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today “in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.”
We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded.
We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses’ identification of the defendant for future reference.
We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself—realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification. Since counsel’s presence at the lineup would equip him to attack not only the lineup identification, but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.
We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States:
“‘Whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.
We doubt that the Court of Appeals applied the proper test for exclusion of the in-court identification of the two witnesses. The court stated that “it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,” and that the testimony of the two witnesses “may well have been colored by the illegal procedure, and was prejudicial.”
Moreover, the court was persuaded, in part, by the “compulsory verbal responses made by Wade at the instance of the Special Agent.” This implies the erroneous holding that Wade’s privilege against self-incrimination was violated, so that the denial of counsel required exclusion.
On the record now before us, we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source or whether, in any event, the introduction of the evidence was harmless error, and for the District Court to reinstate the conviction or order a new trial, as may be proper.
The judgment of the Court of Appeals is vacated, and the case is remanded to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Last Modified: 08/18/2019