Lineups and Other Identification Situations and Right to Counsel

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Whether the right to counsel applies to identification situations depends in part on the extent to which they represent a critical stage in a criminal proceeding. United States v. Wade,1 in conjunction with Gilbert v. California,2 held that lineups are of critical importance and in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant’s counsel is inadmissible. In reaching that conclusion, the Court observed that “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.” 3 Summarizing its Sixth Amendment doctrine in light of this context, the Court noted that “our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings . . . The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’” 4

The Court reasoned that the presence of counsel at a lineup is constitutionally necessary because the lineup stage is filled with numerous possibilities for errors, both inadvertent and intentional, which cannot adequately be discovered and remedied at trial.5 However, the Court concluded that there was less certainty and frequency of possible injustice stemming from lack of counsel in lineups than at trial, and the Court held that Wade and Gilbert were to be given prospective effect only; more egregious instances, where identification had been based upon lineups conducted in a manner that was unnecessarily suggestive and conducive to irreparable mistaken identification, could be invalidated under the Due Process Clause.6 The Wade-Gilbert rule is inapplicable to other methods of obtaining identification and other evidentiary material relating to the defendant, such as blood samples, handwriting exemplars, and the like, because there is minimal risk that the absence of counsel might derogate from the defendant’s right to a fair trial.7

In United States v. Ash,8 the Court redefined and modified its “critical stage” analysis. According to the Court, the “core purpose” of the guarantee of counsel is to assure assistance at trial “when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” 9 Given developments in criminal investigation and procedure, assistance would be “less than meaningful if it were limited to the formal trial itself;” therefore, counsel is compelled at “pretrial events that might appropriately be considered to be parts of the trial itself.” 10 The court explained that at these “newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.” 11 Therefore, unless the pretrial stage involves the physical presence of the accused at a trial-like confrontation at which the accused requires the guiding hand of counsel, the Sixth Amendment does not guarantee the assistance of counsel.12 Because the defendant in Ash was not present when witnesses to the crime viewed photographs of possible guilty parties, the Court therefore concluded that there was no trial-like confrontation.13 Further, because the possibilities of abuse in a photographic display are discoverable and reconstructable at trial by examining witnesses, the Court in Ash concluded that an indicted defendant is not entitled to have his counsel present at such a display.14

Another issue involves whether the right to counsel applies to lineups or identification procedures occurring before indictment. The defendants in Wade and Gilbert had already been indicted and counsel had been appointed to represent them when their lineups were conducted.15 Subsequently in Kirby v. Illinois,16 the Court held that no right to counsel exists for lineups that precede some formal act of charging a suspect. In a plurality opinion, the Court explained that the Sixth Amendment does not become operative until “the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 17 Such a step is significant, the Court observed, because, “it is the starting point of our whole system of adversary criminal justice” and it is only “then that the government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified.” 18 Further, the Court noted, “[i]t is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” 19 Therefore, the Court stated that the initiation of adversary judicial criminal proceedings “marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” 20 Kirby appears to limit opinions such as Escobedo v. Illinois,21 which had held that the Sixth Amendment right to counsel applies to pre-indictment custodial interrogation,22 at least to the extent Escobedo suggested that the right to counsel could apply before the initiation of adversary proceedings.23

1: 388 U.S. 218, 236–37 (1967) ( “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 [the defendant] the postindictment 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.’” (quoting Powell v. State of Ala., 287 U.S. 45, 57 (1932)).
2: 388 U.S. 263, 271–72 (1967).
3: Wade, 388 U.S. at 224.
4: Id. at 224–25.
5: Id. at 227–39.
6: Stovall v. Denno, 388 U.S. 293, 299–300 (1967).
7: Gilbert v. California, 388 U.S. 263, 265–67 (1967) (handwriting exemplars); Schmerber v. California, 384 U.S. 757, 765–66 (1966) (blood samples).
8: 413 U.S. 300, 311–13 (1973).
9: Id. at 309.
10: Id. at 310.
11: Id. Examination of defendant by court-appointed psychiatrist to determine his competency to stand trial, after his indictment, was a “critical” stage, and he was entitled to the assistance of counsel before submitting to it. Estelle v. Smith, 451 U.S. 454, 469–71 (1981). Constructive notice is insufficient to alert counsel to psychiatric examination to assess future dangerousness of an indicted client, Satterwhite v. Texas, 486 U.S. 249, 255 (1987); see also Powell v. Texas, 492 U.S. 680, 686 (1989) (per curiam) (requiring under Sixth Amendment, notice to counsel of psychiatric examination for future dangerousness); Cf. Buchanan v. Kentucky, 483 U.S. 402, 425, (1987) (finding no Sixth Amendment violation where “counsel was certainly on notice that if, as appears to be the case, he intended to put on a ‘mental status’ defense for petitioner, he would have to anticipate the use of psychological evidence by the prosecution in rebuttal” ). Violations of the right to counsel at post-indictment psychiatric examinations of defendants are subject to harmless error analysis. Satterwhite, 486 U.S. at 258.
12: Ash, 413 U.S. at 313.
13: Id. at 317.
14: 413 U.S. at 317–21.
15: United States v. Wade, 388 U.S. 218, 219, 237 (1967); Gilbert v. California, 388 U.S. 263, 269, 272 (1967); accord Simmons v. United States, 390 U.S. 377, 382–83 (1968) ( “The rationale of [Wade and Gilbert] . . . was that an accused is entitled to counsel at any ‘critical stage of the prosecution,’ and that a post-indictment lineup is such a ‘critical stage.’” ).
16: 406 U.S. 682, 689–90 (1972) (plurality opinion); see also Coleman v. Alabama, 399 U.S. 1, 5 (1970) (concluding under totality of the circumstances that “[i]t cannot be said on this record that the trial court erred in finding that . . . in-court identification of the petitioners did not stem from an identification procedure at the lineup ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification’” (quoting Simmons v. United States, 390 U.S. (1968)); Foster v. California, 394 U.S. 440, 443 (1969) (holding that a police lineup—where defendant was taller than other participants and “was wearing a leather jacket similar to that worn by the robber” — “so undermined the reliability of the eyewitness identification as to violate due process” ); Stovall v. Denno, 388 U.S. 293, 295, 302 (1967) (determining that although “practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned,” it was not a due process violation to do so in the hospital room of a stabbing victim who was “hospitalized for major surgery to save her life” ).
17: Kirby, 406 U.S. at 689.
18: Id.
19: Id.
20: Id. at 689–90. Indictment, Kirby indicates, is not a necessary precondition. Any initiation of judicial proceedings suffices. E.g., Brewer v. Williams, 430 U.S. 387, 399 (1977) (explaining that there was “no doubt in the present case that judicial proceedings had been initiated” where a “warrant had been issued for [the defendant’s] arrest, [the defendant] had been arraigned on that warrant before a judge in a Davenport courtroom, and [the defendant] had been committed by the court to confinement in jail” ); see also United States v. Gouveia, 467 U.S. 180, 192 (1984) (holding that placing prison inmates placed under administrative segregation during a lengthy investigation of their participation in prison crimes does not amount to an initiation of judicial proceedings for Sixth Amendment purposes).
21: 378 U.S. 478, 490–91 (1964).
22: Amdt6.6.3.3 Custodial Interrogation and Right to Counsel.
23: See Moran v. Burbine, 475 U.S. 412, 429 (1986) (Citing to Kirby and explaining that “[a]t the outset, subsequent decisions foreclose any reliance on Escobedo . . . for the proposition that the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings.” ).