issuance of arrest warrant under New York penal law sufficient to activate Sixth Amendment protections
How later courts described this case
- issuance of arrest warrant under New York penal law sufficient to activate Sixth Amendment protections
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge
(dissenting):
I cannot agree with the majority’s conclusion that “adversary judicial criminal proceedings,” within the meaning of Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), had been begun in this case at the time of the pre-trial show-up, entitling Robinson to counsel at that show-up in accordance with United States v. Wade, 388 U.S. 263 , 87 S.Ct. 1926 (1967). In Kirby the Court said:
“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself *166 to prosecute, and only then that the adverse positions of Government and defendant have solidified. It 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. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” (Footnote omitted; emphasis added.)
Kirby v. Illinois, supra, 406 U.S. at 689 , 92 S.Ct. at 1882 .
Here the only judicial action taken against Robinson was the issuance of a warrant of arrest. He was not even arraigned until the day after the show-up. The majority, in its footnote 2, cites former N.Y.Code Crim.Proc. 144 for the proposition that the warrant commenced the prosecution within the meaning of Kirby v. Illinois. However, that section says only that “[a] prosecution is commenced, within the meaning of any provision of this act which limits the time for commencing an action, . . . ” when a warrant is issued. It seems clear that such a warrant is not a point at which “the Government has committed itself to prosecute, and . . . the adverse positions of Government and defendant have solidified.”
Though the majority does not reach the point because of its disposition of the case, I do not see any need, on the facts of this case, to hold a hearing on the question of whether the identification procedures used were “so unnecessarily suggestive and conducive to irreparable mistaken identification that [Robinson] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 302 , 87 S.Ct. 1967, 1972 , 18 L.Ed.2d 1199 (1967). See United States ex rel. Phipps v. Follette, 428 F.2d 912 (2d Cir.), cert. denied, 400 U.S. 908 , 91 S.Ct. 151 , 27 L.Ed.2d 146 (1970); United States ex rel. Anderson v. Mancusi, 413 F.2d 1012 (2d Cir. 1969). Nor do I see any merit in the other points raised by appellant.