requiring under “inherent supervisory power over the Superi- or Court” that government must show probable cause before grand jury may subpoena defendant to appear in lineup
How later courts described this case
- requiring under “inherent supervisory power over the Superi- or Court” that government must show probable cause before grand jury may subpoena defendant to appear in lineup
- invoking inherent supervisory power to require prosecutor to make factual showing before court will enforce grand jury lineup order
- discussing how party can show abuse of administrative-subpoena process
Written by the judges who cited it.
The opinion
NEBEKER, Associate Judge,
with whom HARRIS, Associate Judge, joins, concurring in part:
I concur in the opinion of the court except for Part I. There, without deciding the constitutional question, the opinion undertakes a comparative analysis of lineup, voiceprint, and handwriting exemplar situations. I submit that the lineup process is no different than the handwriting or voice-print procedures deemed beyond the Fourth Amendment in United States v. Dionisio, 410 U.S. 1 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19 , 93 S.Ct. 774 , 35 L.Ed.2d 99 (1973). The lineup does nothing more than require the suspect to display what he displays every day of his life to the public — his appearance. The infringements on liberty, if they are deemed such, and they seem not to be in Dionisio and Mara , are not meaningfully different. In either event, the suspect must deviate from daily routine to accommodate the order of the grand jury by going to a place not of his choosing, operated under police auspices, and there provide evidence not within the ambit of the Fourth Amendment. Despite the analytical commentary about the nature of a lineup, the court is not holding that a constitutional — viz., Fourth Amendment — difference exists between lineups and the displays of voice and writing characteristics not protected by that amendment.
To the extent that Part I of the opinion notes that lineups are less than scientifically accurate and thus seeks to distinguish Dionisio and Mara , I would observe that lack of reliability of the evidence obtained is irrelevant to the question whether the grand jury process may be used to obtain it. Lack of reliability may, however, go to the issue of admissibility vel non. See Brown v. United States, D.C.App., 384 A.2d 647 (1978).
It should also be noted that the language quoted in Part I from United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), characterizing lineup procedures, is inapplicable in the context of our holding in this case. In Wade, the Supreme Court was referring to uncoun-seled and potentially suggestive lineups conducted in private by police. It was that kind of lineup which the Supreme Court eliminated by its decisions. All lineups conducted today in this jurisdiction, including the so-called “sanitized” ones held at grand jury behest, are attended by counsel and none has been authoritatively held to be suggestive.