Respondents Brief — Kirby v. Illinois
Supreme Court brief1972
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~ Supres Coit of "the United States 4 :
moa 5061
‘THOMAS KIRBY, :
: ; ; ee Petitioner,
" PEOPLE OF THE'STATE OF ILLINOIS,’ .
BS eek f eee Respondent,
J °o
(On Writ. of Certiorari. To. The o Appellate Court
of ‘Tlinoie, First District)
| ‘BRIEF FOR RESPONDENT te
ttorneys General, 3 be
es “88 Weet Randolph Strest’ (Suite 2200), eae sp
ees HS 7 Chleago, Tlinols 60601' (812-798-2570), pas ae ean
: Attorneys for a:
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TABLE OF CONTENTS any
| “22, : Pace
Question Presented: . eee ere ee eer ere ae |
Statement of Facts feattonaaacieny sine es ere eres 2
Summary of Argument ....., 0.0.02... ae aewes . 6
Argument as ‘
_* 1. The Right To Gonned Arising When An Eye- .
witness Views A Suspect Should Be Applicable
Only To Post-Indictment Confrontations - And,
In Any,.Event, Should Not Apply To The In-
vestigatory Confrontation In This Case .... ot 9
A. The Right To Counsel At Eyewitness Con-
~ frontations: General. Rules-Of Application
And Exception ey eee pe seseee 9
B. ~The Right To Counsel At — sa
_. frontations: The Past Indictment. Rule ...° 15
‘IL. The Doctrine That The Right To Counsel At. |
- taches At Eyewitness - Confrontations - Should
‘ Be Rejected —_ United: — v.. Wade Should =~
Be Overruled -.0.. 5 cucccccicckbescccccccccvcce 23
- A. The “Critical Stage” Theory of Wade we 24
“ B.: The. Inadequacy Of Counsel As A Solution . :
To Confrontation _Problems yee eee © he . 30
Conclusion CPi name Witenes ieeaedp seen, Tr wae
; v . s - e va _
x
eee
il.
TABLE OF AUTHORITIES .
Buchanan v. Commonwealth, 210 Va. 664, 173 SE. 2d
T92 CASIO) ec dee w sera ete encase eeeeksasecsa 10
Butler v. State, 226 Ga. 56, 172 S.E. Jd 399 (1970) .. 48
Clemons v. United States, 408 F. 2d 1230 (D.C. Gc.
— ©
~. _ Cases ;
_ Allen v. . Rhay, 431 F. 2d 1166 (9th Cir. 1970). cert.
Gen. B02 UR. Fe ceca csneeee eiisg lessee eeiees 12
' Bradford v. State, 118 Ga.. App. 457, 164 S.E. 2d 264,
cert. den. 304 My. FO (19GB) nny cows ee een cane 9-
1968), cert. den. 394 U.S: 964 ........ eee ee -43 =:
Hayes. v. State, 46 Wis. 2d 93; 175 N. W. 2d 625
(1970)... eee depeatbecete pues eweeere 17
Coleman v. Alabama, 399 US. 1.(1970) . 1. .....18, 22, 28
Commonwealth v.. Connolly, 356 Mass. 617, 255 N.E:
24.191, cert.den. 400 U.S. 842 (1970) ........ .. dl
Commonwealth v. D’Ambra,.70 Mass. Adv. Sh. 513,
958 N.E. 2d. TE, CAGTO) “seas ie segs eee 10
- Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.
2d :427° (1969)... cere ene g eee cnet cede w eee ens 17
Commonwealth v. Johnson, 201 Pa. Super. 18, 193, |
A. 2d 833 COS) Se 39 ©
- Commonwealth v. Whitney, 439 Pa: 205, 266 A. 2d 738.
| (1970) cert, den. 400 U.S. 919 (1970) ..... kekues 12, 16
_ Cooper v. Picard,-428 F. '2d.1351 (1st Cir. 1970) - dices, At
- Dandridge v. Williams, 397 U.S. 471 (1970) ........ 23.
Escobedo v. Illinois, 378 U.S. 478 (1964) ....... sane’ oO
Frazier v..Cupp, 394-U.S. 731 (1969) ...... oe eeeees 20
Gollaher v. United States, 419 F. 2d 520, 423-24 (9th
Cir. 1969) cert. den. 396 U.S. 960 ...........005. 28
Gilbert v. California, 388 U.S. 263 (1967) ore 16, 18, 24
Grant v. State, 446-S.W. 2d 620 (Mo, 1969) oo
Hamilton v. Alabama, 368 U.S. 52 (1961) ........6. 24
ii.
Hill v. California, 401 U.S. 797: (1971) .......... 00, 13
In Re Holley, 268 A? 24.723 (R.I. 1970) ........5.... 17
Jenkins v. State, 228 So. 24.114 (Fla. App. 1969) ... 11
_ Jones v. State, 255 N.E. 2d 219 (Ind, 1970) ....:... 10
~ Johnsén v. New Jersey, 384 U.S. 719 (1966) ........ 20
‘Johnson v. State, 237 Md. 283, 206 A. 2d 138 (1965) 39
Kain v. State, 48 Wis. 2d 212, 179.N.W. 24 777° |
(1978) ccs cee cep ee ee eee aces Lt
Long v. United States, 424 F.#2d 799 (D.C. Cir. 1969) © 17 .
Martinez v..State,.437 $.W. 2d 842, (Texas 1969) .. 17
‘Massiah v. United States, 377 U.S. 201 (1964) tcees joa:
Miranda v. Arizona, 384 US. 436 (1966) ........ 20, 24
Nielsen v. State, 456 SAW. 2d 928 (Texas #970) .... 42
McGee v. United States, 402 F. 2d 434 (10th Cir.
1968) cert. den. 394 U.S. 908 ........... wiapseee as
Palmer v. State, 5 Md. App. 691, 249 A. 2d 482 (1969) 16
Parker v. State, 261 N.E. 2d 562 (Ind. 1970) ....... 10
People v. Adair, 2 -Cal. y APP 24°92, 82 Cal. Rep.. 460
GL!) nn a whee. i 7
Peuple V. Bazzelle, 264 NE. 2 457 a App. .1970)
cert; pndg. —— U.S. —— .... eed cece eens 10
People v. Cezarz, 44 Tll. 2d 180, 255 NE. "2d 1° (1969) 9, 10
People v.-Coles, 34 App. Rev. 2d 1051, 312 N.Y. S. 2d.
5175 MG |) er eo cco
People v. Dozer, 22 Mich. App. 528, 177 N.W. 2d 694
(1ST) on chien cece hues ce taceseneveeeysaeessoses 40°
| People v. Fow ler, 1 Cal. 3d 355, 461 P. 2a 643 (1969)
16, 19, 41 ©
. People v. Gonzales, 27 NY. 2a 53, 261 N.E. 2d 604-
(1970) cert. den. 400 U.S. 996 ........... eae | as aa
People v. Gould; 54 Cal. 2d 621; 354 P. 2d 856 (1960) 39 -
People v. Hawkins, 7 Cal. App. 2d 117, 86 Cal. ad al
a= CIOTO) seve seeus Cua sae eee tees ee ees eeee 11
lv.
People’ v. | Holiday, 47 Tl, 2d 300, (265 N.E. 2d 634
(1970) ec ioten cosas ss oe resent ene dag ss escecee ess ®
Peaple v. Hutton, 21 Mich. App. 312, 175 N.W. 2d
BOO C490) cunts ee cawcav ade 444 shen e deena esos
People v. Lawrence, 4 Cal. 3d 373, 481 P. 2d 212
UTOTR) eases orb dwanec ed vacteed ooeeeds cateass
People v. Martin, 47 Tl. 2d 331, 265 NE. 2d 685
RIOTU) © ect nea aeananewesseeesecseenasueses ees
. People v. Nelson, ~ Tl. 2d. 146,- 938 N.E. 2d 378
(TGCS) cso sesncewd, snc0es ca cae ce reece s odeenes
People v. Palmer, 41 Ill. 2d 571, 244 N.E. 2d- 173,
174-75 (1969) oo. cece ccc eccb cence eegyeceeeeeet
People v. Piscunere, 26 Mich. Aap! 52, 181 N. W. 2d
782 MAGIG), exanaeene awne Guinn wate ace eee as
People v. Willtams, 3 Cal. 3d 853, 478 P. 2d 94 (1971)
People’ v. Wooley, 127 Il. App. 2d 249, 262°N.K. 2d
237 (1970) ..... eet bucesae neaeeeeeeet sce tee eas
People v. Stuller, 10 Cal. nes 3d 582, 89 Cal. Rep.
158 (1970) cert. den. 401 U.S. 977 ...............
Perkins v. State,~228 So. 2d 382, 389-90 (Fla. 1969)
Prideaux v. State, 473 P: 2d 327 (Okla. 1970) ......
Rivers v. United States, 400 F. 2d 935 (5th Cir. 1968)
_ Robinson v. State, 237 So. 2d- 258 (Fla. App. 1970) .
Russell v.: United States, 408 F. 2d 1280 (D.C.. Cir. |
1969) cert. den. 395 U.S. 428 .....2............. .
12
16
12
10
382 |
16
11
27
11°
11
16
43
17
10
1 °° Simmons v. United States, 390 U.S. 377, 385 (1968) 18, 26
State v. Bibbs,-461 S.W. 2d 755 (Mo. 1970) ..... ..9,10 |
State v. Boens, 8 Ariz. App. 110, 443 P. 2d 925. (1968)
State v. Borchert,. 156 Mont. —, 479 P. 2d 454, 455-56
(1971) ........ raven oy os paqieba wens Coes neu esas ;
State v: Bratten, 245 ‘ 2d 556 (Del. Super. 1968) .
State v. Cerny, 78 Wash. 2d 871, 480 P. 2d 199. (1971):
State v. Clark; 2 Wash. App. 45, 467 P. 2d 369 (1970)
State v. Crossman, 404 S.W. 2d 36,.40 (Mo. 1970) ..
a.
10
16
10
11
10
16 ©
Vv.
State v. Dutton, 12 NJ Super. 402, 271 A. 2d 593
CUD). ee eae beeen a ds ow ea ed ewiee ee ede cd ans :
State .v. Fields, 1021 Adie. 486, 455 P. 2d 964, 965-66
State v. Funicello, 49 N.J. 553, 231 A. 2d oem 596-97
(1967) cert. den. 390 U.S. 911... ere rr
State v. Giragosian, 270 A. 2d 924:(R.I. 1970) ......
State.v. Grays, 1 “em App.. 422, 83 P. 2d 183
() Eee ee eee een a een eee J
State v. Griffen, 205 Kan. 370, 469 P. 2d 417, £0
Gy { |) errr en A ee
State v. Hamblin, 448 S:W. 2d 755 (Mo. 1970) ineees
State v. Hicks, 76 Wash. 2d 80, 455 P. 2d 943 (1969)
State v. Isaacs, 24 Ohio. App. 2d 115, 265 N.W. 2d
BAY AADTO). eo ieere sce dees abs 8o adn eo eencuecenses
State v. Lewis, 255 La. 134, 229 So. 2d 726 (1969) .
_ State v. Madden, 89 Ore. Adv. Sh. 747, 461 P. 2d. 834
(Ore. App. 1969) Poe eeaeees eae reawaeee eat vase ss
_ State v. Matlack, 49 N.J.°491, 499, 231 A. 2d 369, of
"cert. den. 389 U.S. 1009 (1967) enna ae errer S 7
State v. McVay, 277 N.C. 410, 177 S.B. 2d 874 (1970)
~ State v. Meeks, 205 Kan: 261, 469°P. 2d 302 (1970) .
State v. Moore, 11 N.J. Super. 528, 269 A. 2d 534
NGO) Fea an no os een e5aes sess ee ends ssasenes 9;
State v. Randolph, 186 Neb. 297, 183 N.W: 2d 225 -
AIOE) xa ney eee eneey ye oan edens sos seere susan
. State v. Richey, 258 La. ——, 249 So. 2d 143 (1971)
State v. Satterfield, 103 NJ. Super. 291, 247 A. 2d
ORE UIDGE) aay eee yan ee icv tis iewsieeess 11,
‘State v. Singleton, 253 La. 18, 215 So. 2d 838, 841. -42
“AI9GS). is eniwas SG i cade ase 64s eae theses aeeseus
State Vv. Simmons 63° Wash. 2d 17, 385 P. 2d 389 _.
f pRiOOe) sweets caw see cheesy eee wee eos ccna ck enws -
State v. Smith, 182 N.W. 2d 409 (Towa ay Seeneus
vi.
State v. Townes, 461 S.W. 2d 761 (Mo. 1970)....:... 11
State v. Turner, 81 N.M. 571, “469 P. 2d 720 (N.M.
App... 1970) ...... Oe) saananseneecsastetaees ‘ee 10
State v. Walters, 457.S.W. 2d 817 (Mo. 1970) ..-... ‘16 -
State v. Wright, 274 N.C. 84, 161 S.E. 2d 581, (1969)
cert. den. 396 US. 934 ..... ewaaees os wisseeivaed ot
' Stovall v. Denno, 388 U.S. 293 (1967) euesahedueres. Be
Thompson‘ v. Statg, 85 Nev. 134, 451 P. 2d 704 (1969) ~
cert. den. 396 ©. 893 oo feccceceee evestes 18, 17 -
Trask v. State, 247 A. 2d 114, 116-17 (Me. 1968) ... 16
United States v. Ayers, 426 F. 2d 524 (2nd Cir. 1970)
cert. den. 400 US. 842 2 cic. ccc cece cscs ensses 17
United States. v. Ballard, 423 zs 2d 888 On Cir.
1970) *eeaavctuweeausconecetse. cease veeeenesees 11
United States v. Bennett, 409 F.~2d 888- (2d Cir, .
1969) cert: den. 396 US. 1852 .2..5..4 002.24. 1t20
United States v. Broadhead, 413 F. 2d 1361 (7th Cir. ,
1969) cert. den. 396 U.S. 964 ee eS a
United States ¥, Gholston, 437 F. 2d 260, (6th Cir.
TGA). tava s nceandeosoneeseedsee dues eeenceeess 31
United States v. Collins, 416 F. 2d 696. (4th Cir.
1969) 396 U.S. 1025 ....... 00. e eee 11
United States v. Conway, 415 F. 2d 158 (3rd Cir.
1969) cert. den. 397 U.S. 994 ...2......: SD eee 12
United States v. Cox, 428 F. 2d 683. (7th ‘Cir. 1970)
cert. den. 400 Lif. Se. . | re errs eee arene 9
United States v. Cunningham, 423 F. 2d 1269 (4th .
Cir, 1970) 2 ic iecwadcvowsest lige. veils teins 27)
> United States v. Davis, 399 F. 2d 948 (2nd Cir. 1968)
cert. den. 393°U.S. 987 .........4............10, 12, 14
United States v. Fowler, 439 F. 2d 133. (9th Cir. -
6 enn a a ee 12
United States v. Hamilton, 420 F. 2d 1292 es Cir. |
1969)... Twauseat er er er ee ee
“Vil.
_ United States v. Marsen, 408 F. 2a 644 (4th Cir.
1968) cert. den. 393 U.S. 1056 1.22.0... 0.0 eee 12
‘United States vy Pollack, 427 F. 2d 1168 (5th oe a
1970) cert. den. 400 U.S. 831 ................ 6. ‘10.
- United ‘States v. Phillips, “427 FL 2d 1035 (9th Cir, A
1970) cert. den. 400 U.S. 867 2.2.0 cee cece eet e eee! 7 \ -.
United States v. Randolph, 443 F: 2d 729 ) (DL. Cir.
ESIC) acts seuds castes esesees os5 te bane dee cwuee<s . 39
_ United States v. Serio, 440 F. 2d 827 (6th Cir. 1971) 12
United States v. Wade, 388 U.S. 218 (1967) ........
15, 18, 22, 23, 24, 29, 40
United States. Vv. Wiliams, 436 °F. 2d 1166 (9th Cir. 3
NICO): edition a tina sered enews boats team dees ce (12 -
United States v. Zeiler, “427 F. 2d 1305 (3rd Cir.
1) CE ee TT ee ne ee eee “42
Virgin Tlands v. Callwood, 440 F. 2d 1206, (3rd
Orb eae 1 By ee ne iianeiawes Abele wies dd erodes ' 17
Williams v. United States, 345° F. 2d 733 (D.C. Cir.
1965) Sea mues €s gee oe bx a) 0 ow oeeedekeeeee acess. 23
Wright v. State, 46 Wis. Od: 75, 175 N.W. 2d 646 ,
(1971) Seeeee uae BV cade eesaen cut ee peseees won Ok.
| Constrrvrion | | .
"IH. Const., Article 1, See. 7 2.2.0.2... eect eee ee ee “13
| ,
: MISCELLANEOUS
4 Wigmore, Evidence, Sec. 1130 (3rd Ed. 1940) .
8 Wigmore, Evidence, Sec. 2902(McNaughten Rev.
ee ie sapunee ao¥eseu ae esvueeaeaess
Code of: Professional Responsibility, DR 5-102°...... -
Right to Counsel: at Police Identification Proceed-
ings, 29 U. Pitt. L. Rev. 65, 74-75, 87-88 (1967)
‘Read, Lawyers at Lineups, Constitutional Necessity
or Avoidable Extravagance, 17 U.C.L.A. L. Rev.
339, 378 (1969) aOeaee cen se eeeee22, 30, 31, 35, 37,
Note, Right Counsel at Pre-Trial Lineup, 63 Nw.
' Li Rev. 251, 260 (1968) ..... eee ee oeteees 22, 31,
o Note, Lawyers and sacha 77 Yale’ L. a. 390, 392. }
BF (1967) sioiarg tee iciintrneeenats meee eee
81
38
38
IN THE
Supreme Court of the United States
No. 6401
“THOMAS KIRBY,
Petitioner,
/
VS. oe
_PEOPLE OF THE STATE OF ILLINOIS,
_ Respondent,
(On Wiit Of Certiorari'To The Appellate Court
* . |. Of Ilinois#First District)
BRIEF FOR RESPONDENT
_ QUESTIONS PRESENTED
Whether the right to counsel at eyewitness confronta-
tions is applicable where the confrontation occurred .dur-
_ + ing an investigatory stage of the case and prior to indict-
ment, preliminary: hearing and the retention or. appoint-
ment of counsel. .
Whether the decisions of United States v. Wade and
' Gilbert v. California should be overruled to the extent
- that they hold that the right to counsel attachés to cer-
tain eyewitness indentification procedures.
. _ ° , \
7 STATEMENT OF FACTS
Thomas Kirby’ and Ralph Bean were indicted fot the
offense of robbery by a Cook County, Illinois‘Grand Jury. .
They were jointly tried by. a jury and found guilty. Kirby.
was sentenced to the Illinois State’ Penitentiary for a
term of not less than five nor more than-twelve years. On
appeal the appellate court affirmed, and thereafter the
Supreme Court of Illinois denied Kirby’s petition * for
leave to appeal. This Court granted a writ of certiorari
“on May 24, 1971 (A.-1-3).° ee P
Prior to trial, the two defendants filed’ motions ‘to sup-
press physical evidence ‘anc motions to suppress identi-
fication testimony of a wit ess (A. 1). The motions to -
suppress identification testimony alleged that the identi-
_ fication was induced by the action of the police and that
the defendant was not advised \of his right to have coun-
sel present. | -
A pre- trial ‘evidentiary héarin was conducted. by the |
court. Kirby’s co-defendant, Ralph. Bean, testified with -
regard to the motion to suppress physical evidence that
‘on February 22, 1968, he and Kirby were stopped by two
police officers as they were walking in the. area of 2200
. West Madison Street. They asked him for some identi-
fication, which he gave them, and they returned it to
him. At the time the officers did not show: him an afrest
. warrant. After the officers questioned Kirby, they told
the ‘two- of them to get into their police ear. They also
‘took his identification from his pocket. (A. 5-6) The .
- identification did not have Bean’s name, on it; it. hore the
name of Willie ‘Shard. ;
; As to the motion to suppress identification teestimony, —
. “Bea testified that the police officers did not inform him
_ that he had a right to have ¢ an : attomey present, prior “0
‘being identified.
During the hearing on the motion Yo
nie sical evidence, Kirby testified that they wefe stopped by
the police. #in, the area of 2200 West . Madison Street on
- February 22, 1968,-and asked to identify themselves. The
police neither told them that they. had an arrest war-
_ warant nor~said they had seen them’ commit a crime.
After they were. stopped, They were ‘searched by. ‘the
police. (A. 8) . i
’ Kirby further testified during the identification phase .
of the hearing that after hé was placed under arrest he —
was not advised. that he had a right to have an ‘attorney
present prior to heing ‘identified. (A. 17) - 7
. The two arresting officers testified for the prosecution
during the hearing on the motion to suppress. physical ©
evidence. The substance of their testimony was that while
‘they were riding in their squad ear, Officer James Rizzi
remarked to his partner, Biaggio Panepinto, that one of
thef two defendants looked like a wanted suspect .whose ©
_ photo was printed in one of their police’ bulletins. They
made a “U’’ turn, went back and stopped the two’ men.
-They inquired as to their identifications, , and
both _men produced identification. bearing the name
Willie Shard. As Kirby was looking for his identification,
Officer Panepinto observed traveler’s checks. bearing the
name Willie Shard. At first. Kirby said these were play -
money, then Hie said ‘that he won the. checks in a crap
game. Aftér asking for additional identification, the offi-.
cer noticed a. social security card with the.name Willie -
Shard also in Kirby’s possession. The other officer dis-
covered a Blue Cross and Blue Shield membership card
with the name Willie Shard, a receipt’ from a oo
~
S$
~
bas ticket, a prescription card from a: -dtug store and a.
, - duplicate social security card with the name ‘Wyllie Shard:
./ . in the possession of Bean.: The two men were then. placed
under arrest ‘and transported to the polje ce station. (A, - 7
16) . »
| The ihensoution ieel no ‘further sFilaake dieriage the
‘identification. phase of the- hearing. Upon the .conclusion.
— ef the evidence, the judge granted ‘the motion to © sup-
7 press.
press the physical evidence as to. the items taken from
the defendant Bean but denied -the- other motions to sup-
- During, the: trial. on the merite/ Willie Shard testified _
that: on ‘February’ 20, 1968, at about 4:30 in the. after-
‘noon, ie ‘was, walking on. Hoyne Street between Warren
and Madison. ‘He was coming. from. a Greyhound ‘Bus .
Station, having returned from:a trip to New Orleans. (A.
- 1, 22). Ashe was’ ‘walking, he looked. back and saw
-two men. coming .down the street — they were about —
‘fifteen - ‘feet away. (A. 18)" At the time . it was light ‘out
and he*saw them well, (A. 19) .
_ As he‘ was about to step into a restaurant, one of the
) men ran up and grabbed him around the neck. Both men’
_ reached. into his pockets and took everything he had
| including $140 in traveler’ S checks, about thirty dollars in ©
* ciish,. his. wallet and, his identification cards. (A. 19) ‘The.
i. two men then fled in; the direction of Madison Street. »
- Shard -said, that he. dhserved the men*before, a and
-._,after-the robbery. (A, 27:8)
.. | The following day. he went’ to a police station and made - |
a report of the robbery. He gave the police physical des-
srisitions of the two men. (A. 20, 21, aa
& ata *
a
5
‘On February 22, 1968, he was taken by two police of-
ficers. to the: Maxwell Street Police Station. When they
picked him up, they asked if he had been robbed—he.
‘said . yes—and if he could make an identification—he .
_ . again said yes. - After they arived at the station, he saw
the two defendants sitting at a desk and he pointed them
| out. (A. 24) - | \.
_. Shard: identified the latina: in fe ivainone and
-. also the property that was,taken from Kirby at the time
\
of the arrest. 2 _ \
‘The arresting officers in addition te testifying as to
* those events recounted, during the hearing on the motion
to suppress, testified that after transporting Shard to the |
station, they learned’ that: there was a complaint that -
» - ¢hecks had been taken during a robbery of, one Willie
' Shard. The two arrestees were detained in the squad
‘room of the station. house. About two hours later, Shard. | -
— and said, “Those are the two men that robbed
e.”:They did not prompt or coach -hini. (A. 31).
Se * Baie Bean; the co- defendant, testified that he and
Kirby. found the checks and identification in an alley ih
the vicinity of where they were arrested about two hours
earlier. They had stepped into the alley to-take a drink |
of whiskey. (A. 38, 39, 43, 44) .. |
After they were: arrested. ieee were taken to the police
station. Later Shard eame to the’ station. Bean saw him
. standing by the doorway looking around, Someone
brought Shard over to the table where they were sitting..’
_. He heard Shard say, “I: don’t know,” or, “I told you I
- ean’t identify,” or, “something like that.” (A. 89) —
Bean said that he never saw Shard before and that he .
. didn’t take anything from him.
:
6
- In rebuttal Officer Harold Marsicek testified that he and.
his partner picked up Shard on February 22,.1968, and
drove him to the police-station. As -they entered the
“4 squadroom, Shard pointed across the room at Kirby and
’ Bean and said, “Those are the two men that robbed me.’
‘ 1. 46 q47). Prior to this: they had said nothing to Shard.
SUMMARY OF ARGUMENT
; ‘The courts have generally refused to hold that the
right to counsel applies to all eyewitness confrontations,
holding ~that confrontations occurring shortly after the
3 _. erimg accjdential confrontations, confrontations involv-
. pon Rar not in custody and ‘photographic -confronta-
tions’ are all exempt from the right to counsel. Under the
facts of this case, the right to counsel would have to be
extended ta, cover all cases of police arranged confron-¢ ¢
tations involving the corporeal presence of. the suspect .
which confrontations did not occur within minutes of .-
4 the crime before the’ right to counsel would apply herein.
’ ‘The ‘petitioner here was confronted prior to formal filing
of charges ard preliminary hearing as well as prior to
indictment. Petitioner had neither retained nor been. ap-
pointed counsel wheri he was. confronted, and the con-
: frontation occurre® within 48 hours of the crime and a
couple of hours after arrest. It has also been held ‘that
confrontations which are ‘investigatory and not accusa-
tory do not give rise to a right to counsel. In this case,
the confrontation was investigatory.
The: lower courts have split on the issue of applying |
-. right. to.counsel to pre-indictment lineups. However, the’
express language of this Court’s opinions makes it clear
that.-this Court has held only: that the right to counsel
applies to post-indictment . lineups. Petitioner seeks to
have this holding broadened. Theré are strong reasons not
to broaden the right to counsel. at: confrontations. Post-
7
indictment lineups are almost certainly not investigatory _
since they oecur after the government has committed it-
self to prosecuté. At ‘post-indictment proceedings the de-
fendant will have his own counsel familiar with the case
and able to assist his client to the best of his ability.
Pre-indictment — lineups may well be. investigatory and
the government is ‘not committed to prosecute. The sus-
_ pect may well have- no counsel of his own and, even if -
a quickly appointed or substitute counsel is present, such’
counsel will be unacquainted with the case and will not
be able to remedy this defect without causing serious .
- delay of the lineup.. Finally, the bar has neither the per-
sonnel capacity to fullfill the obligations of attending pre-
_ indictment lineups. . |
The “critical stage” reasoning leading to imposition of.
the right to. counsel at lineups is faulty. It defines as a
“critical stage” any event where counsel’s absence, in
effect, might jeopardize the accused’s interest in the reli-
ability of the fact finding process. The rationale, which?
‘is ‘a departure. from past “eritical stage’’ thinking, car- .
ries much too far. It would Jiterally require the presence ©
of counsel at every stage of the police investigation of a
crime. The rationale would require the presence of counsel
at every. police or prosecution ‘interview with a witness -
even those occuring before the suspect is apprehended.
The rationale is inconsistent with all the decisions ex- .
empting prompt, accidental ‘and photographie confronta-
© tions front the right to counsel: Furthermore, there is
no evidence. that. examination by counsel will not
elicit faets. concerning , pre-trial confrontations just
as it elicits the far ‘more important féets concerning :
the circumstances, of the crime. Nor is there evidence that |
deliberate abuse of the confrontation nnecoare* -will be
prevented by the peceetoet of counsel.
. ‘ aceael
Oe eT a TY ht en
tet
POR PREP ea te ONS
8
Lastly, counsel is ineffective at lineups. Counsel has no
_ special capacity to, regulate confrontations. Even if. he |
had the capacity to do so, he is given no authority to, .
order the police to follow certain procedures. And even —
. if counsel has both the capacity and authority to regu-
~ late confrontations, he has no duty .to see that they are
fair. It is counsel’s duty to weight the confrontation un-.
fairly in favor of his client. In many cases,. counsel will
not object to an unfair confrontation for fear it will be .
corrected and his client will lose a chance to SUppress
evidence. Counsel’s role is essentially that of a witness.
He is:not. well qualified to play this role. He is subject
to the inherent limitation that much which may: potenti-
ally prejudice. his client, e.g. police suggestion to the wit-
ness before the confrontation, or the vindictiveness.of a
victim, cannot be “witnessed’’ . by him. He is subject to
the limitations of the cannons of ethics barring him as a
witness. In one jurisdiction where the procedure has ‘been ©
-studied in actual practice, defense counsel believe that
they have. no meaningful function, and there is evidence
that the confrontation is converted into a forum for dis-
- éovery and witness intimidation. In some eases,. the sus-
~pect’s appearance has been altered between the offense
_ and the lineup. Counsel is -not. an effective witness |
for his client since he is not neutral. More. importantly, . -
if counsel : succeeds in securing a fair lineup for his. client
-and an identification is made, counsel may become a wit-
‘ness for the prosecution where identification -is contested.
The testimony, or even the possibility of testimony by
counsel against client must destroy any relationship of
trust. The grafting of a right, to counsel into eyewitness
identification procedures was a misstep. by this Court. If
the ‘problems of suggestive and improper ideritificatior
procedures are severe, then they can be dealt with through .
the Due Process Clause. The creation of a right to coun-
sel does not meet mone problems. “ |
. ’
> .
.
ARGUMENT
ns a
THE RIGHT TO COUNSEL ARISING WHEN AN EYE-
WITNESS VIEWS A SUSPECT SHOULD BE AP-
PLICABLE ONLY TO POST-INDICTMENT | CON.
FRONTATIONS AND, IN ANY EVENT, SHOULD
NOT APPLY TO THE INVESTIGATORY CONFRON.
- TATION IN 7 CASE.
A.
The Right To Counsel At Eyewitness: Confrontations:
General Rules Of Application And . Exception.
The right to counsel at’ lineups or other identification,
proceedings may be governed by several measures of
application and exception.
There is no- court which ine held that the right to
counsel is applicable to ali occasions when an eyewitness -
sees a suspect. The courts have developed at least five
generally recognized exceptions to any blanket imposi-_
‘tion of. the right to counsel:
(a) The right to counsel does not ‘apply when the
Suspect. is not in custody. United States v. Cox, -428 F.
2d 683; (7th Cir. 4970) cert. den:.400 U.S. 881,. Bratten v. .
Delaware, 307 F. Supp. 643 (Del. +1969); Bradford v.
State, 118 Ga. App. 457, 164 S.E. ‘2d 264, cert. den. 394 .
U.S. 1020 (1968); People v. Cezarz, 44 Ill. 2d 180, 255
NE. 2d 1 (1969); State v. Bibbs, 461 S.W. 2d 755 (Mo.:
1970); State v. Moore, 111 NJ. Super 528, "269 A. 2d 534
‘
10
| (1970); State v. Clark, 2 Wash. App. 2a 49, 467 P. i
369 (1970).* , ,
(b). The right on counsel does not — to accidental
confrontations, i.e., those not deliberately arranged by the ©
police. United Siates v. Pollack, 427 F. 2d 1168 (5th | Cir.
1970) cert. den. 400 U.S. 831;. People v. Martin, 47 Til. 2a
331, 265° N.E. 2d 685 (1970); Commonwealth v. D'Ainbra,
70 Mass. Adv. Sh. 513, 258: N.E. 2d 74 (1970) ; State v.
Bibbs, 461 S.W. 2d: 755 (Mo. 1970);, State v. Turner, 81
N:M. 571, 469 P..2d 720 (N.M. App. 1970); State v. Dut-—
ton, 112 N.J. Super. 402, 271 A. 2d 593. (1970). 2
_ (e)- The right to counsel does not apply to epntrantn:
tions occuring shortly after the crime.’ Russell v. United
| States, 408 F:,2d 1280 (D.C. Cir. 1969) cert. den. 395 U.S.
498; United States v. Davis, 399 F. 2d 948 (2nd Cir.
_ 1968). cert. den. 393 US. 987; State v. Boens, 8 Ariz. App.
110, 443 P. 2d 925 (1968) ; State v. Bratten, 245 A. 2d 556
(Del. Super. 1968) ; Robinson v. State, 237 So. 2d 268 (Fla.
App. 1970); People v. Bazzelle, 264 N.E: 2d 457 (Ill. App.
1970) cert. pndg.. —— U.S. ; Parker v: State, 261
N.E. 2d 562 (Ind. 1970); Jones v., State, 255 N.E. 2d 219
(Ind. 1970); State v. Smith, 182 N.W. 2d 409 (Iowa
(1970); State v. Meeks, 205 Kan. 261, 469 P. 2d 302 (1970) :
1. The best siaaeentae of a wienaal ‘confronta-
tion is that in People v. Cezarz, 44 Ill. 2d 180, 255 °'N.E.
2d 1 (1969), where the witness was taken to a motel
swimming pool,. and identified his assailant, who was a
guest of the motel, ‘from a large. group of pe using®
the -pool. .
2. The. rationale of these eetieast rests upon the
absence of police misconduct and upon the absence, of.
suggestiveness whenever the confrontation is truly. acci-
dental. 4
11
State v. Lewis, 255 La. 134, “299 So 2d 726 1969) State
. v. Richey,
— wealth v. cao Y,- 356 Mass. 617, 255 NE. od 191, cert.
den.. 400 U.S. 843 (1970); State v. Satterfield, 103 N.J.
Super. 291, 247 A? 2d 144 (1968); Grant v. State, 446 |
- &.W. 2d 620 (Mo. 1969); State v. Hamblin; xf S.W. 2d
d
755 (Mo. 1970); State v. Tounes, 461 S.W. 761 (Mo.
1970); State v. Madden, 89 Ore. Adv. Sh. 747, 461 P. 2d
“34 (Ore. App. 1989). st
- (d) The right to éounsel ieee not apply to eonfronta-
tions involving the use. of photographs of the suspect.
United States v. Ballard, 423 F. 2d°127 (5th Cir. 1970); .
United States v.- Hamilton, 420 F. 2d 1292 (D.C. Cir.
_ 1969); United States v. Bennett, 409 F. 2d 888 (2nd Cir. |
1969) cert. den. 396 U.S. 852; United States v. Collins,
416 F. 2d 696 (4th Cir. 1969), cert: den. 396 U.S. 102: Mc-
Gee v. United States, 402 F. 24-434 (10th Cir. 1968), cert.
den. 394 U.S. 908; People v. Adair,-2 Cal. App. 3d 92, 82
Cal. Rep. 460 (1969); People v. Hawkins, 7 Cal. App. 3d
117, 86 Cal. Rep. 428 (1970); People v. Stuller, 10 Cal. |
App.-3d 582, 89 Cal. Rep. 158 (1970) cert. den. 401 US.
-977;. Jenkins v. State, 228 So. 2d 114 (Fla. App. 1969);.
People v. Wooley, 127 ll. App. 2d 249, 262 N.E. 2d 237
(1970); People .v. Piscunere, 26 Mich. App. 52, 181 N.W.
2d 782 (1970). State v. Randolph, 186 Neb. 297 183 N.W.
2d 225 (1971); -People v. Gonzales, 27 N.Y. 2d 53, 261 N.E. |
2d 605 (1970), cert. den. 400 U.S. 996; People v. Coles, 34
App. Div. 2d 1051, 312 N.Y.S. 2d 621 (1970); State v. Mc-
Vay, 277 N.C, 410, 177 S.E. 2d 874 (1970); State v.-
Grays, 1 Wash. App. 422, 463 P. 2d 183 (1969); State v
_ Cerny, 78 Wash. 2d 871. (1971); Kain v. State, 48 Wis,
2d 212, 179 N.W. 2d 777 (1970). o
Some courts have indicated that the righ! to counsel nt
_ photographic identification procedyres does exist if the :
12.
defendant is in custody. Thompson v. Statey_85 Nev. 134,
- _ 451 P. 2d 704 (1969) cert. den. 396 U.S. 893; Common- —_
wealth v. Whitney, 439 Pa. 205, 266 A. 2d.738 (1970) cert.
den. 400 U.S. 919; United States v. Zeiler, 427 F. 2d 1305
| _ (3rd Cir. 1970). However, most courts do not follow this
rule, See, United States v. Conway, 415 F. 2d 158 (3rd
Cir. 1969) cert. den. 397 U.S. 994; United States v. Mar-
sen, 408 F. 2d 644 (4th Cir. 1968), cert. den. 393 US.
1056; Allen v.. Rhay, 431 F. 2d 1160 (9th Cir. 1970); ‘United
States v. Williams, 436 F. 2d 1166 (9th Cir. 1970) cert.
den. 402 U.S. 912; United States v. Serio, 440 F. 2d 827
(6th Cir. 1971); United States v. Fowler, 439 F. 2d 133
- Cir. 1971); People v. Lawrence, 4 Cal. 3d 373, 481
: 24-212 (1971); Peaple v. Holiday, . 47 ll. 2d 300, 265
— 2d. 634» (1970).
“In addition to the various exceptions recognized by the
. . courts, there ‘are, at least in theory, five general rules
which might be thought to r goveyn the non- exceptional .
cases. 5 ; : «=
First, “the right: to counsel may apply to al cases in
which the suspect is in custody. —
‘Second, the right to counsel may apply to ail cases in
which the confrontation is. accusatory rather than. inves-
tigatory. This theory resurrects the Escobedo concept of -
focus and would require counsel whenever the state of
mind of the police is such that they think the suspect
committed the crime and are seeking eyewitness confir- —
mation of their pre-existing beliefs. See United States v.
Davis, 399 F. 24-952 (2nd Cir. 1968).
_ Third, the right .to counsel. may apply only after for-
mal charges are filed in court or after preliminary hear-
. ing. re : , ~ .
a
“48
Fourth, the’ right to counsel applies only after’ amid
_ ment.
Fifth, = right to seule may apply after the reten-
- tion or appointment of counsel.’
= -
‘In this case, application of any of the general rules, |
_ excepting ‘the first, would render the right to counsel in-.
applicable. Obviously, petitioner here had neither retained
nor appointed counsel at the time of the confrontation: -—
Charges had not been filed nor had preliminary hearing.
been theld. Certainly, petitioner-was as “not under indictment.
_The-record also’ demonstrates that the confrontation, was
: “investigatory i in nature. —” ; SS
Thomas Kirby was sonnel by the police because he
resembled a wanted suspect. See Hill v. California, 401 '
~ U.S. 797*(1971). In the course of checking into Kirby’s
_ identity, the investigating officers noted that Kirby had
in his possession someone else’s identification and trav-
eler’s checks. Kirby’ gave false and conflicting explana- —
_ tions as to how he had acquired the property. The i in- ©
vestigating officers then -placed Kirby under arrest and
_ transported him to the police. station. At the time the
officers had no knowledge about the robbery itself.
Although the arresting officers had reason to spect
Kirby and to place hin} under arrest, still, they Md no
3. It should be noted that this fifth rule would today.
be roughly equivalent to the second. rule since Coleman v.
. Alabama, 399.U.S..1 (1970), requires the appointment of
counsel at preliminary hearing. It should also be noted’
_ that under the new Illinois Constitution (effective July
‘4, 1971) the prosecution cannot, except in a small class
of cases,.dvoid giving a preliminary hearing by indicting
before the hearing. See IIl. Const. Article I, Sec. 7. -
=
know ‘ledge on which to base an accusation of. robbery.
cers learned that the checks had beens taken during ‘a
robbery from Willie Shard (A: 31). The record does—
not indicat * that the arresting offical had any additional
informatioW concerning the details of the robbery. Officer
Panepinto testified that he’ did. not -see the police report —
iving-at-the station-the arresting-offi- /
- about ‘the robbery until sometime later (A. 36). The ar- . |
_ resting officers were not from the Robbery Unit, but were |
| attached t to the Public Vehicle Unit (A. 10, 14). Accord- .
ing to the testimony of Ralph Bean, the codefendant, the
officers did not accuse them of the robbery. until after
‘Shard appeared at the station (A.~40-41). The record
does not show that any booking procedures had commenced
prior to that time.
Kirby and Bean were. ‘not taken to ‘the pollen station
to be identified since the arresting officers were not: then
aware of the robbery. Clearly then, the purpose was to
further investigate concerning. the ownership of the prop-
‘erty. The arrest ‘itself should not be regardéd as a stage .
of the prosecution at which the right to counsel arises.
Were this so, prompt cénfrontations would be impermis-.
_sable unless ‘the suspect were not ander arrest. Nor is
there any justification for such a conclusion. As: the court
said in United States. v: Davis, 399 F. 2d 948, 951-52 -_
Cir. 1968) : E
‘“We do not read Wade“and its siblings as saying
that the mere fact of custody, especially when this.
- is for an unrelated crime, automatically triggers the
‘Sixth Amendment right to counsel, as it would the |
Fifth Amendment privilege against self-incrimation.
The importance ‘of eustody from:a Fifth Amendment
standpoint is that it is conceived as furnishing the
élement of compulsion which that Amendment , de-
15 : | , in
> eae.
sihiemda. see Mixanda v. State of Arizona, Be S. 436,
_ 467, 86 S. Ct. 1602, 16 L. Ed. 2d 694: (19 . The
— protection of—the: Sixth -Amendment applies toe <thie-
~ accused’ in ‘all criminal prosecutions,” and while Wrrte
- makes clear that this includes certain pretrial pro-*
ceedings, 388 U.S. at’ 224-295, 87 S. Ct. 1926, that is = ~
a long way from Saying: that the protection attaches
as soon as suspicion is aroused. The fact .of custody ©
adds little of Sixth Amendment: relevance, especially
when, as here, this is*for an unrelated crime.”’
Nor does: it follow that because’ the officers subsequently. -
learned that a person named Willie Shard had reported.
‘ that he had been robbed. of some traveler’s - checks the
' previous ‘day, ev erything that énsued from that: point on
was a part of the prosecution requiring the presence of °
counsel. No accusations had yet been made, and the ar-
resting officers’ had little opportunity to learn sufficient _
details to make -any accusations without consulting ‘with
Shard. In this. respéct there is little difference’ between
the ‘confrontation that occurred here and those approved
under the prompt confrontation exception. Under the ‘cir- -
cumstances, it does not follow that t proceedings had
reached the accusatory | stage or thar should not
have Been allowed to see the suspects in the absence of
defense counsel.
7”
, : B.
The Right To Counsel At Eye
The Post Indictment Rule. ° :
It is our contentfon that “nder existing law
the right to counsel should, as a ‘general rule, apply only -
to eyewitness confrontations occurring after “indictment. -
Any broader rule would represent an "extension, of the
a in United States v. Wade, 388 US. 218 ene
ya) :
, o
Confrontations:
a - . o . *
16 < ~ 7 ; oe
~
s
and Gilbert v. California, 388 Us; 263 (1967),. and any
extension would, be unjustified in either law or policy. ~
: The issue of the’ “applicability . of Wade and. "Gilbert to.
- pre-indictnient confrontations « ‘has Severely divided the °
merous wo - i
4. . Arizona, Florida,- Illinois, Missouri and Virginia
have rejected the application of. the right of counsel to
- pre- -indictment cases. See State v. Fields, 104 Ariz. 486,
. ¥ .
" 455 P. 2d 964, 965-66 (1969); Petkins v. State;228 So, 2d \
382; 389-90: (Fla. 1969}; People v. Palmer, 41 Ill. 24:71,
244 N.E, 2d’ 173-75 (1969); State” vw Walters, 45770 ~~
S.Wr2d°817 (Mo. 1970); State v. Crassman, 464 S.W. 2d -
- 36, 40 (Mo; 1970); Buchatian v. Commonwealth, 210 Va.
664, 173 S.E. 2d 792 (1970). So too, seemingly, has Mon-.
tana, State v. Borchert, 156 Mont.—, 479 P. 2d 454, 455-56 ;
(1971). Maine has adopted the doctrine in an alternative -
holding. See Trask v. Dtatg 7 A. 2d 114, 116-17 (Me.
1968). 7 =
“Kansas and New Jervey have Padonaletiea the issue |
-but have. not decided it. See State v. Griffin, 205 Kan...
370, 469 P. 2d+417,.420 (1970) ; State v. ‘Satterfield, 103
NJ. Super. -291, 347 A. 2d 145 (1968) ; State v. Moore,
111 N.J.. Super. 528, 269 A. 2d 534, 536-37 (1970); State
-v. Matlac -49°N.J. 491; 499, 231 A. 2d 369, 373, cert: den.
389 U.S.4009 (1967). =
California, Maryland, Michigun, Ohio, Selanjivitin: —(
. Rhode Island and Wisconsin have decided that the right —
«to counsel at lineup applies prior: te- indictment. See. _
. People-v.: Fowler, 1 Cal. 3d 335, 461 P. 2d: 643 (1969); -
‘Palmer v. Stafe,s5) Md’, App: 691, 249 A..2d 482, 486
(1969); People v. Hutton, 21 Mich. -App. 312, 175 N.W.
2d. 860 (1970); (conceding, however, that the hol ings
Wade and “Gilbert apply only to post- indictment ¢ ); ‘
State v. Isaacs, 24 Ohio App... 2d 115, 265 N.E. 2d 327 .
- . (197Q);. Commonwealth v. Whitney, 349 Pa.- 205, 266 A.
2d 138 (1970), cert. den. 400 Us 919 (1970) ; In re
“v
R
acterized the issue as ‘‘wkether courtroem identifications |
“Holley, 268 A. 2d 723 (R.I. 1970); Hayes v. State, 46 Wis. -
- 437 S.W. 2d 842,°845-46. (Texas 1969); S
St
. . ° .
¥ - rods < . : : . a
. =?., “<> ” . : : : P L-
oe il e- nh e 17 » . : ‘oe 3
*. - ~~ . .
Pi oe . ” . .
e ¥ 2 . ‘ . ° .
. ‘ " , me *-
a
2a. > The language of this Court in Wade clearly ‘supports |
.
the contention “that the -holdings in those. cases ‘apply . -
only to post-indietment lineups. In.Wade this Court’ char-
“sk
24°93, 175 N.W. 2d 625 (1970); Accord Commonwealth v.
_ Guillory: ,356 Mass. 591, 254 N.E. 2d 427, 429 (1969)...
Several other courts have assumed that the right to.- §
~. counsel applies prior to indictment. See. State vBingle. “0 BS og
top, 253 La. 18, 215 So. 2d 838, 841-42 (1968) ; Thompson - gE
v. Btate, 85 Nev. 134, 451 P. 2d 704 (1969); cert. den; S96: ‘
U.S. 893; State v. Wright, 274 N.C. 84, 161 S.E. .2¢ 581,
587 (1968), cert. den. 396 U.S. 934; Martinez v." State, a
K v. Hicks, 76 :
Wash. 2d -80, 455. P. 2&4 943 (1969): ) » ea? |
The federal courts of appeal have also dealt with the ~ ° as
\ question. The Third, Fifth and D.C.;Cireuits have ex- , I
plicitly rejected any limitation of t :
right to counsel
post-indictment cases. See Virgin Islands v. Callwood-
F. 2d 1206, 1207 (3rd Cir. 197%);. ng-v. United
tates, 424 F. 2d 799 (D.C. Cir. 1969); Rivers v. United
States, 400 .F: "2d 935,°937-42 (Sth Cir. 1968), (The opinion
‘in. Rivers’ concerned a confrontation \ occurring shortly |
- after the. crime/and. the -Fifth Circuit’s application of .§ °
Wade to the faéts before it seems clearly incorrect). Thé
First, Second and Seventh Circuits have asswmed implic-
itly that Wade applies to pre-indictment. confrontations: ° .
See Cooper v. Picard, 428 F. 2d 1351 (1st Cir. 1970)... - a
United States v. Ayers 426 F: 2d 524, 526 (2nd: Cir. 1970) nad 7 :
cert. den. 400 U.S. 842;,United States v.. Broadhead, 413
F’. 2d 1351, 1354 (7th Cir: 1969) cert. den 396 U.S. 964.
.The Ninth Circuit has’ applied Wade -to pre-indictment
confrontations. but has done so on a case by case basis. —
United States v. Phillips, 427 F. 2d 1035 (9th Cir.- 1970) °
cert. den. 400 U.S. 867 (“for the purpose of this case, we
' draw no djstinction between ‘a pre-indictment and post-
indictment lineup’? 427 F: 2d‘ at 1037,.m. 1).
wy
|
- because the accused w
. a ae ‘ > . 18
trial. at a post-indictme
“two oceasions commented directly .¢ on the nature of the
W ade holding. ._
In Gilbert this. Court Said of Wade, “We there held ”
that a post- indictment pretrial lineup at which athe ac-
cused is exhibited to identifying: witnesses is a, ‘critical
stage of .the ‘criminal prosecution; that police conduct of g
such’ a lineup without notice to and in the absence bf His
counsel denies the accused his Sixth Amendment right to
- counsel’... .” Gilbert v. California, 388 US. at 272. And in:
Simmons v. United States, 390. U.S. 377 (1968) the Court,
said of Wade and Gilbert, that ‘<The rationale of those
cases, was that an accused is entitled to. counsel at any |
‘critical stage of the prosecution’ and that a post-indict-
ment lineup is such a ‘critical stage’.” 390 U.S.. at, 382-83.
Those courts which -have ruled that Wade and Gilbert
apply to pre- -indictment: confrontations have relied’ heav-
ily on thelanguage of Wade which stated, ‘‘In sum, the
, ‘principle of Powell v. Alabama and ‘sueceeding. cases re-
‘. ‘quires that we scrutinize any pretrial confrontation of
‘ . the accused to determine whether the presence of. counsel.
is necessary. Tt calls upon us to analyze whether po--
tential substantial. prejudice to. defendant’s. rights inheres
-in the particular confrontation and the abiltty of counsel .
to help avoid that prejudice. ’* United States v. Wade, 388
US. at 227. This language, “however, does not des¢ribe
the —e of the ee merely establishes that all
."
WAN : : : ; . : - a
: \ 7 ~ a
of an accused at trial are to be excluded froin evidence
hibited fo the, witnesses before ©
eup conducted for identifica-‘—
tion purposes-without notice to and in the.absence of the .
accused’s appointed counsel,’?. United States v. Wade, 388
- U.S: at. 219 More ,importantly, this. Court it@elf has .on
. pretrial confrontations are subject to scrutiny.-by the .
Court ‘for thé purpose of determining whether counsel is
required; it does_not hold that all*pretrial confrontations’
féquire-counsel. h In short, -the quoted language defines the
scope of the Coyrt’ S power of inquiry,. it does not set:
forth the results or conclusions of that inquiry.®
vO The courts which have exténded Wade-Gilbert to pre-
indictment confrontations have also relied Keavily on the ;
premise. that the problems that may existxin post-indict-
.ment’ lineups may also! exist in pre-indictment. lineups.
| Assuming the truth of this premise, there is étill no jus-
tifi¢ation for -assuming that the right to counsel: is as_
appropriate a remedy in a pre-indictinent lineup ’ as it is -—
‘in a post-indictment. lineup. ‘Indeed; no - court has ex-
‘ amined carefully the nature of the remedy in. relation . BL
to the problems it was designed to solve. Indeed? i in the |
leading case oes ms the right ,to counsel, «the. court .
expressly stated, “we. do, ndt address ourselves in is:
‘ease to the’ difficult and perplexing. problems wKick ¢
be expected to arise relative to the role to. be played by
‘counsel in the actual line- -up process. .“We assume that
counsel’s function and role at the lineup itself will. be. /
determined m future cases. . . .’’ People v. pital 1 Cal.
@, 3d 339, 461 P. 2d at 654,n.19. . -
~ Phe ~<utgamion*ot-the-¥ight-to- souasel bythe liwet
courts has not been — by’ any detailed’ mrad of ©
5. Those who seek to read the Saeed lanconns as part |
_of the holding mugt resolve the anomaly that it narrows
the. generally accepted proposition that there is an ab-
solute right to counsel at. post-indictment lineups since
the language would require the examination of the facts
of each “particular confrontation,’’ pre- and —- indict-
~ ment, to determine whether counsel, is required.
the rationale of Wade-Gilbert.© No court has offered ~ |
'- . any consistent theory of justification for-its extension ~
of Wade. We submit that the reason for* these decisions=_
is the view of many courts fhat,. this’ Court simply does
. not mean what it. says. The lower courts, in essente, rule .
|. ‘not on the basis of existing precedent, buf on the_basig,
7 of their intuition as to what precedent will someday/fe./ |
The same sort of intuition moved seVeral courts to...
hold that Escobedo v. Illinois, 378 U.S.- 478 (1964); re-. -
- quired warnings of constitutional rights prior to interro--
» gation despite clear language in that opinio limiting the
; \polding. When this Court: did require. such rnings in ie
og Miranda, vg Arizona; 384 U.S. 436 (1966), it did not do ‘so oO
on the basis of Escobedo. In Miranda this.Court-was deal- ~ -
ing with a few question for which it. offered a new and -
‘very extensive rdtionale. The Court explicitly recognized
the difference between Escobedo and ‘Miranda, in Johnson
v. New Jersey, 384: U.S. 719 (1966). Finally, the Court
explicitly affirmed those courts which read the language °
in ‘Escobedo to medn what it said. See Prazier v."Cupp, a
894 U.S. 731 (1969),
-|
6. The right to counsel at interfogation does, of course, ____-_—-_ >
apply prior to indictment.-There-is-a~ “difference between ;
interrogation and lineup cases. In: the former cases; the
- defendant has a. clear choice as-to whether or not. to
participate in interrogation and the degree td which he
will participate. The broad range of choice present may
be said to require that the suspect have the opportunity _
to consult counsel if he so desires. In’ lineup cases the ©
defendant exercises no options — he, must participate in. +
- the lineup. The only purpose counsels erves to-witness~ as
" the lineup, and-this-function is not -86 vital as to require
a pre-l ‘indictment right to counsel. - . ,
ans
v
ev! ;
- would ‘be abl
es He eS
‘In sum, the right td counsel at pre-yidictment' confron- 3
tations is not required by Wade. The petitioner here can-
not properly claim. that his rights. under Wade were vio-
lated. His claim is that the existing right to counsel should
be expanded, to cover his case. Po Ss
‘In Wade and Gilbert, the lineups comune’ after indict-
ment. Both defendants had counsel, The appointment of
counsel upon. indictment is ‘virtually. automatic in this
country. In Wade, and Gilbert defense counsel both
had adequate time to interview their clients. They were
in a position to gauge the significance and the likelihood |
of eyewitness identification. To the extent: possible they |
‘ to render competent assistagce to their
— clients at the lineup without causing delay of the lineup.
Finally, the post- indictment lineup has no purpose other .
than the gathering of evidence against a person whom
the government i is essentially committed to prosecuté. Sure- -
ly, whatever incentive there. is to abpse the identification
* process is likely to exist largely in cases wheré the gov- -
é ernment is committed to prosecute. Under thése circum-- -
“stances, when the adversary process has clearly com-~
menced, the right to counsel 21 might be appropriate.
Where there is no. indictment, where the ‘government is’
~ not committed to prosecution, the right. to counsel is far
less appropriate. Where, in addition, defendant has no -
--eounsel and the securing of counsel will.cause delay, there '
\ is still less reason to insist upon a right to cou sel. Even
- if counsel is available, le will necessarily. have. little, if
any, knowledge of the case against his client and will be™ ; .
far from able to advise or’ assist his client to the best.
of .his ability. ‘Under these ‘circumstances, counsel serves
~ no essential purpose.
%-
- en inceiien ei
~ , ? ( - , ‘
~~
i. : , > ed ;
\ Pisere is, furthermore, a, sabstantial difference in the.
a capacity of the her to meet: the obligations of the right ‘to .»
-... counsel in’ post-indictment lineups and fts capacity to at-
_tend all lineups. It, has been stated, ‘‘The cost of assign- —
ing counsel for untold numbers of pre-trial identification
: proceedings may be So excessive “as to prohibit such pro-
ceedings entirely. . . The mandatory: presence of counsél:
* at pre-trial ideutifieations would also proye uneconom-
ical £4p-the lawyers themsely es, who will not be eager to
,perform these time-consuming tasks, far removed from-
the courtroom,sand demanding little or. no legal: skills. =
Rev.’ 251, 260: (1968) ; Read, Lawyers: At Lineups? Consti-
tutional - Necessity . or Avoidable. --Extravagance, 17
U.C.L.A. L. Rey. . 339, 378-(1969)° .
Ind leed, thie Tanguage of the Wade opinion. envisions. its
— “application . as limited at ‘least to case’ where the de-
/ fendant has his own -counsel.’ At least until Coleman. v.
Alabama, 399. US. 1. (197Q),+ many defendants, if not
most, did -not. have their own counsel. until they were
arraigned after indictméng. | a
. t The return of an indictment ‘Yepresents. more ‘than a’
, meaningless ° ‘formality. It ‘represents the .government’s
\. - firm decision: to. proceed’ against an individual. It solidi-
fies the adverse positions of the parties. It. is, in the con:
Ca | re ve =
Se/7,s The language ‘in question ‘involved. the discussion of
..the undecided question as to the permissibility of substi- *
* pect’s own counsel would result in prejudicial delay.”’
‘- United States.v. Wade, 388 U.S. at 237. Certainly, substi-
tute counsel is of little value unless he can consult with |
defendant’s regular counsel who knows ane facts of the case: ”
Note, Right To Counsel At Pre- Trial, Lineup, 63 Nw. Li _—
tute counsel ‘‘where notification and. presence of the. sus- -
_ @€
"text af lineup eases, “a valid point: of distinction for: the:
nited*
7 —_
- =
“ (1970).
-* oO . -
voy: 3 $::
. . ;
>. ¢ z
“ . >
. > :
6
3 ~ e
2 °F Big
P .
P ‘ :
° °¢ * :
ze
_attachment of the right to’ counsel. Cf. Massiah 1 Xe
States, 377 US. 201 (1964). - : (= ae ‘
ee
* More Signifidantly, it is our view that, counsél at acline-—
‘up has sa little value that- extension-of the right to: coun- ;
.. sel to pre- indictment lineups i is completely unjustified. This _
argument; however, goes to the very validity of Wade-and
ert as precedent. Accordingly, we contend in Point Il.
"that Ww ade and Gilbert ought to be overrultd.* |
ee A be
Ir.
THE DOCTRINE ‘THAT THE RIGHT TO: ‘COUNSEL ns
ATTACHES AT EYEWITNESS CONFRONTATIONS.
. SHOULD BE REJECTED AND UNITED STATES v.
WADE SHOULD BE OVERRULED.
Prior to the decision in U nited States v. Wade, 388 US. 3.
‘218 (1967), the concept of a right: fo counsel at a lineup
had been rejected. Eg.. Williams v. United States, 345 F.
. 2d 733, 734-37 (D.C. Cir. 1965) (Burger, ad. -coneurring).
‘See Stovall v. Denno, 388. U.S. 293, 300 (1967).
¢
a
8. The question. of overraling could ndt have been raised
below. It is ‘only this Court that‘can consider the question ©
of overrilling its own precedent. Furthermore, the failure.
to raise a reason or ground for sustaining judgnient™ in .
the lower court-does not prevegt an appellee or respond-
ent from raising any ground to deferid a judgment in
review. ‘‘The prevailing - party may, of course, assel t. in
a reviewing court any. ground in support of his judg-
ment. ...’’ Dandridge v. yPpneme, mr U.S. 471, 475 n. 6
-- 9
In Wade, however; this Court applied. the orkut of the
o- stage’ t to lineups. aoe Court = that the right
™
167
. $s .” ae ” es | os oe. ‘
to counsel must arise at any event ‘‘where counsel’s ab-
- sence might derogate from the accused’s right to a fair —
trial.’ United States v. Wade, 388 U.S. at 226. A lineup
was such’an event ‘because it was “peculiarly riddled with
. innumerable dangers and variable factors’?. Umited States
. v.. Wade, 388 U.S. at 235. Sinee counge! might - -serve to
"prevent such dangers, a suspect had tle right. to. counsel.
at the lineup. . fg hare Se gee eee ers aoe
: | ; A. ; : ~ ‘ od 2 : x
‘The: “Critical Stage” Theory of. Wade. ee
ae The ‘tgritioal stage’’ reasoning in Wade was an exten-
* sion of prior theory that provided counsel in ordér ‘to
protect clearly declared rights, e.g., the right ,to raise de-
_ fenses ° and the privilege against self-incrimination.”* ‘This
theory cannot apply. to the lineup’ because the: suspegt has
“no right to refuse to appear in a lineup. In Wade the .
~ Court. held that “neither the lineup itself nor anything
that Wade-was required to do in the lineup violated his ..
privilege against self-incrimination.” United States v. .
_ ‘Wade, 388 U.S. at 221. Instead ‘of protection of, legal ©
_ _ rights, the Court. was. concerned with the reliability of |
the fact- finding process. The emphasis — on reliability” is
seen both i in the Court’s coniments on the dangers of mis-
‘taken identification (United States v. Wade, 388 U.S. at
228-29,: 232-33) and in the exemption from.the. right to
counsel for scientific, testing procedures . (Gilbert: V. —_
7 fornia, 388 U.S. at 266-67).
This new reliability criterion for applying the ‘‘criti-
. eal stage’’ concept as far too, broad: If any stage where
imine i ne eres . ae ee
9, Hamilton v. Alabama, 368 U.S. 52 (19615. -
10... Miranda‘v. Arizona, 384 U:S. 436 (1966).
2
fon
-
te dence. Literally, courisel would be required at \every step .
of -police investigation except_in those few instances | in- |
* \ volving scientific testing. gs ty eee r*
\* The <ensistent ‘course of interpretation of Wade by the .
lower courts has been at odds with the critjcal stage ra-
. tionale of ‘thé opinion, and this includes those courts whigh-
reject the distinction between pre- and post-indietment.
lineups. A ‘prompt confrontation soon after a crime is no
less critical than’ any other: confrontation in the sense.
. that the word “critical” is used in W ade, Nor is a photo- ©
"graphic display léss critical. js eet a
Prompt confrontations cannot oyercorne the defendant’s
_.“nability ‘effectively -to reconstruct’ .at trial any unfair- |. °
| ness that occurred: at the lineup.’? Prompt cbnfrontations
om
"~~ do not proyide ‘defense counsel with any better “‘opportu- *
nity meanigefully to attack the credtbility of the witness’ .
courtroom Mentifieation.’’ In truth, prompt pesrostetions
have no effect: whatsoever on counsel’s ability to confront
the identification witness ‘at trial. Yet with ‘perhaps only
one exception, + courts, of review have“held that. prompt’
‘confrontations do not violate. Wade. 4 tee
to bear on the witness when
Ul
are the same as. those. previously. displayed to the: witness
depends almost entirely on tle veracity of the police, since |
_ it is practically inconceivable that the witness would edall
. after axiy appreciable length of time any ph tographs other .
fi ‘hentia for efror “oe ¢
than the “one he identified. The same pote
- ij
= Photographs produced in court cannot _assist counsel . -
"in searching out: non-visyal. suggestive influences brought —
he was: shown’ the ‘pictures _
before trial. Whether the photographs pféduced in court ©
the reliability of the, fact-finding process is endangered is.’ | :
critical; the right to counsel should be required whenever—— -_-
his presence might reduce’ the danger of unreliable’ evi-
&
, bn
.
26 ~“ |
_ exists in photographi¢é identifications as in Se
+ tifieations. This Court expressly recgriized this fact. in
_ Simmons v. United States, 390 U.S. 377, 385 (1968) :
‘<Tt must be recognized that improper ‘employment ‘
of photographs by police: may sometimgs cause wit-
nesses to err in identifying criminals. A witness may
‘have obtained ‘only a_ brief. glimpse. of .a criminal,+or
may have seen him under poor conditions. Even ‘if
the police subsequently follow the most correct pho- °
tographic identification procedures and show him the
whom they suspect, there is some danger that the
_ pictures of a number of individuals without indicating —
' . abwwitness may make an: incorrect identification. This: :
danger will be increased/if the police display. to the
ev.
a
witness only the picture of a single individual who
show him the pictures of Several persons among which,
‘the photograph of a single such individual recurs or
is in.some way emphasized. The chance of misidenti-
_+ fieation is also heightened if the police’ indicate to the
witness that they have other. evidence that one of the
persons pictured committed the crime. Regardless of
Y how the initial misidentification comes about, the wit-*.
ness thereafter is apt to retain in his memory the
image of the photograph. rather than of the person
‘actually seen, reducing the ‘trustworthiness of subse-
- quent lineup or courtroom identification.”’ Xv
And yet the vast majority of courts of review: have
held that the right to counsel as proclaimed in Wade
_ does not extend to photographic identifications (See
cases cited at Point IL; A.), | ;
The ‘‘critical stage’’ .test as defined in Wade could
‘equally apply to pre-arrest, confrontations. There is noth-
_ ing inherently different between pre- and post-arrest con-
frontations insofar as-they. affect counsel’s ability to fune:
¢ o “8
generally resembles. the: person he saw, or if they
Pa
.
~
. se
oN
°
=
Vv
. . . | oe | : 97- | % |
7 tion at trial. As a practical ile ei effect: ‘of a pre--
-arrest confrontation is. generally more “adverse to the de-
‘fendant because in many instances the witness views the .
4
\
ad
%
suspect without the latter being. aware of it. Hence, the
- defendant’s ability to reconstruct the circumstances of the
‘identification is impaired to a greater extent thgn if he
were, cognizant ‘of that fact. Here again, however, the
courts have declined to hold that pre ~argest confronta- |
tions are-a critical stage of.. the prosecution (See cases.
cited at Point I, A.). ae © eae
* Other problems arise in attempting to apply the ‘‘orit-
| ‘ical stag€’ concept to other areas of pre-trial proceedings. .
. For example, the argument has been made’ that counsel
must be present when the prosecution. is. interrogating or
898-900 (2nd Cir. 1969) ). The argument is not without.
. ‘basis under the rationale: expounded in Wade. In fact, one
‘court accepted the arguinent and: held that under very
limited cireumstanceg counsel vas entitled to be present at
an interview. with the witnessess occurring ‘immediately.
after a lineup at which counsel had been present. People
v. Williams, 3 Cal. 34-853, 478 P. 2d 942 (1971).°A major-
’ ity of courts, however, do not subscribe to -this view.
. preparing witnesses after. the defendant has. been, placed: ~
‘under arrest. (See. United States v. Bennett, 409 F. 2d 888, +t
a —-s
United States v. ‘Cunningham, 423 F. 2d 1269 (4th Gir...
_ 1970); United States v. Bennett, 409. F.. 2d 888 (2nd Cir.
1969) ; People v. Gonzalez, 27 N.Y. 2d 53, 261 N.B. 2d 605
(1970), cert. den. 400 US. 996 ; State v. Giragosian, 270 A.
| 2d 921-(R.1. 1970).
One of the-most ie ritical stages of the proceedings prior
to “trial i is the gran
apply to an. assay of the consequences of the absence of,
=—_ ,
en at the grand jury poaane as apply. in = case
o . 6
‘ : ~ .
< y
: .
jury hearing. The same considerations
: an
+ 28.
of ‘preliminary, hearings. (See Coleman v. Alabama, ‘399 .
U.S.-1, 9-10 (£970) ). Skilled cross-examination of*witnesses-
could expose weaknesses. in the prosecution’s case that
. could lead the grang jury to return a-no-bill. The oppor-
tunity to examiné the witnesses ‘could better enable coun-
sel to impeach a witness at trial. Counset by his presence. |
at the proceedings could more effectively discover the
ease that .the prosecution has against his client. ‘Thus it
could be argued that the “‘eritical stage’’ test. requires
that counsel be allowed to attend and participate at the
-grand jury proceedings. However, Rule 6(d) of the Fed-
eral Rules-of Criminal Procedure prohibi n-
.
hi tk tio AA he pa tine Bn Tita pie NAAN RIDA ALASY OK
ee eee : Tings? anes 4
wench Yorsia desea R GRAS ie >, a: ones, sedi £52,
sel-from attending the grand jury hearing, and the rule
has been. construed to bar the presence of defense counsel
even in a case where the defendant was. compelled to.
appear, and''testify before the grand jury ‘‘after suspicion
had already focused on [him].’’ Gollaher.v. United States,
419 F. 2d 520, 523-24 (9th Cir. 1969), cert. den, 396 U.S.
960.” ie ttt oe !
As it stands, the ‘‘critical stage’’ test for determining
when .the right to counsel acerues .18 difficult to apply.
Fidelity to the concept: would require the attendance of
counsel at virtually all-proceedings, including thage before
the grand jury. Experience has shown that courts have
- rejected the concept; assigning such réasons for doing so.
as that the confrontation was_ prompt, the suspect was |
not in custody, the confrontation was accidental, and the °
identification was by photograph (even when the suspect
was under/arrest). ~ we - ee
It might be said that the-Court may limit the “critical
stage”’ cencept to those cases where the lawyer does not
need firsthand knowledge of prior events ‘in order ‘to
~ eross examine effectively. the adverse witnesses, United
SB ..
‘
< - -
. . 7 y
é ‘ .
er a — : ; | " as , _
v
ttn, x ae | =o. 29 . . | | . ,
- States Vv. Wade, 388 USS. at 297-2 28. This limitation can
““™ ‘be used to distinguish cases involving blood tests - from
those involving :witnesses only if one assumes that the
possibility of honest error isthe only: danger, to be avoided.
Howev er, the prime concern. of the Court: in "Wade was not
_ honest error, but deliberate abuse. Most of the instances .
_of ‘improper lineups cited in W ade’ involved ‘deliberate
. _ suggestiveness, and not honest ‘error,’ United States v.
Wade, 388-08. at 232- 34. It is. difficult to see howa law- |
_yer can better expose a rigg ged blood test by cross-exami-
nation at trial than he can eres a rigged lineup by the
same mreans. © a _ vm
yg | x
The . Court’s assertion in Wade that cross-exam-
ination of witnesses will. fail. to convey’ an accurate
idea of what occured at ‘thé lineup is without
support. The .accuséd m most cases will be able, .
to see. and. relate. to counsel substantially all > that
occurred. And what can be: hidden from the accused (e.g.
peep-hole showup) can be hidden from counsel as well.
There. is, moreover, no reason to believe that either the
police or the lay witnesses will not reveal all the. cireum- :
stances of, the identification. Neith®r~-the petitioner bere,
nor Wade, nor Gilbert, ner Stovall were prevented-from
- reconstructing: the circumstances of their confrontations.
simply Jegause. counsel: was not present. Each of the cases
cited by the Court in Wade as examples of improper con-.
frontations ° involved records of trials held long before _
there was a right to counsel at lineups. Finally, the most ' . Ǥ
= important’ point of attack on any eyewitness involves his ©
opportunity an and ability to observe the criminal at the .
time of the crime. This most important circumstance can
_be reconstructed only by. means of examining the witness.
If we are to. accept the capacity of direct and cross ex-
heel
7 80
»
c
amination to illuminate those circumstances, we must
accept the capacity of those-same tools to illuminate the
circumstances of a pre-trial confrontation.”
The ‘‘critical stage’? rationale of Wade is. not sound.
It is a‘departure from traditional ‘critical stage’’ think-
ing. It is a ‘doctrine. without factual support. It i is a theory
without logical limits. It should be rejected. °
=
B. .
‘The sacl auies Of Counsel As A Solution To Confron-
tation Problems.
The decision in W ade is not: erroneous solly because it °
rests on a weak legal ratidnale. Its most griévous flaw is
a practical one; it prescribes a solution that does not meet
the problem. “
‘In Wade the Court accepted two premises. The: first was —
_ that eyewitfiess confrontations were subject to dangers and
abuses. The second wak that giving suspects a ‘right to
~ counsel at such. confrontations would eliminate these dan-
- gers and abuses. Subsequent to the decision in Wade, there:
has been severe criticism of the second premise.’? It -has
a, a rae - epics eth
_ —_—— -——
>
11. The pre-trial £onfrontation will be witnessed by sev-
eral persons. whereas the crime may only be witnessed by
.“ “one or two, and the stress upon witnesses at the lineup
is. far less than it is at the crime.
12. e.g. ‘*. .. the use-of the lawyer* at a aveub is a
cumbersome and. awkward. mechanism for the correction
of the kinds of lineup and confrontation, abuses pointed
out by the Court:’’ Read, Lawyers at. Lineups: Constitu- .
tional Necessity \or Avoidable Extrav peptic, 17 U: C. LA. -
_L. Rev. 339, 341. (1969).
‘‘Wade does not apply an appropriate poultice ti the
sore. Requiring counsel to be present at lineups is sim- |
e
rc
.: af
. .
F
a;
. ABE
been persuasively argued that the right to counsel is an
ineffectiv remedy for improper lineups. And these ar-
guments ha¥ come from those who do not quarrel either ‘
with the initial _premise™that lineups may be subject to .
abuse or with the right. of this Court. to ‘supervise state.
criminal procédure. | ae
' It appears from the opinions in Wade- Gabert that coun-
~ sel essentially serves'no significant purpose at’ a lineup
other than that of witness or observer. See United States
v. Gholston, 437°F. 2d 260, 263 (6th Cir. 1971) and Wright
v. State, 46 Wis. 2d 75, 175 N.W. 2d 646, 651 (1971).™
Nearly every police. regulation designed to implement
Wade-Gilbert restricts the role of counsel to that of an ob-
server. It is generally conceded, even by those who favor
a broad application of *Wadé, that the police, ang not —
counsel, are in charge of:the identification procedure, See
generally, Comment, Right to Counsel at Police Identifi-
cation Proceedings, 29 U. Pitt. L. Rev. 65, 74-75, 87-88
(1967) (Guidelines. developed ~by’ the Allegheny County -
Bar Association and the Pittsburgh Police) ; Read, Law-
yers at Lineups, 17 U.C.L.A. L. Rev. 339
; . amples of existing regulations).
ply not the most effective method of ei the evils
that the opinion SO aeaey demonstrated do exist.”
. id., at 363.
— also Note, Right to Pameel at Pre-Trial Lineup, .
63 Nw. L. Rev. 251, "260 ee Note, om a 7 Yale
~.. L, J.'390, 392-93 (1967). .
13. “.-. . defense counsel required in Wade has no
affirmative right to act; he is merely at i identification,
to’ observe and later recall his observations in the ca-
pacity ‘of a witness at trial... a role requiring [no] legal
..expertise.’’ Note, Right to Counsel at Pre-Trial Lineup,
63 Nw. L. Rey. 251, 259 lace a
Indeed, it is difficult to imagine what counsel could be
at a lineup other than an abserver. He cannot be placed in
~ charge of the Itneup since he cannot, in keeping with his
duty to his client, endeavor to assure a perfectly fair
_ lineup. It would be his duty to devise a lineup in which
identification of his client would be as difficult as possible. :
Counsel has no right to order or advise his client not to
appear in, a lineup under-the doctrines of Wade-Gilbert, -
and, if he does so, -his. client may: become very conspicu-—
ous, instead of. less so."* He can-“make suggestions to the
police to insure that the, lineup will. be fair, but the po-
lice can ignore his suggestions. And, it must Be reiter-
‘ated that counsel’s suggestions ought to be directed not
at making ‘the lineup fair, -but- at ‘making it weighted in
favor of his. client. Further, counsel confronted. een
suggestive lineup is faced with a severe tactical proble
; ‘if he represents (as is true*in most cases) a-guilty client
and there may be acredible eyewitness. If, the lineup is
suggestive, it is hardly to his client’s ‘advantage’ f6r the
lawyer ‘to see that it.is fair and thereby o viate his .
client’s only chance to ‘secure suppression ‘of evidence.
There is, fo our knowledge, ‘no existing contemporaneous
objection rule at, linedps, nor is there necessarily a court’
repoyter® to record. such objections.
=>
14. In People v. Nelson, 40 Ill, 2d 146, 238 N.E. 9d 378 —
- (1968), a pre-Wade case, defendant was allowed to phone ~
his attorney prior to a lineup and was advised not to
f , a in the lineup. The lineup was held anyway, but
efendant sat in-a stairway adjacent to the lineup area
and covered his face with his arms. The witness identified
defendant anyway and the court affirmed,- citing both the
independent basis for the identification and the fact. that
suggestivepess at the lineup was the result of defendant’s
own actions. | | nf
=~
a
It is, “therefore, the presence “of counsel as a witness
that is ‘supposed to . eliminate the dangers and abuses
sometimes occurring at lineups. There is good reason to
doubt the effectiveness of such a role; :
First, the lawyer can hardly ‘‘witness”’ deliberate mis-
conduct that occurs outside the. confrontation - even though
-this submerged unfairness may well be more significant
in the majority of cases. For example, the. lawyer does
not know what a policeman may have: told the witness. a
before the lineup,” nor does he know whether the witness
has covertly ‘seen the defendant. -or his photograph pre-
a, . viously. Nor cancthe-lawyer ‘‘witness’’ innocent sourées.
of unfairness such as the defects in. the’ original basis of
an canals e.g., poor lighting at the scéne.of the crime.
: Nor can the lawyer ‘‘witness’’ the vindictiveness of a iwit-- |
- ness. The lawyer may weil learh’ of these through pre-
trial discovery or through cross- -examination, yet these
techniques were available prior to Wade-Gilbert and th
presence of counsel at the lineup does not enhance. their
value. In simple terms, where faulty identification is. due
to circumstances_out of the control of the police ‘and in: -
_hering. in the character of the witness and his capacity
and opportunity to observe — the presence of a lawyer at
«a lineup serves no purpose. Where faulty identification is
due to deliberate police abuse of the identification proc-
v ess, it is clear that the police have ample “epportunity to
| 7 ‘employ effective suggestive methods outside the presence
of counsel while adhering to the letter of the law, provid-
ing for the right to counsel. s . 4 7
In Wade the Court was, of course, concerned. abeut t. the
defendant’s inability to reconstruct the lineup in order -
- to attack it. at trial. Professor Read analyzed this part
of the Court’s L pinion citing the Court's cottentions and .
3 . Cad
then gave this eualrene
66 (a)
(b)
Those. pirticipating may ‘be police officers.
How will a lawyer’ s* presence change this and is
this an evil in and of itself? It must be remembered
that the purpose of a lineup is-to aid the police in
investigating a crime. Certainly it must be conceded |
that policé should be able to participate in their ~
own investigative tpchnignes
3
The participants’ names are rarely divulged.
The obvious remedy. is to require the names. to
be divulged. In the District of Columbia a ‘‘sheét’’’.
is routinely kept, listing the names of those. partic-
‘ ipating in the lineup and the names of the conduct-
_ absence of-such devices, would probably make a bet-
- ter witness than the. defendant? s lawyer. It is my
ing | officers. The sheet is available to the: defense. :
The picks is not. effective ‘iness as. to what —
occurred.
Neither is the ,defendant’s: lawyer. Audio and ’
vistal recording evices, photographs, and the like:
° are much more effective. Even a lay observer, in the
view the jury would be ‘much more, likely to believe
an independent observer than an accused’s own at-
- torney testfying on behalf of his client.
(a)
Thevictim’s outrage may excite invent or spile-
ful motives’? and the victian will not-be alert to
conditions prejudicial to the suspect. ’
A lawyer’s presence will not thange this. Only
‘regularized lineup procedures, that are faithfully
-followed’ can minimize suggestive procedures that
' may point the victim’s outrage at the wrong person.
ay
~ (e). Neither witnesses nor linewp participants are alert
for conditiong * ‘prejudicial’’ to the suspect. or
_ schooled in: the detection of suggestive influence.
_ ,,& lawyer is not necessarily ‘‘schooled’’ in detect-
; ing suggestive influences either. A psychologist .
| might be better equipped for the task. Even as- ~
suming the lawyer spots such conditions, what can
hey do about them except prepare. himself to be a
witness at trial? Certainly any impartial observer,
acquainted with the problem-and given examples
.of what to look for, could do as well as any lawyer. |
Better ye since the ] purpose of a lawyer’s Presence '
is to acquayyt judge and | jury with what ssn
photographs, » ideotapes, or recordings . woul
this much more vividly. And adoption of regu ar-
ized procedures might avoid suggestive conditions
in the first place. ‘
(f)° Jury will ‘not believe A. suspect’ S version of what
occurred. , .
Will -it he mach more Tikel¢ to. believe the sus- .
pects’ lawyer’s version of what occurred? Probably
not. Therefore, objective reproduction by mechani-’
cal devices again will better counter this evil.
The experience of one jurisdiction where the application .
of Wqde was studied hardly sustains ‘the heavy reliance
this Court placed upon counsel at a lineup.’® . |
15. Read, Lawyers at Lineups, Constitutional Necessity
or Avoidable Extravagaiice, 17 U.C.L.A. L. Rev. 339, 365- ~
- 66 (footnotes omitted). To Prof. Read’s first comment, we
add ‘that when police officers participate in a lineup it is
probably easier to reconstruct it’ than if the fill-i ins are
‘taken from the local jail or lockup. ~
= 16. The District of Columbia has pe est for the pres-
ence of Legal Ajd Attorneys at hearings. Prof. Read found ~
that: - : rn |
€2
36 . So oe
After studying that system Professor Read conclitded: -
“My observations and: gonversations: with polife,
7 prosecuting attorneys and defense attorneys have con- ., ~
_Vinced me that the lineup is a necessary ‘tool in the
arsenal of ‘investigatory techniques available to the
police. However, it is: ‘also wy, view that the , Pres-
“Legal Aid seems to ¢ nee ede. that under. present.
-conditions there is no em reason for defense coun-.
. sel to appear - -at the lineup. . First, except for: minor ~
alterafions, the police will not change their set pro-
_cedures.. Second,“there is no one there to. record any.
‘objection that-might be made. Legal Aid personnel
- seem ahperaly to be of: the. opinion that the pres-.
-. ence of an attorney at a.lineup is simply not neces- ~
sary if the attorney. is to take a limited role.’’
and that:
‘“Experienced police officers and prosecuting attor:
neys are convinced that any discovery of a witness’. — -
name by; some defense attorneys is tantamount to: dis-
_ closure ofthat name to that lawyer’s client. These
~ - game police officers and prosecuting attorneys feel that —
- many ' prospective witnesses are ‘refusing to partici- .
pate in lineup procedures because of real fear of reé-
_ ‘ taliation from the accused or friends df the accused
‘ once a witness’ identity is ‘discovered. A particularly -. °
sensitive situation evidently: exists in the District of
Columbia.. It was reported that fear of physical in-
timidation seems especially acute among many Negro '
witnesses and victims: 6f crime who dre asked to ‘co-
operate with the police. Police officers charged” that
the real problem with the lineups: is“ not that -wit-
‘nesses are. too suscePtible to suggestior but; on the
; contrary, witnesses are too reluctant to panticipate
freely. in the process. Several defense attorneys con-
ceded that a serious problem of witness’ intimidation
does efist. and that Wade’s command that a lawyer’ _
é a
2 / _ ence ‘of defense eounsel at a. ligeup ‘ 1s stinply not nec-
. 2 es essary to insure the fairness of the procedure. His
passive role renders him. basically- impotent ; he is un-
able to change the slightest’detail in any way unless
‘the police decide ta cooperate ; he is unable to make
_, and have recorded any objections he may have; and
_.~ ,.| he has no way of preserving what occurred except |
| tHrough ‘his own notes and memory.
Be. #2 Not only is the defense lawyer’s presence only min-
— _—¢ | -imally effective in preventing unfairness and presery-
ing a record of what occurred; his presence, in certain
_ cases, can actually hinder the administration of erim-
“inal justice. Some. lawyers have turned: the lineup, a
} police investigatory technique, into a discovery pro-
ceeding. A serious ‘danger of intimidation exists in -
i many cases when the identity of witnesses is discov-
‘ =,
Aor
me
ation. : . ; .
eh Another‘ vee raised complaint of police and.
prosecution attorneys relates to. the conduct of de:
. ered and disclosed to: defendants. Furthermore, by
‘ee | Ce present at lineups. may have exacerbated. the. situ-, |
fense counsel in altermg the appearance of ‘their cli- —
ents prior to’ their’ client’ s partitipation in a lineup.
Foy ‘example, : a young defendant may be ‘arvested .
- while orting a mustache, an ‘‘Afro haircut’’ and
; very. bi ht’clothirig.. When he shows up for the lineup,
MM . * his Afro’ haircut is removed, his mustache. is shaved
rae oo oot and he is wearing a suit and tie: An extreme. ex-
iat , ample of this: occurred when a fémale ’ impersonator
was arrested in his feminine disguise and then showed .
“© up for the. lineup iff typical male attire. The United
| States Attorney’s Office thus feels that intimidation
and. disguise of: suspects. by’ defense. lawyers is the
‘‘other. side of the coin’’ from the suggestive influ-,
ence problem. 7? :
Read, Léwyérs at ‘Lineups, 17 UCLA. em Rev. 339,
378- 74° (footnotes omitted). |
BIO Tk La ae
: ‘ : *
~
fo 88°
drastically altering ‘the appearance “of defendants, de- .
fense counsel can actually nullify the usefulness of
the lineup: p@ocess as an investigatory tool. Wade was
intended to‘ protect an accused from suggestive lineup
procedures; however, in certain cases, the real effect :
of the Wade remedy. isto destroy the utility of the
lineup procedure and to make | intimidation of wit-
nesses easier.’
Further, ¥ we reiterate, the imposition of a right to coun-
sel puts a severe strain on the limited resources of: the
legal.profession. If there is no corresponding benefit to
the accused, and we have shown there is not, then there
is no justification. for, imposing this heavy additional
burden on the bar. ‘‘The use of lawyers primarily as
professional witnesses would be an uneconomical use of
_/ a scarce talent. ’’ Note, Right to.Counsel at Pre-Trial
- ing federal constitutional review to lineup- procedures. 17_
Lineup, 63. Nw. L. Rev. 251, 260. (1968)." 8 Local jurisdic-
tions: might ’ be able to assign a single: attorney: to serve _
at all lineups. but, apart. from the problem of denying a
Suspect , counsel of his choice, these is doubt. of the ef- ©
fectiveness of such counsel. In’ one. ease,’ counsel who
‘witnessed several lineups had no personal recollection of
the particular -lineup in question and was hard pressed
to remember whether or- not he represented the. defen-
‘Wz. Teal: ayy at Lineups, 17 U.C.L.A. L. Rev. 339,
374-75 (footnotes omitted). It should be borne in mind
that Prof: Read’s’ strictures come from a lawyer who
is in basic agreement with the Court’s purpose in extend-
U.C.L.A. L. Rev. at 363.
18. “Lawyers are trained to ‘defend’ in an adv ersary
proceeding ... it is simply a waste of their.time and tal-
- ents to employ them .‘as- passive observers.”’ Read,
‘Lawyers at Lineups, 17 U.C.L.A. L. Rev. 339, 378.
-
a°
— 39
o.
dant. See United ‘States v. ” Rémdoiph, 443, B 2d 729, iol:
34 (D.C. Cir. 1970). , °
Finally, even if counsel is thought to diminisli unfair-
ness ‘by virtue only of his presence as a witness, the im-
position of a right to ‘counsel at lineups is still unjusti-.
fied. It. is: unjustified because counsel, do’ not .serve well
as witnesses. They: are prohibited by disciplinary rules:
from appearing as witnesses for their elients. See DR
5-102, Code of Professional Responstbility. of the Amer-
ican. Bar Association (and DR 5-102 of the Illinois Code
of Professional Responsibility): And a lawyer is hardly
_ to be regarded as fully credible when his testimony |
serves the party he represents. More importantly, if one
assumes that the’ presence of ‘counsel will be effective in
| deterring Goffair lineups, then some extremely undesir-:
“able consequences will ensue. ‘That is, defense counsel may
be called ‘to, ‘testify against his. client. What the. lawyer
observes at the lineup is not privileged. See 8 Wigmore,
Evidence, Section 2292 (McNaughten Rev. 1961); State
~~ Funicello,, 49 N.J. 558, 231 A. 2d 579, 596-97 (1967),
‘cert. den. 390 U.S.911. If the lawyer has suggested ‘modi- .
fications at the lineup and the poltee have complied with
these suggestions, there’ is no reason why the prosecu-
tion cannot bring these facts into evidence to support the
fairness of the police and the reliability of the identi-
fication. The lawyér may be called tostegtify if he or his’
client: insists on filing a motion to suppress identification
evidence. The lawyer may even-be called at trial in those
jurisdictions where. the witnesses to a pre-trial identifica-
tion by a victim may testify about that identification. a
19. People | v. Gould, 54 Cal. 2d 621, 354 P. 2a 856
(1960); Johnson v. State, 237 “Md. 283, 206A. 2d 138° -
(1965); Commonwealth v. Johnson, 201 Pa. Super. 448,
193 A. 2d 833 (1963); State v. Simmons, 63 Wash. 2d 17,
385 P. ad 389 (1963). | .
ss ; ’ , , . YY
’
pA - fi y 5%. *.
va AL ge lil Cede Son a ain
a a
Cred ea Lm te Ain te as ae ea
"See People, v. Dozier, 22 Mich. ‘App. 528, 177 N.W. 2d 694
(1970). . . eo |
The lawyer whé does testify against his client (or who
merely contradicts his client’s story in some respects)
will destroy. any relationship of. trust between him and
mp te IN,
his client. The’same is true of a lawyer who refuses his |
client’s demand to attack an identification procedure be-
cause he personally observed its fairness. Such a lawyer
is certain to- be subjected to charges of incompetency and
betrayal if his client is convicted. In sum, a lawyer can--
not: serve as both counsel and ‘witness.to a linéup, and
this conflict in roles is'more severe if-counsel succeeds in
securing a fair lineup than if he fails. .
The petitioner may nswer that if counsel at lineups
a
B
\
an alternative which they should ‘have employed. It ‘is
true. that the. opinion in‘Wade-did state, ‘‘Tegislative or
other regulations, such as those of local police depart-
tentional suggestion at lineup proceedings and the imped-
iments to meaningful confrontation at trial may also re-
move the basis for regarding«the stage as ‘‘eritical’’,
_ United States v. Wade, 388 U.S, at 239. Yet, that langu-
age was explicitly disavowed b#four of six Justices join-
" ing in the opinion. Unitéd States v. Wade, 388 U.S. at
946-47 (Black, J.) and 388 U.S. at 262 (Fortas, J. joined
by Warren, C.J. and Douglas J.). A fifth Justice implic-
U.S. at 245 (Clark, J.). Essentially only one Justice was
committed to the notion that regulations may render a
- lineup Kon-critical, and the operative ‘word was ‘‘may’’,
not ‘‘will’’. This js a slender reed on which to found an
‘gould reasonably be expected to risk the integrity of its
.
J
Ss undesirable, than the Court in Wade gave the states
itly rejected the proposition. United States v. Wade, 388
on
ments, which eliminate th® risk ‘of ‘abuse and unin- . ~
argument that the states have an alternative. No state .
ne }
criminal process by adopting an alternative to- counsel.
And even if the possibility of valid alternatives were
clear —it would not be reasonable to expect a state to.
operate for two or three years under a system it can only
hope will win final court approval under the vague a
lines. given+in Wade.” The suggestion of an alternative
to counsfl + ‘is, at best, far too tentative and, at worst, illu- -- -
Sory.
Gubert and Stovall, this Court evinced its concern with
eyewitness identification procedures. The Court perceived
ler existence of a problem. Yet, instead-of solving of at-
empting to solve-the problem by regulating lineups, the —
Court’ literally threw. counsel igto the breach. The Court
‘ appareiitly expected counsel to provide solutions to the -
problems /of unfair lineups. This expéctation was unjus- -
tified. Furthermore, counsel are not better, qualified thane
the court to determine niles for fair lineups and are not,
-in any event, empowered to order changes i in police prece-
dure. Most importantly, it is not the duty of counsel to |
insure “fairness. Assuming that defense counsel was both
‘qualify fl and authorized to make changes in lineup pro-
at counsel would’ be obliged to exercise both his
20. The only' attempt. to rely on the suggestion that -
regulations might obviate the right to coynsel has been
rebuffed with the reasoning that. such regulations would
be adequate only if they succeeded ‘in elevating eyewit-
ness identification procedures to the level of rpliability
present in procedures for analyzing fingerprints, blood
samples, and hair. See People v. ‘Fowler, 1. Cal. 3d 359;
461 P. 3d 643, 652 (1969). If this is the standard. to be
met by legislation or regulation, then :acceptable 'regula- .
tion is impossible. It is, in fact,, difficult to see how the —
right to counsel can succeed in Slevating eyewitness iden-
tification to the level of scientific reliability. rag _
|
‘x. 7 -
In the trilogy of eyewitness identification cases, Wade,
“os
Vis eats aa 2 aes ds ci8
ag ’ e*
ald,
¥
ib gan VER Sieactityy ep cdtSM that SIRS ht haa sie at ot
Wi sa hi SO aie dish: a,
silt nin SPRL aS a a ah Re a SR a giants aan «toa
Los 42 .
‘skill and his authority in the service of his client, and not
4
in the service of fairness. _ |
It is our view that the explicit holding in Stovall that
federal and state. courts were empowered to, examine
pre-trial confrontations to determine:.whether they were
_, so unnecessarily suggestive as’ to violate due process is
an adequate solution to whatg@yer problems arise at line-
_ups. The power of courts to:exclude evidence obtained by
suggestive confrontations is surely a sufficient remedy ©
for. anyone aggrieved by such a confrontation. The power .
of courts to review pre-trial confrontation practices al-~
lows the courts to develop, on a case-by-case basis if nec-
essary, rules to govern lineups. By overruling Wade, this
Court will not put out-of the reach of federal courts
serious questions of fairness of pre-trial confrontations.”
a
21. ‘In truth, from the point of view of. the prosecutor
Stovall is far more significant a case than Wade. This is.
true because as a practical matter only the application .
of Stovall can cause. the loss-of the entire testimony of a
- witness. The worst consequence of a violation of Wade-
Gilbert-is the suppression of evidence of a pre-trial iden- ~~
tification by a witness. 3
- To illustrate this, assume a case ‘arising this year where
— *. defendant is placed in a line-up without waiving coun-
sel. Wade-Gilbert has been violated.-But assume that the
~ line-up is perfectly fair, consisting of seven men of the
same height, hair color, race and ‘general appeargmce, all
similarly dressed. If the victim identifies the defendant, the
victim will not be able to testify concerning the line-up.
But the witness will be able to make a courtroom identi-
fication because it is clear that a perfectly fair dine-up
~ gould not have tainted the courtroom identification. See
Nielsen v. State, 456 S.W. 24.928 (Texas 1970). Indeed, the
fairness of the line-up itself, coupled with a positive iden-_ .
tification, is clear and convincing evidence that the wit-
» 43
The insertion of counsel into a role which he has nei-
ther the capacity, authority or ethical obligation to ful- ..
_ filt adequately represents ‘a misstep by this Court. .If the .
@errdr in this Court’s decision could -not have been seen
in June of 1967—it can be clearly seen today. If this
Court still believes that the problem of suggestive lineups
is a serious one meriting federal intervention, then the — |
~ Court is fully able to adopt direct and meaningful regu-
lations. In any event, this Court ought to overrule. Wade
and allow counseMto return to his role as- advocate for. —
his client and abandon his ill-conceived role-as a “neutral”
witness and “presence”. atpolice lineups. | |
a - 8
~ness had -a strong basis for identification = % to the
line-up. The ease with which a court can sustain an.
identification when. the pre-trial procedures have been ex-
emplary is found in\Butler v. State, 226 Ga. 56, 172 S.E.
2d 399 (1970). It =p arent from this.example that the
existence of a Stovafl violation is ®f fa§ greater conse-
quencg, than a Wade-Gilbert -violation. The former tends
to impugn the integrity-of the witness’ courtroom iden- .
tification while the latter does not. In those jurisdictions’
where the prosecution is prohibited from showing that a
witness made a prior identification the effect of Wade-°
Gilbert alone is negligible. See'4. Wigmore, Evidence, Sec.
1130 (3rd Ed. 1940) ; 71 A.L.R. 2d 449; Clemons v. United .
States, 408 F. 2d 1230,.1242-43 (D.C. Cir. 1968), ceré. de- -
nied 394 US. 964; Prideaux v. State, 473 P. 2d 327 (Okla.
- 1970). In.those jurisdictions where evidence. of pre-trial
- identification is admissible, a Wade-Gilbert violation has ©
some strategic effect because the fact.that a line-up was
conducted and the witness did identify the defendant is
helpful, though not essential, to the prosecution. _
CONCLUSION
~ For the reasons stated the State of Illinois respectfully
requests that the judgment of the Appellate Court of
Illinois, First District, be affirmed. |
7 _ Respeethily submitted,
Toren sie saan SIAM Je SCOTT, -
Attorney General, 7°
State of Illinois. ~
JoEL M. Fiavum,
First Assistant Attorney General.
JAMES B. ZAGEL, - f
’ EK. James GILpEa, ©
Assistant Attorneys General, :
188 West Randolph Street (Suite 2200), .
Chicago, Hlinois 60601 (312-793-2570),
orm for Respondent.
wv
nud
—
7”
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