# Respondents Brief — Kirby v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1972
- **Citation:** 406 U.S. 682

## Text

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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

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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 .
.

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 ” . : : : 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 ‘
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 , 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 ..

‘
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

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ag ’ e*

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Wi sa hi SO aie dish: a,

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0026%3A3. Public record. Not legal advice.