Opinion — Kirby v. Illinois

Supreme Court brief1972

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2 _ 2 OCTOBER TERM,'1971

o Syllabus

: KIRBY v. ILLQNOIS | x“

CERTIORARI TO. THE APPELLATE COURT OF ILLINOIS, FIRST

- DISTRICT

No. 70-5061. Argued November 11, 1971—Reaigued March 20-21,

; . 1972—-Decided June 7, 1972. ee

Petitioner and a companion ‘were stopped for interrogation. When

each produced, in the course of demonstrating identification, items

- bearing the name “Shard,” they ‘were arrested and taken to the

' police station. There, the arresting officers learned: of a robbery

of one “Shard” two days before. The officers sent for Shard, who

jmmediately , identified : petitioner and his companion as the rob- *

bers. At the time of the confrontation petitioner} and his com-

, panion were not advised “of the right to counsel, nor did ‘either

ask for or receive legal fissistance. ‘Six weeks later, petitioner and

his companion were indicted for the Shard robbery. At the trial,

_after a’ pretrial motion to suppress his testimony had been over-

ruled, Shard testified as to his_previous identification of petitioner

and his companion, and again ‘identified them as the robbers. The

defendants were found guilty and petitioner's conviction was up-

. ‘held on appeal, the appellate court holding that the per se ex-

clusionary tule of United States v. Wade, 388 U.S. 218, and Gilbert

v. Californa, 388 U. S. 263, did not apply to pre-indietment con-.

frontations. Held: The judgment is affirmed. Pp. .687-691. °

‘12k Ill. App. 2d 323, 257 N. E. 2d 589, affirmed. - ,-

Av Se ae tee eee

Po eid

Mr. Justice Stewart, joined by THE CHIEF Justice, Mr. Jus-

rice Buackmun? and Mr’ Justice REHNQUIST, concluded that a

showup after arrest, but before the initiation of any adversary

criminal proceeding +(whether by way of formal charge, pre-*

- liminary hearing, indictment, information, or arraignment), unlike

the post-indictment confrontations involved in Gilbert and Wade,

is not a criminal prosecution at which the accused, as a matter

of absolute right, is entitled: to counsel. Pp. 687-691.

Mr. Justice POWELL concurred in the result. P. 691..

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SrewarT, J., announced fhe Court’s judgment ‘and delivered an

opinion in which BURGER, C. J.,eand BgackMUN and REHNQUIST,

JJ., joined. Burcer, C. J., filed a concufring statement, pest, p:

691. PowELL, J., fited a statement, concurring in the result, post, p.

691. BRENNA, J ., filed a dissenting opinion, ieWwhjch DovGLas and

-o™ : . ®

_ 48 exhibited to identifying witnesses is a critical stage

KIRBY v. ILLINOIS ~ 683°

, & be . +

682 <= Opinion of Srewakr, J.

Marsuuetas, “JJ ‘ joined, post, p. 691. . Wurre, J., filed a. dissenting

statement, post, p. 705. . ee \

Jerold S. Solovy ‘argued the cause for petitioner on the .

reargument and Michael P. Seng argued the cause on

the original argument. Messrs. Solovy and Seng. were - ,

_on the briefs for petitioner. acs ae

James B. Zagel, Assistant Attorney General of Illinois,

reargued the cause for respondent. With him on the

brief were William J.“Scott, Attorney General, Joel M.

Flaum, First Assistant Attorney Geheral, and E. James’

Gildea, Assistant Attorney General. . 3 ;

Ronald M. George, Deputy Attorney General, ot

the cause on the reargument for the State of Californi >

as amicus curiae’ urging affirmance. With him on the

brief were Evelle J. Y¥ ounger,.-Attarney General, and

William E. James, Assistant Attorney General. -..

« *

LON aM een Sree Rr em nate rem eat Ie Ef SPIE T US ORYWYS ms

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**¢ *

Mr. Justice Stewart announced the judgment of the

_ Court and an opinion in which THE CHIEF JUSTICE, “Mr.

_Justice BLackMun, and Mr. Justice: REHNQUIST join.

_In United . States v. Wade, 388 U.S. 218, and Gil-

bert v. California, 388 U. §. 263, this Court held “that’

& post-indictment: pretrial lineup. at which the accused _

of the criminal prosecution y that police conduct of such

a lineup without notice to and in the absence of his

_ counsel denies the accused his*Sixth [and Fourteenth]

_ Amendment right to counsel and calls in question the

admissibility at trial of the in-court identifications of - ;

’ the accused by witnesses who attended the lineup.”

Gilbert v. California, supra, at 272. Those cases fur-

“eraray Rypomegevominaio, ERT TACO MRT Me Te ape reais Laat NARs HNN, SIRE NER

ther held that no “in-court identifications” are rian

sible in evidence if their “source” is a lineup conducted E

in violation of this constitutional standard. “Only a :

per se exclusionary rule as to such testimoriy can be an |}

effective sanction,” the Court said, “to assure that law

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684. °°. .OCTOBER TERM, 1971

- Opinion af Srewarrt, J: 7 406 U.S.

' enforcement authorities: will respect the accused’s con-

' stitutional right to the presence of his counsel at:

the critical lineup.” - Id., at 273. In the present -

case we are asked to extend the Wade-Gilbert . per

se exclusionaty rule to identification testimony based

upon ‘a police station showup that took place before

the defendant had been indicted or otherwise lier :

charged with. any criminal offense. : .

On February’ 21, 1968, a man named Willie Shard

reported to thg Chicago police ‘that the previous day

two men had robbed him on a Chicago, street of.a wallet.

containing, among other things, ‘traveler’s checks andy |

a Social Sécurity card. .On February 22, two police

officers stopped the petitioner and a compahion, Ralph

Bean;,. on. West Madison Street in Chicago.t . When

asked for identification, the petitioner produced a wallet:

“that contained three traveler’s cheeks and a Social Se-.

curity’ card, all bearing the. name of Willie Shard. —

Papers with Shard’s name on them were also found in

Bean’s possession. When asked to explain his posses-

sion of Shard’s ‘property, the -petitioner first said that |

the traveler’s checks were “play money,” and then told

’ the officers that he had won theyh in a crap game. The

officers then arrested the petitioner and Bean and took

them. {6 a police station. : |

Only after. arriving at the police station, and check-.

ing the recofds there, did the arresting officets learn

_ of.the Shard robbery. A police car was then dispatched

‘to Shard’s place of. employment, where it picked up

Shard ‘and brought him to the police station. Imme-

diately upon entering the toom in the policé station

where the. petitioner and Bean were seated at a table,

Shard. positively identified them as the men who- had

a 1The officers stopped the petitioner and his companion because

they thought the pétitioner was a man named Hampton, who _ was

' “wanted”. in connection with an unrelated criminal. offense.’ “The

| legitimacy . of this stop and the subsequent arrest is not before us.

KIRBY v. ILLINOIS ;, 685,

a ee

& oi Opinion of STEwarr, y. rnd

: robbed him. two days earlier. No lawyer was present °

in the room, and. neither the petitioner nor Bean had >

_ asked for legal assistance, or been advised of any right

to the presence of counsel. | -_

_ More than six ‘weeks later, the petitioner and Bean .

were indicted for the robbery of Willie Shard. . Upon

. arraignment, counsel was appointed to represent they,

and they pleaded not guilty. A pretrial motion to ~

' suppress Shard’s identification testimony was denied, and

at the trial Shard testified as a witness for the prosecu-

tion.- In his testimony he described his identification |

of the two men at the police station ‘on February 222°

and identified them again in the courtroom as the men =

Wye 43

~ 2“Q. All right. Now, Willie, jealling your attention to February 22,

1968, did you receive a ¢all from the police asking you to come

down to the station? -

~ “A, Yes, I did.

“re

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“A. Well, I’ seen the two men was down there who robbed me. _

“Q. When you. went down there, what . if anything, happe saa

Willie? - aaa ar .

ve Lo . . . ar 7 .

“Q. Who took yéu to the police station? ~ \ ;

“A, The policeman picked me up. .

“MR. POMARO: Q. When you went to the police station did

you see the two defendants? - 2 7

“A. Yes, I did. a

“Q. De you see them in Court today?

“A, Yes, sir.

“Q. Point them out, please? 7

“A. Yes, ‘that one there ‘and the other one. Indicating.)

*“MR. POMARO: Indicating for the record the defendants Bean

and Kirby. ” oe : _

~ “Q. And you positively identified them at the police gtation, is

, that correct? . oT “a a aan

“A. Yes. | —_

“Q: Did any police officer make any suggestion to-you whatsoever? —_-

“THE WITNESS: No, they didn’t.” -. | - ®

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688 = =. +. OCTOBER, TERM, 1971'

Opinion of ‘Srewanrr, E - 406 U.S.

as had -robbed him on- February 20.2 He was cross-

. .examined at length regarding the circumstances of his

. -identifigation of the two defendants. Cf. Pointer v.

_ ‘Texas, 380 U. S. 400.. The jury found*both defendants

guilty, and the: petitioner’s conviction was affirmed on

appeal. | People v.. Kirby, 121 Ill. App. 2d 323, 257 -

N: E. 2d 589.4. The Illinois appellate court held that

_ phe admission of Shard’s testimony was not error, rely-:

ing updn an earlier decision of the Illinois Supreme

Court; People v. Palmer, 41 Ill. 2d 571, 244 N. E. 2d

173, holding ‘that the Wade-Gilbert. per se exclusionary

rule is not applicable: to ee Sn ene:

s“Q. Willie, when you looked back, when you were walking down.

the street and first.saw the defendants, when you looked back, did

~ Vou see them then? °

’ “A. Yes, T seen them. ~.

“Q. Did you get a good look at them ‘then?

“A. Yes,I did. - be

“Q. All right. Now, penne? inate you and took your money,

did you see them then? _

“A. Yes,I did. .| *”

“Q. Did you get a B6od look at them then?

. “A. Yes. - F yo.

“Q. Both of them?

“A, Correct. 7

“Q. When they walked ; away did you see them then?

“A. Yes$ © -

“Q. Did vaugeok at them, Willie?’

“A: Yes. a

“Q. Did you get. a ‘good look at them?

“A. Yes.

- 4Q. Are those the same two fellows? Look at them, Willie.

‘SA. Correct.

“Q. Are those the same two oat robbed you?

* “AL Yes.

“Q. You are sure, Willie? .

“A. Yes.” ~~

* Bean’s conviction was reversed. People v. Bean, 121 fil. App.

_ 2d 332, 257 N. E. 2d 562.

KIRBY v. ILLINOIS. ~ os O89

682. "4 . . Opinion of Srewarr, J .

U.S. 995.5>"

We granted,.certiorari, limited. to this question... 402.

We note at the outset that’ the constitutional’-priv- -

ilege against compulsory self-incrimination is-in no way

" implicated here. The Court emphatically rejected_th.

claimed applicability of that ° constitutional guarantee

in Wade jtself: - :

« | “Neither. the Tineup itself nor anything shown

~~ by“ this: record that Wade was reqyired to do in

the lineup . violated ‘his privilege against. self-

Ancrimination. We have only recently reaffirmed.

_/ that the privilege ‘protects an accused only. from

\ / being compelled to testify: against himself, or- other-

menial or communicative nature... .’. Schwrerber

V. California, 384 U. S. 757, 761. .-. ” 388 U. S.,

at 221. ee

“We have no doubt that-eunipelling the aecused |

* merely to exhibitghis person for observation by a

¢ prosecution witness prior .to-trial involves no. com-

pulsion of the qccused to give evidence having testi-

monial significance. It is compulsion of the accused

5 The issue of thé applicabiltiy of Wade and Gilbert to. pre-indict-

‘ment confrontation has severely divided the courts. Compare State ©

_ V. Fields; 104 Ariz. 486, 455.P. 2d 964; Perkins v. State, 228 So. 2d.

382 .°(Fla.); Buchanan vy. Commonwealth, 210 Va. 664, 173 S. E. 2d

792; State v. Walters, 457 S: Wa.2d 817 ‘(Mo.), with United: States

Vv. Greene, 139 U.S. App. D. C. 9, 429 F. 2d 193; Rivers v. United

- States, 400 F. 2d 935 -(CA5); United States,v. Phillips: 427 F. 2d

1035 (CA9); Commonwealth v. Guillory, 356 Mass. 591, 254 N. E.

* 2d 427; People v. Fowler, 1 Cal. 3d 335, 461 P. 2d 643; Palmer vy.

State, 5 Md. App. 691,249 A. 2q 482; People \, Hutton, 21 Mich:

App. 312, 175 N. W. 2d 860; Commonwealth v. Whiting, 439 Pa, 205,

. 266 A. 2d 738; Yn re Holley, — R. I —, 268 A. 2d: 723; Hayes

_ V, State, 46 Wis. 2d 93, 175 N. W. 2d 625. -

ae SM

/ / Wise provide the State with evidence of a. testi- 7

POR Sc Mee ne te oe ee

4 <

Sands

"688 _ OCTOBER TERM, 1971 4

- Opinion of Srewart, f oT, 496 U: S.

to exhibit his physical characteristics, not compul-

_sion to disclose any Knowledge he might have... .”

Id., at 222.

. tt follows’ that the doctrine of Miranda Vv. Antena,

384: U.S. 436, has no applicability whatever to tlie i issue

a e

before us; for the Miranda decision was based exclu-

sively upon the Fifth and Fourteenth Amendment priv-

ilege against compulsory self-incrimination, upon the

: theory’ that custodial interrogation is inherently coercive. . .

The Wade-Gilbert exclusionary rule, by contrast, stems ~

from a. ‘quite different constitutional guarantee—the ~

guarantee of the right to counsel contained in the Sixth

and Fourteenth _/smendments. *Jnless all semblance of

principled constitutional adjudication is to be abandoned,

_ therefore, it‘is to the decisions construing that guar-

-antee that wé. must look in- a the present

controversy. ‘ ‘

In- a line of. constitutional cases in this Court. stem-

ming back to the Court’s landmark opinion in, Powell

v. Alabama, 287 U. S. 45, it has been firmly ‘establisked

that a person’s Sixth and Fourteenth Amendment right

to counsel attaches only at’ or after the time that adver-

_ sary judicial proceedings have been initiated against him.

“. See. Powell v. Alabama, supra; Johnson v. Zerbst,

- 304 U.S. 458; Hamilton v. Alabama, 368 U. S: 52;

Gideon v. Wainwright, 372 U..S..335; White v. Mary-

- "land, 373 U. 8. 59; Massiah v. United States, 377 U. S.

201; United Stiles v. Wade, 388 U: S. 218; Gilbert v.

_ California, 388 U. 8. 263 ; Coleman \ v. Alabama, 399

U. §. 1.

This is not to say that a defendant in ‘a , eet \

case has a constitutional: right to counsel only at the

trial itself. The Powell case ‘makes clear that the right

attaches at the time of arraignment,’ andthe Court —

¢“(Djuring perhaps the most critical period of the proceedings

against these defendants, that is to say, from the time of their ar-

KIRBY ». ILLINOIS . Y. 080

_ pS

7 vee) ° . |. . ° -

has recently held that it exists also at the time of a

_ preliminary hearing. -.Coleman v. Alabama, supra. But

the point is that, while members of the Court have Be

differed as to existence of the right to counseNi the ar

-. contexts of some of the. above cases, all of those’

: * have involved’ points of time at or after the. initiation

of adversary judicial. criminal ‘proceedings—whether by

way of formal chargé, preliminary - hearing, indictment,

information, or arraignment. a _

}

. 682 ioe 3 Opinion of Srewarr, J:

The only seeming deviation from this long line of |

constitutional decisions was Escobedo v. Illinois, 378

U. S. 478. But Escobedo is not .apposité here for two

_ distinct reasons. First,’ the Court in retrospect per-

ceived that the “prime purpose” of. Escobedo .was not

to vindicate the constitutional right to counsel as such,

. but, like. Miranda, “to, guarantee full effectuation of the

" privilege against self-incrimination .’. ,. .” Johnson v.

New Jersey, 384. U. S. 719, 729. Secondly, and perhaps

even more important: for purely. practical purposes, the

Court has limjted the holding of Escobedo to its own

facts, Johnsogy. New, Jersey, supra, at 733-734, and

those facts are Pot remotely akin to the facts of the .

case before’ us, __ ce =< es +

’ The initiation: of judicial criminal proceedings is far

_ from a mere formalism, It is the starting point of our

whole system: of adversary criztwal'justice. For it is

_ only then that the government has committed itself to

. prosecute, and only then that the adverse” positions of |

government and defendant. have: solidi ed. It is then ©

that a defendant finds himself faced: with the prosecu-.

torial forces of organized society, and immersed ih the

intricacies of substantive and procedural criminal law. 7

raignmen? until the beginning of their trial, when consultation, — &€

thoroughgoing investigation and preparation were vitally. important, -

\, the defendants did not have the ajd of counsel in any real sense,

\although hey ‘were as much entitled to such aid during that period

as at the trial itself.” Powell v. Alabama, 287 U.S. 45,57. °

\ oo

. 600 : "| OCTOBER: TERM, 1971

’ for his’ defegee U; 8. Const., Amdt, VI.

: < ies s by — .

Opinion of Stewart, J. - e | 406 U.S.

It is this point, therefore, that marks the commence-

ment: of the “crimihaé prosecutions” to which: alone the

explicit guarantees of the Sixth ‘Amendment » ‘are appli- sé

cable.’ See Powell iar 287 U. S., at 66-71;

-” Massiah v. United States, 377 U.S. 201; Spano v. New:

» York, 360°U..S. 315, 3

(Dova.as, J. conway.

In this case*‘we are asked to import into a routine

police investigation an absolute constitutignal guarantee

_ historically and rationally applicable only after the onset -

of formal prosecutorial proceedings. We decline to do-

so.» Less than’a yéar after Wade and Gilbert ‘were

' decided, the Court wipthinel the rule of those decisions '

as follows: ““The rationale of those cases was that an

accused is. entitled to. counsel at any ‘critical stage of

the prosecution, and that a post-indictment lineup is:

sucha “critical, stage.’ (Emphasis supplied.) Simmons

‘vy. United States, 390 U. S. 377, 382-383... We decline

‘to depart-from that rationale today by i imposing a per se

exclusionary -rule upon testimony concerning -an identi-

' fication that took place long before the. commencement

of any pr opecution whatever.

ee eee | Gene oe a

* What has been said-is not to suggest that there may

not be occasions during the course. of a criminal investi-

gation when the epolicg do abuse identification proce-

dures. Such abuses are not beyond the reach ‘of the

Constitution. As the Court pointed out in Wade itself,

it is always hecessary ta “scrutinize “arty pretrial. con- -

. “Tn all ‘criminal prosécutions, ‘the seemed shal? & enjoy the right

to. a speedy dnd. public trial, by. an impartial jury of the State and

_ district: wherein the crime shall have been committed, which dis- - ;

' trict shall have been prev iously ascertained by law, and to be in- ©

| formed of the nature and cause ‘of the ‘accusation; to be confronted

wit# the witnesses against him;. to have: eompulsorySprocess for ob- .

taining witnesses in his favor, and: to have the’ Assistance: of vogeee

KIRBY-v. IZINOIS 691

Bia - Brennan,.J., dissenting .

frontation ... > 388 U. S,, at 297 The Due Process

“Clause of the Fifth and Fourteenth Amendments for-

bids a lineup that ‘is vAnecessarily suggestive and con-

ducive to irreparable mistaken identification. . ‘Stovall v.

» » Denno, 388 U. S: 293; Foster v. California, 394 U, S§.

| — 4408 When @ person. not been. formally charged —

with a criminal offense, Stovall strikes the appropriate

constitutional balance between’ the Tight of a suspect

to be protéeted from P&ejudicial procedures and the in- “|

terest of society. in the prompt and purposeful jnvestiga-

‘tion of an unsolved crime., | ui.

¢ ‘The judgment is affirmed.

. ' Ps ‘ . ; 7 . ,

- Mr. Cuher JUSTICE BurGER, concurring.

Opinion).

crinfinal’charges are formally de against an accused

and he becomes the subject: of a “érimiiial prosecution.”

I agree that the right to coupes attaches as soon as

Therefore, I: join in the. Court’s gpinion and holding. «. |

Cf.. Coleman v. Alabama, 399 U. S. 1, 21. (dissenting

_ Mr. Justice WELL, concurring in the result,

” As I would no{ extemfthe Wade-Gilbert per se exclu-—

Sionary rule, I concur in the result reached by. the Court.

_ Mr. Justice “BRENNAN,.’ with whom Mr. Justice

Dove.as-and Mr. JUSTICE MARSHALL join, dissenting:

_,_ After petitioner and: Ralph. Began: were arrested, police

feom in.a police station where. petitioner and Bean were

’ seated at a table with two other ‘police officers. - Shard ‘ g

- testified at trial that the officers who brought. him to the, 4

®*In view of our limited ‘grant of certiorari, we do not considér” . :

‘whether there might have been a deprivatign of due process in the

' ’ open’ for inquiry. in’ a_ federal -habeas,

Particularized circumstances of this’

Saad

Officers brought Willie’ Shard, the robbery. victim, tea, i

Lier

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Distance Missin sisisisccsinsens lini wantin Win Dy lS iba NA ve 2

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692 | - © OCTOBER TERM, 1971 .

- BRENNAN, J. dissenting - _ 406 U. S."

room. aie ‘him if petitioner and Bean were the robbers

and. ‘that e indicated they were. The: ‘prosecutor asked

him, “And you positively identified them at the police —

station, is that correct?” _ Shard answered, “Yes.” Con-:

sequently, the- question in this case is whether, under

Gilbert v. California, 388 U. S. 263 (1967), it was con-

stitutional error to admit -Shard’s testimony that’ he

identified petitioner: at the pretrial station-house showup

when that showup was conducted by the police without

advising petitioner that he might have. counsel present.

Gilbert held, in the context of a post-indictment lineup, .

that “[o]nly a per’se exclusionary rule as to such testi-

moxy cari be an effective sanction to assure that law

hforcement authorities will respect the accused’s con-

stitutional right to the presence of his counsel at the

critical lineup.” Id., at 273; I would apply Gilbert

and the principles of its companion case, United States .

v. Wade, U. S. 218 (1967), and reverse.’ ° z

In Wade, after concluding that the lineup eofducted |

in that case did not violate the accused's right against |

- self-incrimination, id:, at 221-223,’ the Court addressed

ce ren

1 There is no room here for the application of the harmilese-error

doctrine. Because the admission of ‘Shard’s. testimony ‘about his

showup identification thus requires reversal, there is no -need ‘for _

me to consider whether a remand would otherwise be necessary to

’ afford the State an opportunity: to’ demonstrate that Shard’s in-court

identification of petitioner, if that is what it was, see ante, at 686 n. 3,

' had an independent source. . See United States v. Wade, 388 USS.

218, 239-242 (1967); Gilbert v. California, 388 U. S. 263, 272 (1967).

* The plurality asserts that in view of that holding in Wade, “the .

doctrine of Miranda v. Anzona, 384 U. S. 436, has no applica-

bility, whatever "to the issue before us.” Ante, at 688. That asser- ~~

tion is necessary for. the plurality because Miranda requires the

presence of counsel before “the time that adversary judicial pro-..

ceedings have been initiated against” the accused. /d., at‘688. The

assertion is nonetheless erroneous, for Wade specifically- relied upon

Miranda in establishing the constitutional principle that controls the

applicability of the Sixth Amendment guarantee -of the right- to.

_ counsel at pretrial confrontations. See 388 U. S., at’ 226-227.

‘the witnesses against him might be meaningfully cross-

~ 4 .

--KIRBY v. ILLINOIS - . ggg

682 . BRENNAN, F., dissenting

was indispensable to pretect Wade’s most basic right as

& criminal defendant—his right to a fair trial at which

v. Alabama, 287 U. §. 45 (1932); Hamilton vy. Alabama,

» 368 U. 8. 52 (1961); and’ Massiah v. United States, 377

(U.S. 201 (1964), the Court, 388 U. S., at 225, focused

upon two cases that jinvolved the right against self.

incrimination: © i 3s ~ #°. #2

_ “In Escobedo ¥. Illinois, 378 U. S. 478, we drew .

upon the rationale of Hamilton and Massiah in

holding that the right to.counsel was guaranteed at:

the point where the “accused, prior to arraignment,

was subjected to secret interrogation despite repeated

requests to see his lawyer. We again noted the

necessity of counsel’s presence if the accused was

to have a fair opportunity to present a defense at *

the trial itself . . ..” United States y. Wade, 388

U. S., at 225-296: eo -_

* The plurality asserts that {Escobedo is not apposite here.” Ante,.

at 689. It was, of course, “apposite” in Wade. Hence, to say that

Johnson v. New Jersey, 384 U.S. 719, 733-734. (1966), a case’

decided before Wade, “limited the holding of Escobedo to its own

facts,”. ante, at 689, even if -true, is to say nothing at all that is

relevant to the present case. The plurality” also utilizes Johnson °

for the proposition: “that the ‘prime purpose’ of Escobedo was not . -

to vindicate the constitutional] right to counsel as such, ‘but like

Miranda, ‘to guarantee full effectuation -of the privilege against sélf-

incrimination ~~ +” Ibid. In view of .Wade’s' specific reliance

Moreover, it implies that: the purpose of Wade was “to vindicate the

constitutional right to counsel as such.” That was not the purpose’

of Wade, as my extended summary of the opinion demonstrates.

& ‘

PR CLR

’

. a . he

604

OCTOBER TERM, 197t © >

. Brennan, J., dissenting "406 U.S.

“(Tn “Miranda v. Arizona, 384 U. ‘Ss. -436, the rules

- established for custodial interrogation included the .

‘right to the presence of counsel. The result was |

rested on our finding that this and the other rules

were necessary to safeguard the privilege against

self-incrimination from being jeopardized by such

interrogation.” Jd., at 226.

The Court then pointed out that “nothing decided or

said in the opinions in [Escobedo and Miranda} links

the right to counsel only {8 protection of Fifth Amend-.

ment right#®*/bid. To the contrary, the Court saick

those decisions simply reflected the constitutional

“principle that in addition to counsel’ s presence at

“trial, the accused is guaranteed that he need not

stand alone against the State at aby Paes, of the

prosecution, formal or informal,.in‘-eourt or out,

where counsel’s absence might derogate from the

accused’s right to a fair trial. -The securfty of that

_ right is as much. the aim of the right to counsel as

it is of the other guarantees. of fhe Sixth Amend- - -

ment . .’ Id:, at 226-227.

_ This snalysis lad to the Court’s formulation of. the con- .

trolling principle. for pretrial: confrontations:

“In sum, the principle of Powell v. Alabama and

_ succeeding cases requires that we scrutinize any pre-

trial confrontation of the aceused to determine

_ whether the presence of his counsel is necessary to |

preserve the. defendant’s basic right to a fair’ trial

_ as affected by his right meaningfully to cross«examine

the witnesses against him “and to have effective as- -

sistance of ‘counsel at the trial itself. It calls upon

us to analyze whether poténti%l substantial preju-

dice to defendiat’ s rights inheres in the particular |

conffontation and the ability of counsel to help —

avoid that prejudice.” Id., at 227 (emphasis in ,

original). - —— ; .

“ KIRBY.v. ILLINOIS. + 695

682 BRENNAN, J., dissenting —

It was that constitutional principle that the Court -

applied i in Wade to pretrial. confrontations for identifica-

. tion purposes. The#Court first met the oe.

contention that a confrontation for identification is “a

mere preparatory step in the gathering of‘the prosecu-

tion’s evidence,” much. like the scientific examination of

fingerprints and blood samples. The Court’ responded . «

that in the latter instances 4the accused has the oppor- .

tunity for a ‘ meaningful ou of the Govern-

ment’s ‘case at trial through the o inary processes of

cross-examination of ‘the. Government’ s expert witnesses

and the presentation of the evidence of his own, experts.” —

The accused thus has‘no right -to have counsel present at

such examinations: “they are not critical stages since -

there is minimal risk that his counsel’s absence at such

>, stages might derogate from his right to a fair trial.” Id.,

at 227-228. . Y :

In contrast, the Court said, “the confroutation com-

pelled by the State between the accused agd the victim

or witnesses to a crime to elicit identification evidence

is peculiarly riddled with innumerable dangers and vari-

able factors which might seriously, even ‘crucially, derb-

gate from a fair trial.” Jd., at 228. Most importantly,

“the accused’s inability effeBtively to reconstruct at trial

cany ‘unfairness that occurred at the lineup may deprive

him of his only opportunity panel to attack the ©

credibility of the witness’ courtréom identification.” Id.,

at 231-232. *The Court’s analysis of pretrial confronta-

tions for identification purpoee peruee the ae

conclusion:

“Tnsofar as the accused’ s conviction may rest on a

courtroom identification in fact the fruit of a sus-

pect pretrial identification which ‘the ‘accused is

helpless to subject to effective scrutiny at trial,

the accused is meee of that [es of cross-ex-

SR RS TOI NE I SE REE II EH

freer poem miner 7. gts 8 OME TC PF

isn bls li =e ee

698 ~:~ OCTOBER TERM, 1971’

Brennan, J., dissenting — 406 U.S.

amination which -is an essential saferuand to his

_ right to confront the witnesses against him. Pointer |

_Yv. Texas, 380.U: S. 400. And even though cross-

examination is a precious safeguard to@ fair. trial,

_ it’ cannot be viewed as an absolute :assurance of.

’ accuracy and reliability. Thus in the present con-—

text, where so many variables and pitfalls exist, the

first line of defense must be the prevention of un-

fairness and ‘the lessening of the hazards of. eye-

witness identification at the lineup itself. - The trial

. which might determine the accused’s fate may well

not be that in the courtroom but that at the pre-

trial confrontation, with the State aligned against

the accused, the witness the sole jury, and the. ac-

- “eused. unprotected against the overreaching, inten-

tional or unintentional, and with little or no effective |

"appeal from the judgment there rendered by the

witness—‘that’s the man.’” Jd., at 235-236.

The Court then applied that conclusion : to the specific

facts of the case. “Since it appears that there i is grave

pétential fof prejudice, intentional or not, in the -pre-. |

- trial lineup, which may not be capable of reconstruc-

tion .at trial, and ‘since presence of counsel itself can. 7

often avert. prejudice - and assure a _ Afeaningful con

frontation at trial, there can be little doubt that fora ”

Wade.the posteindictment: lineup was a critical stage of .

the prosecution: at which he was ‘as, much entitled to

such aid [of counsel] . - as at the trial = ” Td.,

at 236-237.

‘While it should. go without saying, it appears neces-

sary, in.view of the plurality opinion today, to re-empha- .

size that Wade did not require the presence of counsel.

at pretrial confrontations. for identification purposes sim-

ply on the basis of an abstract consideration of the words

. “criminal prosecutions” in the Sixth Amendment. Coun-: -

- sel is required at ‘those confrontations because “the |

— KIRBY v. ILLINOIS | 697" —«:

682 '. BRENNAN, J., @&senting .

dangers inherent in eyewitness identification and the

suggestibility inherent in the context of the pretrial

identification,” id., at 235,‘ mean that protection must be

_ afforded to the “most basic right [of] @ criminal de-

fendant—his right to fair trial at which the witnesses

against him might be meaningfully cross-examined,” id.,

at 224. Indeed, the Court expressly stated that “TJ egis-

_lative or other regulations, such as those of local police °

-departments;- which eliminate the -risks of abuse and

unintentional suggestion at lineup proceedings and the

impediments to meaningful confrontation at trial'may

also remove the basis for regarding the stage as ‘critical.’ ” .

Id., at 239; see id., at 239 n. 30 ; Gilbert v. California, 388

. -dicial: criminal proceedings,” ante, at 689, is completely|/ , E

U. S., at 273. Hence, “the initiation of adversary ay

confrontation fér ‘identification in order #9 safeguard the

irrelevant to tee counsel is necessary at«a pretri

accused’s consti |

. =

~ effective assistance of counsel at. his trial.

_ In view of Wade, it is ‘plain, and the plurality. today

does not attempt to. dispute it, that there inhere in a& con-

* The plurality Tefers to “occasions during the course of a criminal

investigation when the police do abuse identification procedures”

Wd asserts that “{s]uch abuses are not beyond the reach: of tg

Constitution.” Ante, at 690. The constitutional principles estab- . |

lished in Wade, however, are not addressed solely to police “abuses,” ~° -

' as Wade explicitly pointed out: ‘

The few cases that have’ surfaced therefore reveal the existence of.

& process attended with hazards of serious unfairness to the crim-

inal accused and strongly suggest the plight of the more numerous

defendants who are unable to ferret out Suggestive influences in

the sécrecy of the confrontation. We do.not assumé that these

risks, are the result of police procedures intentionally designed ‘to.

_ Prejudice an accused.- Rather we assume. they derive from_ the

dangers inherent in eyewitness identification and the suggestibility

inherent in the context of the pretrial. identification.” 388 U. S.,

at 234-235. . sy 4k oe Cs .

tional rights ‘to confrontatiop and the _ Ff

bai a a

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. ON

698 —@ OCTOBER TERM, 1971 .

BRENNAN, J, dissenting. 106 U.S.

frontation for identification conducted after arrest ® the

identical hazards to a fair trial that inhere in such. a

. . es -eonfrentation condueted-“‘afterthe- onset-of.formal. pros-__

ecutorial proceedings.”. Jd., at 690. The plurality appar-

~-ently considers an ‘arrest, which for present purposes we

* must assume to be. based upon probable cause, to be noth-

ing more than part of “a routine police investigation.”

ibid., and thus not “the starting point « of our whole sys-_.

“tem of-adversary criminal justice,” id., at 689.° An ar- -

oO rest, according to the plurality, does not face the one

“with the prosecutorial forces of organized society,” nor

immerse him “in the intricacies of substantive and ‘pro- -

~ eedural criminal law.” Those consequences ensue, ‘says

the plurality, only. with “[t]he initiation of judicial crim-

~-jnal proceedings,” “(flor it is only then that the govern-

ment has committed itself to progecute, and only then that

the adverse positions of government and defendant have

- solidified.?’: J bid." * Tf these propositions do not amount to

5 This case does oot require me to consider confrontations that

' , take place before custody, see, e. g., Bratten v. Delaware, 307 F. Supp. ~

643 (Del. 1969). People v. Cesarz, 44 Ill..2d 180, 255,N. E. 2d 1.

(1969) ; State-v. Moore, 111 ‘N. J. Super. 528, 269 A: 2d 534 (1970),

4 nor accidental confrontations not arranged by the police, see, e. g.,

“~United States v. Pollack, 427 F. 2d 1168 (€A5 1970) ; State v. Bibbs,

a1 SW 755 (Mo. 1970), nor on-the-scene encounters shortly

after the crime, see, e. g., Russell v- United States, 133 U.S. App. |

D. C. 77, 408 F2d 1280 (1969) ; United States v. Davis, 399 -F. 2d

948 (CA2 1968). |

' €6Cf. Miranda y- Anzona, 384 U. S. 436, 477 (1968) (emphasis

added) :

_ “The. principles announced today deal with the protection which

must be given to the privilege against self-incrimination when the

individual is first subjected to. police. interrogation while in custody

_at the station or otherwise deprived of his freedom of action in any

significant way. It is at this point that our adversary. system of

criminal proceedings commences, distinguishing itself at the outset

from the inquisitorial system recognized in some countries.”

. 7 The plurality concludes that “[i]t is, this point, therefore, thpt

marks the commencement of the ‘criminal prosecutions’ to which

KIRBY » ILLINOIS. 699.

682 . BRENNAN, J., dissenting is -

* XX’

“mere formalism,” ibid., it is difficult

‘police that the perpetrator of a crime has been caught.” A

- Post~arrest eonfrontation. for identification is not “a mere

preparatory step in the gathering of the prosecution’s evi-

dence.”-” Wade, supra, at 227. A primary, and frequently

- sole, purpose of the confrontation for identification at.

that stage, is to accumulate proof to buttress the con-

clusion of the police that they have the offender in hand.

- The plurality offers no reason, and I can think of none,

tification, unlike a post-charge confrontation,’ is. not

among those “critical confrontations of the accused by

the prosecution at pretrial proceedings where the results

might. well settle the accused’s fate and reduce the trial

itself to a mere formality.” IJd., at 224. ;

The highly. suggestive. form_of copgeentation em-

ployed in this case undersebres ‘the point. This showup

was partigAlarly fraught with the peril of mistd&ken

alone the explicit guarantees of the Sixth Amendment are appli-

cable,” Ante, at 690. This Court hims taken the contrary position

’ with respect to the speedy-trial guarantee of the Sixth Amendment:

“Invocation of the speedy ‘trial provision thus need not, await indict-

_ ment, information, or other formal charge. But we decline to extend

the reach of the amendment to the period prior to arrest.” “In the

case before us, neither appellee was arrested, charged, or otherwise

subjected to formal restraint prior to indictment. It was this event,

therefore, which transformed the appeHees into ‘accused’ defendants

who are subject to the spéedy trial protections of the Sixth Amend-

ment.” United States v. Marion, 404-U. §. 307 321, 325 (1971).

* As the California Supreme Court pointed out, with an eye toward.

the real world, “the establishment. of the date of formal accusation

as the time wherein the right to counsel at lineup attaches could

. only lead to a situation wherein substantially all lineups would be.

conducted prior to indictment or information.” «People v. Fovwler,

1.Cal. 3d 335, 344; 461 P.'2d 643, 650 (1969).

, to know how to’. |

characterize them.** An arrest-evidences the belief of the -/

700. - | -~—~—« OCTOBER. TERM, 1971

BRENNAN, J., dissenting 406 U.S.

_. identification.: In the setting of a police ‘station

_ squad roont where all present except petitioner and Bean

-were police officers, the danger was quite:real. that Shard’s

understandable resentment miight lead him too readily |

to agree with the police that the pair under arrest, and

the only persons exhibited to him, were indeed the

robbers. “It is hard to imagine ‘a situation more clearly

‘ conveying the suggestion to the witness that the one pre-

_ sented is believed guilty: by the police.’ -Jd., at 234.

~The State had no case without Shafd’s identification

testimony,’ and safeguards against that consequence

were therefore of critical importance. Shard’s testimony

itself demonstrates the necessity for such safeguards. On

. direct examination, Shard identified petitioner and Bean ~

not as the alleged robbers on trial in the courtroom, but

as the pair’he saw at the police station. His testimony

\ thus lends strong support to the observation, quoted by

_\ the Court in Wade, 388 U. S., at 229, that “[i]t is a mat-

- \ ter of common expericinde that, once a witness has picked

‘out the accused at the line-up, heapenot likely to go

back on his word later on, so that in ‘practice the issue

of identity may (in the absence of other relevant evi- |

dence) for all practical purposes be determined there and

then, before the trial.””. Williams & Hammelmann, Iden-

tifeation Parades, Part I, [1963] Crim. L. Rev. 479, 482.

The plurality today “decline[s] to depart from [the]

rationale” of Wade and Gilbert. Ante, at 690. "The plu-

rality discovers that “rationale” not by consulting-those

decisions themselves, which would seem to be the appro- |

priate course, but by reading one sentence in Simmons

v. United States, 390 U. S.- 377, 382-383 (1968), where

no right-to-counsel claim was either asserted or consid-

: ered. The “rationale” the plurality discovers is, SPR

® Bean took the stand and testified that he and petitioner found

‘Shard’s traveler’s checks and Social Security card two hours before

their arrest strewn upon the — in an alley. 7

oye

. ‘ . ( > 7 : : °

6820 _ BRenwaw, J, dissenting 4 a

ently, that a post-indictment confrontation for identifica- _ -

tion is part of the prosecution): The plurality might have -

discovered a different “rationale®’ by reading one sentence

'. in Foéster.v. California, 394 U. 8.440, 442 ( 1969), a case .

decided after Simmons, where the Court explained that in

Wade and Gilbert “this Court héld“that’because of the

possibility of unfairness to the accused in the way

@ lineup is conducggd, a’ lineup is a\ ‘critical stage’

_in the. prosecution, at. which the ‘accused .must he.

given the opportunity.to be represented by counsel.”

In Foster, moreover, hou the Court mentioned that

the lineups took place after the ‘accused’s arrest, it did

not say whether they were also after the information : ;

was filed against him.” Ynstead, the Court simply .°

@ointed out that under Stovall v. Denno, 388 U. 8. 293.

_ (1967), Wade and Gilbert were “applicable only to line-

_ ups conducted after those cases were decided.” 394 U.S., _

at 442. Similarly, in Coleman v. Alabama, 399 U.S. 1

(1970), another case involving a pre-Wade lineup, no.

member of the Court saw any significance in whether the .

. accused’ had been formally charged witha crime before

the lineup was held.* a ‘ 3

10 In fact, the lineups in Foster took place before the information

was filed. The crime occurred on January 25, 1966. After the.

formation was not filed until March 17. Foster y. FUifornia, No.

47, O..T. 1968, Brief for Respondent 3-8. eT ga Be, ar

"1 In fact, the lineup in Coleman took place before the accused were

. formally charged. The crime occurred on July 24, 1966,. The-ac- ~-

October 1. The prelimi Fy hearing was not until October 14, and- .

- the indictments were‘not returned until ‘November 11. Coleman vy.

Alabama, No: 72, O. T. 1969, Brief for Petitioners 5-7: App. 84;

see 399 U.S., at 26 (Srewarr, J., joined by Burcer, C. J., dissenting) .

On those facts, the Plyrality opinion adverted to the timing of

the lineup only to the extent of pointing out that it was held “about

two months after the assault and seven months before petitioners’

Se es

7020 " OCTOBER TERM, 1971

the accused’s arrest? Although the accused was first

‘brought to an arraignment, it “was postponed until fhe] ~ .

could retain counsel.” 388 U. S., at 299. Hence, in the

t .

wodele Siuisighnasrs ee eee

fore the comméncement of any prosecution.” Ante, at.

trial.” Id’, at 3) (BRENNAN, , joined by Dovotas, Wrirres and

’ Marsuaty, JJ.). ‘The plurality, opinion then simply noted that

“petitioners. concede that since the lineup occurred before [Wade

~ dence which js tainted by exhibiting the accused to identifying wit-

‘that Alabama’s failure to provide such counsel’ violated petitioners’ -

’ rights under the Sixth and Fourteenth Amendments.” Jd., at. 13.

--.. benefit of the Wade holding, neither petitioner having been afforded :

-counsel at the police ‘lineup’ identification.”. Mr. Justice Harlan’s |

-summary of Wade, like that of the prevailing gpinion, did not limit

‘independent’ of the tainted pretrial viewing.” Id., at 21.

et g

| -* Brennan, J. dissenting - 406 U.S.

The plurality might also: ave discovered a different

“rationale” fos Wate and Gilbert had it. examined Stovall

y. Denng, supra, decided the.same day. In Stovall, the

confrontation for identification took place one day after

‘plurality’s term¢ today, the confrontation was held “be- :

690." Yet in

thaf circumstance the Court in Stovall

and Gilbert] were decided’... .., they cahnot invoke the holding

of those cases requiring the exclusion of in-court identification evi-

nesses before trial in the ‘absence of counsel.” Id., at. 3-4.

Mr. Justice Black/in his concurring opinion took no notice at all,,

of when the lineup was conducted. Instead, reiterating his view

that Wade “should be held fully retroactive,” he. insisted: “that peti-

counsel at the time of the lineup in which they participated and

Nor did’ Mr. JusticesHarlan refer to the timing of the lineup in

expressing“his “dissent from the refusal to accord petitioners the

its “rationale” to.post-charge confrontations: “The Wade rule re-

quires the exclusion of any in-court identification preceded by a pre-

trial lineup where the accused was not represented by counsel, unless

the iri-court identification is found to be.derived from a source

12 The. chain of events in, Stovall was as follows; The crime oc-.

curred on the night of August 23, 1961. The ‘accused was arrest

on the afternoon of August, 24 and appeared for. arraignment on

morning of August 25. .The arraignment was postponed until

gust 31 so that he could retain counsel. . The confrontation with the .

__-witness,took place about noon on August 25. At the arraignment

. KIRBY v. ILLINOIS. =.” 708

682 ' Brennan, J., dissenting

Stated that the accused raised “the same alleged constitu- _

- tional errors in the admission of allegedly tainted identifi- -

‘cation evidence that were bef ‘us” in Wade and Gilbert

The Court therefore foun the case “provide{d]

“ @ vehicle for deciding the’ ¥ Ment: to which the rules

announced in Wade and Gilbert—requiring ‘the ex-

lusion, of identification evidence which is tainted by

‘exhibiting the. accused to identifying witnesses before

trial in, the absence of his counsel—-are to be ap-

plied rétroactively.” 388 U. S./ at -294. Indeed, the

-Court’s explicit, holding was’ “that Wade and Gilbert

: affect only those cases and ‘all future cases which involve

confrontations for identification purposes. conducted in

Wade and Gilbert ‘are therefore inapplicable in the pres-. —

ent case.” Id., at 296. Hence, the accused in Stovall

- did not receiye the benefit of the new exclusionary rules

because they were not applied’ retroactively; he was not’

denied their benefit -because his confrontation’ took place

“before. he had “been formally charged with a criminal. -

Offense.’””. Ante, at 691: Moreover; in the course of its

_ Tetroactivity discussion, 388 U. S.,' at 296-301, the Court

‘repeated te phrase “pretrial confrontations for identifi-

eation” or its equivalent no less than 10 times.” Not once

‘did the.Court so much as hint that Wade and-Gilbert ap-

. plied only to confrontations after the“aceused “had been

-' indicted or otherwise formally charged with [a] criminal

_ Offense” «Ante, at 684. In fact, at one point the Court

summarized Wade as holding “that the confrontation

[for identification] is a ‘critical stage,’ and that counsel.

on August 31, the committing magistrate appointed counsel for the

accused and set ‘the felony examination: for September 1. That

examination was never held, for on. August 31 the indictment was

~ Teturned.. Stovall v! Denno, No. 254, O. T. 1966, Brief for Respond-

ent 34. 5

¢ ° a

- and concurring in

i ea oat TERM, 1971

BRENNAN, J, dissenting . 406 U.S.

(emphasis added).

Wade and Gilbert, of eourse, liappened to idvolve

| post-indictment confrontatighs. Yet even a cursory pe-

rusal of the opinions in thoge cases reveals that nothing

~at all turned upon that particular circumstance.**. In |

short, it is fair to conclude that rather than “d€clin-

[ing]. to depart from. [the] rationale” of Wade and

- Gilbert, ante, at 690, the plurality today, albeit purport-

_ing to be engaged in “principled constitutional adjudica-

tion;” id., at 688, refuses even to recognize that “ration-

ale.” For my part,-I.do not agree that we “extend” Wade

and Gilbert, id., at 1, by holding that: the principles of

those cases apply to.confrontations for identification con-

duéted after arrest.’ _ Boone aris testified at trial

any lineup, to any. other techniques employed to produce

tification and a fortiori to a face-to-face eneounter between

‘ The Wade dissenters rane no a limitation: “The rule ap-

an }

_ the witmess and: the suspect alone, regardless of when the identifica-

tion occuts, in time or place, and— whether ‘before or- after indict-

ment or information.” United States v. Wade, 388 U. S:, at 251

- (Wurte, J., join by Harlan and Stewart, JJ., dissenting in part

oA 7

* The plurality rathe coiiindie asserts that “rt The i issue of the

applicability ‘of Wade and Gilbert to pre-indictment confrontation

has severely divided the courts.” Ante, at 687 n. 5 (emphasis added).

. As the plurality’s citations reveal, thei

including Illinois, that have refused to ap

those five, however; are decisions from at-least 13 Sta

. decisions from five States, -

pix. Wade and Gilbert to:

~ pre-indictment : confrontations for identification: ;

-ple v. Fowler, 1 Cal. 3d 335; 461 P. 2d 643 (1969) ; State v. Singleton,

253 ‘La. 18, 215 So. 2d 838 (1968) ; Commonwealth v.,Guillory, 356

” Mass. 591, 254 .N. E. 2d 427 (1970); Palmer v. Staté,.5 Md. App.

. 691, 249 k 2d .482. (1969); People v. Hutton, 21 Mich. App. 312,

175 N. W..2d 860 (1970); Thompson v. State, 85 Nev. 134, 451 P.

2d 704 (1969); State v. Wright, 274 N. C. 84, 161 8. E. 2d 581

(1976); Commonwealth v. Whiting, 439 Pa. 205, 266 A, 2d .738

_ 807); Ins re Holley, — R. EF =, 268 A. 2d 723 (1970) ; ‘Martinez

ots

sha

6820 Ware, J., disseriting

about his identification’of petiti@ller at the police station

showup, the exclusionary rule of Gilbert, 388 U. Ssat

272-274, requires reversal.

Mk. Justice Wurrs, dissenting. ; ee | ,

United. States v. Wade, 388 U. S. 218 (1967); and

| Gilbert v. California, 388 U. S. 263 (1967), govern this +

_asé and ¢ompel reversal of the judgment below. oe

“ * .

“«

. V. State, 437 8. W. 2d 842 (Tex. Ct. Crim. App. 1969); State v.

_ Hicks, 76 Wash. 2d 80, 455 P. 2d 943 (1969); Hayes v. State, 46

Wis. 2d 93, 175 N. W. 2d 625 (1970). | | :

In addition, every United States Court of Appeals that has con-

fronted the: question has applied Wade and Gilbert to pre-indictment

confrontations. See United States v. Greene, 139 U. S. App. D. C.

9, 429 F..2d 193 (1970); ‘Cooper v. Picard, 428 F. 2d 1351 (CAI

1970) ; .United States v. Ayers, 426 F..2d 524 (CA2 1970): Gov- °

ernment of Virgin Islands v. Callwood, 440 F.2d 1206 (CA3

1971); Rivers v. United States, 490 F. 24.935 (CA5 1968); United ~

States v. Broadhead; 413 F, 2d 1351 (CA7: 1969) ; United States v.

Phillips, 427 F. 2d 1035 (CAQ 1970); Wilson v. Gaffney, 454 F. 2d

142 (CA10 1972). As Chief Judge Lewis, speaking for the Court

Of Appeals for the Tenth Circuit, put it inthe last-citéd case:

“In both Wade and Gilbert the lineups were conducted after in-.

_ dictments had been returned; in the case at bar, the lineup occurred

before petitioner had been formally charged. But ‘surely the’ as-

sistance -of-counsel, now established as an absolute post-indictment

_ Tight-does net arise or attach because of the return of an indict-.

_Mment. The confrontation of a lineup . . . cannot have a constitu-

tional distinction based upon the lodging of & formal charge. - Every

reason set forth by the Supreme Court in Wade-. . . for the as-

sistance of counsel post-indictment. has equal or. more impact’ when -

. Projected against a pre-indictment atmosphere. We hold that

petitioner had.a right to counsel at the lineup ‘here: considered.”

Id., at{ 144. .e- sas . Oe

e te

KIRBY .v. ILLINQIS ., >. 705 |

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