Petition for Writ of Certiorari — United States v. Ash

No.

D STATES or AMERICA, PETITIONER

v

Cuaries J. Ask, Jr.

——

ON YOR A WRIT OF CERTIORARI 10 THE UNITED

— on OF APPEALS FOR THE DISTRICT OF COLUMBIA

1 i

© Solicitor General, on behalf of the United

bs, petitions for a writ of certiorari to review the

ion of the United States Court of Appeals for the

et of Columbia holding that an accused who is

Ustody generally has the right to have counsel

it at a showing of photographs to prospective

ie en banc opinions of the court of appeals (App.

ot yet reported.

Ms _ JURISDICTION

udgment of the court of appeals (App. C.)

red on March 1, 1972. The jurisdiction of this

voked under 28 U.S.C. 1254(1).

ncurring opinion of Judge Bazelon in this case ap-

ited States v. Brown, No. 24,452 (App. B, p. 106a).

(1)

ne return a

is entitled bo Bees of an ee at a showing

of photographs to prospective witnesses which occurs

a

3 STATEMENT

After a jury trial with one Bailey in the United

States District Court for the District of Columbia,

respondent was convicted in May 1968 on five counts

charging him with having participated in the armed

robbery of the American Security and Trust Com-

pany, East Capitol Street Branch, on August 26, 1965

(18 U.S.C. 2118(a) ; 22 D.C. Code 2901) He was sen-

tenced to imprisonment for five to fifteen years. The

court of appeals sitting en bane reversed the convic-

tion 5-4, on the ground that respondent had been

denied his Sixth Amendment right to counsel at a

showing of photographs by an F. B. I. agent to pros-

pective witnesses shortly before the trial.

1. The pertinent facts are set forth in detail in the

opinions below and are not in dispute. The robbery

lasted some three or four minutes. A gunman entered

the bank and ordered everyone there not to move. Sec-

onds later another man dashed through the bank lobby

to the tellers’ cages, scooped up some money, and ran

out again, followed by the gunman. Both the gunman

and his accomplice wore stocking masks which covered

portions of their faces.

On February 3, 1966, an F. B. I. agent interviewed

— ——

*Bailey was sequitted by the court after the jury failed to

verdict. .

|

. police “mug” shots (including those of re-

ets. Each of the four selected the photograph

vespondent as the gunman, although none of the

Was positive about the identification.

trial began on May 8, 1968. On the day before,

B. L. agent together with the prosecutor visited

Pugh, Mrs. Major, and Mrs. Apple. The pros-

e witnesses were shown five color photographs,

ing one of respondent and one of Bailey. Only

Pictures. of respondent and Bailey were full

th and bore police identification numbers, Each of

graphs to Mr. Taylor, who could not make an

ation. At no time was a lineup held. Defense

was not present at the photographic display

7 and 8.

distriet judge held a pre-trial hearing to deter-

2 admissibility of the prospective witnesses’

ation testimony, Without deciding whether’

i ng of the color photographs was impermis-

avy» respondent's photograph was included because

mation received from an informant.

government had established by clear and convincing

evidence that the in-court identifications would have

an independent basis and could be made in the pres-

ence of the jury. At the trial each of the four eye-

witnesses made an identification of respondent as the

gunman. Only one of the witnesses could make a posi-

tive identification. The others testified they were not

absolutely sure that the respondent was the gunman

(App. A, p. 85a).*

The May 7 and 8 showing of color photographs was

not brought out on direct examination but was elicited

on cross-examination by Bailey’s counsel. Thereafter

the government moved to have the color photographs

introduced in evidence. Counsel for respondent ob-

jected to the introduction of his elient's picture. After

discussion between the judge and counsel, all of the

photographs were admitted.“

2. The majority in the court of appeals declined

to rule on the questions whether the showing of the

color photographs was impermissibly suggestive and

whether the district court’s finding of independent

source was correct. While noting that it would, if

necessary, have remanded the case on the latter issue

for further “elucidation by the trial court of the basis

— d.. ——

The government also introduced testimony from the in-

8 r that respondent had asked him to help rob

Oe Pant an e pagan gai ge aml

told him that he had robbed the bank with Bailey.

The W dissenting judges disagreed as to whether

the objection made was sufficient to preserve the issue for

appeal (App. A, pp. Ta, 63a—65a). Se” ali

*

sibly suggestive, the district judge ruled that the

bebunsel present at a government display of photo-

- graphs to a Prospective witness (App. A, parts III

3 The dissenting opinions of Judges Wilkey and Mac-

Kinnon urged that neither the rationale of Made nor

any other decision of this Court furnished support

for the Majority.’s right-to-counsel holding, and that

the district judge’s findi of independent source was

sound (App. A, pp. 27a~78a, 78a-—84a).

_ *The possible exceptions mentioned by the court were (1)

Where the photographic showing comes after a valid lineup or

other confrontation consistent with Wade, and (2) where the

delay in securing the attendance of counsel would jeopardize

‘the fairness of a continuing investigation. In an en bane opinion

March 1, 1972, the court appeals held that counsel

d. b Was not required at an interview conducted

I. There is a conflict among the courts of appeals

on the question whether a prospective defendant has

a right to have counsel present at a showing of pho-

tographs to prospective witnesses who may identify

defendant at trial. The Third Circuit, like the court

below, has decided that United States v. Wade, 388

U.S. 218, which provided a right to counsel for line-

ups, is applicable to displays of photographs; but

seven other circuits have held Wade inapplicable to

photographie displays. United States v. Bennett, 409

F. 2d 888 (C. A. 2), certiorari denied sub nom. Jessup

v. United States, 396 U.S: 852; United States v. Collins,

416 F. 2d 696 (C. A. 4); United States v. Ballard,

423 F. 2d 127 (C. A. 5); United States v. Serio, 440

F. 2d 827 (C. A. 6); United States v. Robinson, 406 F. 2d

64 (C. C. 7); United States v. Smith, 423 F. 2d 1290

(OA. 9), certiorari denied, 398 U. S. 930; Rech v. United

States, 410 F. 2d 1131 (C. A. 10), certiorari denied, 396

US. 980.

2. Whether an accused has under the Sixth Amend-

ment a right to have counsel’ present at pre-trial

photographic displays is an important question of

constitutional law which should be settled by this

"United States v, Zeiler, 497 F. 2d 1305 (C.A. 8).

The continued vitality and scope of Wade as applied to

in ly implicated in Kirby: v. Illinois, reargued

March 20, 1972 (No. 5601, this Term). The decision in Kirby

may therefore have a bearing on this case.

We note also that, in 18 U.S.C. 3502, enacted after the trial

in this case, Congress clearly expressed its view that. Wade,should

not be extended by enacting a provision that eyewitness testifnony

as to the commission of a crime shall be admissible in the federal

courts,

of counsel

between the accused and the victim or witnesses

at a “confrontation ‘compelled by the

rente a grave risk of mistaken identification. Since

these suggestive influences are often Present in many

subtle ways, it is ordinarily impossible for an accused

to demonstrate to a judge and a jury any

for protecting the rights of the accused in these

confrontations is, the Court held, to require

the glare of lights, he turns

8, often muttering asides to those sharing the

He can be required to utter significant words,

rn a profile or back, to walk back and forth, to doff

eostume and don another.” (Dissen ting opinion of

Wilkey, App. A, pp. 294-30 a). There is a clear

ial for improper suggestion in the lighting used,

neanor of other participants as compared with

; SEES Sa oes

others as well, as the words the accused may be re-

ed to speak. Wall, Eyewitness Identification In

Orimina Cases 5563. The inability of unschooled'

witnesses and uncounseled defendants to detect. “sug-

stive influences under these circumstances is

apparent, 388 U.S, at 230.

A photographic ye tg involyes none of these subtle

and ‘undetectable influences. While a photographie dis-

play may also be suggestive, that fact can be easily dem-

onstrated to the court and jury simply by requiring law

enforcement officials to produce the photographs at

the trial. The present case is illustrative of one in

which the presence of suggestion in the Photographie

display was easily demonstrated. Any overt act on

the part of law enforcement: officers to suggest a par-

ticular photograph to a witness can be discovered by

eross-· examination of the witness.

In short, a lineup cannot be reconstructed. Its in-

fluence. is fixed at the time, and leaves no way to

show, at a later time, that there was improper

influence, especially if counsel is not present. But a

Photographic display can be preserved exactly as it

occurred. The photographs can be seen by the jury,

and they can evaluate any charges of undue sugges-

tiveness in the pictures shown. Though the difference

may be one of degree, it is a clear and substantial

ha eennerane

We have bound no. case holding that a defendant

has the right to have counsel present during an inter-

view of a witness. held. by the prosecutor or- à law

enforeement official. The holding of the court below

Sie CONCLUSION

It is therefore respectfully submitted that the peti-

‘tion for a writ of certiorari should be granted.

ots Erwin N. GRIsWoLp,

Solicitor General.

Henry E. PETERSEN,

55 Assistant Attorney General.

5 Beatrice Rogenzera,

N _ Roger A. Pavrey, —

* / Attorneys,

mers APPENDIX A

tee

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85 ‘ p gi 5 44 j 3

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Cogs a SES

No. 22,340

Unrrep Srares or AMERICA

V.

Cuantes J. Asn, In., Ar Ar

Apel mom the United States District Court

n for the District

.

of Columbia

Judgment e ered f

Decided March 1, 1972] „„

“Mr. Charles J. Ash, Jr. filed a brief pro se.

Mr. Jerome J. Dick (appointed by this court) filed a

ee Thomas 4.

at the time the brief

Flannery, United States Attorney

was filed,

liam S. Block, Assistant United

5 Messrs. Roger E. Zuckerman, Har-

John A. Terry and Wii.

States Attorneys, were on

Joseph Taylor, said

but he could not be

the gunman for a few

an automobile outside, and

5 bank neither man wore a mask. She

admitted she only got a “fleeting glimpse” of them and

Was not able to see their full faces.

Tt may be interjected that although

ed in court by Mrs. Apple, there

him. The trial judge granted

mony of an informer who was under indictment for other

offenses, it becomes material to consider carefully issues

pertaining to the identifieation’ testi 5

The trial began May 8, 1968.“ In the morning the court

held a pre-trial hearing to determine whether the show-

ing of photographs to the witnesses rendered their testi-

reer e

At this hearing it developed that at the time of the

crime none of the four identification witnesses was able

to give the police a description of the gunman’s facial

characteristics. The description given to police at the

time of the robbery was not in terms of facial features

but rather, e., by height and weight—that the gunman

was tall and slim. The police call for the gunman de-

seribed him only as Negro male, 19 years old, six feet

tall, 165 pounds, thin build.

At the hearing FBI Special Agent Patrick Markowvich

—who had seen the gunn

5 of appellant as the gunman. On eross-· exam-

testified t jhey were not positive in the identi-

Asked if any of them was positive, he cited Mr.

ond robber. A few weeks latte Mrs. Apple also pointed

Ba to police in a corridor of the General Sessions

Pecial Agent Hugh Berry of the FBI testified that on

7 1968; the day before trial, together with the prose-

Gator, he visited, and showed five

25 augh, Mrs. Major and Mrs. Apple. Each of these wit:

color pictures to, Mrs.

ier at the lower chest. None of these three pholograph

8, 124 U.S.App.D.C. 318, 365 F.

sida shouldnt suey identity anyone; and at all

she id. do, when questioned or shown photographs, was

to make an “as to the general build of the per-

„ the color photographs shown her the

day before had not had the effect of refreshing her reco

lection ar recreating in her mind an image of the person

she saw at the time of the robbery. |

Soi po epee tre

2 nf er e 1

that Mrs. Apple had not identified Bailey’s color photo-

graph. Counsel for Ash objected to any procedure that

would make the proffer to show pictures of Ash.” Ac-

FFF

5 ollowing day, when pre-trial

C05

ject of color photographs, apparently were

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There undeniably troublesome aspects concerning

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length; the other three subjects are cut off at mid-

high, waist, and mid-chest, respective)

the

holding

estive a policeman’s presentation of colored

legal conse-

r phs to the witness in the course of preparing for

there are at the very

Finally,

suggestiveness in this color photo

standing next to

tion numbers, while

on the other three photographs.

i at the moment fixing the ultimate

des it cannot be gainsaid that

‘ast strong elements of

identifi

possibility of suggestiveness is not

witness’s weak response, for as Judge

bear police

hotographs of Ash and Bailey, shown

anon cogently pointed out—in the course of

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trial [T Ihe focus is on the photographic display itself

and not on the reaction of the witness to it.“ United States

v. Gambrill, —— U.S. App. D. C. —, 449 F.2d 1148

(1971). And the elements of suggestiveness cannot

be justified on the ground of necessity, like that

urged in Stovall. With the February 1966 photo.

graphic (black and white) identification yielding only tenta-

tive results, there was full opportunity to hold a lineup,

organized so as to avoid any suggestiveness, during the

two pre-trial years when appellant was in detention.

Certainly the elements of suggestiveness were strong

enough so that it cannot be assumed that there was no un-

due suggestiveness in the absence of explicit findings by

the trial court. As we have already noted (fn. 5), the

court made no such finding, and if anything its inde

pendent source determination rested on an assumption

of undue suggestiveness. If it were established that there

was a legal defect in the showing of the color photographs

the day before trial then as noted below (see fn. 20), it

would be hard to accept the conclusion that they did not

affect the in-court identification.

We are aware that there are indications offsetting in

part the inference of undue suggestiveness. But they are

hardly conclusive. The identifications at trial were weak,

and in fact no stronger than those given two years before

on the basis of the mug shots. In soine cases the weakness

of in-court identification may be a factor tending to indi-

cate that pre-trial identification, though improper, failed

to. influence the witness’s testimony. Here, however, it was

almost three years since the events in the bank in August

1966, events that passed swiftly, with appellant’s face seen

by only two witnesses and by each of them only fleetingly.

The color photographs in May 1968 can hardly be justified

on the ground that the witnesses’ 1968 recollection had

been reinforced by the showing of the black and white

photographs in February 1966, even assuming, that was

a

IN OF COLOR PHOTOGRAPHS TO WIT.

_ NESSES. WITHOUT ATTENDANCE oF

___, COUNSEL

e . The Government’s insistence on admission of these

og at the trial produeed reversible error.

res lineup is a “critical stage” of the prosecu-

defendant is entitled to the aid of counsel,

122

even though held prior to trial or even to the filing of

formal charges. United States v. Wade, 388 U.S. 218

(1967). This court has been explicit to confirm the latitude

and authority of the police to secure a suspect’s participa.

tion in a timely lineup, with counsel present, even though he

is eligible for release on recognizance or bail, precisely be-

cause this is the means that best combines and assures

both effectiveness and integrity of law enforcement inves-

tigation procedures. Williams v. United States, 136 US.

App.D.C. 158, 161, 419 F.2d 740, 743 (en bane 1969);

United States v. Greene, 139 U.S. App. D. C. 9, 429

F.2d 193 (1970); Adams. v. United States, 130 U. S. App

D.C. 203, 399 F. 2d 574 (1968), cert. denied sub nom Roots

v. ‘United States, 393 U.S. 1067 (1969).

In this ease the Government did not avail itself of the

opportunity it had, following defendant’s arrest, to hold

a corporeal lineup, The presentation of color photographs

subsequent to arrest—indeed on the eve of trial—was like

a lineup as being a critical stage of the prosecution, requir-

. within the meaning of

ade.

It is contended that Wade has no application whatever

to pre-trial photographic identifications. We are aware

that a majority of the courts that have ruled on the ques-

tion have held Wade inapplicable to photographie view-

“inte and mne Some courts have mentioned the

—

8 See, e. g., United States v. Bennett, 409 F. 2d 888 (2d ),

cert. denied sub nom Haywood v. — 9 N dj

8 *

pte 141 3547 1750

ale ip 1 al 1

rane

8

itself re

307.

ion of Zeiler dus

bhs: “This error in

ms.” 427 F.2d at 1

14a

5

Ee in

While we are aware of the view of a majority of the

aware of instances in which the view advanced by a ma-

jority of circuit courts of appeals was rejected, and the

contrary view of one or two circuits was finally upheld, by

the Supreme Court. See, e. 9., Kaufman v. United States,

394 U.S. 217, 220 (1969) (sustaining the position taken by

the 4th and 10th Cireuits, and rejecting the position taken

by the 2d, 3d, 5th, 6th, 7th, 9th and D.C. Cireuits); Sim

mons v. United States, 390 U.S. 377, 392 (1968) (sustaining

the position taken by the D.C. Circuit; rejecting the posi-

tion taken by the 4th, 5th, 7th, 8th and 10th Cireuits) ; Pat

nam v. Commissioner, 352 U.S. 82, 84 (1956). The. opinions

of other appellate courts merit careful attention and con-

sideration, and this we have accorded, but they are not

controlling as ‘precedent. Bound by our oath of office to

give independent consideration to the constitutional claims,

we conclude they should be sustained.

We conclude that the sound rule prescribes that in gen-

eral, subject to certain exceptions, Wade and its require-

ment of presence of counsel, are applicable to a Govern-

ment exhibition of photographs of a person in custody for

an offense to witnesses called to identify the person who

committed the offense.

convincing evidence that in-court identifications by the wit-

nesses involved would “have an origin independent of any

photographie identification made outside the presence of

counsel.” United States v. Zeiler, 447 F.2d 998 (3d Cir.

1971). For purposes of determining this issue, the court

considered whether the photographic identifica-

nts as to what went

n, whether at lineup or

Y suffice to bring |

urt, following Zeiler,

(cited in note 10):

narrow. a reading of this Sixth ee ee right. It is

Judge Friendly's view that a major purpose behind the

that he himself might make if he appeared in court alone,

and that this rationale has no relevance to situations where

fendant but from manipulations by others, that. require

counsel to be. t. The fact that in one instance the

manipulation may be of the defendant’s body, as in a

lineup, and in another insts may be of his photograph,

does not remove the need for protection.

Nor do we agree with the assertion in some decisions

(supra note 8), that the application of Wade to photo-

graphic viewings held under the auspices of a prosecutor

is tantamount to a requirement. of counsel at every con-

ference between the prosecutor and Government witnesses.

As this court has noted, there is a crucial distinction be-

tween these two situations. The prosecutor cannot intro-

duce testimony on direct of the statements given by a wit-

ness in an earlier interview with the prosecutor. But he

17a

ntroduee the witness's prior identification. United

by, 138 U.S. App. D.C. 340, 342, n.2, 427 F.2d

photographie

on Clemons v. United States,

p. D. C. 27, 40. 408 F.2d 1230, 1243 (en bane

denied, 394 U.S, 964 (1969). If the pre-trial

on is not deficieht, and the witness is available

‘amination, it is considered to have greater

than the in-court identification. Id. To

counsel. Certainly when a case is in the pre- arrest

tive stage there is justification for photographic

assuming no undue suggestiveness, Simmons v.

ates, 390 U.S. 377.(1968). There is obvious need

8 of effective police investigation to ask the victim

r witness to view photograph books organized by

ice in terms of modus operandi and nature of of-

2 photographic lineup is as much subject to the

influence and mistake as a corporeal lineup, it is

Ay

court has held that photographic viewings at the pre-arrest

stage are not subject to the requirements of Wade and may

be conducted in the absence of counsel or substitute coun.

D. C. 340, 427 F. 2d 610 (1970). In United States v. Hamil.

(1969), we stated: “Counsel at an identification session

designed to narrow the field of suspects, at a time when

no one has been charged and there is no one in particular

to represent, is an obvious impracticality.” In Kirby, how.

ever, we left open (see 427 F.2d at 612, n.2) the question,

whether “a right of counsel for photographic identifica.

tion might be urged as to defendants who have been taken

into custody on cause of having committed the offense.”

Essentially we are in accord with the premise of Zeiler

that It Ihe considerations that led the court in Wade to

guarantee the right of counsel at lineups apply equally

19a

of counsel or substitute counsel

olice since the crime came not only after defend.

rest but after the indictment had issued and trial

A been appointed, and the da before the trial

develop considerations un.

ure of the Governmen

Bt cage under Wade. Such counsel have an appropriate |

in remarking g on any suggestivity in the lineup “and

proposing ‘changes to avoid suggestive features,” se

United States v. Allen, 133 U. S. App. D. C. 84, 408 F. 2

1287, 1289 (1969). This role is particularly meaningful in

conjunction with that part of Allen which puts forward the

concept that the description of the suspect given by the

witness to the police be available, see Spriggs v. Wilson,

136. U.S. App. BC. 177, 419 F.2d 759 (1969), The lav

enforcement authorities also have an interest in avoiding

detention or protracted detention of the innocent, and their

This court has an abiding concern. for and interest in

ensuring a combination of fairness and intelligent and

effective techniques in law enforcement, That is the hall

mark of à decent society concerned with both order and

justice. It has led us in the past to countenance personal

confrontations that were both suggestive and in the ab.

sence of counsel when the circumstances, close in time and

place to the offense, enhanced reliability for law enforce.

ment and thus enhanced fairness. This results not only

1 *

Nr

22a ,

ia: ie Ste ieh eavbeiidlin: of rns umd este

police administration that led this court to approve judi-

cial orders, on application of the prosecutor, that re-

inforeed the long-standing police recognition of the need.

for corporeal lineups for persons taken into custody on

photographic identification, by requiring the attendance

at a police-conducted lineup of persons released on recog-

nizance or bail.“ Orders may likewise be issued at the

et ee ee ee eee eee

‘ district judges in pretrial procedures.“

We do not consider in this opinion whether or to what

extent its principle should be applicable in case of a

photographic showing subsequent to a lineup. We make

this clear because the judges concurring in Ash have dif-

fered in their votes in United States v. Brown, Proctor and

Williams, No. 24,452, a companion case to Ash, opinion filed

the provision, in 18 U.S.C. § 3502, for the admissibility of in-

court identification by eyewitnesses.

An in-court identification is taken for granted by the

ury, especially since the trial setting itself focuses on the

VVVVVJVVVSV(CWWAWTTATVTCCCC angeeabenetil

see United States v. Gambrill, supra, 449 F.2d at 1158.

10 See, ¢.g., Dorman v. United States, 140 U. S. App. D. C.

313, 325, 435 F. 2d 385, 398 (en banc 1970).

n Williams & Coleman v. United States, 136 U.S. App. D. C.

158, 161, 419 F.2d 740, 743 (en banc 1969); Adams v. United

States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).

18 United 11 v. * 140 U.S. App. D. C. 26, 488

an appropriate

conducted on the eve of trial or during its course.

But the differ:

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But Brown is limited—as has been noted—to the use of

a photograph of the counseled lineup.

ye, ae CONCLUSION AND REMAND ORDER

and indeed the witness who was most clear only made an

identification to the best of his belief, saying he could be

more positive if he could see defendant in person. Yet

there was no arrangement for a corporeal lineup. In 1968,

to the witnesses, without notice to de

hold this 1968 showing was a “critical

prosecution, at which defense counsel’s pret

error at the trial when the prosecutor insisted that the jury

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DPOB 63 , 454) BSN οοι ae ai

7 rvopiaktoh) here enumerates three prineipal

8 of Mint ga identification from uncounseled line:

ident ions set forth in Wade,” and and concludes that

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e ee iy |

igh os Tendency of wine's detent

ae acl ans wee tha circumstances, to

VVV

cireuits which disagree with this reasoning and result, it

might be helpful to analyze Judge Leventhal’s interpreta.

tion of the rationale of Wade and the three dangers of

mistaken identification, as applied to photographs:

1. The “possibilities of suggestive influence or mistake”

are present in any identification procedure. Furthermore,

the viewing of any photograph of the accused at any time

is likely to add an immeasurable quantum to the certainty

of a witness’s identification, but these trace residuals the

Supreme Court seemed willing to accept as not “impermis-

sibly suggestive.” This possibility would apply equally to

pre-arrest photo identification.

It is noteworthy that in Wade, where the Court re-

manded the case for a hearing as to whether the in-trial

identification had an independent untainted origin, the

Court, in deseribing the ways in which the independent

recollection of the witness could be proved, listed “the

identification by picture of the defendant prior to the

lineup.” * This is a plain inference that pre-trial photo-

graphic identification—without the presence of counsel—

is an accepted investigatory or preparatory technique and

is relevant proof of the validity of the in-trial identifica-

tion

777 thajuciis cotlicn: at 15 (hereafter cited

as “Majority Opinion”).

*388 U.S., at 241.

* See Simmons v. United States, 390 U.S. 877, 384 (1968),

contrary conclusion forms the basis of Judge

l’s opinion here. “The presentation of color photo-

ubsequent to arrest—indeed on the eve of trial—

a lineup as being a critical stage of the prosecu-

üring presence of counsel for Ash, within the

of Wade.“ His opinion goes on to recognize

ire aware that a majority of the courts that have

wits nn singh ih wa, required

gnificant, words, + epee

valk: 8 ff. ea nt a 5

his elbow; ; ready: to, record the witnest every, word and

on 140 ond te. yirtoi sus & ant tau 918 9). )*

-oObvibusly: the detendant's ‘counsel ought to be ‘present

: the drama of thé lineup, within earshot of the

neg likewise itn i eee ee

tit 10 fet

Fa RPL ee. eee bl

ease made their photo identification of Ashand failed to

identify eo-defendunt Bailey-in their customary places of

business or homes: In sage an paige a witness- need

otogra

the case of the lineup than in ee cor

identification. Ste bi

Fes ism e

iy anther 5

ein ore oe

‘from thé accuse

Axper

: tate’s “Chand

“nesses and the presentation of the 2 a of

decem dente. Wade, “re

RCA

— —B'

‘is quite similar, and his

ee een

5 identification is provable and pro-

ducible at trial Judge Leventhal takes as a reason for

requiring a different rule from that applicable to other

phases of a pre-trial interview." True, such pre-trial iden-

tification can be offered as independent evidence—but,

before it can. be received, on request defendant's counsel

must have the opportunity outside the presence of the

jury for a searching cross-examination of all the prosecn-

tion’s identification witnesses. He can explore not only all

the details of the pre-trial photographic identification, but

also the exact opportunity each witness had to observe at

the scene of the crime, previous opportunities each wit-

ness may have had to see the the description each

witness gave the police at the time, and the current

strength of each witness’ capability of ‘Seatityine the ac

BORG ig eee Ro gi ala atta peda api

ages to extract every important detail of the crime which

constitutes the prosecution’s case in chief. Armed with this

information, defense counsel at trial knows precisely where

to attack the prosecution’s evidence, where to press the

aR ene easy: Heh ee af all Ie

1 Id., at 267.

u Majority Opinion, at 16-17, citing United States v. Kirby,

188 U.S. App. D.C. 340, 842n., 427 F.2d 610, 612n._ (1970).

€

@

7 381

e have these opportunities and advantages.

raphs to the witnesses in the absence of defense

. Our system of justice is an adversary system;

U of the constitutional safeguards granted defend-

necessarily must be. The display of the photo-

graphs to the witnesses in Ash was part of counsel’s test-

‘Ing their recollection of pertinent facts of the case before

‘putting them on the stand for questioning. At this point

i opportunity for suggestion as to what

e witness's testimony should be in regard to identifica-

than there is on any other facts of the case to which

witness might testify. A witness’ identification from a

raph carries less danger of improper suggestion

3 types of testimony, because the photograph is a

had the opportunity in te pre-

ith witnesses improperly to influence

84a

weir testimony! When that Has been shown to nme,

done, the trial we bee ervp ne to do about the

was to. 3 7 ——— condivet. hearing t

determine if the witness's in- oourt identification had an in,

dependent origin. That type hearing has already been held

for Ash, and for this and other reasons fully analyzed un-

ag ehe ithe, xettonale of Mee ebnet. opply, ty

C!) oF beshai 2i baa nets 110

2. Judge 1 s second danger; thé “difficulty of: re:

suggestivi ity,” appears to me to be the over.

reason ber whiet eil Supteine e Court’ in Wade

the ‘lineup. ab & Critical stage of the ‘prosecw-

8 for the presence’ of. defendant's’ counsel iin:

der the Sixth Amendment. It is ‘undeniable’ that as ‘com

Saar ith a lineup, the dimiculty of reconsti ug

ty in à photographic identification ‘is 15

persed record of this cade aiiply’ so Aidan a as is

Lee in detail “inde? parts LB: und LC. f. an

180 ect he er e Nek nt n

8, Judge Lerenthal's third. danger,“ the tendency, 105 a

witness’s identification, once given under these circum,

stances, to be frozen” would be equally, (or more) true in

the presence of defendant’s counsel. Furthermore, it would

he true of all identification procedures,.and as noted above,

Fenn A .vititeet tiigim easatiw ait

109 Likewise, as under Judge *Levenithal’s' first ‘point, the

. — oil

8 35a

"manifested no coneern over these trace

— — Ido not read

at all, and since: the

have no effect, I fail

Amendment rationale for

Does 0 OT bye

oe 0} 1 001 bo ei

ne jab abeinee of counsel would

ved it provides a Sixth

. . —

17 at * 288

1058 fl. 8 7 1 1 i nnn

i ABE müss

i den el 970) 8 Leder I) See

at Löt. n Fix 5 . 4

a 1 pa TSH: Yass eit nian

BAO Re LSet thei) diese, + tal

Wer 5 tes v. Bennett, 409

86a

to photographic identification u

decision to the con-

accord with the other

t has reached a

Wade does not app

Only the Third Ciroui

subsequent to a decision in

denied, 398 U.S. 980

(1970)

3

hay,

, 488

(1970);

(1970);

; Tenth Cir.

denied,

k, 433 F. 2d

66, 1169

88 (1971);

, cert, led, 396

v. Von Roeder 485 F.2d

Allen v. R

*

v. Ed

Goetluc

io, 485 F. 2d 923

Roustio,

436 F.2d 11

a

; United

es, 410 F.2d

United States v.

owler,

); United

U.S. 970 (1969

es

1167

(1970)

v. Fowler

167

70 4 fides:

v. Williams,

F.2d 1290; cert.

1 (1970)

cuits Rech v. United

481 F.2d 1160,

F. 2d 857, 358

United

i

37a

nits, 0 and followed by a decision in the same case dem-

rating that the real concern is not the right to counsel

e possibility of suggestiveness.

rtually all of those state courts which have had ocea:

on to consider Wade have likewise rejected its applica-

a to photographic identification. California,” Tlinois,™

ln two other circuits, the First and Eighth, the issue of

the applicability

(ist Cir

ted States v. Zeiler, 447 F.2d 998 (8d Cir., 1971)

ler, Zeiler II),

+ Rptr. 877 (1970) ; cf. People v. Williams, 6

id that of ese 8

defendant is 8 and is ot 17955 a raat, Fg 855

sylvania,* influenced, by the Third. Cireuit, (and: possibly

ey theses ea neared We ADO,

n it ini nn id ute

1 State, 6 Md. duis 59 (1968);

2 State, 3 264 A.2d 280 .

8 v. State. (Court of Special Appeals

No. 181, 12 Noyember 1971)... ani aid dad owt al °

ote e e e ag 38 (Miss. 14974);

95757 1 N. C. 1 Desi

Ve OEE sor, “276 “NC f i » AT 758.29 888. 50 721

* di bs Ths 52

J Searcy, 4 Wash, A ‘App, 86, 4 P38 iit,

fos OR 2 GE AD ie es be Tas

— tig 48 Wis. 2d 71, 179 N W.24.777, 782 (1970).

ot Reed e Délawares281 A. 2d 14 (Del Sup. Ct. 1971)

Cotttnonweilth ve Gerdway, 86ö Mass 488, 246 d.. 2d 423

427428 (1969) f Staten v. Stute, 248 So. 2d 607 (Fla 1971)

Ses also MeClain v. State, 444 S. Wad 99, 1 (Ark

1969) ; but cee Con v State, 219 S0. d 762, 765

; People’ Were 190, 165 N. . 24.425

ene dt 1 50 * conc Hon ion). hire ole ato 40 11 1 tia

Chsemonnesalth. o> a 788,

ort nia — 2 eie bs “Ot.

Thompson v. State, 451 P.2d 7 1 fie

ieee Carmelaa'+. bane ‘Cit E (Sup. Ct.

I9TOPST- ‘FRE DOS? GH iad’ se 3 91088

da

Where the de-

present wonld press the Sixth

previous boundary.“ In United

Rates F

togated le the presence of both the accused and his

cou sel as. to, the.

rane 8, identification, 174 oF Cir-

* Js 1 e Sin

belist avad eoidirost}

enit held this procedure entirely proper, Judge Winter

saying: ; 5 en i ;

40a

Here, the lineup was terminated and witnesses were

being interrogated outside of the presence of sus-

nated. By the rationale of Wade and Gilbert, 2

was no longer required unless we were prepared

hold that defense counsel must be present whenever

the Government interrogates a witness whose testi-

2 be used as part of the government’s case

a a ?

The Supreme Court of California recently differentiated

“confrontation,” as the United States Supreme Court has

used the term, from photographic identifications, in a case

in which defendant’s counsel was not present either at the

showing of the photograph or the lineup:

deci-

majority’s here,

not sufficiently detailed

on Zeiler I may be

apparently deems Zeiler

other circuit and state

‘the analysis in Zeiler I was

ty’s reliance

* than the

¢ While Judge Leventhal

< IIS IEA bre 17372

tia ia mati

“

°

‘ — ;

* . f

: — — . 2

5 : g ‘ > m3 2

E 8 f > ‘ 5 2

238 5 a 1 * 8 — 0 0 :

= , 7 — 5 1 5 N

12222 e S287

: 15 : 1 N. Fate ay... 8 11

15 . 3 2 82

ö : / ' : 8 es 0 *

bo

— ny * .

ö os oe

N ö 5

F ih ewe Soa ;

7 . - PG N we ‘ N 5

a ; rie

i

331262

ass

42a

Zeiler I was 8 decided because the identification was post-

arrest. In Conwaz/ the 5

eee pre-indictment, apparently; counsel;

and no; linenp; was ever held.“ The.

iret the presence! of counsel, was not required by

the Sixth, men as, interpreted by Wue, nor jwas

Ame t violation under Simmons and

Stovall. In, Leier 1 the hatographie identification was

appointed, and a lineup:had: been definitely scheduled. ‘The

last factor loomed.Jarge in the Third, Circuit's rationale. |;

i eee such a suggestive confron

a cn cet identification is ex-

to making

unlikely n to change his mind 1

2 eee e da. — omen for

8 a the poliee are

able privately to cee nt Witnesses e eee

e langug with suggestive photographs. 7)

55 are Adern Ash ds arrested

248 15 ie 5 1 2 i la le 0 ‘the

2 3 44 os reg: 10 ar * } A ofc *

81 g rise tothe majority's reversal of this

base coourredeolely inthe course of the: prosecuting at.

ee e ag: oa: 1 4 2595 8 ¢ fit 5 101 pies 2 bal AT ait

— ene e 2555 922 Lovie N E. H sat

4 2 a oy 155 a alse 1 N 1 ides 2 if

— requirements of; Wade, 881 bs, A ean

decision in the Third Cir-

iu ‘the’ Penn yivania court

angel rests primarily on the inabili to reeon-

unless defendant’s counsel

eged violations of ue process establishes that the

de of counsel at the photographie identification

1 4 supra. seals 3 9H 91 Inn t i no

v

44a

would have been of no additional value, and therefore the

Sixth Amendment ground of the opinion, the one relied on

tor reversal, is not valid. The rationale of Wade simply

does not logically cover the Ash situation.

Judge Leventhal is able to write an opinion. developing

the alleged violations of due process, in spite of the ab-

seen Se a counsel? Suppose the defend-

ant’s counsel had found the photographs unfair in com-

parison and therefore suggestive to the witnesses? Would

he have been able to do any more at the pre-trial hearing,

or at the trial itself, or on this appeal, if he had been

there? The examination of the photographs themselves,

cross-examination by counsel at the pre-trial hearing,

additional examination at trial with the benefit of the

pre-trial hearing outside the presence of the jury—all of

this enabled the two defendants’ counsel to bring out every

facet of possible violation of due process.

I submit that a photographic exhibition to a witness in

the absence of the defendant is simply not a critical stage

at which defense counsel’s presence is or should be re-

quired by the rationale of Wade. Nothing better proves

this non-critical character of this stage of the prosecu-

tion’s preparation than the explicit detail of Part H of

the majority opinion dealing with the alleged Fifth

Amendment due process violations.

0. ‘The Sicth Amendment right to counsel in relation to

photographic and in court identification.

1. Analysis of Wade

Here it is necessary to take a close look at the ultimate

a taint in à witness’ testi.

substituting

suggestive features

accept the criticisms of

8 identification if offered.

This is "8 counsel,

BET. .

| . esented with the situation in Wade, where not

bad defendant's counsel not been present

would not be a

inen sat

he, N BOA M ah yam

the. 1

; 7 In

eth 1 92 „ a

N d * 9

pea ren bee at. 3 (de,

15815 n the trial

d to. : the judgment. of .convic-

fou ae origin to vali-

timony. The evil the Court sought to

—

exorcise, was altered testimony; in regard to this the ab-

sence or presence of counsel was neither cause nor eure.

Taking the foregoing into account, it is important to

a 8 ‘Fifth’ and Sixth’ Amendment viola

tions I e questions raised in regard to iden⸗

Ladet antes a e dne 6 have ‘taal

an identification e e eee if 5

eee Wai nollialol eint tid iu

888 US, at 241,24.

5 188: US A ah hr 3

* 8 renalen kin e.

tion is. fir :

at a

7 f

1 1

Pt: 7

if n was, 5 0 N

n N

ae at |

counsel to prove

Bnibsserg 37 Ain, a Taft

5 a enn 3117 1 il;

recognized as true in Wade,

from a lineup; has

founsel was absent

> N 2

was displaying photographs to government wit-

nesses in preparation for trial. But at trial his counsel was

under no handicap in his defense, for two reasons: (1) the

inherently different nature of a photographic _identifica-

tion from a lineup, and (2) the full pre-trial due process

hearing at which defense counsel familiarized himself

thoroughly with the preceding events and anticipated tes-

timony.

What the Supreme Court directed to be done in Wade

rt, but, most weak-

bone ihe fullest extent at the trial the

Ash: Not only has it been done by

to the identifying witness in

say? these-two eon — — trial

hearing in order to Sid Wie en Ui ftunity

to prove ‘by dear and cconvineing pyidence” that its —

nesses were not 80 inffuenced by the prior photographie

oonfrontations as /to be incompetent: to make in- ort iden!

tifications.’?) Oni remand the Distriet Court ruled all wit

nesses who had: been ishbwm pllotegraphs outside the pres.

ene of! defendant's attorney wert incompetent to testify:

on retrial, The Third Cireuit (in Zeiler II) reversed d again,

hapa bing her the photographs, 5

in

eee warmth beg ott Rats iva e

“that thé! inteodrt identifliettiens at! er ake) ‘of

pete oft In [sented oF att nsch

21 98) 983 Je. bun borodsl fsartoo stnabnstsb

> ronson en eidemotie ont d viitieilimeta

diary? The issue | would’ he

ime tyes lait aA. mood

4 7 een ani ‘edt boden evan bfu

CC

8 e e e aoitsohiinsbi od ai 36

. 0 Bre ee poses $3 meat .nigito dashasqebai az ar

Max MP Gian: blwow quail oft te sonseds WO ne!

S of sug-

coun-

2

18 req

. i 9d} oe en won 4

iad 3s 9an9 sd? ni steals nton ;

ound ;wndegisive.as tay the ul-

undeeisive fo

2

eee, Judge

— in th pote

existence of an indepi

7 eyewitnesses’ testimony. (SSE)

4 eds silt ni glu aid} Ao. etiven: att evodrd wW

is f ie correct, then Part III of Gudge Leven:

N ping opinion, We a a Sey Amendment

that Brat

a fi Laenge, e deter

— —

In the 2 f this ooo

2 — aber “Sassen UE ‘the

“ he deterrence rationale of Wade on pre-trial ident

ion is missing from Ash.

so oe te rie marty me

.

in en . ee eee entify

a the person who committed the offense, ff 14)

4 8

5 ee e eee father ts

what extent its should be applicable in case

. t to a lin

e eee mann a lineup,

Whatever the merits of this ‘thle in the abstract, no

weaker Nr could be found for its launching than the

eee of the rule, its foundation, and its logical ap-

plicability to the situation here, with respect to both pre-

trial and in-trial identifications, shows why.

The action of the majority is unsupported by the ra-

tionale of Wade in regard to pre-trial photographic (or

lineup) identifications. The Court’s (Justice Brennan's)

opinion in Wade implied that the deterrent effect of the ex-

clusionary rule would be the rationale for barring testi.

‘Tony of pre-trial identifications at which defendant's

counsel had not been present.“ This the Court made ex-

plicit in Gilbert v. California: sed

—

Were, a8 here, the admissibility ot evidence of ts

2 a Ray ee

8h IST 9 aH heh

ha. per. de exch

as ‘gee oT 0 80557 ole nn

le astm Of Mad dn in courl identification in

SUR Re wise missing’ from A git. ne enortsoititasht

Yisnoieuloxs , 1396 6 age 9. 8 25 1% Gai.

te counael in May 1968 hs ‘in that the Sixth endment 11

ert esta 25 e 22 ae 5 AA

photographic:-ideritifications: i complained Slt Sans le

rithal’s opinion makes clear: that

ie = vee

pe a ante Yeoman pierre bern nal ‘the

i, se NA By Bo

MW ih Sh 5 ned lity soliton no ton ovow iid odd etal

Aguin Men inn jority” opinion sds) entrary to the “Sixth

esnesniiw .ent 03 valqzib ocidgatgotodg df inszeid leu

Tae BS sti ss to Jab ad no bus ototed ab sii

* a & 10 inslasviops och od ot hebnasini

ment: Washington; Be

up Lip Enforcement Bulletin ¶ December 1971): ‘sho

85 Majority Opinion, Part III. ola omni

n the, out the hearing on independent

‘District Court was “to reinstate the conviction

new trial; as may be Proper.”"* In the case of

56a

— —— origin, after both defense counse

teat ach ae tor attack'the proff re

epee et ae f

6 Under the Fifth Amendment %

ugh Beere rn and 25 ae sa

=

8

1 5 nt b terry of apprehending offenders ~ of

Suspects the igne alow

oe „ N 5 to

it its en thee i in 2 17 of our sy

8 5 pr Bhs a bee, identifieation 65 e will be

Photographie

0 ea ns — —

Sei ae er bly sugges-

Nich: give rise to a very substantial likelihood of

Ercan gh misidentification. [Emphasis supplied.] a

Bom at the pre-trial. hearing, at which the trial judge :

ruled that the witnesses could make in-court identifica-

tions,” and at the trial itself the four eyewitnesses testi-

890 U.S. 877, 884 (1968). 3

e

impression

57a

Pat de wore no

of their identifica

n light of the 8

58a

utomobile and had the opportunity to „ |

eing ‘without a mask on was the most firm in

on. Neither of the four witnesses was dne,

53

C sd eae es OES 3

: nem

.

dat the young man on the right who was taking the

At the pre-trial hearing, Mrs. Paugh had testified :

1

d. Now, did these isn't it a fact these photographs

you saw yesterday recreated in your mind the im-

and tell us whether or not that man that

ribed is or is not present in this Courtroom ?

believe he is.

. 1

i ta You have some doubt in your mind?

oY Rags bt in my mind, but I cannot say with

absolute certainty,

i a Momentarily, thereafter, the said, “Don’t

move, this is a holdup,” ” sie me

tout anf aten moved ‘round in the bank and_—he

1745 fall on de ner ange to drop a bullet, J heard an che

. T saw him reach down nan ove

the corner of my eye,

. * * * *

8 * how long a period of time did you look at this

; :

A Just a matter of seconds,

n 1 re 2 5

Pp

, including appellant’s own trial counsel, then

the day before to identit

hole e ee

in the

rel

all pa

-_ —

94 2 1 %

. the person you

ke the man

look

first man on the end looks sort of li

Q. You were able to make out his full features?

said he looks like

2

Not fully. That is the reason I

All right. Did he have a mask on?

not called at the pre-trial hearing.

sitting in the car outside, tes-

A. I cannot be certain that he is.

He was

. 6

tified

. You just said that

At it looks like him.

Q. You have some reservations?

ple, the witness

pre- trial! :

t the

hearing

was told to

Agent

phs were

photograp

3

8

91

aa J

oe

F

6 i e alll 6 u amity

Vas prejudicial error at the trial when the

3

e e ee

WW

+ e

Ss ah A. At the first moment, I didn’t know.

a e Yo fleeting eee e

755 fag prt

il eee a to ar

Me 6 * * *

he i ah ir tid ͤ th spabein; ora

__. direction did he go?

A. He went through the alley way, too

2 As he ran past you, you did not see his ful face?

. A. No,

i * . * „

3 . On either occasion, as these two people ran past

ee, N

a i oe you only saw at the most was a profile?

55 aah Yes.

4. 0. The right side of their face?

A. Yes.

2. All right. Were there any distinguishing marks

e eS

tache or glasses or anything like that

F a eV a aah akan

Ash, entrenching that pre-trial identification, and not

withstanding the objection of counsel for Ash pointing

out the prejudice to Ash the trial court ruled it would be

received in evidence.” Majority Opinion, at 24-25. This is

because I do not believe the majority draws the correct

inference from the events at the trial in making their asser.

tions in footnote 6 that “The threshold objection of Ash’s

counsel was not waived . . by his accession—in the face

of the court's ruling—to & procedure whereby (a) all five

photographs would be admitted... and (b) be admitted by

stipulation—to resolve a squabble whether the photographs,

already held admissible, should be offered by Bailey’s coun-

sel or the prosecutor.”

in orcas ts gale l en Web tab raisers’

error here it is necessary for a rather detailed review of

this part of the trial, which the majority discusses at 6 ff.

The controversy with which we are concerned was re-

lated to the showing of the color photographs to Mrs. Ap-

ple by Agent Hugh Berry at the Savarin Restaurant in

Union Station on 7 May 1968 (see Transcript, pp. 45-46,

Pre-Trial Hearing of 8 May 1968). At the trial in response

to questioning by Bailey’s attorney, Agent Berry testified

0 >

*

the identification you made those two in-

s is only the profile, isn’t that so

right.

=

Ppp >

SRE

F

ee e Pe eas Uk

(Rol abet dell

er.

ag

8211

1 11

HE

4 8

Q ‘There is no question inyour mind?ꝰ

A. No, there isn't. *

aS

se

8

85

N

point only one picture is being of.

=

. Seiya ote Se £8!

ney, then sugge

Bailey’s attorney said, That is so stipulated.” And Ash’s

counsel: then plainly and unqualifiedly stated, “So stipu-

lated.” (Transcript, p. 418.) The court then concludes,

“They may be received in evidence,” and the photographs

were duly received. (Transcript, p. 418.)

„Thus what Ash’s counsel. objected to (and it should be

noted that he never really gets as far as making an ob-

jection, because no one actually offered Bailey’s Exhibit

No. 5—the photograph of Ash—into evidence in open

court) is the offer of Ash’s picture, alone or coupled only

with .Bailey’s, and thus unquestionably identified as the

picture that Mrs, Apple picked out as one of the holdup

men. This offer was never made in open court, and indeed

the only offer made in this entire controversy (Tran-

seript, pp. 411-418) which was ruled on and accepted by

the court was the offer made by the prosecutor (Tran-

script, pp. 417-418), to admit all five pictures. This is the

stipulation, to which no one objeeted. 5 ö

by the stipulation is inaccurate. As demonstrated above,

Ash’s co msel never actually got as far as making an od.

jection, and whatever qualms he did express were made

65a

y, Ash’

dably,

saying “There was preju-

- - notwithstanding the ob-

lection of counsel for Ash .... the trial court ruled it [Ash’s

photograph] would be received in evidence” (at 24-25). The

majority opinion thus rests on a major factual error—there

was never an objection, explicit or implicit, by Ash’s counsel,

to the admission of all five photographs—and a completely

ntenable legal premise, for both Bailey’s attorney and the

itor were entitled to have the five photos in evi-

the first to show the eyewitness’ failure to identify

(later) the same eyewitness’

.

3 (the black and

9 ell Ore pivot only. one was able to identify

. te = his eodefendant. This would seem to indi-

3 a sufficient impression of

the fi facia N oth ar related characteristics of the gunman

to ide 1 cate lthough each expressed an honest uncer-

ae Mages slanation of at least the two tellers’ fe

teller's 1 ly

3 You couldn’t make out his face, is that correct?

“A. That is correct.

. Was there anything distinctive “apts: his appear-

Ves, I noticed several things at the time. I no-

N that he was a t-skinned negro, I noticed he

was about six feet or in that neighborhood, I noticed

ö I noticed he was very neatly

dressed. Th we are trained to notice in the

event, notice all the little details, and we wrote them

fn al the record of this eané-ith black and white ‘photog

with ‘colored photos, and in person in the courtroom—

there Was never an identification of any other person in

the group of photos as being in the robbery, not even of

except by the witness in the car

outside, who declined to make a firm identification until

she had seen Bailey in the flesh. :

—

Majority Opinion, at 11.

67a

| Alleged Taint of In-Court ntification of Ash by

al Identification of meee )

8 5 dentificatior ” (Emphasis supplied.) e. On this l

prel iminary test, the majority vacillates. It finds “elements

of suggestiveness .. . strong enough so that it cannot be

assumed that there was no undue zuggestiveness, “ * but

153 U.S. App. D.C. 27, 408 F. 2d 1280 (1968).

Simmons v. United States, 390 U.S. 877, 384 (1968),

“Majority Opinion, at 9, 10.

_ “Majority Opinion, at 10.

don

nesses, and for the fourth suggested nothing although on

the same day he did identify Ash at trial. 3

Im contrast to the three factors listed by Judge Leven

thal, there is a factor suggestive as to one of the other

three persons. There were three photographs of this per-

son, full-face and right and left profiles; of Ash and Bailey

there was only a full-face each.

We must assume that the photographs of Ash and Bailey

are reasonably good likenesses; if not, either the trial judge

at the pre-trial hearing or counsel for the prosecution or

one of the defendants would surely have pointed this out.

The question of course is what influence viewing these

pictures had on identification at the trial. While the ma-

jority lists three factors that might appear suggestive as

to the identification of Ash when the witnesses were picking

out his photograph, these same factors would lead the

witnesses to pick out Bailey, if these factors were truly

suggestive. None of the four identified Bailey. Further.

more, one of the four witnesses who did identify Ash at

trial was unable to pick him out from the photograph,

even though it was full length. :

As to why Bailey was not identified in these pictures

by anyone, there are two possible explanations: (1) Bailey

actually did not participate in the bank robbery; or (2)

all of the witnesses had less opportunity to see Bailey in

his alleged role of scooping up the money behind the tellers

than they did to see the gunman (allegedly Ash) who was

in the bank longer and attracted more attention. Either

of these reasons points to the authenticity of the witnesses’

identification of Ash in the photographs and at trial and

likewise negates any inference that the photos themselves

were suggestive or in any way contributed to the identifi-

cation of Ash at trial.

Considering all of the above, I can only conclude that

the four eyewitnesses stated that their in-court

tion of appellant Ash was based upon their oppor-

| Observe at the time of the bank robbery, and

we the details as to his or her opportunity to ob-

ve Most significantly, each witness emphasized that his

her identification of appellant was not certain and con-

seene of the crime,

footnote 61, supra.

photographs shown

the crime.

‘Markowvich testified that the four witnesses to

said in United States v. Hines and Ware, decided 1 Novem-

ber 1971.

In Hines and Ware the proseentor was doing exactly

3 Wore was there an attempt to secure an

identification was made.” In fact, in Ash one witness (the

Sidi tenclilalak tke Staak aed aka akties ba % Volante

1966 were not positive in the identification at that time.“

V Stovall v. Denno, 388 U.S; 293 (1967).

© United States v. Hines and Ware —— U.S. App. D.C.

— —— F.2d (Nos. 28,281 & 28,291, slip op., at 25).

u The original identification of Ash by all four witnesses

never came before the jury at trial. These identifications,

re, positive identifications

of nial then den

oI od a critical stage for Six

y

Amendment pur-

th

:

8

8

1

: :

45

i

4

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00

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15

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ef

131

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„ ay dys r : é

0 u.“ 1 also cogniz SP t the previous l i |

} ines and Ware were “positive,” and although

“all four witnesses selected the [black and white] photo-

graph of appellant [Ach] as the gunman,” that “they were

not positive in the identification.” * The identifications in

Hines and Ware were positive thronghout, while the testi-

Simmons, whieh requires. “procedure... . so impermissibly

suggestive as to give rise to a very substantial likelihood

of irreparable misidentification.”

In cases involving different circumstances, it is true that

a strong in- court identification of the accused, based on an

opportunity for a clear identification at the scene of the

crime, would show an independence of any taint derived

from viewing photographs of the accused between the time

of the crime and the time of trial. In a converse factual

ituation, as we have here, the weak trial identification of

all the witnesses, completely consistent with their weak

identification of the accused by the initial set of photo-

graphs, likewise shows the independence and freedom from

taint of their recollection at the time of their in-court

identification. The majority opinion frankly states, The

identifications at trial were weak, and in fact no stronger

u Hines and Ware, e 100 10 slip op., at 25.

„ Majority Opinion, at , 24

74a

being present could be decisive on the Fifth Amendment

issue (although a finding of no suggestivity could be), such

ee en Nee ROOT ESM pe: Aue ee

origin,” as the Supreme Court clearly

Sed delle en supra, and as the majority opinion ap.

parently recognizes here.” Of great ‘importance, the Dis

trict Court did make an unmistakable finding on the de.

cisive issue, “the Government has established a basis for

an in-court identification by clear and convincing evi:

dence.” In Clemons v. United States, supra, this court

en banc unqualifiedly recognized the decisive nature of such

a finding by the trial court:

The Su Court Wen as noted above, express!

contemplated that in- court a regimen rr may be found

capable of standing on their own even

preceded by deficient trial confrontations. Tt has

Instead of resting ‘his “independent source” determina.

tion “on an assumption of undue suggestiveness,” the

District Judge was doing no more than we told him to do

in Clemons. There we exhorted the trial judges to make

this finding of independent origin, even though the pre

trial identification. had been found non-suggestive, because

M96 eee eee

e e e eee mal

its finding of independent source for the in-court identif-

ons.” Hence, even if the majority here made a finding

on this appeal of suggestivity, Ash’s conviction should not

PRE ES

"Td, at 10, and p. 26, fn. 20.

Transcript (of Hearing), at 108.

138 U.S. App. D. C., at 38, 408 F.2d, at 1241.

* See 133 U.S. App. D. C., at 34, 42, 408 F. ad at 1287, 1246.

75

8%, bs these matters are Properly to be resolved by

trial judge, at least in the first instance, and

ellate resolution marks the rare exception.*!

because a lineup was not held, and to support this

ity : 11 e

majority cites our recent cases of (Anthony) Long v.

1. Us. App! D.C. at 49, 408 F. 2d, at 1259.

but in view of the great differences be-

is case and Gambrill I do not think

has any bearing here. In Gambrill

identification witness, an understandably

tim, and her observations (the “independent source”) were

made in a dimly-lit area, ontdoors at night, and. were of

assailants who. wore handkerchief-type masks during a

substantial part of the encounter. Here we have four

i tifieation witnesses, each with his own “independent

source” of observations made during the midmorning in

a brightly-lit bank or outside, and two of the four witnesses

had an opportunity, albeit fleeting, of observing the de-

fendent. when he was unmasked. The Gambrill case and

this case are not comparable; indeed, I think the difference

here is between night and day. :

187 U.S. App. D.C. 811, 424 F.2d 799 (1969).

„ U.S. App. D.C. , 449 Fd 1148 (1971).

“ 187 U.S. App. D. C., at 815, 424 F.2d, at 808.

„ us. App. D.C. at, 449 F.2d, at 1157.

*

*

78a .

rigors of oross- examination and penalties of perjury, he

_ The testimony of the four eyewitnesses here was n.

telco the right to counsel was denied,

The witnesses’ testimony was shown to be wholly their own

testimony, whatever its |

strength, and they were properly

I would affirm the conviction.

-MacKirnon, Circuit. Judge: I concur in Judge Wilkey’s

dissent, As J read the Sixth Amendment, its guarantee of

the “assistance of counsel in his defense” does not require

that defense counsel be present when the Government at

torney or investigator interviews witnesses, whether they

are shown pictures of the defendant, other suspects, crime

scenes, instruments of the crime, evidence of the crime or

prior testimony, or there is other discussion of the relevant

facts in the case. In any given case any one of thes

incidents might uncover evidence that would be “critical”

for the defendant, but the requirement that counsel be

present is restricted to legal proceedings and those instances

where the defendant himself is physically present.

sagt , The Sixth Amendment

In my view the majority opinion not only misreads the

Sixth Amendment but also, in attempting to make its

decision appear reasonable and workable, takes a very un-

realistic view of the prosecution of criminal cases. It seems

_ Brown v. United States, 126 U.S. App. D.C. 184, 148,

875 F. ad 810, 819 (1967). ‘

79a

stopping the investigation. That is an ongoing thing right

up until trial and frequently into the trial as the defense

I y then present new witnesses for the ‘first time. The

De ‘suspects. This will constitute an unreasonable

e with post-arrest investigations and would

1 bie where identifications are completely local

we cannot convert the Sixth Amendment into a

80a

‘counsel must be ‘notified, be present, ete. Such require

ment is completely unworkable and, in my view, parti¢g.

larly with respect to federal crimes, many of which involys

interstate activity and hence out of state witnesses, wan

mus Adendification of Ash 5

I also dissent from the failure of the majority opinion

to recognize the full import of the identification testimony

against Ash. It was not limited to “height, weight, age and

build“ as the majority opinion states (slip op. 9). In

addition to the testimony as to height, tall, thin, shorter

than the other, more muscular, slender, taller than the

other, there was testimony that the suspects were: “not too

dark complected” (Tr. 125); “light skinned negro” (Tr.

182); “neatly dressed” (Tr. 182); “extremely neat” (Tr.

182); [had a} “mustache” (Tr. 192); [wore] “no glasses”

(Tr. 192; 220); wore masks. Also, the witness Betty Apple,

who made a positive in-court identification of both men

she was “absolutely certain” and that there was no ques-

tion in her mind (Tr. 220)—had seen the same two men

ten minutes before she observed them outside the bank

At that time they were in a cream colored Pontiac eon

vertible that was parked in front of her husband’s restat-

rant about a block away from the bank (Tr. 213-214). They

were then unmasked and she saw them ten minutes later,

again unmasked, as they fled from the bank with one

carrying a large paper bag. On both oceasions she was

seated in a parked car at the restaurant and bank reépee-

tively and had a good opportunity to identify the men. In

front of the bank they passed within five feet of where she

was seated in the car and her testimony is very valuable

because she recognized (suspected) at the time, from their

running and carrying a paper bag, that a bank robbery had

been committed (Tr. 221, 197). She was thus alert to the

consequences of what she was observing. a

*

Bla

ify him as a witness.

choose witnesses. In a

t of life. Criminals associate with other crimi-

Government cannot be

‘eriminal conduct sole

houses of

three other indi-

(There were three pictures of one of the other

iduals.) From my personal examination of these

‘viewed in the light of the full transcript, I find

icture to have been impermissibly suggestive be-

those of the defendants Ash and Baile were the

court house corridor.’ (See Appendix, which charts the

various identifications by the principal witnesses.) |

majority contend, they failed to produce any demon-

strable effect upon the testimony. It is pure speculation

In this respect it differs from United States v. Gambril,

—— U.S. App. D. C. ——, 449 F.2d 1148 (1971), where. the

witness’ testimony at trial was substantially stronger than it

had been prior to being shown single photographs of the sus-

While the admission of the identification testimony is 4

separate question, it is not without significance that defense

counsel stipulated to the admission into evidence of the colored

photographs (Tr. 418). They were defendant Bailey’s exhibits

(Tr. 418) and hardly a basis for nsti-

tutional error against the Government in

84a

Moreover, while there was no specific. evidence on. the

point, it cannot be ruled out that the masks which wer

used here were made of sheer stockings which one con

see through. Obviously those who were wearing the 9

saw through them.’ If those wearing the stockings as

masks could see through them, then other persons could

see some of their features through the thin fabric of the

hose, Thus, other facial features above the upper lip might

have been observed to some extent, albeit in a possibly

slightly distorted state: So in view of the opportunity

that the witnesses did have to view the facial features of

the suspects, I find that it was entirely proper to show the

facial photographs to the witnesses, In this. respect, the

cold record requires a close examination to find out the

true situation, The majority opinion, in my view, does

not reflect this. .

To the extent that the majority opinion differs from the

foregoing, I respectfully dissent therefrom.

Judge Robb concurs with the views herein expressed.

‘witness thought “there must have been holes for his

him” (Tr. 192). This apparently contradictory

¥ e reconciled since the three witnesses had

* y

f ms. l 5

Vad

2

i N 2

S

.

—

2

812

Ei

UT

236

8

person.

Wasn't

(2) “

it

looked like *

(Tr. 16, 200}

X (1)

by policeman (Tr. 370)

ns Co

n of General Sessio:

1966

corridor

).

was one the men (Tr. 82

Bailey

Bailey

Appeal from the United States District Court

for the District of Columbia

Judgment er

this date

Decided March 15, 1971 —

Opinions filed March 1, 1972

Mr. Robert J. Higgins, Assistant United States Attorney,

with whom Messrs.:Thomas A. Flannery, United States

Attorney at the time the brief was filed, John A. Terry

and Robert A. Shuker, Assistant United States Attorneys

were on the brief, for appellant.

Mrs. Carol Garfiel Freeman, with whom Mr. James B.

Blinkoff (both appointed by the District Court) was on

the brief, for appellee Brown, argued for all appellees

"Mr. Jerome J. Dick (appointed by this court) as amicus

+

*

*

87a

2

Ira M. Lowe and Eugene P. Hines (both ap-

y the District Court) were on the brief for ap-

i Z. Rosen (appointed by the Distriet Court) was

ron, Chief Judge, and Waint, McGowan,

5 a re — =

ö iron it Judges, sitting en banc. -

and Proceedings Made the Basis of the District

t Order

» Brown

forced the store manager to open the safe, and Proctor

herded customers and clerks behind a counter. salt

As Mrs. Barbara Edgecomb, a customer who was thé

first to file behind the counter, stopped next to the fatally

wounded Burka, she bent down to help him. As she looked

up, the robber (identified as Proetor) who had fired the

bullet into Burka’s back was “right there,” only three and

a half feet away. Mrs. Edgecomb had other opportunities

to observe both robbers at varying distances during the

seven to eight minutes the robbery consumed. One hour

later Burka was dead.

Bx October 1969 the police had information that appel-

Proctor and Brown had robbed the liquor store, and

that appellee Williams had driven the getaway ear: Proe

tor was quoted as saying that he had “shot an old man.”

After arrest, in a lineup on 4 November 1969 two witnesses

identified Proctor and Brown as the gunmen: b

At the lineup Proctor was represented by the same

counsel who later appeared for him at the pre-trial hear-

ing and on this appeal. Brown was also represented by

counsel at the lineup; different counsel were subsequently

appointed for him and have represented him at the pre-

~ trial hearing and on appeal.

Brown does not claim that the lineup was unfair; Proe-

tor contends it was. At the lineup the only objection

clearly made by any counsel was that the defendants were

brought there by an illegal arrest, an issue which is not

before us on this appeal. In argument before the three-

89a

counsel for both sides wgrééd that the record

ther Proctor’s counsel objected to the lineup

s that Proctor was the only oné of the nine

had a goatee. It is agreed that the witnesses

m as she saw them at the time of the killing, and

1 ee detailed description of both men.

the light

wut

Proctor she remembered specially when she was

B next to the head of the fallen Burka while Proc-

ad over Burka’s feet. Immediately after the

Sbe Brown as a tallish man; slender; a long

1 N cheekbone to jawline, high forehead:

lightish complexior cut shortish, not an Afro cut but

inn an inch and a half long; wearing a

with long. sleeves, kind of a checkish thing:

1 J 4

+

90a

r

saw a great number of pictures, but were unable to identify

either of the two gunmen; nor were they able to **

CA a e e e Myc et U

to her husband about what the gunmen looked like, “be.

cause we wanted to forget about it at that time.” While

riding to the lineup on 4 November 1969, Mrs. Edge.

“just made people’ s faces look like. blobs.” . Particularly

she could not tell differing complexions. Under the light.

ing J Wer she felt — she could not “fairly say for

ware? d!

On the way ‘out of the police headquarters Mrs. Edge

comb did say to one of the policemen, “I wasn’t sure about

a certain person in the lineup, but that I wouldn’t say

yes for sure, that I'd like to see the lineup pictures,”

On 19 May 1970, about two weeks prior to the scheduled

pe Fe Seon adler alt eee erie

who was to try the case. In the course of the pretrial

interview of the witness, he said, “You wanted to se

91a

inl judge ruled that the 4 November 1969 lineup

operly conducted’ and that two other witnesses,

employees, could testify as to their lineup

e court further added, )

‘In’ view of the fact that the pho phie identi-

ication is excluded the Court Reels that dne }

— grag en — of 2 ca on nea

at ol her appearance here in fear it might

de t brach some way by: che recent viewing of the

court's opinion, delivered orally from the bench

ith the inquiries of counsel with respect. thereto,

t the question of the identification by Mrs. Edge-

8

she

eR

inde

f.

z

112

111

issue on

ap

:

it source, it

is relevant in the

just might be subject

As I understand it, Your

penden

there was ample opportunity for

s alleged to be at

8

points

ust with an abundance of caution in-

7 sofar as the defendants are concerned.

8

3

in

8

to observe the two defendants while in

air Tae

e

appears that Mrs. Edgecomb did have an ample

15

ce

—

pat 2

2 h os

* 0 22

— W. 8

— —

e. “There is tio question’ in the Court’s mind that

there was nothing improper insofar as her having

ants the Court feels that the later identification

lineup photo] just might be subject to question.

f. “I don’t feel there was anything at all improper

about counsel’s having shown her photograph or

actually her looking it over.” ;

Although the appellees have briefed and argued a Fifth

Amendment due process justification for suppression of

any in-court identification by Mrs. Edgecomb, the Gov-

ernment contends that an analysis of what District Judge

Green said gives absolutely no support to forbidding photo-

graphie or in-court identification on Stovall e due process

grounds, that the trial court clearly ruled that the display

of the lineup photograph was itself proper, that the

trial court impliedly found an independent source for the

witness’ identification at trial, and that the trial judge’s

rationale for suppression was simply the absence of de

fendants’ counsel at the viewing of the lineup photo-

graph, which is a Sixth Amendment ground under the

rationale of Wade.

II. The Sith Amendment Right to Oounsel in Relation to

4 Witness’ Post-Indictment Photographic Identifica-

tion of a Defendant re

A. The Photograph in Question

* Stovall v. Denno, 388 U.S. 298 (1967).

95a

for both appellees Proctor and Brown were

e lineup reproduced in the photograph shown

that Proctor was’ the only one with a goatee; it

in the photograph that the first man on the left,

ing next to Proctor, does also have a mustache and

Proetor's only claim to unfairness in the lineup

sible absence of sufficient goatees.

ting, and she could not fairly make any kind

ice. We take this reluctance to make an identifica-

r these conditions, not as any indication of Mrs.

uncertainty or lack of ability to make an identi-

der different ditions, but as an indication

Edgecomb’s tr to be fair and accurate.

witness, herself requested, at the time she was

the linenp, to see a photograph of the lineup,

) might be able to make an identi-

on of at least one person from a photograph.

The Government complied with this request, not im-

after the lineup, but some seven months later,

96a

ration for trial by interviewing the witnesses as to their

tor as she went down the lineup from left to right, then

picked Brown and one other standing next to Proctor

(also with mustache and goatee), then finally settled on

Proctor and Brown as the two robbers.

B. The Authorities

Whatever might be said of another post-custodial photo-

graphic identification with a type photo or photos different

from that we have in the case at bar, there is little in the

of miscarriage of from mistaken: identifica-

tion has been the |

the manner in which the prosecution presents the

_ Suspect to witnesses for pre-trial identification.’

There is serious difficulty in depicting what tran-

__ Spires at lineups and 1 forms of sdentifiontnn

confrontations. . . The defense can seldom recon.

Struet the manner and mode of lineup identification

for judge or jury at trial.

From this Justice Brennan’s opinion concluded:

Since it appears that there is ve ntial for

pPrejudioe, ic 3 or not, in the 18085 lineup,

7888 U.S. 218, 228. :

Id. at 280. 5

prejudice and assure a meaningful confrontation at

08 VVV

pos was a critical stage of the

_. prosecution at which he was “as much entitled to such

Aud [of counsel] . . as at the trial itself.”*

However, prior to the enunciation of this rationale for

right to counsel at lineups in Wade, the Supreme Court in

Part III of its opinion had considered other pre-trial

preparatory techniques, and concluded that these were

different from the lineup. The Government had urged

that the lineup was a mere preparatory step, not differ-

ent for Sixth Amendment purposes from various other

actions, such as scientific analysis of fingerprints, blood

samples, clothing, hair, and the like. The Court said:

We think there are differences which preclude such

stages being characterized as critical stages at which

the accused has the right to the presence of his coun-

sel. Know of the iques of science and tech-

_ mology is iently available, and the variables in

techniques few enough, that the accused has the op-

portunity for a i confrontation of the Gov-

~ -ernment’s case at trial the ordinary processes

pol eross- examination of the 8 oe ge wit-

naesses in the presentation of the evidence of its own

experts. The denial of a right to have his counsel

9 2 — at such analysis does not therefore violate

8 e Sixth Amendment; they are not critical stages

e kta emma aoe

„ oe stages might 0 is ri a fair

trial (Emphasis supplied.

__ Obviously the pre-trial photo identification here is not

sim ar to the scientific tests cited by the Court as exam-

og of investigative steps, but we think the same reason-

and wholly exact reproduction." As

manipulation by the prosecutin

preparation for trial by the busy prosecuting attorney be

encuinbered with attendance by defense counsel who has

already attended the identification lineup recorded in the

photograph. shea.

There are many different kinds of photographs, and

a wide variety of circumstances in which the validity of

their use for criminal identification purposes may arise.

The case before us involves à very special kind of photo-

graph and a very special set of circumstances giving rise

to its exhibition to the witness. To hold that there was no

Sixth Amendment violation in this case, we need not, as

some courts apparently have, embrace a general principle

to the effect that no photographie showing can ever fall

States v. Ash, —— U.S. App. D.C. ——, ——; —— F.2d

——, — + (No. 22,340, decided this day). He

99a

of the ‘Sixth Amendment for the reason that the

counsel attaches only to confrontations, and con-

ms by definition involve the presence of the ac-

§ necessitating the presence of counsel. This record

is no such need. Sineg defense counsel was present

e lineup, the lineup array was fair, and the picture

of the lineup itself, there is thus preserved for re-

struction at trial most of the factors which the Su-

ne Court in Wade felt required the presence of coun-

sven by appellees’ definition.” As for the manner in

the photograph was presented to the witness, all

three persons present were subjected to vigorous cross-

‘éxamination, and no hint of suggestivity or unfairness in

the presentation on the part of the prosecution was

eited.* Having had the benefit of this pre-trial hearing,

se counsel is now thoroughly prepared for cross-

the extensive discussion of these cases by both the

and dissenting opinions in United States v. Ash,

ie underpinnings of the Wade holding are twofold:

that the presence of defense counsel may prevent un-

| in the lineup array itself and in the circumstances

‘avert an erroneous identification; and, second, that

ity @ witnesses.at trial because e he has been able to bos! a

@ identification proceeding and is thus aware of many of

Alasenters would favor the presence of counsel at

ns such as the one in the case at bar in

against prosecutorial bad faith, or even

101

The Fifth Amendment Claim of Denial of Due Process

in the Identification Proced

Suppression of the Pre-Trial Photo Identification

d not pick the people out at the time of the line-

, second, that she had

102a

Me conelude that the trial court’s ruling really rested

unambiguously on Sixth Amendment grounds, but wheth-

er or not the trial court relied on a Fifth Amendment

male, there is nothing in the record to support such

reliance. The photograph depicted a lineup, which we and

the trial court have found to,.be fair, during which ap-

pec Rey eee eee Mrs. Edgecomb and

Detective Pierson were vigorously cross-examined regard-

ing the 19 May interview, and there is nothing in the record

which hints at anything in any way suggestive concerning

the manner in which the photograph was presented to Mrs.

Edgecomb or any other actions taken to influence Mrs.

Edgecomb’s testimony.

2. Appellees’ Position

Appellees’ brief makes a Fifth Amendment denial of

due Process argument as justification for the trial court’s

on of Mrs. Edgecomb’s pre-trial photographic

tion.

he support of this argument, appellees recite and dwell

at length upon the times at which Mrs. Edgecomb did not

make an identification of Proctor and Brown. Specifically,

on 25 October 1969, when shown ten photographs includ-

ing both Proctor and Brown, she was unable to identify

anyone. On 26 October 1969, she was shown eight photo-

graphs, including Proctor and Brown, out of which she

“liked” Brown and one other not involved in the crime,

but was not at all certain. On 4 November 1969 at the

lineup, already discussed in detail, she made no identifica-

tion, in fact no attempt to pick out anyone because of

the reasons previously stated: She did, however, ask for

a photograph of this lineup, because she felt that without

the glaring lights, the attendant confusion, and the nearby

presence of suspected criminals she might identify at

east one person in that lineup. On 19 May 1970 she was

shown this photograph, and without any suggestion hat-

103a

sded in her own way to identify both Proctor

Appellees also cite Mrs. Edgecomb’s relue-

stimony as to Pre-trial Photographic Identification

s interpret Mrs. Edgecomb’s hesitancy in firmly

ing the two perpetrators of this murder and rob-

implying a lack of accuracy in her identification

justifying invalidating her subsequent identification.

conclusion is correct. Mrs. Edgecomb’s testimony

lete with indications of her awareness of the serious-

the crime, and of the seriousness of her identifi-

f anyone perpetrating murder. We interpret her

incy as the hesitancy of the responsible citizen know-

gly performing an important act. It has been frequently

bserved that, sad to relate, the more glib and self-assured

sometimes makes a stronger impression on an

sticated jury than does a careful and conscientious

8, who registers fairly his certainties and uncertain-

a different aspects of his testimony. The appellees

to draw the same false conclusion, i. e., take the

ntious effort of Mrs. Edgecomb to be absolutely fair

careful in her identification as the mark of an un-

ible or influenced witness; when in fact it is probably

irk of reliability and independence of judgment.

is significant that the photos shown to the witness

Hetober, allegedly of Brown and Proctor, do not at all

able the appellees as they appear in the lineup photo.

ince on both briefs’ statement that Proctor’s photo

included in each group, we believe Proctor is identi-

e in two individual photos, one in each group shown.

its. Edgecomb was not told a definite suspect was in

Ather group, and had twice previously been shown many

in which Brown and Proctor were not included ;

We draw these conclusions: First, that it is thoroughly

understandable why Mrs. Edgecomb made no identification

photos; rather, such identification would be made in spite

of such viewing. It follows that appellees’ due process

violation argument based on repeated showings of photo-

graphs of the accused to the witness—on the facts of this

, two defendants while in the store.

To whatever extent the argument about Mrs. Edgecomb’s

hesitancy in making her identification of Proctor and

Brown has validity or affects the strength of her testi-

mony, it is an argument which appellees can make to a

jury. But it is not a valid due process argument for sup-

pressing her identification of the lineup photograph.

In considering the admissibility of identification evidence

at trial, constitutional infirmities will bar its admission, but

testimonial infirmities | 0 only to the weight of the evidence.

We start with the principie, well phrased by Judge (now

Chief Justice) Burger in a different context but thoroughly

applicable here: “When an eyewitness is willing to give

testimony, under oath and subject to all the rigors of

cross-examination and e of perjury, he must be

heard.” * ok

"18 Brown v. United States, 126 us aus D.C. 184, 375

F.2d 810, at 319 (1966). “ee

a

-

only ground. advanced. by the trial judge for her

ane

8 Was:

er ‘of the feet s ens phitogtaphio identification

ee eneluded the Comrt feels that she should tnt inake

an in-court identification of the defendants at the

time of her appearance here in fear it might be

_ tainted in some way by the recent viewing of the

photograph. (2d, supra)

3 if a pre-trial identification is found to have

obtained in violation of the aceused's Fifth or Sixth

nendme ‘rights, the burden is then on the Government

w an “independent source” for any subsequent iden-

cation made at trial.” A finding that this burden was

may be inferred from the District Judge’s state-

quoted above. Tae “opposite ban dune be “inferred

appears that Mrs. Edgecomb did have an ample op.

ortunity to observe the two defendants while in the

in-trial e

* Appellees’ Position

oral argument appellees’ counsel conceded that, with:

the display of the lineup photograph, Mrs. Edgecomb’s

imony would be admissible at trial, for whatever weight

might give ~

ted States v. Waila, 808 US. ans, 240.242 1962) ;

Sy ana dnd a ach

en >

‘States . Cunningham, 423 F.2d 1269 (4th Cir. 1970).

oral” argument ‘before ‘the panel the following er-

occurred:

106a

On the whole record of the pre-trial hearing, evaluating

Mrs. Edgecomb's opportunity to observe at ‘the time of

the robbery and murder, the comparative clarity of the

lineup | and the individual photographs of the

accused shown the witness, her care, selectivity and spon-

taneity in making the identifications in the lineup photo-

graph which she did (coupled with the previous refusal

to identify in the other photos), we conclude that the wit-

ness Edgecomb had an independent source from which

she may attempt an in-court identification of the accused

at trial.* :

We have found that there were no Sixth Amendment

right to counsel nor Fifth Amendment due process viola-

tions involved in the showing of the lineup photograph to

Mrs. Edgecomb. It therefore follows that no showing of

an “independent source“ is required, although the trial

court may be considered to have determined an inde-

pendent source and on the record we have so determined;

hence; any in-court identification by Mrs. Edgecomb will

be properly adinissible at trial.

ries Tee Reversed and Remanded.

Banton, Chief Judge, concurring in No. 22,340 United

States v. Ash and dissenting in No. 24,452 United States

THE COURT: Minus the lineup photograph then you

would say that, for whatever it’s worth, Mrs. Edge-

comb could testify in court?

COUNSEL FOR APPELLEES: It was Judge Green’s

* finding that it was the lineup photograph that did it.

room while Mrs. Edgecomb was present. She has yet had no

ppor' for an in- court identification, and may or may

not be able to do so. *

ard propositions on

identifications are

reliability, yet

the reliability

I owever, great doubts—if

lacy and accuracy of the p

States, 54 App.

(1923); 3A J. WicMoRE, EvIDENCE

at n.2 (Chadbourn rev. 1970). The difference between

Pproach to poly tests and to identifications is, no

ä in part to the perceived differ-

ö information. We have no diffi-

1-543 © - 72 - 9

sate

a

STERBERG,

n, Face

108a

ER, MEMORY 169-75 (1964) H. MUN

7

3 8 : 5

i

Es | :

13

92 Fue

3

i

8

:

3

af

1

tl

at judicial efforts to enforce the Constitution. Even if

See ; 7S.

|

f

a

3

i

obviously cannot be subjected to the attack so often leveled

e place after arrest, even the most gealous critic

reasonably argue that law enforeement would be

mus

suggestion that it would be bothersome for the

lephone the defense attorney and to postpone

unambiguous constitutional require-

t be present at all post-arrest photo-

tifications.

shown a photograph of a prior lineup... Yet in neither opin-

ion does the Court convincingly explain why a photographie

identification. ceases to be a.critical stage of the prosecu-

tion merely because it comes on the heels of a corporeal

lineup. There are, of course, differences between Ash and

Brown. But whether those differences amount to a mean-

ingful distinction is a question answered conclusively in

the negative by Judge Wright's dissenting opinion, which

J join, in Brown. ~~ sh A ‘

According to the Court’s opinion in Ash, the premise of

Brown is that prosecuting attorneys, given their profes-

sional responsibilities and fears of jeopardizing their pro-

fessional. careers, are so unlikely to steer identifications

that we should not impose on their busy schedules. by re-

quiring the presence of defense counsel at identifications

which follow counselled lineups. Majority opinion in Ash

at 23 n.19; majority opinion in Brown at 13. Whatever the

force of that reasoning, it clearly does not differentiate

Brown from Ash. In Ash, just as in Brown, the identifica-

tion interview was conducted by a prosecuting attorney.

And as to the reasoning itself, see, for example, the con-

fessions of a liberal and extremely well-intentioned “pros-

ecuting attorney” in Schrag, On Her Majesty’s Secret Serv-

ice: Protecting the Consumer in New York City, 80 Yaz

L. J. 1529, 1597-98. (1971):

All of us in the [Consumer] Law Enforcement Di:

vision were eivil libertarians. We applauded the Su-

preme Court decision requiring icemen to warn

suspeets that their admissions could be used ms go

them, and scoffed at police officials who claimed that

the case would “hamstring” law enforcement officials.

We condemned eavesdropping and wiretapping. We

deeried the loss of tty in American life. We dem-

onstrated when police forces took the law into their

“own hands and beat kids over the head, or when they

stood by passively while construction workers did so.

We protested the use of informers and secret agents

to convict Jimmy Hoffa. . 7

lila

__ Many subpoenas could not be served unless we used

h the witnesses successfully identify the suspect. As

on unfortunately demonstrates, it is only where the

ition is dissatisfied with the results of the lineup

has a significant interest in making a second ef-

to obtain a positive identification. And this second

mpt imposes the greatest incentive to resort, wittingly

unwittingly, to suggestive practices. Yet there is no

eernible reason to conclude that the prior lineup will

y way enhance the fairness of the second, uncoun-

attempt to obtain an identification. And it is en.

unclear to me why the presence of counsel at the

lineup—which, by hypothesis, failed to yield a posi-

me identification—is thought to immunize the defendant

from prejudice at the second identification, where the prose-

pee 1 from, Brown because it violates

e controlling oonstitutional standard as announced in

And for the same reason I would hold in Ash that

Im at all photographie identifications

after the 1 is in custody whether or not a

: oe we been held.“ Nothing less will satis.

the demands of the Sixth Amendment. And nothing

d to

aul

iat

oe Bee

an

is needed ee Smear ee tee aterm

Wæntorrr, Circuit Judge, with whom BazRL Ox, Chief Judge,

and Rosixsox, Circuit Judge, concur, dissenting: In June

1967 the Supreme Court decided a trilogy of “lineup”

eases which brought into sharp focus the problem of pre-

trial identifications. United States v. Wade, 388 US. 218

ii is further regrettable that Ash may be thought to leave

Gilbert v. California, 388 U. S. 268 (1967); Stovall

is constituti entitled to the assistance of

reaching this the Court noted that pre-

ication. procedures are “peculiarly riddled with

lineup is per se inadmissible,

admissio is cause for automatic

al unless shown to be “harmless beyond a reason.

ubt.” 388 U.S. at 274.

See | i i States v. Zeiler, 3 Cir., 427 F.2d 1305 (1970);

M. f de ESS TION IN CRIMINAL

ations, 43 Neo I. REv. 1019 (1968) ; Note, Right

minsel at Pre-trial. Lineup, 63 Nw. U. L. REV. 251, 258

114a

| identifications, this court in United States v. Ask, ug

U.S. App. D. C. —— ‘F.2d: -— (No. 22,340, decided

today) len baue), a companion to this case, held „

ings of Wade and Gilbert applicable to pretrial p

graphie identifications. The majority here, however, h

that presence of counsel is unnecessary where the identi.

fication is based on a fair and accurate photograph of a

properly conducted lineup. I cannot agree. Although such

a procedure may avoid many of the hazards inherent in

other forms of photographic identifications, the potential

for prejudice is by no means eliminated. There are two

very separate aspects to the problem of suggestion in

this context—the fairness of the photographs themselves

and the manner in which they are presented to the witness.

It may well be, as the majority suggests, that. presence of

counsel at the lineup will insure the fairness of the photo-

graphs. But the fairness of the photographs themselves

is wholly irrelevant to the potential for prejudice in the

manner in which they are displayed to the witness. Com-

ment, Criminal Procedure—Photo-Identifications, 43 N.Y.U,

L. Rev. 1019, 1025 (1968)... Gestures or comments of the

prosecutor at the time of the identification may lead the

witness, uncertain at the prior lineup, to select the “cor-

rect” defendant. Indeed, the possibilities for suggestion,

both conscious and unconscious, are manifold, and the

mere fact that the photographs are not themselves preju-

dicial affords little protection indeed to the unrepresented

The majority argues, however, that photographic iden-

tifications conducted by the prosecutor should be judicially

aceeptable because any dangers that may inhere in such

identifications are reasonably guarded against by the pro-

fessional responsibilities of an attorney. Assuming pros-

ecutorial good faith, however, it can hardly be doubted that

a prosecutor is, after all, only human: As such, his be

havior may be fraught with wholly unintentional nuanees

avy of

al suggestive influences, 388 U.S. at 229, 235, 236.

instances of abuse of prosecutorial discretion

xactly unknown to the law, and a blanket assump-

prosecutorial good. faith is, to say the least, highly

Die 3 a

United States v. Kirby, 138 U.S. App. D. C. 340, 342

7 F. 2d 610, 612 n.2 (1970). Moreover, testimony of a

ss’ pretrial identification is likely to have far more

with the jury than the taken for granted in-court

cation. Clemons v. United States, supra, 133 U.S.

C. at 40, 408 F. 2d at 1243. And, as with lineups, once

ess has picked out the accused at a photographic

uk be noted that in Ash the court reversed the

ion bec of the absence of defense counsel, even

the identification interview was condueted by the

116a

ee . fecit st Besehesdm büg

As a result, „the issue of identity may * for all

practical purposes be determined [at the pretrial confron.

tation], before the trial. United States v. Wade, supra,

388 U.S. at 229, quoting from Williams &

Identification Parades, Part I, [1963] Cans. L. Rev. 479

482. Thus the potential prejudice to the accused is far

greater in the context of photographie identifications un

in the ordinary pretrial interview.

Finally, the majority argues that Wade is inapplicable

here because “all three persons present [at the identifica.

tion session] were subjected to vigorous cross-examination,

and no hint of suggestivity or unfairness in the presenta.

tion on the part of the prosecution was elicited.” This

argument is, however, a master stroke of circularity; it

completely misses the thrust of Wade. In Wade the Court

made clear that a prophylactic rule of exclusion was re-

rere i shir rh en the precise manner and

e. of lineup identification, the Court concluded that

where “the accused is helpless to subject [the pretrial

identification] to ‘effective scrutiny at trial, the accused

is deprived of that right of cross-examination which is an

essential safeguard to his right to confront the witnesses

against him. Pointer v. Texas, 380 U.S. 400 [1965]. And

even though cross-examination is a precious safeguard to

a fair trial, it cannot be viewed as an absolute assurance

of ‘accuracy and reliability. Thus ° the first line of

eee ee en

stantially greater than an uncounselled lineup, for at least

b

her

117a

used is present at the lineup and can relate what

there to his attorney.* See United States v. Zeiler,

. Nevada, Nev., 451 P.2d 704, 706, cert. denied,

893 (1969); Comment, Criminal Procedure

omtifications, supra, 43 N. V. U. L. Rev. at 1028.

nce “witnesses * * * are [not] likely to be schooled in

5 118

. counsel here was unable to uncover any hint of im iety

in the identification session, we do not know 5 —

e impropriet

comneel was required te: conduct ‘the cTOSs-€ tion,

Dr

Moreover, the facts of this case demonstrate the need

for presence of counsel at photographic displays. Mrs

Edgecomb’s identification of the accused came about under

what can only be termed “unusual” circumstances. Between

June 27, 1969, the date of the robbery, and October 25 of

eee ee ee e eee eae

persons other than the defendants as resembling“ the

robbers, and on October 25 she failed to identify pictures

of both Brown and Proctor. On the following day she

again failed to identify a photograph of Proctor, and at

the November 4 lineup she was unable to identify any

of the defendants. Finally, almost eleven months after

the robbery, and shortly before trial, she identified the

accused from a photograph of the lineup in the prosecutor's

office. a

Under the eireumstances, the pretrial photographie

identification here in question carried a grave potential for

prejudice, whether intentional or not, which may not be

capable of retonstruction at trial. And since presence of

counsel might well have averted the possibility of such preju-

dice and would have assured a meaningful confrontation

and cross-examination at trial, this case presents the pre-

eise type of problem that Wade sought to avoid. I would

hold, therefore, that pretrial photographic identifications

—even where the photograph involved is of the lineup

itself—are, like lineups, a critical stage of the prosecution

at which the aceused is constitutionally entitled to the as-

sistance of counsel. This being so, the ruling of the District

Court. excluding Mrs. eee e aa

should be affirmed.

e

119a

ed in making this determination ate the opportunity

ie witness to observe during the crime itself, any

ification of another person prior to the tainted identi-

on, any failure to identify the accused on a prior

ion, and the lapse of time between the crime and

® in-court identification. 388 U.S. at 241. Here, Mrs.

before, for only a few moments on June 27, 1969, almost

a year before trial. She subsequently failed to identify

+ defendants or their photographs on no less than four

arate occasions. Her inability to identify the accused,

er or not due to a desire to be fair, evinces an un-

aty that cannot be lightly ignored.

eover, the District Court excluded her in-court identi-

on as “tainted in some way by the recent viewing of

photograph.“ Implicit in this ruling is a finding that

Government had failed to sustain its heavy. burden

owing by “clear and convincing evidence” that the

rt identification was based solely on her recollection

the robbers themselves and was not affected by her

sequent exposure to the defendants and their photo-

8. In light of the “key role” played by the trial

in determining whether there was an independent

for the identification, Clemons v. United States,

133 U.S.App.D.C. at 38, 408 F.2d at 1241, I see no

to disturb the District Court’s ruling.

i 4

FAN paw hag oe Set oe:

e 1 1

5 AEN O

Uxine Stamm Covet ov Apres rox mn ben

iter eee aie :

Vo 22840 (Criminal 355-66)

|

e Srars or AMERICA

v.

CHARLES J. ASH, IR., APPELLANT

Appeal from the United States District Court for

the District of Columbia.

Before: Bazeton, Chief Judge, and Wricut, Mc

Gowan, Tamm, LevenTHAL, Rosinson, MacKinnoy,

Ross and Wir, Cireuit Judges, sitting en banc.

JUDGMENT

Inis eanse came on to be heard on the record on

from the United States District Court for the

District of Columbia, and was argued en banc’ by

counsel,

1214

sideratior thereof It is ordered and ad-

3622520808

5 (s) NarRHAN J. Paulson, Clerk.

e March 1, 1972.

open by Circuit Judge Leventhal.

opinion by Chief Judge Bazelon.

5 opinion by Cireuit Judge Wilkey.

3 8 opinion 7 Circuit Judge MacKinnon.

:

U. 8. GOVERNMENT PROVTING OFFICE ; 1972 © - 461-543

Supreme Court of the United States

ee OcTOBER TERM, 1971

No, 71-1255

ED STATES OF AMERICA, PETITIONER

.

CHARLES J. AsH, JR.

| PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

SUPPLEMENTAL MEMORANDUM FOR THE

UNITED STATES

March 31, 1972, the United States filed a peti-

a writ of certiorari to the District of Co-

bia Court of Appeals seeking review of a decision

ich held that the presence of counsel for the ac-

id is required at a showing of photographs to

lesses to an offense held after the accused is in

body. The petition noted the existence of a con-

8

among the nine courts of appeals which had de-

(1)

our petition for a writ of certiorari. United States

ex rel Reed v. Anderson, No. 71-1816, set forth in

that counsel is required at photographic displays held

after the accused is in custody, a conflict remains to

be resolved with respect to an important issue of law.

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

No. 71-1816

- —

UNITED STATES OF AMERICA ex rel.

CLEVELAND REED

5 .

RAYMOND ANDERSON, Warden,

Delaware Correctional Center,

e

——

18 1 From Tue Unitep States District Court

; For THE District or DELAWARE

— —

Argued en banc January 12, 1972

hHefore Særrz. Chief Judge, and Hastie, Van Dusen,

__ ALpisert, Apams, Gissons, Max Rosenn, JAMES Rosen,

and Hunter, Circuit Judges

5 5 OPINION OF THE COURT

2 (Filed April 11, 1972)

2 Circuit Judge.

. In United States v. Wade, 388 U.S. 218, and Gilbert v.

a es eee US. 264 (1968), the Supreme Court applied

vincing evidence that any subsequent in-court identification

was based upon observations other than the lineup

identification. In United States v. Zeiler, 427 F.2d 1305 (3d

Cir. 1970), this court extended the Wade “critical stage”

rule to those instances where the prosecution introduces

as evidence of guilt a pre-trial photographic identification

of the accused which takes place after an accused has been

arrested and charged by some judicial officer with the

crime. Today we re-examine this holding.

Convicted of armed robbery, Cleveland Reed was given

a ten-year sentence, and appealed to the Delaware Supreme

Court, where he contended that while he was in custody,

the alleged robbery victim made an out-of-court identifica-

tion of him, without the presence of his counsel. The details

of this pre-trial photographic identification were introduced

by the State as part of its case. Relying on Wade and Gilbert,

he argued that this evidence was inadmissible. The

Delaware Supreme Court refused to extend the reach of

those cases to these circumstances and denied relief. Reed

v. State of Delaware, 281 A.2d 142 (Del. Sup. 1971). When

Reed sought relief by federal habeas corpus, the district

court ruled that it was duly bound to apply the teaching of

Zeiler, and granted the writ. 329 F.Supp. 15 (D. Del. 1971).

The State has appealed.

Because Delaware's appeal squarely meets the

constitutional issue, we agreed to en banc consideration.

In so doing, we recognize that the facts in this case would

permit us to avoid meeting the substantive issue, deciding

this case solely on the question /of retroactivity. Indeed,

such an approach would, in our view, admit of easy

resolution.! But we are persuaded that the substantive

conducted

in the absence of counsel after this date [June 12, 1967} ,” we have

guarantee the right of counsel at lineups apply equally

to photographic identifications conducted after the

_ defendant is in custody,

landmark case is not bottomed on the Fifth Amend-

Although Chief Justice Warren, and Justices Black,

as, and Fortas would have applied this additional

enced no difficulty in limiting the application of Zeiler to

out-of-court photographic identifications conducted in the

of counsel after June 5, 1970. United States v. Higgins,

2d ., No. 71-1092 (3d Cir. March 28, 1972).

We do not accept the notion that the Zeiler counsel rule

be seldom invoked because it applies only when in-court

identification testimony is introduced as primary

e of guilt. Photographic identification evidence is often

fered to discredit or bolster other identification testimony. See,

„United States v. Roth, 430 F.2d 1137, 1140 (2d Cir.), cert.

med, 400 U.S. 1021 (1971). Cf, United States v. Thomas, 451

d 760, 763 (3d Cir. 1971). Thus, as prior consistent or inconsis-

statements, prior identifications may be held admissible as

btions to the hearsay rule without violating the Confrontation

See California v. Green, 399 U.S. 149 (1970); United States

small, 443 F.2d 497, 498-499 (3d Cir. 1971). And as we said in

nited States v. Barber, 442 F.2d 517, 527, n. 16 (3d Cir. 1971):

The courts have been generous in the admission of eyewit-

ness identification in order to permit the jury to make its own

assessment. The emphasis has been on inclusion of evidence,

lee also, Annotation, “Extrajudicial Identification.” 71 A LR. 24

f 4a

-Constitutional dimension to the problem, the Court relied

solely on Sixth Amendment considerations.? Indeed,

throughout the Court's opinions in the Wade trilogy runs

an unabated emphasis on its confrontation clause:

In all criminal prosecutions, the accused shall enjoy

Fee to be confronted with witnesses against

The issue posed in Wade was whether potential

substantial prejudice to defendant's rights inheres in the

particular confrontation.” In focusing on the “confrontation

compelled by the State between the accused and the victim

and witnesses,” 388 U.S. at 228, the Court described

and showings as “either form of confrontation,” 388 U.S. at

229, and emphasiged the difficulty in “depicting what

transpires at lineups and other forms of identification

confrontations,” 337 U.S. at 230. In discussing these

problems it referred to “pre-trial confrontations for

identification,” 388 U.S. at 232, “suggestive influences in

the secrecy of the confrontation,” 388 U.S. at 235. “mean-

ingful confrontations,” 388 U.S. at 236, that “no argument

is made that notice to counsel would have prejudi-

cially delayed the confrontations,” 388 U.S. at 237.

Indeed, the Court suggested that the necessity for the

constitutional rule would be removed if “{lJegislative or

other regulations, such as those of local police departments,

[were instituted to] eliminate the risks of abuse and

unintentional suggestion at lineup proceedings and the

impediments to meaningful confrontations at trial.” 388

U.S. at 239.

Thus, while the constitutional underpinnings relate

to the broader base of right of confrontations at trial. the

actual mischief sought to be avoided was the physical

confrontation of an uncounseled defendant with his alleged

3. A majority of Justices (Brennan, Harlan, Stewart, Tlark,

and White) expressly held’ the Fifth Amendment inapplicable.

Wade, supra, 388 U.S. at 221-293. ;

deups and showups, characterizing them as sources of “a

ve potential for prejudice, intentional or not.” 388 US.

‘at 236. This conclusion can be analogized to the presump-

ion of constructive psychological or physical coercion in

In the various Supreme Court articulations of Sixth

ndr requirements of counsel, there appears one

ty. | v. Illinois, supra, and Miranda v.

nd, supra; presence at preliminary hearings or

abuma, 399 U.S. 1 (1970): presence at sentencing

No critical stage has been found to exist—at pre-trial

ial—requ S the assistance of counsel in a factual

: where the accused was not physically present and

ed or entitled to participate by action or inaction

6a

those links in the prosecutorial chain of events in which the

F g pore ply Maa:

for effective defense must be seized or foregone.

his role be active or passive, the accused must,

therefore, be present at all such stages, for neither the

_ prosecution nor the défense can otherwise proceed. And to

insure that each proceeds in fairness, “the accused is

guaranteed that he need not stand alone against the State

at any stage of the prosecution, formal or informal, in court

or out, where counsel's absence might derrogate from the

accused s right to a fair trial.” Wade, supra, 388 U.S. at 226.

This tenet of Wade is manifestly inapposite to pre-trial

i "shee no actual confrontation of the

the accused is not present.

concern must “stand alone.”

rough Wade is the Court's concern over

sia in tae Sterne with fairness and accuracy

what actually took place at the lineup or showup: “the

defense can seldom reconstruct the manner and mode of

lineup identification for judge or jury at trial. Those partici-

FC may often be police

= ; in any event; the participants’ names are rarely

recorded or divulged at trial.” 388 U.S. at 230. In short, the

accused's inability effectively to reconstruct at trial any

unfairness that occurred at the lineup may deprive him of

his only opportunity meaningfully to attack the credibility

of the witness’ courtroom identification.” 388 U.S. at 231-

232. Those who would evaluate this consideration as

supportive of the Zeiler rule reason that a photographic

identification procedure where the accused is not present

is an argument of a fortiori proportions: the very absence

of the accused or his counsel from the pre-trial proceedings

makes it even more difficult for the accused to determine

ö 4 or improper techniques were employed

cedin there is logic and merit to this argument,

ertheless convinced that it is relatively simple to

reconstruct identification by photographs in the presence

al the judge and jury. Even on an appellate level, this court

a

2

Ta

€ to determine in Zeiler that the photographic

the witnesses in the second trial! was “deemed

ssarily suggestive and conducive to irreparable

u identification, and so pointless for any other

than suggestion, as to violate due process” to the

hat held that it was “not a permissible conclusion

lal court to hold that the government established

of proving by-clear and convincing evidence that

urt testimony was not tainted. 427 F.2d 1308.

ise in Zeiler Il; after remand, we were able to

opposite conclusion in a review of a display of

ote ahs involving other witnesses in the first trial.

2d 993 (3d Cir. 1971),

%%% A A

‘iMiam Zeiler was indicted and charged with committing

bank robberies in the Pittsburgh area over a period of more

years. He was tried for ten of these robberies in January.

‘was convicted for having committed two of them. A

- Concluding in June, 1968, resulted in a conviction for

ing bank robbery. In reviewing convictions from both

ourt deemed suggestive only the photographs displayed

es in the second trial. Because the record did not disclose

Jat photographs were shown to the identifying witnesses in the

mal, we ordered remand for a hearing on sugyestiveness and

the governntent an opportunity to establish an indepen-

rigin for the in- court identifications. We reviewed the first

ring at 447 F. 2d 993 (3d Cir. 1971) (Zeiler II).

Wh respect w the first criterion. none of the

specific clements of suggestiveness which we found in the

photographic array shown to the witnesses at the second

trial are present here. Whereas three of the eight photo-

uruaphs in the previous group were of Zeiler. the defen-

dant is only pictured once in the

photographs. All the roup

were police “mug shots except those of Zeiler. which

were ordinary snapshots and might

the viewers that the “Commuter

been arrested, while the

tured wearing glasses, as had the actual robber.

‘neither Zeiler nor any of the other individuals in the

Indeed. Wade and Gilbert contain sufficient references

‘suggesting that the court did not consider the photographic

identification process as a procedure extremely difficult to

reconstruct at trial. Wade spoke of “fingerprints, blood

sample, clothing, hair and the like,” and said that the

“variables in techniques I are] few enough.” 388 U.S. at 227.

Gilbert held that the taking of exemplars of handwriting

was not a critical stage because “there is minimal risk that

the absence of counsel might derogate from his right to a

fair trial.” 388 U.S. at 267. And as Judge Friendly observed

in United States v. Bennett, 409 F. 2d 888, 898-900 (2d Cir.

1969), cert. denied, 396 U.S. 857, rehearing denied, 396 U.S.

949: a

„uin Wade itself, the Court listed as one

of the ways the prosecution might attempt to show

that a witness’ identification of defendant at trial was

not the fruit of a lineup held in the absence of counsel

a showing of “the identification by picture of the

defendant prior to the lineup.” 388 U.S. at 241, 87 S. Ct.

1926, at 1940, which clearly implies that such identifi-

8 eg rates v. Zeller, 447 F.2d 993, 995-996 (3d Cir. 19715. Ser

eee are permissible even when defendant's counsel

= not present.

: We turn now to the pervasive concern of the Court

cee vagaries of eye witness identification.” We do not,

5 eee the importance of imposing safeguards which the

Court described as “peculiarly riddled with innumerable

en and variable factors.” 388 U.S. at 228. Indeed,

exercising our supervisory power in United States v.

_ Barber, 442 F.2d 517, 528 (3d Cir. 1971). we imposed

mandatory jury instructions designed to protect the

ener in the trials of federal crimes where factors not

conducive to proper identification are not present. This

Court has always been alert to extend to one accused of

- crime the optimum of constitutional and procedural pro-

tections. We recognize that the exclusionary rule of Zeiler

brings on collision course the public policy considerations

ol Wade and Gilbert and the J respected consideration

that evidence relevant to the truth-finding process should

not arbitrarily be withheld from the fact finder: this is

especially so where, as here, the evidence traditionally has

been regarded as admissible and subject only to the

tigorous tests of credibility. At a time when traditional rules

of evidence are constantly being subjected to re-examina-

tion, and efforts are constantly being made to extend the

reach of the exclusionary rule, the determination of

‘whether certain evidence should be placed beyond or within

constitutional pale becomes a task of exquisite agony.

Seeking guidance, as we must, from the Supreme

art, we deem it significant that notwithstanding the

7 analysis of eye witness identification in Wade.

US. 22220. and official recognition of the possible

f : s of eye witness identification, the Court

witness completely unknown to the police prior to trial

walk into a courtroom and properly testify: “I saw the

sed do the deed. I never saw him before or since. I only

10a

looked for a second. But I am absolutely. unshakenly

positive that he is the man.” Other than cautionary

instructions concerning the weight to be given his

testimony, there is no constitutional barrier to the admis-

sion of such testimony, despite the danger of its inherent

untrustworthiness.

Finally, in striking the balance between the “desirability

of deterring the constitutionally objectionable practice” of

uncontrolled police lineups: and the undesirability of

excluding relevant evidence,” the Wade Court stated: “No

substantial countervailing policy considerations have been

advanced against the requirement of the presence of

counsel” at lineups, 388 U.S 237, and that “counsel can

hardly impede legitimate law enforcement,” 388 U.S. 238.

Unlike the circumstances in Wade, we believe there

are countervailing policy considerations in the use of photo-

graphic identification. The brief. amici curiae,* filed in this

proceeding suggests that “the policy reasons against such

a rule are overwhelming.” After making inferences to the

problems inherent in investigating a prison riot, the brief

at pages 19-20 states:

But it is clear that the problems caused by law

enforcement officers, witnesses and defense counsel

by a blanket prohibition of uncounseled photographic

identifications of in-custody defendants is not confined

to extraordinary situations such as those involved in

the Holmesburg riot. Often the defendant will be in .

custody at a place far removed from potential wit-

nesses. Although there may well have been probable

cause for his arrest, that probable cause may well be

based on a description or identification by fewer than

all of the available eyewitnesses. and the police are

rightly interested in discovering whether the other

8. eee eee e e e

ia, nia District Attorneys Association, and District

sr delp „ joined in by the United States Attorneys

a the Third Judicial Circuit.

/

P

lla

eyewitnesses corroborate or contradict the original

identifications. The only practical way to do so where

the defendant is distant from the scene or the witnesses

widely scattered, is by photographic identifications.

I it would be unduly burdensome on witnesses to

bring them to the prison—and this burden is likely to

be greatest in wide ranging federal crimes although

witnesses to state crimes may also live far apart—the

_ burden on defense counsel to travel from place to place

with the investigating detectives if the witnesses are

not to be forced to come to the suspect, would be

equally great. And, assuming counsel can be forced to

_ accompany the detectives. this would be unduly

bu on the criminal process in view of the

limited number of counsel available to represent

_ defendants ui trial, during interrogations and at live

lineups, as well as on collateral attack and in the

appellate courts.

likely to. be even more widely scattered than the

victims or witnesses to a single criminal event, and the

? burden of either gathering the witnesses for a lineup

1

12 4

We therefore conclude that the principles which

dictated the per se exclusionary rule in Wade and Gilbert

sould tiok have bewt ahade scplicable to a pretrial photo-

graphic identification as we did in Zeiler. We adopt the

Second Circuit's reasoning in United States v. Bennett.

supra:

eal ine the identification is not in a live lineup at

which defendant may be forced to act, speak or dress

in a suggestive way. where the possibilities for sug-

gestion are where the ability to reconstruct

the events is minimized, and where the effect of a

positive identification is likely to be permanent, but at

a viewing of immobile photographs easily reconstruc-

tible, far less subject to subtle suggestion, and far less

indelible in its effect when the witness is later brought

face to face with the accused, there is even less reason

to denominate the procedure a critical stage at which

- counsel must be present.

409 F.2d at 900.

We therefore overrule that portion of Zeiler which

denominated. a pre-trial photographic identification as a

critical stage requiring the presence of counsel tocatisfy the

Amendment.

by

186, 2 (1970)(concuing opinion):

7. See n, Untied States», Long, —— F2 ——, 30 Cr

2060 (ath C United States v. Fitzpatrick, 437 F.2d 19, 25-

26 (2d Cir. 1970), United States v. Williams. 436 F 24 1166, 1169

(9th Cir. 9 Ervin, 436 F.2d 1331, 1334 (5th

Cir, 1970); United States v. Von Roeder, 435 F. 2d 1004, 1010 (10th

Cir. 1970); United States v. Collins, 416 F.2d 696, 699 (4th Cir.

1960); United States v. Robinson, 406 F.2d 64, 69 (7th Cir. 1969).

Cf., United States v. Ash, —— F.2d ——, No. 22,340 (DC. Cir.

March 1, 1972).

18a

Due process docs not permit a conviction based on no

evidence, Thompson v, City of Louisville. 362 US. 199

~ (1960): Nixon v. Herndon, 273 US. 536 (1927). or on

evidence so unreliable and untrustworthy that it may

be said that the accused had been tried by a kangaroo

Court. Cf. In re Oliver, supra, (333 U.S. 257 1918).

Turner u. Louisiana, 379 U.S. 466 (1963).

a In Stovall . Denno, 388 US. 293 (1967), and

Simmons v. United States, 390 U.S. 377 (1968). the

underlying principle was refined. The Court there

recognized that evidence of identification—alwavs i

eritical issue in a criminal trial—should not be

received if the circumstances of a pretrial confronta-

tion were so infected by suggestiveness as to give rise

to an irreparable likelihood of misidentification.

In examination of the record indicates that a Sim-

ts argument on the totality of circumstances. United

es v. Conway, 415 F.2d 158. 163-164 (3d Cir. 1969), was

nted to the district court on the possible impermissible

tiveness of the photographic display:

~ {Ejach case must be considered on its own facts, and

_ + +. convictions based on eyewitness identifications

nat trial will be set aside on that ground only if the

photographic procedure was 80 impermissibly suy-

_ Bestive as to give rise to a very substantial likelihood

ol irreparable misidentiſication.

U.S. at 384.

Because this issue was presented to the Delaware court

cided it adversely to Reed; 281 A. 2d at 147, it was

before the district court. Expressing no view on the

this contention, we will remand the proceedings

lda

Apams, Circuit Judge, concurring.

The concern expressed by the minority opinion regard

ing the use of photographic displays in the absence of

of cross-examination and penalties of perjury, he must be heard.”

Brown v. United States, 126 U.S. App. D. C. 134, 143, 375, F. 2d

310, 319 (1967).

e are unwilling to prohibit {the use of photo-

Frannie identifications in the absense of counsel} either in the

‘exercise of our supervisory power, or still less, as a matter of

18 U.S.C. §3502 as a ,direct

this section

7

lba

The problem. is I see it, is that the facts usually

esented in cases of in-custody photographic identifica-

uons fall between situations

spectrum by Simmons v.

In-custody

the other,

tions underlying

Visory power in this chuation. Sec 1088 U 8 CODE CONG. SAD.

NEWS 2139 (90th Cong. 2d Sess),

16a

been a sufficient demonstration by empirical data that

prosecutorial abuse of photographic displays has been 80

widespread that the per se bar advocated by the minority

ee ere an ee neces the tools forged by

the Supreme Court in Simmons would appear to be. it least

at this point in time, sufficiently effective to provide the

essential safeguards and yet comport with due process as

implicit in our concept of ordered liberty. See United States

v. Conway, 415 F.2d 158, 162-164 (3d Cir. 1969). To put it

another way, I cannot believe that the use of a photographic

display, not “impermissibly suggestive”, by an eyewitness

to a crime, especially when such witness is later subjected

to rigorous cross-examination, runs so counter to the

bedrock of our judicial process that the fairness of the

resulting conviction weuld necessarily be vitiated.

Having altered my stance on this issue. | find myself

in a similar position to that of Mr, Justice Stewart in Boys

Market, Inc. v. Retail Clerks Union, 398 U.S. 235 (1970)

and like him, find solace in the words of Mr. Justice Frank-

furter: “Wisdom too often never comes, and so one ought

not to reject it merely because it comes too late.” Henslee

v. Union Planters Bank, 335 U.S. 595, 600 (1949) (dissent).

A change of position often brings forth comment, some-

times critical, but devotion to judicial integrity is more

important, in my judgment, than the accolade of con-

sistency.

Judge van Dusen joins in this opinion and in the

opinion of Judge Aldisert.

4. bed the improper conduct which motivated the Court

in Zeiler has proved to be an isolated incident rather than a general

practice. See e.g., United States v. Higgins. F.2d (No. 71-

1092, 3d Cir. 1972); United States v. Bamberger. ans F948 ——.,

—— (3d Cir. 1972) (Slip opinion at 3-4); United States v. Medina,

No. 71-1330, —— F.2d Gd. 1972); cf. e prepa

Carney, = Fae (3d Cir. 1972). 4

as — 5

17 2

Cie Judge, concurring with whom Max Rosenn,

‘agree that this case does not involve a violation of the

Am ent right to counsel. Undoubtedly, desirable

428 eA 8.

mons v. United States, 390 U.S. 377, 384 (1968),

hec that the Fifth Amendment rights of a defendant

was magnified because, after a

an identification witness “is apt to

his memory the image of the rather

the person actually seen, thereby] reducing the

18.4

all of what-occurred can be reconstructed by appropriate

discovery and through examination by defense counsel.

ere as was true in this case, that a

defendant can obtain production of the photographs

in the photographic identification. Compare Del.

Super. Ct. Crim. R. 16(b) with F. R. Crim. P. 16(b); cf.

Simmons v. United States, supra at 388; but see Jones v.

State (id.) 270 A.2d 827, 830 (1971). With these photo-

graphs produced the defense then is left to concentrate

largely on the manner in which they were presented to the

identification witness. These circumstances do not seem

so impervious to effective cross-examination to mandate

automatic exclusion of the witness’ in-court identification

(absent independent basis) as the only acceptable solution.

See v. United States, supra at 384.

if a trial court should find that a particular

‘identification violated Simmons it

prior photographic

e.g., United States v. Sutherland, 428

F.2d 1152, 1155 (5th Cir. 1970); United States v. King, 321

F. Supp. 614, 615-16 (W. D. Tex. 1970); United States v.

Washington, 292 F. Supp. 284 (D.D.C. 1968). And, even if

not excluded the identification evidence might be seriously

impugned. See Simmons v. United States; supra at 384.

Thus, although a per se exclusionary rule under the Sixth .

Amendment is not adopted, I think that a defendant's basic

rights in this area are adequately secured by the safeguards

enunciated in Simmons.

Hastie, Circuit Judge, with whom Gissons, Circuit

Judge, joins, concurring in part and dissenting in part.

The photographic identification of appellant Reed oc-

conte in e appeal:

this court has decided that the requirement of counsel at

eyewitness photographic identification of persons in

19a

charged An the crime in question is to be

spectively from June 5, 1970. United States v.

, 71-1092. decided March —. 1972: For that

concur in the court's disposition of this

r. the majority opinion undertakes to decide

there should be continuing viability” to the

vonsidered legal conclusion of our unanimous

t less than two years ago in United States v. Zeiler.

0.227 F.2d 1305. 1307, that the “considerations that

of counsel for a period

and on what occasions to be deter-

the circumstances of the case—is essential to the

e of fair. trial. Accordingly, in United States v.

7. 388 U.S. 218. Mr. Justice Brennan begun his

of the right of an a lineup by

ounsel's assistance whenever necessary to assure a

I ‘defense.’ 388 U.S. at 225. He then proceeded

20a

to explain at length why the Court believed that, to assure

a meaningful defense, one accused of and judicially

with an offense needed the assistance of counsel”

whenever he should be to an eyewitness of the

alleged crime with a to his identification as a partici-

pant in the wrongdoing, 388 U.S. at228-36.

In the companion case of Gilbert v. California, 1967.

388 U.S. 263, the Court held that one essential remedy for

the failure of the prosecutor or the police to enable the

accused to have the assistance of counsel at a pre-trial

See se ee Lares Seen Sie Leer d Case of

photographic

‘pointed out that this distinction, if significant at all,

ee Gr es e he cee the

2la

sor other prosecution witnesses. for evidence of what

ned at an uncounseled photographic identification.

the photegraphs allegedly used at the pre-trial

tificat may be available at trial. However. only

ons present at the identification would know how the

r were exhibited and what was said on that

occasion. But apart from this consideration. it is difficult

do see why this distinction should leud to an opposite

~ gonelusion as to the right to counsel.

In the view of the majority the key Jegul concept is

- “confrontation,” its presence in lineup cases and its absence

in photographic identification. But in neither situation

_is the accused complaining of any denial of his constitu-

~ tional right to be confronted by the witnesses ayainst him.?

Why then should the occurrence or the absence of a

physical confrontation make any difference in deciding

_ Whether the accused is entitled to the assistance of counsel

on an occasion arranged by his accusers for the accomplish-

ment of eyewitness identification?

he majority opinion points out that in Wade Mr.

justice Brennan repeatedly characterized a lineup as a

_ “confrontation.” Therefore, the majority reasons, the Court

Was treating the physical confrontation of accused and

witness as the circumstance that made a lineup a “critical

age” of the prosecution and thus entitled the accused to

he assistance of counsel. But if this had been what made

the lineup a critical stage of prosecution. it is hard 10

believe that the court would not have made explicit and

ud not have undertaken to justify so important a

usion. Instead, as already pointed out, the Court

1. This analysis was suggested by Circuit Judge. now Chiet

udge F - United States 1. Bennett, 2d Cir. 1969. 409 F.2d

ner courts have followed Judge Friendly s distinguished

hip without critical comment. United States 1. Serio. 6th

» 440 F.2d 827: United States v. Long. 8th Cir. 1971. 449

United States v. Williams, 9th Cir. 1970. 436 F.2d 1166.

22a

zes in its opinion, 388 U.S: at 228-36. to a

e eee to — extent needed

before trial for proper preparation of whatever defense the

aecused might have. Obviously. such preparation will

tai AE “confrontation.”? The occasion of a prosecu-

supervised photographic identification is simply one

eee eee which the need for the assistance

of eounsel is very grea.

The contention that physical “confrontation” is a

measure of “critical stage” of prosecution in the present

context can be tested impressively by stating certain facts

of a recent case: In United States v. Collins, 4th Cir. 1969.

416 F.2d 696. an accused prisoner was required to stand

with others in a lineup in order that eyewitnesses to the

crime might attempt an identification. One eyewitness did

not attend this viewing. However, the police photographed

the lineup and later showed that picture to the absent

_ eyewitness. Let us assume that counsel for the accused was

not notified of or in attendance at either the lineup or the

subsequent exhibition of a photograph of the lineup.

Wade and. Gilbert would prohibit the prosecution from

using as evidence the fact that one eyewitness had identified

the accused at the uncounseled lineup. Today's decision

would permit testimony that a second eyewitness had

identified the the accused at a showing of a photograph of

en ‘makes

unpersuasive the majority statement that no critical stage has

been found to exist “requiring the assistance of counsel in a factual

setting where the accused was not physically present. oa

4. Only in this respect do the stated facts differ from ile of

the Collins case. There counsel attended the lineup but was not

informed of the subsequent exhibition of the photograph of the

lineup to another witness.

5 28 a

neup. In logic and in fairness, I do not see how those

pposite conclusions can stand together. Yet, such is the

ult of relying upon physical “confrontation” as the

uchstone of. this problem. Indeed, under the majority

view, the police could make Wade and Gilbert wholly

effective merely by conducting lineups without the

| of either witnesses or counsel, photographing

dineups and thereafter, at convenience, exhibiting the

faphs to eyewitnesses in the absence of the accused

d counsel. To me, the conclusion is inescapable that the

Wade and Gilbert rationale should control both corporeal

ngs and photographic exhibitions or neither

Apart from analogy to Wade and Gilbert and from

erations of fairness to the accused. the majority

also expresses concern that a requirement of

at photographic identifications might at times be

€ or at least would impose undue burdens upon

and prosecutors. This view

application than this court

ded. We spoke in Zeiler of the right of a defendant “in ©

St to the assistance of counsel at a photographic

tification. We intended, as we think the context shows,

extend the rule only to those defendants who had been

ed with the crime in question and thus were being

held for further prosecution.

he example cited is a serious prison riot that occurred

adelphia in 1970. The brief states that lin order to

fairness, some twen

and given to twenty detectives

each of the possible witnesses—

‘While the Wade majority do not discuss the application of

tine of the case to photographic identification, the dissen-

out that in logic it does apply. 388 U.S. 250-51.

24 =

which would help to reconstruct the events of the riot and.

of preliminary investigation

prisoners should be charged

purpose of

representation at the showing of photographs. In these days

when eriminal defender organizations abound and the bar

generally is increasingly sensitive to its obligation to assist

in the defense of persons charged with crime, the recruit-

ment and assignment of substitute counsel for this limited

purpose will rarely be difficult or burdensome.

Next, it is suggested that fairly often it is desirable té

check the possible connection of a person, who has been

arrested and charged for one offense, with similar crimes

committed at other times and places. To that end, it

frequently is worthwhile to exhibit photographs of the

prisoner to numerous dispersed

Otographic exhibition during investigation

to possible charging. Thus, the Zeiler rule, as

ed by this court and explained in this opinion, would

impose any of the hardships feared and contemplated

e amici curiae.

nally, the alleged hardship of the Zeiler rule is

ized by the fact that the prosecution will rarely have

s need to use the fact that an eyewitness made a

il photographic identification as an important part

case against the accused. For ordinarily the eyewit-

be available to attempt a much more satisfactory

face identification at trial. Occasionally an important

ss will have died before trial. More rarely, the

sed may have been identified by photograph shortly

the alleged crime but have changed in appearance so

itly since that time that he is unrecognizable at trial.“

ese unusual situations where the prosecution's case

eyewitness identification that Mr.

e Brennan elaborated in his Wade opinion without

ing an unreasonable burden on the government.’

‘See United States v. Collins, supra.

‘not mention this issue, much less contribute to its resolu-

Grssons, Circuit Judge, a

Hastie, Circuit Judge, joins |

ee ee e i es ie

to me that discussion of the problem of United States

v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 U.S.

263 (1967) and Stovall v. Denno, 388 U.S. 293 (1967), in

terms of “confrontation” and “critical stage” has been the

| probably

than dispel the confusion, but in any event I will try.

e Perce vite Frs. rdf e e

deals with tuo al evidence The first is the

and hence inherent unreliability of

porn a identifications. The second is the hearsay

problem of the use of a prior out-of-court statement—the

prior identification—for the truth of the matter asserted.

Stovall only involves the suggestibility factor. Wade and

Gilbert involve the combination of the suggestibility factor

and familiar hearsay dangers. In Wade, prior lineup identi-

fication was elicited from witnesses on cross-examination

in an attempt to impeach their credibility. 388 U.S. at 220.

In Gilbert, as here, the local law of evidence permitted the

use of the prior out-of-court identification for the truth of

the matter asserted. 388 U.S. at 272, n. 3. The Supreme

Court found that the combined dangers were just too much

er route which the Supreme Court took in arriving

it the judgment that this result is constitutionally mandated

‘tends to obscure the fundamental reasons for the rule.

is an exclusionary rule directly related to reliability

evidence, and hence to the integrity of the fact

ig process. This is not a prophylactic rule. Compure,

app v. Ohio, 367 U.S. 643 (1961).

agree with Judge Hastie that it is impossible to

guish the photographic identification problem from

corporeal identification problem. The use of 4 prior

graphic identification for the truth of the matter

ed combines the same elements of possible unreliabil-

does the use of prior corporeal identification.

er, some language in Judge Aldisert's opinion

much further in authorizing use of prior photographic

tifications for the truth of the matter asserted than I

| appropriate. This is a state habeas corpus case. Thus

6, 1972). Because of the hearsay dangers discussed by

in United States v. Small. supra, I would not

it the t to use a a prior identification for

eerie