Brief for the United States — United States v. Ash

Sixth Amendment does not require

counsel be present at a pre-trial

ographic identification procedure _

The holding in United States y.

Wade, 388 U.S. 218, that the Sixth

Amendment right to counsel ap-

plies to a police lineup, should not

be extended to cover a pre-trial

|. display of photographs to a wit-

ee

CITATIONS

Cases:

Brokenbrough v. State, 287 A. 2d 657__.

Coleman v. Alabama, 399 U.S. 1

Commonwealth v. Geraway, 245 N.E. 2d

423, certiorari denied, 396 U.S. 911. —s_- 20

Commonwealth v. Whiting, 266 A. 2d

738, certiorari denied, 400 U.S. 919 _. —_-21

Cow v. State, 219 So, 2d 762 21

Gault, In re 387 U.S. 1

Gideon v. Wainwright, 372 U.S. 335 ___.

Gilbert vy. California, 388 U.S. 263 13

Hamilton vy. Alabama, 368 U.S. 52

Hernandez v. State, 255 A. 2d 449 17

Johnson v. Zerbst, 304 U.S. 458 _..._.. 9, 22

Kirby v. Illinois, No. 70-5061, decided

June 7, 1972 11

Kain v. State, 179 N.W. 2d 777____.__- 21

McNabb v. United States, 318 U.S. 332_ 20

Massiah v. United States, 877 US.

201 10-11, 23

Mempa v. Rhay, 389 U.S. 128 _._ 23

People v. Adams, 172 N:.W. 2d 547... —S 221

People v. Lawrence, 4 Cal. 3rd 2738, 481

P. 2d 212, certiorari denied, June 12,

1972, No. 70-352 14, 15, 20, 24

People v. Martin, 265 N.E. 2d 685, certio-

rari denied, 403 U.S: 921. 20

People vy. Slutts, 259 Cal. App. 2d 886,

66 Cal. Rptr. 862.

People v. Spinks, 326 N.Y.S. 2d 261

Powell v. Alabama, 287 U.S. 45 __ “+

Rech vy. United States, 410 F. 2d 1131,

* eertiorari denied, 396 U.S. 970 ____.

_ Saville v. United States, 400 F. 2d 397__

| 7 7

Page

20

22

Contin 1eC Page

Simmons y. United States, 390 US.

7,21

21

a 21

\> United States v. Fernandez, 456 F. 2d

638

; "United States v. Gornick, 448 F. 24 566,

17

_ certiorari denied, 404 U.S. 861. ss)

_ United States v. Hines, 455 F.2¢-1317.. 7

United States

20

720 17

United States v, Wade, 388 U.S. 218__ 6, 7, 8, 9,

10, 11, 12, 18, 15, 19,

20, 22, 23, 24, 25

United States v. Zeiler, 427 F. 2d 1805.

_. United States ex rel. Reed v. Anderson,

No. 71-1816, decided April 11, 1972 _

White v. Maryland, 373 U.S. 59

Williams v. State, 275 A. 2d ne

Constitution and statutes:

United States Constitution, Sixth Amend-

ment __.. 2,9, 10, 11, 18, 19, 21, 22, 24

18 U.S.C. 2113 (a) 2

18 U.S.C. 3502 | it

22 D.C. Code 2901 2

Miscellaneous:

‘Comment, 2 U.C.L.A. L.Rev. 552 16

Note, Criminal Procedure-Photo-Identifi-

cation, 43 N.Y.U. L.Rev. 1019 (1968). —s 15

Revised Proposed Rules of Evidence For

United States Courts and Magistrates,

51 F.R.D. 315, Rule 801(d) —.i(ité‘«

—s No. 1097, 90th Cong., 2d Sess.,

19

Wak Eye-Witness i at in Crim-

inal Cases 15

IV Ps gama'g? Evidence §§ 1129-1130 (8d

26

Williams & © Hatastnas, Identification

pa 1963 Crim. L. Rev: (Eng)

16

re Supreme Court of the Buiten States

©" Ootonen Tanm, 1972

fe No. 71-1255

__Unrrep STATES OF AMERICA, PETITIONER

i "Ws

CHARLES J. AsH, Jr.

NS

_ ON WRIT OF CERTIORARI To THE UNITED STATES

|__| COURT OF APPEALS FOR THE DiSTRICr

eae OF COLUMBIA CIRCUIT

_.. BRIEF FOR THE UNITED STATES

2. DROPS BARLOW

& Sani jority and dissenting opinions of the court

"apr ; (Pet. App. A)? are not yet reported.

JURISDICTION

e judgment of the court of appeals was entered

farch 1, 1972 (Pet, App. C). The petition for

App.” refers to the appendix of the government’s

for a writ of certiorari; “S.App.” refers to the ap-

contained in our supplemental memorandum.

(1)

2

a writ of certiorari iri was filed on’ March 31, 1972,

and was granted on June 12,1972 (App. 133). The

jurisdiction of this Court rests on 28 U.S.C. 1254(1),

QUESTION PRESENTED

Whether, under the Sixth Amendment, a defend.

ant in a criminal case is entitled to the presence of

counsel at a pre-trial showing of photographs t

prospective witnesses.

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 a federally insured bank on August 26,

1965 (18 U.S.C. 2113(a); 22.D.C. Code 2901).* He

was sentenced to imprisonment for five to fifteen

years. The court of appeals sitting en banc reversed

the conviction 5-4, on the ground that respondent had

been denied his Sixth Amendment right to counsd

at a showing of photographs by an F.B.I. agent to

prospective witnesses after indictment and shortly

before the trial.

1. On August 26, 1965, a gunman entered a

branch office of the American Security & Trust Con-

pany in the District of Columbia. He waved his gun

into the air and ordered everyone not to mioye. See

s/taiies arid acaltted lay the court after the Jory foe

return a verdict.

February 3, 1966, F.B.I. agents. interviewed

individuals, Mrs, Paugh, Mrs, Major, and Mr.

; Who were eye-witnesses to the robbery, and

Apple,.who had been seated in a car outside

bank and. who had seen the robbers unmasked

re they entered and after they left the bank

11). At the time of these. interviews no ar-

had been made, The agents showed each of the

ses five black and white facial “mug shots”

gro males, of Approximately the same age,

and weight (App. 12). Each of the four wit-

‘Selected the photograph of respondent as the

1, 50).* Only Mrs.

Bailey as the accom-

arently, respondent’s photograph was included be.

y on received from an informant (Pet. App.

De:

Jong delay in trial was due to a number of factors

pro se motions, changed counsel

examinations

4

fore, an F.B.1. agent together with the prosecutor

visited Mrs. Paugh, Mrs. Major and Mrs. Apple.

The prospective witnesses were shown five color

photographs, including one of respondent and Bailey.

Only the picture of respondent and Bailey were full

length and bore police identification numbers. Each

of the witnesses picked out respondent’s photograph

as resembling the gunman but again none of the

witnesses was able to make a positive identification

and none of them selected Bailey’s photograph (App.

29-81, 33-34). The next morning, prior to trial, the

agent showed the same set of photographs to Mr.

Taylor, who could not make an identification (App.

$1). A lineup was not held. Defense counsel was

not present at the photographic display on May 7

and 8, 1968.

The district judge held a pre-trial hearing to de

termine the admissibility of the prospective identifi-

cation testimony. Without deciding whether the show.

several times because of the unavailability of government

counsel (Pet. App. A, 4a, n. 8). The court of de-

clined to decide, due due to the inadequacy of the whether

‘respondent had been denied his right in a speedy trial (Pet

App. A, ee eae te

‘Yespondent as the gunman, although they testified

“that they were not absolutely ‘sure of the identifica-

tion (App. 79-80, 85, 89-90, 93). Mrs. Apple posi-

y identified both respondent and Bailey (App.

99, 110).

~The original photographic identifications of re-

spondent-on February 3, 1966, were brought out in

the-pte-trial-hearing but never came before the jury

at trial. The showing of colored photographs to the

four eye-witnesses was not brought out during the

8 case. The defendant Bailey, however,

called the F.B.L agent who had shown the photo-

me of the color photographs (a photograph of re-

dent) “‘as the man who was engaged in the hold-

(App. 127) and had failed to identify the person

of the other color photographs (a photograph

ailey), Bailey’s. coynsel offered Bailey’s photo-

aph (Defendant’s Exhibit No. 4) into evidence

127).

e prosecutor then asked that the photograph of

D ‘admitted into evidence. Respondent’s acini

ted: to the admission of this photograph (App.

&

sequently both the prosecutor and counsel for Bailey

(App. 130). Although respondent’s counsel again indi-

cated that he opposed this (App. 130), all five photo-

graphs shown by the agent to Mrs. Apple on May 7,

1968, were admitted -on stipulation of counsel, after the

trial court indicated he would admit them regardless

of whether Bailey’s counsel or the prosecutor offered

them into evidence (App. 130-131)°

2. The court of appeals declined to decide whether

the showing of the color photographs was imper-

missibly suggestive and whether the district court’s

finding that the witnesses had an independent basis

for their identification testimony was correct (Pet.

App. A, 10a-11a). While noting that it would, if nec-

essary, have remanded the case for “a more thorough

hearing and more definite findings” on the former

issue and for further “elucidation by the trial court

of the basis of its ruling” on the latter issue (Pet.

App. A, 11a, 25a, n. 20), the court ruled that re-

versible error had occurred in the admission of evi-

dence of the identification made from the color photo-

graphs, In reaching this conclusion, it held broadly.

that, under the principles of United States v. Wade,

= insean — ~renigge cp in vonage di subject: to cer-

cements dik aceite seeds Sotennchanidictngsall

_ whether respondent’s counsel had initially raised a proper

ar gf aig aoa? five photographs ,and

he anal ga counsel waived any threshold “objec-

| A See NORTON,

imittec d (Be App. Ae, Satie).

se] present at a government display of photographs

» prospective witnesses of the offense for which the

used is in custody (Pet. App. A, 14a).” The court

d that on retrial, therefore, the government would

Pees thabtich clear and convincing evidence”

‘that the in-court idéntification of each witness was

“based upon observations of the suspect” other than

at the photographic displays. United States v. Wade,

supra, 888 U.S. at 240.

Bes SUMMARY OF ARGUMENT

one

“tn United Statee v. Wade, 388 U.S, 218, this Court

hel id that a defendant in a criminal case is entitled

e - ghey etckaghe smear Page

m. Since these suggestive influences are

eam se entree mettle Sap ste itl

¢ the delay in securing the attendance of counsel would

ardiz the progress of a continuing investigation or (2)

the photographic showing comes after a valid lineup

r confrontation consistent with Wade (Pet. App. A,

See United States v. Hines, 455 F. 2d 1317 (C.A.D.C.);

ed States v. Brown, No. 24,452, opinion filed March 1,

(CAD. en banc) (Pet. App. B).

8

San aetE phen maa: Kanne tein: fprettion: Rt Ai

lineup. .388 U.S. at 229-230...

» Neither of the two bases of decision in Wade—

that the lineup involves a stage of the prosecution in

which (1) the accused is a participant, and in which

(2) the presence of counsel is necessary to preserve

his right to a fair trial—is involved in identification.

A. There are substantial differences between a

forced confrontation at a lineup and a display of

photographs to a witness. At a line-up there is a

clear potential for improper suggestion in the light-

ing used, the demeanor, appearance, and physical

characteristics of the other participants as compared

with the accused, the clothing worn by the accused

as well as the words he may be required to speak.

The inability of unschooled witnesses and uncounseled

pugs to detect “suggestive influences” under

¢ es is apparent, 888 U.S. at. 230.

sg photographic display does not involve the kind

subtle and undetectable influences present at a

lineup. At such a display the accused is not present

and the witness observes only static poses of the sub-

jects in an atmosphere not marked by the tension

present during an emotional confrontation with the

defendant. While a photographic display may also

be subject to subjective influences, arising out of the

nature of the photographs used in array or sugges-

tive comments by law enforcement officials, any im-

propriety present can easily be reconstructed by pre-

serving the photo ‘and examining the witness.

; all the courts of appeals which have

| UNME iis ena Gaghasces tonne

have held that the holding in Wade is inapplicable

to photographic displays.

_B. The second factor common to all cases which

have extended the Sixth Amendment’s guarantee to

‘various pre-trial stages—the need for the presence of

eounselto insure the defendant a fair trial—is also

lacking here. The photographic display essentially

involves only an interview between a law enforce-

“ment officer’ with a witness; the interview does not

_ involve a “‘confrontation compelled by the State be-

tween the accused and the victim or witness” (Wade,

888 U.S. at 228).

The Sixth Amendment guarantee of counsel does

not apply to such interviews with witnesses at which

the defendant is not present and has no legal right

top P cipate. ‘The cases expanding the right to coun-

‘Bel guarantee have emphasized “the obvious truth

‘ ie the average defendant does not have the pro-

‘fessional legal skill to protect himself when brought

‘before a tribunal with power to take his life or

-liberty.”" Johnson v. Zerbst, 304 U.S. 458, 462-463.

While the right to counsel has been extended to for-

nal and informal pretrial proceedings at which the

isa participant and in need of counsel to

st him in exercising his rights, no case has yet

ae Sixth Amendment applicable to proceedings

ch the defendant is not a participant.

| 10 AQ.

. There are no compelling reasons requiring such an

extraordinary expansion of the Sixth Amendment to

displayed. While such displays may be subject to

court identification, they are no more subject to im-

propriety than ordinary interviews with key prose-

cution witnesses. Moreover, given the availability of

the photographs and ‘the opportunity to cross-exam-

ine witnesses at pre-trial hearings with respect to

what took place when the photographs were displayed,

there is far less potential for impropriety going un-

detected in such cases than in cases involving im-

proper suggestion at interviews which do not involve

photographic displays.

ARGUMENT

The Sixth Amendment does not require that counsel

be present at a pre-trial photographic identification

aia :

The Sixth Amendment mandate that in all crimi-

nal prosecutions the accused shall “enjoy the right

* * * to have the [effective] assistance of counsel

for his defense” has been held applicable not only

to the trial itself but to “critical confrontations of

the accused by the prosecution at pretrial proceed-

ings where the results might well settle the accused’s

fate and reduce the trial itself to a mere formality.”

United States v. Wade, 388 U.S. 218, 224; Hamilton

y, Alabama, 368 U.S. 52, 54; Massiah vy. United |

ms (Mas United States, supra) and “con-

frontation[s] compelled by the State Area She A

(sed and the victim or witnesses to a crime to eliet

[an] identification.” United States v. Wade, 388 U.S.

“at 288. These instances are limited exceptions which

‘this Court has permitted to our adversary ad

riminal law enforcement under which the govern-

‘ticipation by defense counsel.

The court below created another exception which

‘We believe to be unwarranted, It held that the pre-

trial photographic display here “was like a lineup

PEG a critical stage of the prosecution, requiring

‘the presence of counsel for Ash, within the meaning

of Wade” (Pet. App. A, 12a), The court’s character-

‘Wation of the photographic display as a “critical

misapprehension of the nature of photographic iden-

tions, the crucial differences which distinguish

procedure from a lineup, and an erroneous view

reach of the Sixth Amendment's right to. coun-

larantee as defined in Wade and other cases.

%

pare Kirby v. Illinois, No. 70-5061, decided June 7,

ding that the Sixth Amendment guarantee, as it lan-

gests, is applicable only after the commencement of

minal prosecution” by “the initiation of adversary ju-

criminal procgedings” (Slip Op. p. 7).

12

if ‘eine uhh Ghia tne the

, police should not be extended to cover

of photographs to a witness. —

SE ee eee

counsel at lineups came after careful scrutiny of that

pre-trial confrontation “to determine whether the

presence of his counsel is necessary to preserve the

defendant’s basic right to a fair trial as affected

by his right meaningfully to cross-examine the wit

nesses against him and to have effective assistance

of counsel at the trial itself” (888 U.S. at 227).

Lineups were found to be peculiarly susceptible to

many suggestive influences which, due to the nature

of the confrontation and the conditions present, could

seldom be reconstructed at trial. As the Court ob-

served (388 US. at 230-231) :

Those participating in a lineup with the ac-

cused may often be police officers; in any event,

the participants’ names are rarely recorded or

divulged at trial. The impediments to an ob

jective observation are increased when the vic-

tim is the witness; * * * In any event, neither

witnesses nor lineup participants are apt to be

alert for conditions prejudicial to the

And if they were, it would likely be of scant

benefit to the suspect since neither witnesses nor

lineup participants are likely to be schooled in

the detection of suggestive influences. Improper

influences may go undetected by a suspect, guilty

or not, who experiences the emotional tension

which we might expect in one being confronted

with potential accusers,

18

inabi of the accused to “reconstruct at trial

irness that occurred at the lineup,” the Court

“to deprive the defendant of his only

» 2 gpintbed onan ld corsa

0 ds: the aa involyes a. stage of the prosecu-

ae i laced s pardcpa ant

e Court in Wade also suggested that the “presence of

ou. ition graciasirestagte pe tingrnay Ah pikmin turd

revent “‘the infiltration. of taint in the prosecution’s identi-

tic a evidence” (388 U.S. at 236, 238). But the holding in

case did not turn on this somewhat speculative collateral

efit.” Compare Gilbert v. California, 388 U.S. 263, hold-

+ counsel. was not required when handwriting exem-

were taken from the accused. While it was there ac-

edged that “an unrepresentative exemplar” might be

a} 4 this tact could be “brought out and corrected through

he advers: process at trial” (388 U.S. at 267). See also,

Ina States v..Wade, supra, 388 U.S. at 227-228, holding

hat counsel was not required at such preparatory steps “as

pstematized or scientific analyzing of the accused’s finger-

PU cctindes of Vile owe experts.”

14

which the presence of counsel is necessary to preserve

his right to a fair trial. A photographic identifica-

tion, unlike a-lineup, does not involve either of these

B. Unlike a police lineup, a photographic display does

not involve the possibility of suggestive influences

whose presence cannot be fully discovered at the

There are substantial differences between a forced

confrontation at a lineup and a display of photo-

graphs to a witness. As Judge Wilkey observed

in his dissenting opinion below, a lineup is a “little

drama” stretching over an appreciable span of time.

“The accused is there in the flesh, three-dimensional

and always full-length” (Pet. App. A, 29a). More-

over, the accused is not merely present but may be

required to. move about, perform certain acts, don

particular clothing, or speak the identical words used

during the commission of the offense. While this

transpires the witness, often nervous and afraid of

being spotted by the perpetrator of the crime, ob-

serves the subject at close range sometimes perform-

ing the very acts the criminal did during the perpe-

tration of the crime. See People v. Lawrence, 4 Cal.

8rd 273, 278, 481 P. 2d 212, 215 (Sup. Ct., en banc),

certiorari denied, No. 70-352 (June 12, 1972). The

potential for improper suggestion is present in the

lighting used, the demeanor, appearance, and physical

characteristics of the other participants as compared

to those of the accused, the clothing worn by the ac-

cased as well as the words he may be required to

15.

peak: Wall, Eye-witness Identification in Criminal

ses, pp. 55-63. The inability of “unschooled” wit-

mug shots are .used the witness is presented

_ with only a collection of faces. Such a witness

es not observe the suspect repeat actions or

ar the accused speak. [People v. Lawrence,

supra, 4 Cal. 8rd at 278, 481 P. 2d at 216.]

Despite. these differences, photographic displays

be subject to suggestive influences (Simmons v.

States, 390 U.S. 377, 383). But while the

on in Wade spoke of the danger of suggestion

lineups being present “in many subtle ways,”

h_ may not be capable of reconstruction at trial

U.S. at 229, 236), only “[t]hree types of sug-

yn” have been mentioned as_ possible during

graphic displays:* (1) the type of photographs

te., if the photo of the defendant is markedly

ent from the others;" (2) the manner in which

‘Note, Criminal Procedure-Photo-Identifications, 43 N.Y.U.

ev. 1019, 1021-1022 (1968).

16

the photographs are spread out or handed to the

witness; and (8) suggestive comments or gestures,

by law enforcement ‘authorities, i.e., pointing out a

suspect’s picture or asking whether a suspect’s pic-

tare ie that ofthe perpetrator.® “2m ©

subtle as compared to those potentially present at

lineups. Moreover, the availability of the photographs

displayed permits a complete “reconstruction” of ex-

actly whatoccurred at the display including any

“suggestion” resulting from the character of the

photographs themselves or the way they were shown

to the witness, Additionally, the circumstances under

which photographs are displayed—frequently at the

home or place of business of the witness—enhance

the likelihood that the witness will readily recollect

at trial any impropriety involved in the display. All

the witness need do is to “focus at that time on one

thing only, the photographs, and be able to recall

only one additional thing, any hint of suggestion in

the way the photos were displayed or in the con-

versation of the official conducting the interview”

(dissenting opinion of Judge Wilkey, Pet. App. A,

30a).” mee

The reported eases reflect the ease with which

witnesses have been able to reconstruct any sugges

a: Williams & Hammelman, Identification Parades-I, 196

Crim. L. Rev. (Eng.) 479, 484; Comment, 2 U.C.LA. L. Rev.

552, 564. ; a

“In this case the photographic identifications were made

Soe ee ee ee

Bit 17

_ tivity present as a result of the type of photographs

used, the manner in which the photographs were

Officials during the course of the interview with the

Witness.” Indeed, the majority opinion in the court

below, which develops at length the alleged impro-

priety present in photographic displays, provides a

¢lear example of the reconstructability of those dis-

plays. On the basis of the evidence adduced at the

suppression hearing, the court of appeals was able

to give the following description (Pet. App. A, 9a):

See, ¢.9., United States v. Fernandez, 456 F. 2d 688, 641

-(C-A: 2), holding improper an array in which only one of six

photographs bore a resemblance to the description of a sus-

pected bankrobber; United States v. Zeiler, 427 F. 2d 1305,

1808 (C.A. 3), holding improper an array of photographs,

three of which were of the defendant in ordinary poses wear-

ing glasses—which fit the description of the suspect—while

the other five were mug shots of subjects pictured without

glasses; People v. Slutts, 259 Cal. App. 2d 886, 66 Cal. Rptr.

862, holding improper an array which included a photograph

if the defendant on which the police officer, prior to display-

trator of the crime. See also, State v. Fullen, 404 P. 2d

(Ariz.); Hernandez v. State, 255 A. 2d 449 (Md.); State

re, 485 S.W. 2d 8 (Mo.), each of which discusses the

iety of various comments by police officers at suppression

rings, which were described by the witnesses.

This thus readily apparent that one of the crucial

circumstances “which rendered the lineup a critical

stage of the proceeding—the inability of the defend-

—

“We'The issue whether the —photographs were impermissibly

cnggestive; aa earlier sited. (supra, p. 6) was not resolved

bey are set OS The. district court did not reach the

lished by “clear . aa convincing evidence” that the in-court

atifications were were based on observations of the suspect other

jan the photographic display (App. 68-64). The court of

a reals did not reach the issue because of its Sixth Amend-

ment holding, but that it would have remanded for

“a thorough hearing and more definite findings” on what

terized as the “substantial claim of impermissible

veness” (Pet. App. A, 11a). If the Court agrees with

ibmissic that the basis of the court of appeals decision

eous, then this issue would have to be resolved on

3

“4p reconstruct at trial any unfairness that oc-

dat the lineup”—is not present to any signifi-

extent in photograph displays and the defendant

entitled to the presence of counsel. As the

of Appeals for the Third Cireuit held in

d States ex rel. Reed v. Anderson, No, 71-1816

il 11, 1972) (S. App. 12a):

4 Tf, as here, the identification is not in a live

Le ~ lineup at which defendant may be forced to act,

' speak or dress in a suggestive way, where the

possibilities for suggestion are multiplied, where

_. “the ability to reconstruct the events is minimized,

_» and where the effect of a positive identification

ig likely to be permanent, but at a viewing of

_. immobile photographs easily reconstructible, 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 pres-

iy 'The earlier opinion of the Court of Appeals for the Third

- Cireuit, relied upon by the majority below, United States v.

- Geiler, 427 F. 2d 1306, was overruled in United States ex rel.

_ Reed v. Anderson, supra, (S. App. 12a). Judge Gibbons, who

- eoneurred in the holding in Reed that the Sixth Amendment

% not require the presence of counsel at photographic dis-

s; suggested that such a requirement be imposed in the

reise of the court’s supervisory powers (S. App. 27a).

proposal seems inconsistent with 18 U.S.C. 3502, which

erns the admissibility of in-court identifications and which

4 acted following the decision in Wade. S. Rep. No. 1097,

a Ce g., 2d Sess., p. 53. The expression of Congressional

mnt should not only be considered before Wade is extended

hotographic identification but would also seem to pre-

Accord: United’ States v. Benmett, 409. F. 2d 888

(C.A. 2), certiorari denied sub nom. Haywood v.

United States, 396 U.S. 852; United States v. Bal-

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

440 F, 2d 827 (C.A. 6); United States v. Gornick,

448 F, 24 666 (C.A. 7), certiorari denied, 404 US.

861; United States v. Long, 449 F. 2d 288 (C.A. 8),

certiorari denied, 405. U.S.. 974; United States v.

Smith, 423 F.2d 1290 (C.A. 9), certiorari denied,

398 U.S. 980; Rech v. United States, 410 F, 2d 1131

(C.A. 10), certiorari denied, 396 U.S. 970; People v.

Lawrence, supra, 4 Cal. 8rd 273; Brokenbrough v.

State, 287 A. 2d 657 (Del.); Staten v. State, 248

So, 2d 697 (Fla, App.); People v. Martin, 265 N.E.

2d 685 (Ill.), certiorari denied, 403 U.S, 921; Wil-

liams y. State, 275 A. 2d 522 (Md.); Commonwealth

v. Geraway, 245 N.E, 2d 422 (Mass.),. certiorari

denied, 896 US, 911; Stevenson v, State, 244 So. 2d

30 (Miss.); State v. Moss, 191 N.W. 2d 543 (Neb.);

clude the adoption of a rule in the exercise of the Court's

supervisory powers which would make the admissibility of

in-court identifications dependent upon the procedures em-

ployed at photographic displays. See McNabb v. United States,

818 U.S. 332, 341, n. 6. Compare Simmons v. United States,

supra, 390 U.S. at 384. While here the basis of reversal was

that evidence of a prior photographic identification was ad-

clear and convineing evidence” that the in-court identi

other than at photographic displays. See United States Vv.

Wade, supra, 388 U.S. at 240. —- y

21

We v. Spinks, 326 N.Y.S. 24 261 (8, Ct. App.

Div.) $ State v, Stepney, 185 $.B, 2a 844 (N.C.);

_ State v. Nettles, 492 P. 2d 567 (Wash: App.) ; Kain

_y. State, 179 N.W. 2d 777 (Wise.); contra: Cox v.

- State, 219 So. 2d 762 (Fla. App.); People v. Adams,

(172 -N.W. 24 547 (Mich. App.); Commonwealth v.

_ Whiting, 266 A, 2d 738 (Pa.), certiorari denied, 400

US, 919; Thompeon v. State, 451 P. 24704 (Nev.).*

ere

SPST ati

c=

PSS ‘

i: C. The presence of counsel at a photographic identif-

_ ___», cation is not required in order to preserve the de-

- fendant’s right to a fair trial.

_ The second factor common to all cases which have

extended the Sixth Amendment’s guarantee to various

‘* display

ne to. a crime unrelated to that for which he was

pre-trial steps—the need for the presence of counsel

to insure the defendant a fair trial—is also lacking

here, The photographic display essentially involves

only an interview between a law enforcement officer

and a witness; the interview does not involve “a con-

frontation compelled by the State between the accused

and the victim or witnesses” (United States v. Wade,

‘supra, 388 U.S. at 228). The accused is not present

and does not have any legal right to be present,

at such interviews.

‘The early cases extending the Sixth Amendment’s

guarantee were based upon “a realistic recognition

of the obvious truth that the average defendant does

not. have the professional legal skill to protect him-

Re ek ote tamer, toe

| his life or liberty * * *.” Johnson v. Zerbst,

304 U.S. 458, 462-463; see also Gideon v. Wain-

wright, 372 U.S. 335, 344-345; Powell v. Alabama,

287 U.S. 45, 68-69. While subsequent cases have rec-

ognized the necessity of counsel at both formal and

informal proceedings other than the trial itself, those

decisions have stressed the necessity for counsel “to

prevent the defendant himself from falling into traps

Sd tee ature tis Ane: other: side: afk 4o. woo.

it that all available defenses are proffered.” United

States v. Bennett, supra, 409 F.2d at 900. None of

those decisions involved proceedings at which the de-

fendant himself was not a participant. See, ¢.9.,

Coleman y. Alabama, 399 U.S. 1, 9, extending ,the

right to counsel to preliminary hearings where’ “the

‘guiding hand of counsel * * * is essential to protect

the indigent accused against an erroneous or improp-

23

prosecution” ; Hamilton v. Alabama, 368 U.S. &&,

| White v. Uesead 373 U.S. 59 extending the

to counsel to arraignments where “[a]vailable

enses may be * * * irretrievably lost if not then

there asserted” (368 U.S. at 54) and where

el is epee to enable the accussed “to plead

“tp post indictment interrogation of the accused; see

also, Mempa v. Rhay, 389 U.S. 128; In re Gault, 387

Us...

_ These decisions, as the Court held in Wade, reflect

‘the principle “that in addition to counsel’s presence

‘at trial, the accused is guaranteed that he need not

stand alone against. the State at any stage of the

prosecution, formal, informal, in court or out, where

: ’s absence might derogate from the accused’s

‘Tight to a fair trial” (388 U.S. at 226).” But unlike

~ ® The Court in Wade made repeated reference to “confronta-

_ tion” between the accused and the witnesses at a lineup. After

“critical confrontations of the accused,” 388 U.S.

it 224, 3 “pre-trial confrontation” and “meaningful con-

: ten n,” 388 U.S. 227, the Court focused on the “confronta-

0 Sista toy Hiss Geta bawaeks ‘the necnied cad the vic-

oy openness.” BSE 6; at 228, and stated, “The pretrial

-ontation for purpose of identification may take the form

jineup * * * or presentation of the suspect alone to the

oss * * *,” (388 U.S. at 229). By contrast the Court recog-

Zhat display. of photographs to. witnesses. was. common-

> and held that one of the ways the prosecution could

come the taint of an improperly conducted lineup was to

ran “identification by picture of the defendant prior to

ineup,” 388 U.S. at 241. There was no suggestion that

el was required when such an identification was made.

also, Simmons Vv. United States, 390 U.S. 877, 384.

24

Wade and the other cases, the accused here was not

required to “stand alone” at the interviews that took

place between the witnesses and the prosecutor. And,

as Chief Judge Friendly observed in United States v.

Bennett, supra, 409 F.2d at 899:

[T]o require that defense counsel be allowed

or appointed to attend [such] out-of-court pro-

ceedings where the defendant himself is not pres-

ent would press the Sixth Amendment beyond

any previous boundary. * * *

See also, United States ex rel. Reed v. Anderson,

supra (S. App.); United States v. Serio, 440 F.2d

827 (C.A. 6); People v. Lawrence, supra, 4 Cal. App.

8rd 278, 481 P. 2d 212.

There are no persuasive reasons for such an ex-

traordinary extension of the Sixth Amendment. As

we have already shown, the potential for impropriety

that is alleged to be present in photographic dis-

plays is readily capable of reconstruction at trial;

and where such impropriety is shown to have taken

place, a remedy is available (see supra pp. 14-19).

Moreover, “[mJany other aspects of the prosecution’s

interviews with a victim or a witness to a crime af-

ford just as much opportunity for undue suggestion

as the display of photographs; so, too, do the defense’s

interviews, notably with alibi witnesses” (United

States v. Bennett, supra, 409 F.2d at 900). Yet it

has never been held that counsel for a defendant has

a right to be present at such interviews or that’ the

oo yosyt ot nee debe aa

» On the contrary, under our adversary system

_ “the State is entitled to investigate and develop its

includes the right to have private conversations with

identification witnesses, just as defense counsel may

have his own consultations with these and other wit-

nesses without having the prosecutor present”

(United States v. Wade, supra, 388 U.S, 259, dis-

senting opinion of Mr. Justice White). Such inter-

views as well as other stages in trial preparation

should not and need not be encumbered or hindered

by the presence of a defense lawyer.” 7

The court below, however, suggested that a “crucial

distinction” should be drawn between photographic

identifications and ordinary interviews with witnesses

because “[t]he prosecutor cannot introduce testimony

_ on direct of the statements given by a witness in an

_®arlier interview * * * [while] he may introduce the

The reluctance of many citizens to become involved in

iminal trials as witnesses is a problem which law enforce-

ent authorities constantly face. The problem will only be

rther compounded if pretrial proceedings, such as interviews

with the prosecutor, are transformed into quasi-adversary

foceedings with defense counsel “hover[ing] over witnesses

ad beginn{ing] their cross-examination.” (United States. v.

‘ade, 388 U.S. 259, dissenting opinion of Mr. Justice White).

oreover, some witnesses may refuse to participate because

fear for their own safety if their identity is disclosed at

rly date. This is particularly so where crimes of violence

Hineups which were suggested in Wade (888 U.S. at 238,

R. 28)—-such as masking the witness—can only add to the

Misruptive effect on ordinary interviews and perhaps compound

* k

26

witness’s prior identification” (Pet. App. A, 16a-

17a); But prior consistent statements are generally

admissible when offered “to rebut an express or im-

plied charge against him of recent fabrication or im-

proper influence or motive.” Revised Proposed Rules

of Evidence for United States Courts. and .Magis-

trates, 51 F.R.D. 315, Rule 801(d); IV Wigmore,

Evidence §§ 1129-1130 (3d ed.) and cases cited.

Charges of recent fabrication and the like are fre-

quently leveled at such key prosecution witnesses as

accomplices or informers. |

Moreover, far more protection against impropriety

is afforded in cases involving photographs because of

the ease with which impropriety may be rooted out and

because of the procedures followed prior to the ad-

mission of evidence of a pre-trial identification. Be-

fore such evidence is admitted the defendant may

cross-examine the identification witnesses. ‘Armed

with this information, defense counsel at trial knows

precisely where to attack the prosecution’s evidence,

where to press the cross-examination, where to tread

ae a In regard to no other phase of

ition’s case does the defense have these

i and advantages.” (Dissenting opinion

of Judge Wilkey, Pet. App, A, 32a-33a),

The evidence of the prior photographic identifica-

tion in the instant case was admitted after a pre-trial

hearing fully disclosed whatever improprieties were

resent aa well as the potential points of defense at-

ck. The. al interview at which the photo-

ea wer dil was shown to have been part

27.

f the preparation of the witnesses for a trial that was

lisplay of photographs, as Judge Wilkey ob-

, “was part of counsel’s testing their recollec-

tion of pertinent facta of the case before putting them

_ on the stand for questioning” (Pet, App. A, 38a).

__ A prosecutor attempting improperly to influence

_ the in-court identification could easily. have given a

verbal picture of the defendants and indicated to the

- witness, if they were not already aware of the fact,

that both defendants would be seated at the defense

table. The prosecutor here instead took the risk that

_ the witnesses would not be able to make an identi-

fication when the photographs were displayed and that

defendants would then be able to use this infor-

tation in attacking any in-court identification that

might be made. The presence of counsel at the dis-

play would not have resulted in a more meaningful

e prevented a prosecutor intent on improperly in-

neing the in-court identification from finding a

y to do so.

CONCLUSION

For the. foregoing reasons, it is respectfully sub-

mitted that the judgment of the court of appe

should be reversed and the case remanded to

court for consideration of the other issues it left um

decided. %

ERwWIN N. GRISWOLD,

» HENRY E. PETERSEN,

Assistant Attorney General.

EDWARD R. KoRMAN,

Assistant to the Solicitor General.

JEROME M. Fert,

PETER M. SHANNON, JR.,

Attorneys.