# Brief for the United States — United States v. Ash > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0184%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1973 - **Citation:** 413 U.S. 300 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0184%3A3. Public record. Not legal advice.