Right to Counsel at a Lineup
UNITED STATES v. WADE, Supreme Court of the United States (1967), 388 U.S. 218, 87 S.Ct. 1926
FACTS:
A teller at a federally insured bank in Eustance, Texas was robbed by a man wearing a strip of tape on each side of his face. Months later, petitioner Wade was indicted, was arrested, had counsel appointed, and was subjected to an in-person lineup. This identification procedure was conducted in the absence of any notice to Wade's appointed counsel and resulted in his identification as the bank robber by two bank employees. The employees later identified Wade in court at his robbery trial.
At trial, counsel for defendant unsuccessfully moved that the identification in court be stricken due to the violation of Wade's right to counsel at the in-person lineup. The trial court overruled the motion and the defendant was convicted.
The Court of Appeals reversed the verdict on the theory that holding a lineup in the absence of counsel violated the defendant's Sixth Amendment right to counsel. It ordered a retrial at which the in-court identification evidence was to be excluded. The Supreme Court of the United States granted certiorari, reversed the judgment of the Court of Appeals and ordered the case remanded for further proceedings consistent with the Court's opinion.
PROCEDURAL QUESTION:
Where a person has been formally charged with a particular crime, does an in-person lineup constitute a critical stage of the criminal justice process so that the person has the Sixth Amendment right to have counsel present?
HELD: Yes.
RATIONALE:
Mr. Justice BRENNAN delivered the opinion of the Court.
* * *III
The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution's evidence, not different - for Sixth Amendment purposes - from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like. 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 counsel.
IV
[T]he confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.
A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.
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Moreover, "[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial."
The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an "identification parade" or "showup," as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. But as is the case with secret interrogation, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. "Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on. * * *." Miranda v. State of Arizona, supra, 384 U.S. at 448, 86 S.Ct. at 1614. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants' names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim's understandable outrage may excite vengeful or spiteful motives. In any event, neither witnesses not lineup participants are apt to be alert for conditions prejudicial to the suspect.
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What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:
"In a Canadian case * * * the defendant had been picked out of a lineup of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a lineup with five other persons, all of whom were forty or over."
Similarly, state reports, in the course of describing prior identification admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.
The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade "standing in the hall" within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who "resembled the person that we identified as the one that had entered the bank."
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Since it appears that here is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the postindictment lineup was a critical stage of the prosecution at which he was "as much entitled to such aid [of counsel] * * * as at the trial itself." Powell v. Alabama, 287 U.S. 45, at 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an "intelligent waiver." See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay. And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases.
In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration of taint in the prosecution's identification evidence. That result cannot help the guilty avoid conviction but can only held assure that the right man had been brought to justice.
* * *V
We come now to the question whether the denial of Wade's motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.
A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses' identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses' unequivocal courtroom identification, and not mention the pretrial identification as part of the State's case at trial. Counsel is then in the predicament in which Wade's counsel found himself - realizing that possible unfairness at the lineup may be the sole means of attach upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification.
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On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper.
Judgment of Court of Appeals vacated and case remanded with direction.
Notes
1. In the companion case to Wade, Gilbert v. California, 388 U.S.263 (1967), an auditorium of up to a hundred witnesses to crimes allegedly committed by the defendant assembled together in the presence of each other. The witnesses spoke to each other concerning identity of various suspects and some witnesses requested to see some of the lineup participants more than once. The witnesses were allowed to identify the number of the suspect which each thought was a guilty party in front of the other witnesses. Among the vices present was a chance that an unsure witness would identify the defendant after hearing and seeing other witnesses make positive identifications. The Court held that the use of such an identification process violates the due process rights of a suspect since the chances for misidentification are greatly and impermissibly enhanced. As a result, the identification made by the witnesses should not have been admitted against Gilbert at his trial.
2. While Wade and Gilbert indicate that a defendant possesses the right to counsel at a post-indictment in-person lineup, does an arrestee have the right the presence of an attorney at an identification procedure help prior to the return of an indictment or the filing of an information? In Kirby v. Illinois, 406 U.S. 682 (1972), the defendant had been arrested because he possessed property which appeared to have been stolen. The police brought the victim of an armed robbery to the police station to make an identification. Immediately upon entering the room where defendant had been detained, the victim unambiguously identified Kirby as one of the men who had robbed him. No lawyer was present and Kirby had not asked for the presence of counsel.
The Kirby Court held that counsel was not constitutionally required to be present at this stage when the government had not yet made any decision to prosecute. According to a plurality of the Court, an arrest does not indicate that the government has committed itself to a criminal proecution and no right to counsel exists until the prosecutor makes such a determination.
Does this procedure appear correct? Could it be said that an arrest is really the initiation of a criminal prosecution and that, following arrest, counsel should be available to a criminal defendant? Or is it only when an indictment has been returned or an information filed that the adverse positions of the parties become solidified so that counsel at a lineup should be required? What if police procure an arrest warrant? Could this act be construed as the formal initiation of a prosecution for which counsel at an in-person lineup should be permitted?
3. What if police have a suspect appear in a series of lineups and confrontations and an unsure eyewitness gradually gains certainty in making an identification? Would a witness who observed the same person in successive lineups have an identification consciously or unconsciously enhanced in memory so as to make a positive recognition at a later date? In Foster v. California, 394 U.S. 440 (1969), an eyewitness to an armed robbery indicated a tentative identification of Foster as one of the perpetrators but was ultimately unsure. Later, Foster was taken to a room with the witness and placed in a position to have the witness observe him. The witness remained unsure of making an identification. After a week passed, police again exhibited Foster to the witness in a traditional lineup with the result that the witness made a completely certain identification of Foster. The Court held that this identification practice was unnecessarily suggestive and likely to result in an irreparable mistaken identification. In Foster, the witness could have become so familiar with the defendant, by observing him in successive lineups, that the witness honestly believed that the identification came from the original crime scene observation.
4. The right to counsel has not been extended to require the presence of counsel at a photographic lineup or other viewing of photographs when the suspect is not present. In United States v. Ash, 413 U.S. 300 (1973), the prosecutor showed eyewitnesses photographs of Ash and another in an effort to determine whether they would be able to make identifications at trial. The Court proved unwilling to extend the right to counsel to include a prosecutor's pretrial interviews with witnesses. According to the Court, "[s]ince the accused himself is not present at the time of the photographic display, and asserts no right to be present, no possibility arises that the accused might be misled by his lack of familiarity with the law . . . ." Despite the lack of a right to counsel, the defendant may be able to argue that a violation of due process has occurred if impermissible "steering" transpired while the witness viewed the photographs. How would defense counsel become aware of events which occurred at a photographic array lineup when the counsel was not present?
Five Factors Used to Determine Accurate Witness Identification
NEIL v. BIGGERS, Supreme Court of the United States (1972), 409 U.S. 188, 93 S.Ct. 375
FACTS:
A Tennessee court convicted respondent Biggers of rape based on the victim's visual and voice identification of him. Police permitted the victim to observe the defendant in the company of law enforcement officers as they escorted him down a hallway. The she made a certain and unambiguous identification of the defendant as the rapist.
During the seven months between the rape and her identification of the defendant, the victim had looked at countless mug shots, viewed suspects in her own home, observed many in-person lineups and photographic arrays, but had never identified any suspect. Upon seeing Biggers, her identification of him as the perpetrator proved instantaneous and positive.
The rape began at her home where the victim initially managed to observe the attacker's face as it was illuminated from the light of her kitchen and again when the perpetrator took her across a field under a full moon. On at least two occasions, she was face to face with her attacker with an excellent opportunity to observe his facial features and other details relative to identity. The victim's initial description offered to police clearly matched the defendant in every detail.
PROCEDURAL QUESTION:
Where a defendant was in custody and a crime victim has been permitted to walk past the arrestee who was under control of law enforcement officials and where the victim made a positive identification, does such a suggestive identification process in the absence of a standard lineup or photographic array, violate a defendant's right to due process under the Fourteenth Amendment?
HELD: No.
RATIONALE:
Mr. Justice POWELL delivered the opinion of the Court. . . .
III
We have considered on four occasions the scope of due process protection against the admission of evidence deriving from suggestive identification procedures. In Stovall v. Denno, 388 U.S. 293 (1967), the Court held that the defendant could claim that "the confrontation conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Id., at 301-302. This, we held, must be determined "on the totality of the circumstances." We went on to find that on the facts of the case then before us, due process was not violated, emphasizing that the critical condition of the injured witness justified a showup in her hospital room. At trial, the witness, whose view of the suspect at the time of the crime was brief, testified to the out-of-court identification, as did several police officers present in her hospital room, and also made an in-court identification.
Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:
"[W]e hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968).
Again we found the identification procedure to be supportable, relying both on the need for prompt utilization of other investigative leads and on the likelihood that the photographic identifications were reliable, the witnesses having viewed the bank robbers for periods of up to five minutes under good lighting conditions at the time of the robbery.
The only case to date in which the Court has found identification procedures to be violative of due process is Foster v. California, 394 U.S. 440, 442 (1969). There, the witness failed to identify Foster the first time he confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were "all but inevitable" under the circumstances. Id., at 443.
Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification It is, first of all, apparent that the primary evil to be avoided is "a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S., at 384. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of "irreparable" it serves equally well as a standard for the admissibility of testimony concerning the out-or-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.
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We turn, then, to the central question, whether under the "totality of the circumstances" the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court's conclusion.
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We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had "no doubt" that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face "I don't think I could ever forget." App. 127.
There was, to be sure, a lapse of several months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted, whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.
Affirmed in part, reversed in part, and remanded.
Notes
1. The Neil Court adopted the test for pretrial eyewitness identification from Simmons v. United States, 390 U.S. 377 (1968). In Simmons, the Court held that a pretrial identification should be ruled improper and therefore, inadmissible where the "identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons, at 384.
In order to give effect to the Simmons test, the Neil Court identified five factors which should be considered in making a determination of whether a witness has made a proper and accurate identification. While the identification in Neil was not a lineup in the traditional sense, the factors are to be used whenever the issue concerns a proper identification. The five factors are: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. If all the factors are properly considered, the chances of "irreparable misidentification" are substantially diminished.
2. Did the circumstances under which the victim in Neil made her identification of the defendant give rise to the chance of an "irreparable misidentification?" Why or why not? Did the manner of having her observe the suspect in police custody permit her to think that the police believed they had the guilty party?
3. In Stoval v. Denno, 388 U.S. 293 (1967), mentioned in Neil, the defendant allegedly killed a husband in the view of his wife who was severely wounded in the attack. Within two days, police found a suspect and brought him to the hospital bedside of the surviving wife to exhibit him to the victim. She made a clear identification of Stoval as the perpetrator. Stoval was not given the opportunity to participate in a lineup because the health of the victim proved precarious and she could not be moved from the hospital bed. According to the court, the wife was the only person who could either clear Stoval or identify him as the perpetrator.
The Court rejected Stoval's contention that the confrontation was so suggestive and conducive of irreparable misidentification that the victim's identification of Stoval should not have been permitted in court. The Court opted for a "totality of the circumstances" test to determine whether the practice of which Stoval complained violated due process. According to the Court, the status of the victim's health was precarious; she was the only one who could clear Stoval; and she could not be transported to the jail. All these factors mitigated against an in person lineup of the traditional nature and permitted the one person showup at the hospital bed.
Had you been in charge of the identification process, would you have proceeded in the same manner? Were there alternatives to the hospital showup? Could police have videotaped an actual lineup and taken the results to the hospital to be viewed by the witness?
4. The fact that the five factors of Neil have been properly considered by the courts does not end the matter of appropriate identification. Due process guarantees under the Fifth and Fourteenth Amendments dictate that the lineups be conducted in a fundamentally fair fashion. The process may have been inappropriate if, under the circumstances, the presence of counsel was required, or if improper steering by lineup officers transpired, or undue suggestiveness was created by the makeup or operation of the lineup.