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Departments : Point of Law

ID Procedures and the Right to Counsel

When does a suspect have a right to an attorney during a pretrial eyewitness identification procedure?

November 01, 2006  |  by Devallis Rutledge - Also by this author

Kirby v. Illinois

Thomas Kirby was arrested with an accomplice following a mugging in Chicago. The two men were seated at a table in the station when the victim was brought in. When he saw the two men, the victim immediately identified them as the ones who had robbed them. After being convicted, Kirby went to the Supreme Court, arguing that his Sixth Amendment right to counsel had been violated.

The Supreme Court rejected this argument and ruled that the Sixth Amendment right does not attach until "the initiation of adversary judicial proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Since Kirby had not yet been indicted and had not made his first court appearance on the case, the Wade-Gilbert rule did not apply.

In the case of U.S. v. Ash, the court also drew a contrast between post-indictment lineups and showups on the one hand, and post-indictment photo displays on the other.

U.S. v. Ash

Two bank robbers wearing stocking masks robbed a D.C. bank. An informant later led the FBI to Charles J. Ash Jr., and another suspect. The two were indicted by the grand jury and counsel was appointed before the bank witnesses were brought in to look at photo arrays that contained the suspects' pictures. Ash's attorney was not notified of this ID procedure and was not present when the displays were exhibited to the witnesses.

Three witnesses identified the photo of Ash as one of the robbers. Ash subsequently appealed his robbery conviction on grounds that the photo ID procedure was done in violation of Wade-Gilbert and that the identification evidence should have been suppressed. The U.S. Supreme Court pointed out that since Ash was not present during the ID, there was nothing his attorney could do to ensure fairness. Therefore, the right to counsel did not apply.

"We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing the witness to attempt an identification of the offender."

The Role of Counsel

When counsel is present at a post-indictment showup or lineup, his or her role is simply to observe the procedure, making notes for possible use during cross-examination of the officers and witnesses at trial, but not to give advice or to interfere with the conduct of the process.

"The presence of counsel will significantly promote fairness at the lineup and a full hearing at trial on the issue of identification." (Stovall v. Denno)

Substitute Counsel

In some cases, the defendant's own attorney may not be able to attend when the lineup must be scheduled. The Supreme Court has said that a substitute defense attorney may attend instead, making observations and notes that can be passed on to trial counsel for use in cross-examination.

"Provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the lineup a critical stage for the presence of defendant's own counsel." (U.S. v. Wade)

The defendant may also waive the presence of counsel if he or she has not requested counsel and is advised of the right to have counsel present.

The Sixth Amendment right to counsel applies only to in-person showups and lineups after formal charge or first court appearance. It can be waived or satisfied with substitute counsel.

Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.

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