55 N.Y.2d 474 | NY | 1982
Lead Opinion
These four appeals present the common question whether a suspect has a right to counsel at an investigatory lineup. In each case, we are urged by the defendant to interpret our State Constitution as providing this right at lineups conducted before the commencement of formal adversarial proceedings against a defendant.
I
In People v Laffosse, the defendant was convicted of robbery in the second degree for his part in the robbery of an off-duty police officer by three males. Laffosse was apprehended after the officer had selected his picture from a photo array. Once at the station house, the defendant was advised of his Miranda rights and he then agreed to talk to a detective. During the questioning he requested an attorney, but he and the police were unsuccessful in locating the particular attorney he desired; Laffosse then refused the offer of the police to procure a Legal Aid attorney to represent him. Shortly thereafter, he was informed that he was to be placed in a lineup and, once again, Laffosse refused an offer by the police to obtain the services of a Legal Aid attorney, this time stating that he would not need a lawyer until he went to court. Laffosse subsequently was identified at the lineup by his victim.
In People v Johnson, the defendant was convicted of two counts of murder in the second degree arising from a shooting which occurred during an aborted robbery attempt. Johnson was arrested on the day following the incident, and once at the station house he received preinterrogation warnings, but made no request for counsel. Several hours passed before the police were able to secure the presence of the eyewitnesses to the shooting for the purpose of conducting a lineup. Just before the lineup was about to be held, defendant refused to stand in the lineup and, for the first time, requested the presence of an attorney. Johnson was informed that he had no choice, and the lineup at which he was identified proceeded without counsel.
In the final case, People v Diaz, the defendant was convicted of sodomy in the first degree, assault in the second degree and attempted sexual abuse in the first degree emanating from his separate attacks on two young boys. The defendant’s identity was discovered when, following the second episode, the police discovered at the scene of the crime a bail bond receipt issued to Diaz following his arraignment on the previous day on charges unrelated to the attacks on the two boys. After the second boy selected his picture in a photo array, Diaz was arrested and placed in a lineup at the station house. Diaz was not represented by counsel at the lineup, and the police did not contact the Legal Aid attorney who represented him at the arraignment on the prior unrelated charges. Both complainants identified Diaz in the lineup as the man who had attacked them.
In each of these four cases the defendant moved to suppress the corporeal identification on the ground that he had been deprived of his right to the assistance of counsel at his lineup. Each lineup in these four cases was conducted before an accusatory instrument had been filed and before an adversary criminal proceeding had commenced.
II
Initially, we observe that defendants present no cognizable claim under the United States Constitution to a right to counsel at their lineups, since these lineups occurred prior to the initiation of formal prosecutorial proceedings (see Kirby v Illinois, 406 US 682). The Supreme Court in United States v Wade (388 US 218) held that a person accused of a crime by Federal or State officials is entitled under the Sixth and Fourteenth Amendments to have his attorney present at pretrial lineups. In Kirby v Illinois (supra), however, the court limited that holding and refused to extend this principle to provide a right to counsel at lineups held prior to the initiation of formal prosecutorial proceedings. In reaching this conclusion, the court observed that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him (Kirby v Illinois, supra, at p 688). The court went on to indicate that a formal charge, preliminary hearing, indictment, information or arraignment may mark the initiation of such adversary judicial proceedings (supra, at p 689; Brewer v Williams, 430 US 387).
In addition, the plurality opinion in Kirby also noted that the Fifth Amendment protection against self incrimination is not implicated at a preindictment lineup, nor does the Fifth Amendment provide the protection of counsel at this stage. The privilege “ ‘ “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” ’ ” (Kirby v Illinois, supra, at p 687, citing United States v Wade, 388 US 218, 221, supra). The
It follows, therefore, that the defendants in the four cases here presented to us had no right to counsel at their lineups by virtue of the United States Constitution. Each lineup occurred before the initiation of formal judicial proceedings and, accordingly, defendants’ Sixth and Fourteenth Amendment right to counsel had not yet attached. Nor did defendants have any right to counsel under the Fifth and Fourteenth Amendments, since the Miranda warnings and protections apply only to custodial interrogations.
Nevertheless, defendants press their contention that the lineup identifications must be suppressed, arguing that our State Constitution should be so interpreted as providing a right to counsel at investigatory lineups.
Ill
On several occasions in the custodial interrogation context this court has extended the protections of counsel afforded to a defendant under our State Constitution beyond those afforded by the United States Constitution. The lifeblood of the New York rule is that once the right to counsel has indelibly attached, the defendant can effec
Recently, this court has had two opportunities to trace the development of the independent New York rule; once in People v Skinner (52 NY2d 24, 28-30) and again in People v Kazmarick (52 NY2d 322, 326-327). As we have noted, the New York rule has developed along two lines. In the first line, it has been held that a waiver of the protections of counsel by a person against whom formal criminal proceedings have been commenced is ineffective unless made in the presence of counsel (e.g., People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154). In the second line, it has been ruled that the nonwaivability rule is applicable to a suspect who is represented by an attorney (e.g., People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325). This nonwaivability rule was extended in People v Cunningham (49 NY2d 203), where we found custodial interrogations of an unrepresented individual to be impermissible after that individual has requested the assistance of counsel. Additionally, in People v Bartolomeo (53 NY2d 225) the court held that if the police are aware that a person whom they seek to question has other unrelated charges then pending against him, and that person is in fact represented by counsel in connection with those charges,
Defendants Laffosse and Johnson, who stood in lineups without the assistance of counsel which they had previously requested, now contend that their corporeal identifications should have been suppressed by parallel reasoning under the authority of this court’s decision in People v
Much like the Supreme Court’s decision in Miranda, our decisions developing the independent New York counsel rules have arisen simply out of a concern for protecting the individual during interrogations. This court has repeatedly stressed that “[a]bsent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender [his privilege against compulsory self incrimination] when confronted with the coercive power of the State and its agents” (People v Settles, supra, at p 161, citing People v Hobson, 39 NY2d 479, 485, supra). Thus, our indelible right to counsel rule has developed to ensure that an individual’s protection against self incrimination is not rendered illusory during pretrial interrogation.
Although we have found the assistance of counsel to be of importance during interrogations, we have also noted that counsel plays a much more limited role at identification confrontations (see People v Hobson, 39 NY2d 479, 485, supra). During interrogations, counsel may take an active role on behalf of his client, both in advising a suspect on whether to remain silent and in counseling a suspect on whether to answer particular questions once the right to remain silent has been waived (People v Settles, supra, at p 165). In contrast, during a lineup counsel plays the relatively passive role of an observer (see People v Blake, 35 NY2d 331, 337). Counsel may not actively advise his client during the lineup itself. Indeed, we have gone so far as to state that “the need for and right to a lawyer at an identification lineup is insignificant compared to the need in an ensuing interrogation” (People v Hobson, supra, at p 485).
We conclude that the limited benefits provided by counsel at investigatory lineups are far outweighed by the
The right to the assistance of counsel at corporeal identifications therefore arises only after the initiation of formal prosecutorial proceedings (Kirby v Illinois, supra). After the accused has been formally charged by indictment, information or complaint,
Although we conclude that the State has no obligation to supply counsel at investigatory lineups, we have previously noted that if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings (People v Blake, supra, at p 338). That does not mean, however, that the police must notify counsel of an impending investigatory lineup or that counsel is entitled to a lengthy adjournment at this stage of the investigatory process. In view of the limited benefits which counsel provides at this stage, the police need not suspend the lineup in anticipation of the arrival of counsel if this would cause unreasonable delay. Pertinent to this consideration is whether the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation.
It follows that since the defendants in each of the present appeals were placed in lineups prior to the initiation of
Accordingly, in each of these four appeals, the order of the Appellate Division should be affirmed.
. Significantly, the court noted that “[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” (Kirby v Illinois, supra, at p 689).
. Miranda v Arizona (supra) provides, among other things, that the defendant must be permitted to have an attorney present during custodial interrogations.
. If the suspect is not, in fact, represented by counsel in connection with the prior charge, then the police are not barred from questioning the suspect on the new matter (People v Kazmarick, supra).
. In evaluating the benefits provided by counsel at investigatory lineups, it is important to remember that should a question arise concerning the suggestiveness of the lineup, the resolution of this issue will not come down to a credibility contest between the accused and the police. First, fears about such a credibility contest cynically and improperly assume that the police will misrepresent the lineup scenario. More importantly, however, it must not be forgotten that with each lineup identification there will be an eyewitness who can be examined and cross-examined at the Wade hearing and at the trial as to whether any improper conduct was resorted to. In this sense, lineups are fundamentally different from interrogations and thus the protective devices surrounding each may be different.
. Another important consideration is that a defendant has no constitutional right to refuse to stand in a lineup. He does have a constitutional right, however, to refuse to answer questions. Where the waiver of a constitutional right is involved, the need for counsel’s presence takes on greater importance.
. In People v Samuels (supra) it was held that the right to counsel attaches upon the filing of a complaint, since by statute a criminal action commences with the filing of an accusatory instrument (GPL 1.20, subd 17), which includes a felony complaint (GPL 1.20, subds 1, 8).
. In evaluating the need for counsel at investigatory lineups, we must be mindful of the fact that an identification made at an unduly suggestive lineup may not be introduced into evidence (Kirby v Illinois, supra, at p 691). Thus, the cassandran fear of numerous misidentifications, expressed by the dissent, must be tempered with the notion that adequate constitutional and evidentiary safeguards already attend the conduct of an investigatory lineup. Indeed, as the dissenters note, the majority of State courts have embraced the Kirby rule, indicating that the weight of authority rests with the position the majority takes today. I further comment on the multiple nonjudicial sources employed in the dissent. While I, in no measure, intend disrespect to my dissenting colleagues, to the view they express, nor to academic sources generally, I am constrained to note that some of these proffered authorities do not realistically or legally justify the result for which they are advanced. Thus, no item by item response is warranted. Rather, I find confirmation and support for the majority viewpoint in the judicial decisions and analyses of our court and the Supreme Court of the United States.
Dissenting Opinion
(dissenting). Because the majority’s insistence on following the lead of the Supreme Court in Kirby v Illinois (406 US 682)
Comment on the Kirby decision has made abundantly clear the illogic of its efforts to distinguish the Supreme Court’s prior holding in United States v Wade (388 US 218). The decision has been characterized as “wrong from every perspective” (Grano, Kirby, Biggers and Ash, Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich L Rev 717, 730), “perhaps the least defensible, from a technical point of view, of the Court’s criminal law holdings during the term” (Young, Supreme Court Report, 58 ABAJ 1092), an exaltation of form over substance (Albert, Criminal Law — The Lineup’s Lament, Kirby v Illinois, 22 De Paul L Rev 660, 675),
Nor would we be blazing a new trail in refusing on State constitutional grounds to follow Kirby. Though the majority of State courts deciding the issue since Kirby was decided have followed its rule, notwithstanding its lack of logic and in many cases without discussing the merits of the question or with an expression of reluctance,
The reason, of course, is the numerous instances in which innocent persons have been convicted on the basis of erroneous identification testimony. The Supreme Court in Wade underscored the problem: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification” (388 US, supra, at p 228), as have we, in People v Caserta (19 NY2d 18, 21): “One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when, as here, there was no particular reason to note the
The Borchard book dramatically illustrates the strength of the proof. Of 65 cases discussed by Professor Borchard in which innocent persons lost their lives or served prison terms, 29 were the result of mistaken eyewitness identifications, in one of which the same man, Adolf Beck, was twice convicted for crimes he did not commit, in another of which 17 separate victims swore that the innocent person was the perpetrator though he and the actual perpetrator looked not at all alike, and in 20 of which the resemblance was not close.
The dogma is that the role of counsel at a lineup is “passive”, but this is true only in the relative sense that he cannot engage in the plenary activity that he would during a trial. That he can be much more than an observer who will later use the knowledge thus gained to cross-examine witnesses at the trial or himself bear witness at the trial to events at the lineup is evident from our recent decision in People v Yut Wai Tom (53 NY2d 44). There defense counsel, though he did not stay to observe the actual lineup, arranged for defendant to be placed in different positions in the separate lineups that were to occur, for the removal of the jackets of the stand-ins because defendant was without a jacket, for the witnesses to view the lineup separately and for the wording of the questions to be addressed to them, and advised the defendant to assume the same pose that the stand-ins did and not to allow himself to be conspicuous (id., at p 52). Without reviewing in detail the
No one suggests that law enforcement can never be adversely affected by the delay involved in obtaining the presence of counsel for defendant. It is for this reason that, balancing the interests of defendant and of the State, the California, Michigan and Alaska Supreme Courts have excepted the situation in which exigent circumstances do not permit giving the suspect to be viewed an opportunity to request and obtain counsel, but do require that when the police have probable cause to arrest and there is no other circumstance requiring immediate identification, an arrested person must be taken to the station house and provided with counsel before a lineup can be held (Blue v State, 558 P2d 636, 642 [Alaska], supra; People v Bustamante, 30 Cal 3d 88, 100, 101-102, supra; People v Jackson,
Nor can it realistically be argued that providing counsel will impose too great a burden on law enforcement. Inconvenience there may be but nothing to compare to the living hell imposed upon an accused person required to serve a prison sentence for a crime he did not commit. The Wade decision not only suggested use of substitute counsel
There is much in our prior decisions concerning the right to counsel, generally and at lineups, to support the rule that I urge we should adopt. With respect to the right to counsel we have “painted with broad strokes” (People v Arthur, 22 NY2d 325, 328) and noted our “special solicitude for this fundamental right” (People v Cunningham, 49 NY2d 203, 207) and “the right and need of an individual to have a competent advocate at his or her side in dealing with the State” (People v Skinner, 52 NY2d 24, 29). True, those cases involved confessions and the present cases concern prearraignment lineups, but People v Hobson (39 NY2d 479) and People v Settles (46 NY2d 154), both lineup cases, stand as equal monuments with Arthur and Cunningham to our recognition of the right. Thus, Hobson spoke of the need “to protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State. The right to the continued advice of a lawyer, already retained or assigned, is his real protection against an abuse of power by the organized State” (39 NY2d, at p 485), and Settles of the fact that “the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle” (46 NY2d, at p 160).
One need not rely on such generalities, however, for just as Wade and Gilbert presaged a rule contrary to that adopted by the Supreme Court in Kirby so do our prior decisions with respect to the majority’s acceptance of Kirby.
The right thus established has been applied, though an accusatory instrument has not yet been filed, when an order directing defendant to appear in a lineup or provid
I do not suggest that there is an absolute right to counsel at prearraignment lineup. Indeed, I recognize that in People v Gladman (41 NY2d 123, 130), a case in which, as shown by the briefs, defendant’s counsel conceded that Kirby limited the right to counsel to postarraignment lineups, but argued from the fact that arraignment followed immediately after lineup that the timing established defendant’s right to lineup counsel, we stated in so many words that “there is no absolute right to counsel at a prearraignment lineup,” that in People v Perez (42 NY2d 971) we held that defendant’s request that an attorney be obtained for lineup did not create a right to counsel, and that in People v Pickett (52 NY2d 892) we ruled that a defendant in custody on an unrelated charge was not entitled to counsel at an investigatory prearraignment lineup on the new charge when the record contained no indication that defendant was then represented by counsel on either charge.
What I do suggest is that the rule established by our lineup decisions to date is that there is no absolute preclusion of counsel at lineup simply because the lineup is held prearraignment and that our prior decisions require law enforcement officials, aware that a defendant has counsel on an unrelated charge, to contact counsel prior to holding a lineup unless they can show that because of exigent circumstances the delay in obtaining counsel’s presence would seriously prejudice the investigatory process. I would, moreover, because of the serious danger of misidentification involved in eyewitness identification whenever it
The rule that I urge finds full constitutional support in the reasoning of our decisions in cases governing the right to counsel during interrogation (e.g., People v Bartolomeo, 53 NY2d 225 [knowledge that defendant was arrested seven days earlier on an unrelated charge obligates the authorities to inquire]; People v Cunningham, 49 NY2d 203, supra [request for counsel establishes right to counsel]) and, the danger of convicting an innocent person being different in form but equally as great in result through misidentification as through statements involuntarily obtained, I find no reason in either our Constitution or the practical necessities of law enforcement to justify the lesser rule now adopted as to lineups. I would, therefore, hold Laffosse and Johnson presumptively entitled to counsel by reason of their requests for counsel, Hawkins entitled to counsel because, as the Trial Judge’s finding affirmed by the Appellate Division establishes, the police officer knew Hawkins was represented in an unrelated drug case by counsel, and Diaz entitled to counsel because the police made no inquiry despite their discovery of a bail bond receipt issued to defendant the previous day. As already noted, in none of the cases does the record establish exigency nor, so far as appears, is there reason under the rule of People v Havelka (45 NY2d 636) to remand for a hearing on that issue. In each case, therefore, with the possible exception of Laffosse,
Chief Judge Cooke and Judges Jasen and Wachtler concur with Judge Gabrielli; Judge Meyer dissents and votes to reverse in a separate opinion in which Judges Jones and Fuchsberg concur.
In each case: Order affirmed.
. The majority’s conclusion that there is ho right to counsel at an investigatory lineup makes irrelevant to their determination of the Laffosse case the question whether if there were such a right it could be waived out of the presence of counsel (cf. People v Yut Wai Tom, 53 NY2d 44). I, therefore, do not discuss that issue.
. (E.g.: Mueller, Right To Counsel At Police Identification Proceedings: A Problem In Effective Implementation of An Expanding Constitution, 29 U of Pitt L Rev 65, 78, n 81 [“Since the reason for the rule is to prevent unfairness and to protect the right to meaningful confrontation at trial should the suspect be identified, the right to counsel must be afforded at any police-sponsored identification proceeding not conducted pursuant to Constitutionally sufficient regulations. Any other conclusion would be absurd”]; Quinn, In the Wake of Wade: The Dimensions of Eyewitness Identification Cases, 42 U of Col L Rev 135,143 [“Since the purpose of counsel’s presence is to avert prejudice and assure meaningful cross-examination at trial on the issue of identification, it should make no difference that the lineup occurs prior to the filing of criminal charges”]; Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 410 [“a major departure from traditional sixth amendment functional reasoning”].)
. (Albert, op. cit., 22 De Paul L Rev 660, 674, n 70; and Note on Kirby in 1975 Wash U LQ 423,436-437, nn 74, 75; and n 5 to Kirby plurality opn [406 US 682, 687] set forth the cases pro and con; see, also, Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 409; and commentary to the ALI Model Code of Prearraignment Procedure, p 420, n 2, both of which confirm that prior to Kirby a substantial majority of courts had applied Wade to preindictment identification proceedings and required counsel at all lineups.)
. (Note 1975 Wash U LQ 423, 437-440, and nn 76, 88.)
. (See, also, Commonwealth v Taylor, 472 Pa 1.)
. (See, also, People v Dixon, 85 Mich App 271, mot for lv to app den 406 Mich 906.)
. (Borchard, Convicting the Innocent, xiii; Frank & Frank, Not Guilty, pp 31, 61; Gardner, The Court of Last Resort, ch 8; Harris, A Treatise on the Law of Identification, pp 416-440; Houts, From Evidence to Proof, pp 10-13; Loftus, Eyewitness Testimony, pp 1, 7, 179; Reynolds, Courtroom, ch 8; Rolph, Personal Identity, pp 76-92; Sobel, Eyewitness Identification, ch 1; Wall, Eye-witness Identification in Criminal Cases, ch 1; Watson, Trial of Adolf Beck; Wigmore, Science of Judicial Proof [3d ed], § 251; Wilder & Wentworth, Personal Identification, p 37; Williams, Proof of Guilt [3d ed], pp 110-113.)
. (Borchard, op. cit, n 5, xiii; 1-3.)
. (New York Times, March 8, 1982, p 11, col 1.)
. (See, e.g., Golden, A Little Girl Is Dead.)
. (388 US, at p 235: “We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.”)
. (388 US, at pp 235-236: “The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ”.)
. (388 US, at pp 230-232, 236-239.)
. (Eisenberg & Feustel, Pretrial Identification: An Attempt to Articulate Constitutional Criteria, 58 Marq L Rev 659; Grano, op. cit., pp 747, 785; Lefcourt, The Blank Line-Up: An Aid to the Defense, 14 Grim L Bull 428; Levine & Tapp, Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U of Pa L Rev 1079; Mueller, op. cit., p 74; Quinn, op. cit., p 149; Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance, 17 UCLA L Rev 339, 364.)
. (Cf. People v Yut Wai Tom, 53 NY2d 44, supra; and see Mueller, op. cit., p 75; The Rule of the Defense Lawyer at a Line-up in Light of the Wade, Gilbert and Stovall Decisions, 4 Grim L Bull 273, 288; Eisenberg & Feustel, op. cit., p 677.)
. Substitute counsel at prearraignment lineups have been used effectively" in
. Governor Dewey, himself a noted prosecutor, was sufficiently perturbed over the erroneous identification problem as a result of the conviction of Bertram A. Campbell for a crime he did not commit that he not only pardoned Campbell but also had his counsel propose the subject as one for study by the Judicial Council (Fourteenth Ann Report of NY Judicial Council, 1948, pp 233, 235). After studying a number of possibilities including use of psychological tests, lie detector tests and the requirement of corroboration of identification evidence, the council concluded that the problem was better dealt with by regulation than by legislation (id., at p 73; the study appears at pp 233-268). Other palliatives have been suggested, including special instructions to the jury (see United States v Telfaire, 469 F2d 552, 558-559; Woocher, op. cit., at pp 1002-1005; Grano, op. cit., at pp 794-795; Loftus, Eyewitness Testimony, at pp 189-190).
. There is, indeed, some empirical evidence to the contrary in Steele, Kirby v
. For the reason stated in footnote 1 above, I do not discuss the waiver issue involved in the Laffosse case.