*1 surеly Suggestiveness was officers. lice took a confrontation demonstrated presence of uniformed counsel, increased the bur of place in absence may further en- have been officers and demonstrate to the State den shifted remaining group was small. if the hanced inde identification in-court idеntity to the There is evidence lineup. United pendent tainted of the room, persons in the of the supra, at Wade, States petitioner, or whether resembled of In absence S.Ct. 1926. quite appearances different. were their showing otherwise presumption bearing. This com- This has an obvious inadmissible. identification and the plain of circumstances makes bination States, U.S. g., v. United E. Mason simply have the facts that we do not (D.C. App.D.C. 414 F.2d Cambridge happened about what at the 1969). police apparent station. independence test of pertaining develop failure to facts “grant whether, Wade is enunciated viewing trial сourt unable to left the primary ille ing of establishment regard consider factor we as crucial ob gality, to which instant the evidence independence determination at ex jection come has is made been suggestiveness recollection: illegality ploitation instead of that tainted confrontatiоn. Therefore distinguishable sufficiently to be means hold an failure of the district purged primary taint.” 388 U.S. evidentiary hearing error. applying In at 1939. at 87 S.Ct. proceed- Reversed and remanded for test, factors listed several the Court ings opinion. consistent with this considered; facts bear which must be ing developed in were on somе these list, appear the state trial here. This page is often not, how It is cited as “the Wade test.”
ever, relevant factors. exhaustive prob page
At 228 the Court noted eyewitness inherent in the use of
lems identification and said that: UNITED STATES of America ex rel. contributing major factor “[a] HARVIN, Appellant, Robert high miscarriage justice incidence of from mistaken identificatiоn YEAGER, Warden, Howard D. degree suggestion inherent in the Jersey State Prison. prosecution pre manner in which the No. 18136. suspect pre sents the witnesses Appeals, United States Court of trial identification.” Hence the nature Third Circuit. station confrontation must be reaching considered in as to conclusion Argued May indepеndence recollection of wit Decided June subjected nesses to it. Clemons Cf. States, U.S.App.D.C. United (en banc), F. 2d 1244-1246 denied, cert. plain It is from an examination of the state court record that the facts sur-
rounding station confronta-
tion adequately developed. have not been petitioner placed in a room with persons, undetermined number of
least some po- of whom were uniformed *2 Lowenstein, Schupper, Sand-
John D. ler, Kohl, Newark, J., for Brochin & N. appellant. Prosecutor,
Seymour Wishman, Asst. Newark, (Joseph Lordi, Essex N. P. J. J., County Prosecutor, Newark, Rob- N. Prosecutor, Podvey, on ert L. Asst. brief), appellee. Judge HASTIE, Chief
Before FREEDMAN, MARIS Circuit Judges.
OPINION
THE COURT
OF
FREEDMAN,
Judge.
Circuit
Relator
was convicted
December
degree
murder after
second
County
in the Essex
trial
Court
Jersey
imprison-
New
sentenced to
years. On
ment for a term of 28 tо 30
appeal,
New
direct
Court of
Jersey
affirmed the conviction. State
Harvin,
N.J.
cause he was without the assistance interrogation. counsel at his His began decided, after Escobedo was prior Ari the decision Miranda v. zona,
L.Ed.2d 694
and therefore
ap
rule
Escobedo
not Miranda
plies.
Jersey,
Johnson
testified that
right
told relator he had a
coun
have
рresent,
sel
but whether this be true
undenied
relator never
requested
specifically
view
counsel.2 In
opinion,
May 2,
acknowledged
no
The district court’s
filed
sel
that Escobedo had
unreported.
1969, is
bearing
case because
argued
request
Indeed,
for counsel. He
argument
on the use of
lily”
trial,
“gilding
coun-
were
in tes-
his сonfession at the
relator’s
right
the statement was
denial of
confinement before
claim of
are not un-
elicited and that his common-law wife
fail. We
to counsel must
argument
jailed
any charge
without
mindful of the merit
against
being
is not
her while he was
interro-
for counsel
that a failure
ask
gated.
kept
custody
meaningful
has no
He was
for al-
a defendant
where
*3
day
being
mag-
right.3
knowledge
re- most a
before
taken to a
But we
of such
hand,
period
subject
Billingsley
istrate. On the other
in
v. New
the
the
viewed
(3
1969)
the
Jersey,
detention from
time
his arrest
Cir.
Jersey
the
to
which he believed
decisions
determination,
judge
ini
to
as the test of admissibil-
quire
determine
trial
ity,
the
tially
confess
whether
had made
of a
state
out
the voluntariness
leaving
however,
prima
it
prosecutor,
it
facie
and
exclu-
ion.7
sively
duty
to
the
the
to determine whether
of
that
in
the
clear
view
his
voluntary.10
judge
the
in fact
the
confession
was to admit
statement
p. 32,
pointed
to
“The Court is
determine under all of
out in Pinto at
6. As
should the
1967 the
the circumstances
n.
since
19
Jersey
admitted,
changed
practice
it
if it is
is
and
and
admitted
New
been
proper
admissibility
hearings
the function and the
to be held
still
then
are
determine,
presence
the
the
if
de
function of
to
the
of
the
outside
given
requests.
Broxton,
“One,
volun-
the
v.
See State
fendant so
tarily
and,
230 A.2d
n.
N.J.
“Two,
8(3)
is it the
Rule
of the New
truth.
n. 2
See
credibility,
“They
judge
can
the
not
of
Rules
Evidence.
of
my
your
adversary,
Hon-
not me
not
Tassiello,
7.
39 N.J.
A.2d
State v.
or,
fact,
in
vol-
as
to
Fauntleroy,
;
(1963)
36 N.J.
State v.
untary.”
supplied.)
(Italics
A.2d
State
carefully
it,
considering
all
10. “After
of
161 A.2d
32 N.J.
keep
circumstances,
trying to
thе
opinion
(concurring
520, 550-552
mind
fundamental
fairness which
the
by
guidance
majority
of
for the “future
Boylan
ably
by
very
expressed
Mr.
Loray,
bench”).
the
But cf.
State
counsel],
think
I
that
the
[relator’s
mined
Jackson v.
Denno
new
volun-
son,
43,
174,
501,
11. See State v.
379
85
32 N. J.
161 A.
U.S.
S.Ct.
13 L.Ed.
520,
(opinion
Hall,
2d
2d 109
545-546
J.).
12, especially
13. See cases cited at note
Fitzharris,
799,
12. Ellis v.
F.2d
407
800-
States,
507,
Javor v. United
403 F.2d
(9
1969) ;
801
Cir.
Javor
v. United
(9
1968).
509-510
Cir.
States,
(9
1968) ;
403 F.2d
509
Cir.
395-396,
14. 378
at
Texas,
(5
U.S.