United States of America Ex Rel. Cleveland Reed v. Raymond Anderson, Warden, Delaware Correctional Center

Judge, SEITZ, Chief Before ALDISERT, DUSEN, HASTIE, VAN ROSENN, ADAMS, GIBBONS, MAX HUNTER, ROSEN, Circuit JAMES Judges.

740 Court, appealed Supreme THE COURT to OF Delaware

OPINION he while he was where contended that alleged custody, robbery made victim Judge. ALDISERT, Circuit him, of out-of-court identification Wade, 388 U.S. In United States v. presence The of his counsel. without 1926, 1149, 218, 87 18 L.Ed.2d S.Ct. photographic details of this California, 263, 87 U.S. Gilbert v. 388 by the introduced identification were (1968), 1951, L.Ed.2d 1178 S.Ct. 18 Relying part on State as of its case. applied Supreme, a constitutional Court argued Gilbert, this Wade and he gloss had been an to theretofore what Dela- evidence was The inadmissible. post- evidentiary rule and held that refused extend ware to accused was indictment where the reach of those these circum- cases a “critical exhibited stage” witnesses is State stances denied relief. Reed v. presence requiring the of counsel Delaware, (Del.Sup. of 281 A.2d 142 presumption im- and that otherwise propriety sought 1971). fed- relief When Reed In the absence obtains. corpus, court eral the district habeas prosecution counsel, must establish apply duly ruled that bound to was convincing clear evidence granted teaching Zeiler, subsequent in-court identification (D.Del.1971). F.Supp. The writ. 329 15 upon than based observations other appealed. State has lipeup In States identification. appeal squarely Because Delaware’s 1970), Zeiler, (3d v. 427 F.2d 1305 Cir. agreed issue, we meets constitutional Wade “critical this court extended the stage” doing, to en banc consideration. rule to those instances recognize case we the facts in this evidence introduces as meeting permit would us to avoid guilt pre-trial photographic identifica- deciding issue, sole- case substantive place takes tion of accused which ly retroactivity. In- question on the after an charged has arrested been would, deed, approach in our judicial officer with some Today view, easy But we admit resolution.1 re-examine this crime. we is- persuaded are the substantive holding. enough important recon- sue merit robbery, underlying important, armed Cleveland Convicted of sideration of given ten-year sentence, questions.2 Thus, to- Reed was constitutional 5, guilt. Photographic 1. Zeiler was decided June The identification evi Reed, identification bol dence is often offered discredit or gave appeal, See, testimony. rise to this occurred Au- ster other identification gust, Applying Roth, g., rationale e. v. F.2d United States 430 Denno, 293, 296, (2d Cir.), denied, 1137, Stovall v. 87 400 1140 cert. 1967, 1969, 583, 18 L.Ed.2d 1199 27 633 L.Ed.2d U.S. application Thomas, (1971). Cf., which limited the of the v. con- United States Thus, (3d 1971). and Gilbert rule Cir. stitutional “only prior future those cases and all cases consistent or inconsistent state prior ments, for identifi- held which involve confrontations hearsay purpose exceptions cation conducted absence admissible as violating [June counsel date without the Confrontation rule experienced 1967],” Green, no we have difficul- Clause. See California ty limiting application of Zeiler L.Ed.2d U.S. Small, (1970) ; those F.2d iden- out-of-court United States (3d 1971). And as in the absence of 498-499 tifications conducted Barber, 442 after June we said 1971) Higgins, 1972). n. : F.2d generous in the been courts have [T]he eye-witness accept 2. We do not the notion admission jury permit to make its in- be seldom order emphasis applies only when in- assessment. voked because it own evidence, rather testi- inclusion mony exclusion; credibility, primary than rather introduced evidence than day tions,” decide whether there should be con- S.Ct. at tinuing viability argument issue “no central is made . . that prejudicial- therein stated: notice to counsel would have ly delayed confrontations,” that led the court considerations 87 S.Ct. at 1938. guarantee in Wade to lineups pho- apply equally counsel at Indeed, suggested the Court that the tographic conducted necessity for the constitutional “ custody. after the defendant is in [legislative would be removed if or regulations, 427 F.2d at other 1307. such as those of local police departments, instituted [were to] anaylsis begins the Our Wade of with the eliminate risks of and abuse uninten- observation case is that this landmark suggestion lineup proceedings tional at not bottomed Although the Fifth Amendment. meaningful impediments and the con- Warren, Chief and Justice trial,” 239, at frontation U.S. at 388 87 Douglas, Black, Justices Fortas and S.Ct. at applied con- have this additional problem, the stitutional dimension to the Thus, while the under- constitutional solely on Court relied Sixth Amendment pinnings relate to the broader base of throughout Indeed, considerations.3 right trial, of at confrontations the ac- trilogy opinions in runs Court’s the Wade sought mischief tual to be avoided was emphasis an unabated on its confronta- physical confrontation of an un- tion clause: alleged counseled defendant his vic- prosecutions, by tim In ac- and other all witnesses. Influenced right public enjoy policy, the dictates of promulgated cused shall ... presumption confronted the witnesses construc- against suggestiveness impropriety tive or him. police lineups showups, “ characteriz- posed The issue in Wade . ing grave poten- them of “[a] sources potential prejudice whether substantial prejudice, tial for intentional or not.” rights par- to defendant’s inheres in the 236, 388 at 87 U.S. at 1937. This S.Ct. focusing ticular In confrontation.” analogized pre- conclusion can be compelledby State “confrontation sumption psychological or constructive between or the accused and victim physical Illinois, coercion in Escobedo v. witnesses,” 228, at at 87 S.Ct. 478, 1758, 84 12 L.Ed.2d S.Ct. 1933, lineups Court described Arizona, 977 Miranda 384 showings as “either form of confronta- 436, 1602, U.S. 86 16 L.Ed.2d S.Ct. tion,” 229, 1933 388 U.S. at 87 at (1964), environing 694 the statements emphasized difficulty “depict- police custody. taken those in ing transpires lineups what other at atmospheres, Because the Court confrontations,” forms potential has concluded that harm 230, dis- 388 U.S. at S.Ct. at 87 accused can be minimized cussing problems these it referred presence of counsel. “pre-trial identifica- confrontations for tion,” In the various Court articula- 87 S.Ct. at U.S. at “suggestive secrecy requirements Sixth tions of Amendment influences counsel, confrontation,” appears omnipres- 87 of there one U.S. at “meaningful ent characteristic common to diverse S.Ct. at fionfronta- majority (Brennan, admissibility. Balancing 3. A Har . Justices . White) expressly lan, Stewart, Clark, admissibility liberal inapplicable. commensurately heavy Fifth evidence held the Amendment is the 221-223, Wade, supra, placed upon at 87 S. burden U.S. proving identity ac- Ct. 1926. the criminal beyond proof tor a reasonable doubt. “Extrajudicial also, Annotation, See Identification,” A.L.R.2d against presence at physical alone State fact situations —the informal, stage”: pres prosecution, formal or “critical at the the accused out, Wainwright, where counsel’s absence trial, Gideon ence at derogate might from the accused’s 9 L.Ed.2d 83 S.Ct. U.S. supra, U.S. fair trial.” (1963) ; presence confrontation Texas, at 1932. This tenet 87 S.Ct. witness, U.S. Pointer v. (1965); pre- manifestly inapposite Wade L.Ed.2d 923 displays, interrogation no ac- in trial presence police States, takes of the accused dictment, 377 tual confrontation Massiah v. United pres- place. is not Because 12 L.Ed.2d interroga he ent, need no concern (1964) ; presence there at the Illinois, custody, su “stand alone.” must Escobedo v. tion in supra; Arizona, pra, and Miranda through Recurring Court’s hearings preliminary ar or presence at difficulty of recon- over the concern Alabama, raignments, 368 Hamilton accuracy structing with and fairness 157, 52, 114 L.Ed.2d 82 U.S. S.Ct. 7 lineup actually place or at the what showup: took 59, Maryland, U.S. 373 White seldom recon- “the defense can (1963) 1050, L.Ed.2d 193 10 Alabama, lineup mode of struct manner and 1, 90 U.S. and Coleman v. 399 judge jury at trial. identification for or (1970); 1999, 26 L.Ed.2d 387 S.Ct. lineup participating in a with the Those Rhay, sentencing, presence Mempa v. at officers; often be 128, 254, 19 L.Ed.2d 389 88 U.S. S.Ct. event, any participants’ in rarely are names (1967); juvenile presence at hear 336 divulged trial.” recorded or at Gault, ing, In re U.S. 87 S.Ct. 387 “In 388 U.S. at 87 at 1934. S.Ct. presence (1967); at and L.Ed.2d effectively inability short, the accused’s showups, lineups and Gil Wade to at reconstruct trial unfairness bert. may deprive lineup that occurred at the meaning- only opportunity him of his No critical found has been fully credibility of wit- attack to requiring to or exist—at trial — U.S. ness’ courtroom identification.” 388 the ting of counsel in a factual set assistance 231-232, Those at 87 S.Ct. at 1934-1935. physi not where accused was who would as evaluate this consideration cally present required to or entitled supportive of Zeiler rule reason that participate This action or inaction. procedure merely homology factual emanates present accused is not design from Sixth Amend argument proportions: of a fortiori ment, right which created both very absence of the accused or coun- his right confrontation to and the assistance pre-trial proceedings sel from the makes counsel, but also from common ra it more for even difficult accused to stages” tionale. are those links “Critical suggestive improp- whether or determine prosecutorial in chain in of events techniques employed. er potential in which the for incrimination Conceding logic there is opportunity and merit or which the for heres at argument, we are con nevertheless effective must defense be seized fore relatively simple gone. re vinced that it is role active or Whether his by photographs therefore, must, construct identification passive, the accused jury. presence judge present stages, of the at all for neither level, appellate Even on an this court nor the defense can oth proceed. able determine in Zeiler that the was photographic erwise And to insure that display witnesses proceeds fairness, each “the accused guaranteed unnec trial4 the second was “deemed ‘so that he need not stand years. charged five He was tried ten than William was indicted January, 1968, committing was robberies these eleven bank robberies having Pittsburgh period committed two over a of more convicted for area essarily suggestive ir mal risk that and conducive the absence might identification,’ derogate reparable mistaken fair his any purpose pointless other trial.” than 388 U.S. at S.Ct. at 1953. suggestion, Judge Friendly process” And to violate due observed Unit Bennett, “not ed to the extent held that was 898- permissible denied, Jessup 1969), for the cert. conclusion” trial government States, estab hold U.S. denied, 101, rehearing proving lished its burden of clear and L.Ed.2d convincing the in-court tes evidence that S.Ct. 24 L.Ed.2d timony was not tainted. F.2d 1308. 256: remand, II, in Zeiler Contrariwise itself, in Wade the Court opposite were able reach the con ways prosecu- listed as one of the photo display clusion a review of a might attempt tion to show that a graphs involving other witnesses witness’ identification defendant at 1971). first trial.5 447 F.2d 993 trial fruit held showing the absence of counsel a Indeed, Wade and Gilbert contain suf- by picture “the identification suggesting

ficient references prior lineup,” defendant court did not consider procedure ex- as a clearly implies that such identi- tremely difficult trial. to reconstruct permissible fications are even when spoke “fingerprints, blood sam- present. defendant’s counsel not is ple, clothing, like,” hair, and the techniques pervasive said the in We turn now “variables concern enough.” vagaries eyewit- of few the 388 U.S. at Court —“the of [are] S.Ct. 1932. Gilbert held that the tak- ness at identification.” not mini- We do ing exemplars handwriting importance imposing of mize not the was safe- guards a critical “pe- “there mini- because is the Court described as trial, concluding June, pictures tliem. A in second besides that of Zeiler which are “mug pre- not resulted re- shots.” conviction the Whereas the pictured maining robbery. reviewing group only bank In con- vious Zeiler was wearing trials, glasses, victions from both court had the as actual rob- only suggestive ber, photographs deemed the neither Zeiler nor of the other displayed present group to witnesses the second trial. individuals the wearing glasses. Furthermore, Because the record did disclose what shown photographs identifying procedure were shown to the the identification itself shows trial, improper suggestion. witnesses in the first we no ordered indication of hearing suggestiveness separate- remand for a Each witness was interviewed grant government ly oppor- presence others; and tunity the the outside the independent origin photographs arranged to establish an were in a pictures in-court re- identifications. We random order Zeiler’s hearing viewed the first trial at F.2d somewhere the middle so as not to (3d 1971) (Zeiler II). out; investigating stand and the FBI agent suggested any par- neither respect criterion, 5. With to the first none person pictures ticular in the was under specific suggestive- of the elements of suspicion nor commented that the wit- ness which we found picked “right” nesses man. had array shown to the witnesses at concerning contrast with our conclusion present second trial are here. Where- previous group photographs, eight photographs as three of the in the nothing therefore, suggest we find previous group Zeiler, were of the de- wit- the attention of each of the only pictured fendant once in question irreparably nesses group photographs. present All of six identify- picture “focused Zeiler’s as jdiotographs previous group ing suspect whom the investi- “mug except police shots” those gators were concerned.” ordinary Zeiler, snapshots which were might easily Zeiler, F.2d have reminded States v. 1971). also, viewers that Bandit” Anno- “Commuter See 995-996 “Photographic only recently arrested, tation, been Identification— while present group Suggestiveness,” includes two other 39 A.L.R.3d 1000. unshakenly positive absolutely, culiarly dan- am innumerable riddled with cautionary Other than man.” gers he is and variable factors.” weight concerning the Indeed, instructions exercis- at 1933. given testimony, is no con- there ing power his supervisory in United our the admission Barber, stitutional barrier danger testimony, despite its mandatory jury such imposed 1971), we designed inherent untrustworthiness. protect the ac- instructions crimes in the trials federal cused striking Finally, be- the balance proper not conducive to deterring where factors “desirability tween the present. This are not objectionable practice” constitutionally always alert extend lineups uncontrolled optimum to one accused of crime excluding “undesirability relevant protec- procedural constitutional and evidence,” stated: “No Wade Court recognize tions. exclusion- countervailing We policy consid- substantial brings ary on collision rule of against the have been erations advanced public policy considerations course the requirement presence of counsel” equally re- of Wade and Gilbert lineups, spected rele- that evidence hardly consideration impede that “counsel can truth-finding process should vant to the enforcement,” legitimate law arbitrarily from the fact withheld 238, 87 S.Ct. 1938. finder; where, especially Unlike circumstances here, traditionally has been the evidence countervailing policy believe there are regarded subject admissible in the use considerations rigorous credibility. At tests of curiae,6 brief, amici identification. rules of a time when traditional evidence suggests proceeding filed in this subjected being constantly re- are against policy reasons “the constantly examination, and are efforts making overwhelming.” in- After are being made to the reach of extend problems in in- inherent ferences to exclusionary rule, the determination riot, vestigating prison the brief placed whether certain be evidence should pages 19-20 states: beyond pale or within the constitutional problems clear that But it is exquisite agony. becomes task of a officers, by law enforcement caused by a counsel must, witnesses defense Seeking guidance, from as we prohibition of uncounseled signifi- blanket photographic Court, deem it we in-cus- notwithstanding formidable cant that ex- tody to confined defendants analysis is eye witness identification traordinary as those situations 228-239, 87 S.Ct. Holmesburg riot. Of- recognition involved possible and official custody will be in ten the defendant eye identi- untrustworthiness of witness potential place from far removed fication, at no con- has enunciated may Although well there witnesses. except di- stitutional rectly those inhibitions ar- probable for his cause have been rest, concept intertwined with may probable well be cause confrontation. Insofar as constitutional description or identifica- parameters eye based on drawn, have been wit- all of available than tion eyewitnesses, fewer completely police ness unknown to the right- police are prior and the may to trial into a walk courtroom discovering whether ly testify; interested properly “I saw the accused or eyewitnesses corroborate the other I or do deed. never saw him before original identifications. only contradict since. looked for a But second. Attorneys By for all Jersey, the State New Common- Cir- Pennsylvania, Pennsylvania the Third Judicial the Districts wealth of Attorneys Association, District Dis- cuit. Attorney Philadelphia, joined in trict in-custody way to practical do what defendant to so where links the crime. from the the defendant is distant widely scattered, or witnesses scene Clark, also, 289 F. See by photographic If is identifications. (E.D.Pa.1968). Supp. unduly on wit- it burdensome would be bring prison— them to the nesses to therefore conclude that We greatest per likely principles to be and this dictated se ex burden which ranging clusionary al- in wide federal crimes rule in Wade and Gilbert may though applicable witnesses to state crimes should not to have been made apart pre-trial photographic on de- live far burden also identification as —the place to If, here, counsel to travel from fense iden did in Zeiler.7 investigating place detectives tification is not a live to act, speak be forced if are or the witnesses to forced defendant be suspect, equally suggestive pos would be way, come dress where great. And, assuming can be suggestion multiplied, sibilities are detectives, accompany ability forced to reconstruct unduly this would be burdensome minimized, ef events is and where the of the lim- likely criminal view positive fect of a ited viewing number of counsel available permanent, im during trial, represent defendants at photographs easily mobile reconstructi interrogations lineups, as ble, subject at live suggestion, far to subtle less and in the well as collateral attack when far less indelible its effect appellate courts. brought later face face witness is accused, there rea is even less photo- Other under which situations procedure son denominate the a criti graphic in-custody identification of an pres stage cal which counsel must highly appropriate in- defendant seems ent. rapist robber, the case of a clude burglar oper- awith modus distinctive portion We overrule therefore ands rested, such a When defendant is ar- which denominated certainly practice good photographic identification a critical for the interview the victims requiring presence of to similar crimes. witnesses Yet satisfy Sixth Amendment. likely these victims and witnesses are say a defend This is not to widely to be even more scattered than inherently protected ant will not be single the victims or to a witnesses suspect As identification evidence. stat and the event of ei- burden ed Mr. in California Justice Harlan gathering ther the witnesses for a Green, n. compelling lineup or counsel to travel (1970), 1930, 1950, 26 489 S.Ct. L.Ed.2d place place (concurring opinion): proportionately will identifications greater. be appropriate permit Similar does a convic- uses Due photographs viewings by Thompson evidence, include vic- tion based no on robbers, larcenists, 199, burglars City tims of Louisville, or v. 362 U.S. where (1960), the defendant has 4 624, been arrested [80 654] S.Ct. L.Ed.2d custody charges 536, Herndon, and ing inis on of receiv- Nixon [47 v. 273 U.S. goods fingerprints (1927), 446, stolen or on 71 L.Ed. 759] S.Ct. or other circumstantial evidence is untrust- unreliable evidence so See, Bennett, supra; Roeder, 1970) ; United States v. Cir. United States v. Von also, Long, 1970) ; (10th 1004, See United v. States 449 1010 F.2d 435 F.2d Cir. (8th 1971) ; Collins, 696, 288 Cir. United States v. v. F.2d United 416 States Fitzpatrick, (2d (4th 1969) ; 437 F.2d 25-26 Cir. States v. 699 United Cir. 1970) ; Williams, (7th Robinson, United States v. 436 F.2d 69 Cir. 406 1969). Cf., (9th 1970) Ash, ; 1169 United 461 Ervin, (5th (D.C.Cir. 1972). States v. 436 F.2d 1334 F.2d 92 746 irreparable may likelihood substantial

worthy be said that kangaroo misidentifieation. tried accused had Oliver, supra, [333 InCf. court. re 390 U.S. 88 S.Ct. 499, 92 257, 68 S.Ct. L.Ed. U.S. presented to was Because this issue Louisiana, U. (1948)]; Turner v. ad- which decided it the Delaware court 424] L.Ed.2d S.Ct. [85 S. Reed, versely it was A.2d at (1965). Ex- properly court. before district of this pressing on the view merits no Denno, Stovall contention, proceed- remand we will 1199] L.Ed.2d S.Ct. [87 ings proper of it. for a resolution States, (1967), v. United and Simmons granting order the writ habeas L.Ed.2d S.Ct. [88 proceed- corpus underlying will be vacated and the principle 1247] recog- ings remanded. there was refined. The Court identification— nized that evidence of ADAMS, (concurring). Circuit always in a a critical issue if not be received trial —should by the I concur in result reached pretrial of a confron- circumstances approve majority in matter suggestive- infected tation so reasoning. much their Since I was irreparable give rise to an ness panel first member that heard the likelihood misidentifieation. Zeiler, case, United States v. 1970), F.2d 1305 com- short in of the record An examination appropriate. ment be argument on dicates that Simmons minority .by expressed The concern totality circumstances, regarding photo- the use of Conway, 158, 163-164 displays graphic coun- absence of 1969), dis presented to the was custody, sel is in an accused impermissi possible on trict court Moreover, I I do not one which share. is dispute suggestiveness ble arrangement has a such an display: However, potential for error. because many only proved must considered its [E]ach case so crimes can be facts, through eye own and . . . testi- convictions use of witness at mony, based the admission of such evidence following pretrial unduly trial by should restricted. Rather encourage photograph judicial policy will aside on be set should ground eye testimony, if the identi- full utilization of witness procedure impermissi- course, fication bly suggestive tested, crucible of trial give very proceedings.1 as to rise to a Burger, supervisory 1. Chief Justice then a member sents valid exercise our Appeals power. However, of the Court of of the District believe Columbia, eyewit completely adopt “When stated: free to Court is not willing give testimony, emphatically reasoning, ness is under re since it was subject rigors jected by oath and to all Simmons per penalties States, 377, 384, cross-examination v. United jury, 967, 971, (1968) ; he must be heard.” Brown 19 L.Ed.2d “ States, U.S.App.D.C. 134, 143, unwilling pro- . We are (1967). photographic 375 F.2d 319 identi- hibit use of [the Judge Gibbons, opin- dissenting in his counsel] in the absence of fications ion, suggested supervisory has that because the issue either the exercise of our or, less, power before us whether rule is as a matter still Constitutionally mandated, requirement.” we need not constitutional go applic- Furthermore, Congress so far as Zeller’s to overrule enacted 18 U.S.C. ability Implicit response to the federal courts. direct to the Wade 3502 as a § position reading Upon in his is that Zeiler in a decision. this section preserved theory repre- on it that manner with Wade as to consistent so per it, problem, by minority as I se see bar advocated usually presented compelled.4 my judgment, in- facts cases forged custody photographic by Supreme fall tools Court be, exemplified appear at one Simmons would between situations least at by point.in sufficiently spectrum time, Simmons Unit effective end safeguards States, provide 19 to ed 88 S.Ct. essential U.S. yet (1968), (photographic comport implicit L.Ed.2d with due investigatory stage), concept liberty. in our identification at ordered See by Conway, v. United and at the other States v. 415 F.2d (3d 1969). put 162-164 388 U.S. 87 S.Ct. To Cir. it an- (identification (1967), way, other L.Ed.2d 1149 cannot that the believe use in-custody In-custody corporeal lineup). photographic “imper- a display, not being missibly photographic displays, suggestive”, neither one other, present crime, especially to a nor the the choice whether when such witness underlying subjected rigorous is later considerations Simmons cross-ex- amination, applicable. or Wade are more so runs counter to the bed- judicial process rock of our fair- problem reconsideration On resulting ness of the conviction would by Zeiler, posed now convinced I am not necessarily be vitiated. great possibility that the is so error Having regarding protections my issue, altered stance myself procedure molded, position I find solidified in a should similar to that per Boys Markets, Mr. Justice then labelled Stewart in a Constitutional rule that a identifica- Inc. v. Retail se Union, Clerk’s stage.3 Nor, (1970), critical tion constitutes a 26 L.Ed.2d 199 him, my opinion, and like there been suffi- find solace in the words by empirical cient Mr. Justice demonstration data Frankfurter: “Wisdom too prosecutorial ought comes, often never abuse of one reject displays merely widespread it has been so that the because comes late.” any police probable infirmity, a case where avoid had cause Constitutional it be- delayed arrest, Congress to make an comes manifest at- order tempting super- limit to facilitate the use of the identifica- visory power tion in the absence of this situation. counsel. Such See 1968 might Cong. result U.S.Code & Admin. News 2139 induce arrest sus- (90th pects Cong. appointed prior Sess.). and have counsel 2d completion investigations their Gibbons indicates that considera- they any whenever doubt as to the tions behind Wade and Gilbert v. Cal- probable existence of cause order ifornia, arrange photographic display that would (1967), L.Ed.2d “com- include the procedure not violate the Zeiler rule. A suggestibility bination of the factor unduly such as this seem to restrict hearsay dangers”, familiar whereas Stovall proper investigation of crimes rather Denno, improve it, might than to work hard- “only 18 L.Ed.2d 1199 involves ship persons originally who were sus- suggestibility hearsay factor.” pected but later exonerated point argued was not raised and activity. parties here, posture and because of the case, of this we need not decide it. How- Indeed, improper conduct which mo ever, Stovall, although I note that proved tivated in Zeiler has permitted testify witness was as to both than to be an isolated incident rather the in-court and out-of-court identifica- general practice. See, g., e. United States tions, Court neither address- Higgins, (3d 1972) ; 458 F.2d 461 Cir. hearsay aspect ed itself to the out- Bamberger, States v. way identification, of-court nor (3d 1972) ; extra-judicial intimated identi- 1972); Medina, 455 F.2d 461 implicated hearsay. fication Carney, 455 F.2d cf. United States v. logical 1972). I am concerned that a extension apply holding of Zeiler would be to its photograph- Bank, inherent these factors are Nat. Planters Henslee v. Union procedures, whether or 290, 293, ic identification 595, 600, change present. Yet, the not (1949) A (dissent). L.Ed. 259 only required comment, that due brings Court felt forth position often by the ad- judi- critical, a case missibility case determination devotion to but sometimes my in-court identification an important, integrity cial is more by preceded an uncoun- had been which of consist- judgment, than the accolade photographic identification. selled ency. involved considerations Judge joins same this Van Dusen Fifth Amendment rule in a the Simmons opinion of Aldisert. and in the apply Amendment context to the Sixth challenge true case. It is raised this concurring Judge, SEITZ, Chief counsel are a defendant his that privy Judge, ROSENN, Circuit MAX whom joins. pre-trial happened at the what But, photographic much identification. agree involve does not ease this can recon- if not all of what occurred be Amendment discovery a violation of right Sixth appropriate structed Undoubtedly, desirable through to counsel. counsel. examination defense individual police practice Thus, appear, dictates was true custody represented case, can obtain that a defendant picture his included in production photographs employed when prepared display. I am Com- identification. say, however, 16(b) desirable pare Del.Super. that such a Ct.Crim.R. practice propor- 16(b); on constitutional takes cf. v. F.R.Crim.P. Simmons 388; supra tions. States, United see State, Md.App. A.2d Jones States, v. United Simmons (1971). photo- With these L.Ed.2d graphs produced then is left the defense Fifth established largely to concentrate on the manner rights Amendment sub- defendant they presented identi- to the were ject by a identification to an in-court fication circumstances witness. These who had witness picture defendant’s selected impervious do to effective not seem so array from a automatic cross-examination to mandate adequately protected by “a course identi- exclusion of the witness’ in-court exposes cross-examination at trial which basis) (absent independent fication jury potential to the . . . acceptable solution. See Sim- reaching error.” decision supra States, mons United 390 U.S. at if the realized “[e]ven 384, 88 S.Ct. 967. photo- . follow the correct most graphic procedures Indeed, if find a trial court should danger there that the witness is a some particular pretrial photographic that a incorrect identification.” make it would violated Simmons Also, it un- Id. required exclude such identifica- potential prejudice derstood testimony tion unless the es- accruing accused as result of to an according requisite tablished magnified a misidentification was cause, be- standard the in-court identification selecting particular photo- independent prior im- basis graph, apt an identification “is witness See, proper photographic identification. memory image in his retain g., Sutherland, e. photograph per- rather than 1970); (5th seen, reducing actually [thereby] son King, F.Supp. States v. 615-616 subsequent trustworthiness of (W.D.Tex.1970); courtroom Id. Both identification.” Washington, (D.D.C. right F.Supp. to the assistance of in counsel 1968). And, particular context, even if the not excluded testing a fundamental might identification evidence be serious consideration is the need for and value ly impugned. See Simmons assistance of counsel at States, supra 384, 390 U.S. at 88 S.Ct. of the in order to assure Thus, although per 967. se exclusion fairness in trial that will follow. ary rule under Sixth Amendment Ever Alabama, 1932, since Powell v. adopted, I think that a defendant’s 45, 287 U.S. 53 S.Ct. L.Ed. rights adequately basic in this area are recognized has been that the assistance safeguards secured in enunciated period of counsel for a before trial —how Simmons. long and on what occasions to be deter mined the circumstances of the case Judge, HASTIE, Circuit whom guarantee —is to essential fair GIBBONS, joins (concur- Judge, Circuit Accordingly, trial. in United States v. ring dissenting part part). in in Wade, 1967, 18 L.Ed.2d Mr. Justice Brennan ap- identification of began right analysis of the his of an ac August pellant in Reed occurred cused to by quoting counsel at a argument appeal, this of this Since the Sixth Amendment “the mandate that requirement of court decided enjoy right shall eyewitness photographic counsel at iden- have to Assistance of Counsel his custody persons tification charged in (emphasis Brennan’s) Justice defense” question is to the crime doing, pointed and, out that “this prospectively from June enforced guarantee encompasses thus as counsel’s Higgins, United States v. necessary sistance whenever to assure decided March 1972. For that ” meaningful ‘defense.’ 388 U.S. at concur dis- only, reason position I in the court’s proceeded 87 S.Ct. at He then appeal. of this length explain why the Court believed However, that, meaningful majority defense, under- to assure a charged judicially “whether there should be takes decide one accused of and continuing viability” carefully with an offense needed the assistance legal considered of our unani- conclusion he whenever should be exhibited years ago eyewitness alleged mous court than less two to an crime Zeiler, 1970, par 427 F.2d with a view to his identification as a 1305, 1307, ticipant wrongdoing. the “considerations 228-236, led the [United v.] States S.Ct. 1926. guarantee right of counsel at companion In case of Gilbert lineups apply equally California, 1967, 388 U.S. by public [administered 18 L.Ed.2d Court held after the defendant in cus- officers] tody” remedy that one essential failure judicial and after a officer has prosecutor or the to enable probable found hold' him for cause to the accused have the assistance prosecution. majority, the view of pre-trial lineup is the exclu- holding our Zeiler does not merit “con- prosecution’s evi- sion case of tinuing viability.” disagree. eyewitness dence that had identified due The basic constitutional lineup. the accused in an uncounseled generalized of law and assur- Zeiler, Thereafter, su- of fair that it underlie ance trial affords logic con- the same pra, held that particularized proce- exclusionary more the same siderations safeguards applied that, are set out the ab- that also evidence dural counsel, Rights. ques- sence defense Thus, Bill of when photo- from a concerning identified the accused reach arises tion key majority the of In the view the photographs to him graph exhibited or “confrontation,” pres legal concept its prosecutor. is by police or the the lineup and its absence cases ence By majority member- of entire its vote But photographic identification.1 overruling de- ship now this court is com is the accused neither situation doing, does In so the court cision. any plaining of his constitution of denial challenge the the accused seem need of right by the witnesses al to be confronted an occa- of counsel on for the assistance Why against occur then should the him.2 arranged government for sion the physical con of rence or absence a the eyewitness purposes identification any in de make difference frontation ciding in fa- or value of such assistance entitled to accused is whether the cilitating subsequent trial of fair occasion on an assistance counsel judge a issue identification before arranged by accom for the his accusers jury. urged and a Nor is it or plishment of identification? way demonstrated need for that the majority opinion points out that when the value such less assistance is repeat Mr. Brennan Justice photographs identification is made from lineup a “con edly as a characterized during corporeal it than when lineup. is made a majority Therefore, frontation.” reasons, treating the Court was Rather, majority opinion focuses physical accused confrontation of upon distinction that made as circumstance witness lineup present corporeal himself at is a prose stage” a “critical a photographic a exhibi- absent from the accused and thus entitled cution pointed In Zeiler tion. out that if this But counsel. the assistance significant all, only distinction, if at lineup a critical what been made greater makes the need for even stage prosecution, to believe it hard is photographic at a at identification than ex have made court would not that the lineup. accused, For be- at least the plicit and would not undertaken have presence, cause of his edge knowl- has some justify important In conclusion. happens lineup. of what at a already stead, out, pointed as contrast, depend entire- defense must opinion, eight pages in its devoted ly upon officials exhibited who 228-236, ato dem photographs prosecution or other wit- eye impact of of the decisive onstration happened at for evidence of what nesses great dan identification and witness uncounseled identifica- ger the factors misidentification as True, allegedly photographs tion. stage made this critical pre-trial used at the identification Moreover, proceeding. Mr. However, only per- be available at trial. early in his Brennan referred Justice present sons at the supra, Alabama, opinion to Powell v. photographs know how the exhib- right establishing assistance to the ited and what was said that occasion. needed before counsel to extent apart consideration, But from this proper preparation of whatever trial for why difficult to see this distinction might Obvi have. the accused defense ously, rarely opposite should lead to in preparation conclusion will occasion right volve “confrontation.”3 to counsel. deny analysis suggested an offer 2. This This Circuit pretrial hearsay Judge, Judge Friendly, uncounsel- evidence of now Chief might Bennett, 2d ed Cir. problem the confrontation under Other courts create have followed Friendly’s distinguished leadership with clause. critical comment. out prep- Serio, 827; to counsel 6th Unit 3. This 440 F.2d majority unpersuasive Long, makes ed States v. 8th 449 F. aration 288; Williams, no critical statement 2d States v. 9th “requiring the assistance to exist found Apart analogy photograph- prosecution supervised to Wade and Gil- pre- simply bert and one of the from considerations of fairness ic identification is accused, majority the need trial situations also great. expresses very requirement of of counsel is concern that a the assistance physical “confron- The contention might impracticable or at times be stage” tation” a measure “critical impose upon least would undue burdens present context can investigators prosecutors. This stating impressively be tested certain supported by view is reference to and facts of a recent case. In United States lengthy quotation from a filed brief Collins, 4th by amicus curiae in this case state and prisoner required to an accused was prosecutors local the who view Zeiler lineup stand in a in order with others However, principal rule with the alarm. eyewitnesses might at- the crime to example cited in that brief to the show tempt eyewitness One an identification. gives consequences Zeiler intolerable viewing. However, did not attend this application Zeiler much broader than this lineup photographed the the and spoke intended. We in Zeiler of picture later to the absent showed that the custody” “in of a defendant to eyewitness. Let assume that counsel us the photograph- assistance of counsel for the accused was not notified of or ic intended, identification. We as we lineup either the attendance at shows, think the context to extend the photo- the subsequent exhibition only rule to defendants those who had graph lineup.4 Wade and the Gilbert charged question been with the crime prosecution prohibit the being and thus held for were further using eye- as fact evidence the that one prosecution. the witness had identified accused at example prison cited is a serious Today’s lineup. uncounseled decision Philadelphia riot occurred testimony would permit that a second brief order “[i]n states eyewitness had identified accused fairness, twenty to assure some books showing photograph aat of a containing every photographs per- lineup. logic fairness, I do and in (several present son riot scene at the opposite not see how those conclusions given all) prepared hundred in together. Yet, can stand such the re- is twenty to in turn detectives who inter- relying upon physical sult of “confron- possible viewed each witnesses— problem. tation” as the touchstone guards put prisoners alike —to to- Indeed, majority view, po- under the gether information, help which would to wholly lice could make Wade Gilbert and, reconstruct of the riot the events by conducting merely lineups ineffective charg- eventually, basis form without the of either attendance witness- against responsible.’’ (Empha- es those counsel, photographing lineups es or added). then its face sis This was thereafter, convenience, exhibiting using photographic case photographs eyewitnesses investiga- proper preliminary tool absence of the accused and To counsel. prison- tion order to determine me, inescapable the conclusion charged ers should with the crime Wade and Gilbert 'rationale should con- charge question. had No riot connected viewings corporeal trol photo- both graphic against prisoner. yet lodged any or neither.5 exhibitions majority setting not factual 5. While do discuss where the ” present. physically application not of the doctrine case . identification, the dis- Only respect in this do the stated facts point logic it senters out does differ from those of case. Collins 250-251, apply. S.Ct. 1926. lineup There counsel attended subsequent was not informed of the ex- photograph hibition to another witness. magistrate any probable ecuted for similar crimes. had cause these

No found inapplicable The Zeiler prosecute individual. Not during rioting investi- prosecution reached exhibition gation charging. stage,” possible preliminary prosecution had a “critical Thus, rule, begun. Zeiler intended even opinion, explained in this court and suggests also that the Zeiler The brief hardships impose any of would not eyewitnesses impracticable rule is where contemplated amici feared alleged crime have scattered curiae. places place far various from the alleged charg- hardship of the prisoner confined, Finally, has been represented by ed minimized the fact that and is counsel. It rule is rarely require represent- serious will have onerous to ing impecunious need fact that defendant travel to use the country present identifica- made a around ings to be at show- important part picture tion as an of its case to such wit- his client’s ordinarily But, against For nesses. Mr. Bren- accused. Justice eyewitness attempt difficulty sug- a anticipated nan will be available this gested satisfactory to face it much more face that could be surmounted Occasionally designated an “substitute counsel” for the identification at important trial. eyewitness purpose representation limited showing died of at the will have be- days rarely, photographs. trial. the accused In these fore More organizations by photograph when short- criminal -defender have been identified ly chang- alleged generally abound ingly have and the bar is after the crime but increas- greatly obligation appearance so sensitive to its in since that assist ed charged unrecognizable persons in the at trial.6 defense time that he is crime, assignment where the recruitment and In these unusual situations .really pur- prosecution’s evi- substitute counsel case turns on for limited this pose rarely will dence identifi- be difficult or burden- preservation Zeiler some. cation the of the just rule would afford the accused Next, suggested fairly it is often against protection inher- reasonable it possible is desirable to cheek con- grave ent risk of mistake person, nection of a who has arrest- Brennan identification that Mr. Justice charged offense, ed and for one with sim- opinion elaborated his Wade without ilar crimes committed at other times imposing unreasonable burden places. frequently end, To is government.7 worthwhile to prisoner photographs exhibit of the reasons, widely dispersed For rule the Zei- these numerous eyewitnesses though here, reaffirmed,8 of other crimes. But its ler should be case already in the as cussed, case of the restriction to identification made riot dis- prisoner require yet being pros- a rever- is its announcement would Collins, supra. accused, 6. iden- See United v. from his States different cerated lineup, not a critical tification judges joined Two who Zeiler de- majority opin- prosecution. join overruling cision now it. recognizes ion must this distinction they opinion explain concurring their Zeiler is to overruled. validated if change has been caused concurring opinion not mention does reweighing underlying policy considera- issue, this much less contribute to its policy tions. But considerations resolution. Supreme required Court’s view equal appeal argument Gilbert have force here. Since the obligated Appeals Co- And we the District of are to treat Wade and Court of by majority Circuit, Therefore, of the Gilbert vote as authoritative. if lumbia sitting adopted banc, those do en decisions not control this case it Ash, be, policy de- must rule. United because think the States underlying unsound, F.2d them March but because cided identification of incar- directly reliability related to of the evi- decision of the district court’s sal integrity of the dence, and hence case. finding process. This is not fact Mapp Compare, g. prophylactic e. rule. dissenting GIBBONS, Judge, Circuit Ohio, 81 S.Ct. 367 U.S. HASTIE, part Circuit with whom (1961). L.Ed.2d 1081 joins. Judge, agree Judge I that it Hastie Judge opinion. Hastie’s I concur impossible distinguish photograph- me discussion Because it seems problem ic identification poreal cor- from the problem of United problem. The use prior photographic of a (1967), v. Califor Gilbert L.Ed.2d 1149 the truth the matter asserted com- 1951, L.Ed. nia, 263, 87 S.Ct. possible bines same elements of unre- Denno, 388 (1967) 2d 1178 and Stovall liability prior corpo- use does 1967, 18 L.Ed.2d real identification. in terms of “confrontation” stage” the source of has been “critical Moreover, language some Al- alike, bench some confusion bar opinion goes disert’s further in au- much my thoughts These I own. add some thorizing prior photographic use iden- probably compound than dis rather will for the truth of tifications the matter confusion, pel event appropriate. asserted than I think This try. will corpus is a state case. Thus it habeas trilogy presents only In the Wade-Gilbert-Stovall the issue whether sepa- Zeiler, two deals with United States v. problems. (3d 1970) constitutionally The first is rate evidence man- suggestibility dated, binding and hence inher- inherent and thus on the state unreliability prosecution. ent identifi- courts. Zeiler federal was a hearsay prob- need, case, cations. is the There is no The second to over- prior application of the out-of-court Zeiler’s lem use of rule in the United prior identification —for States District Courts. Indeed I statement —the believe prior of matter truth asserted. Stovall that use of a Government suggestibility involves factor. for the identification truth of mat- involve the combina- ter and Gilbert asserted violates the rule of evi- suggestibility applicable tion factor and fa- dence which we held to hearsay dangers. prior supervision miliar In the federal under our courts Small, identification elicited from in F.2d 497 (3d 1971). witnesses in an on cross-examination at- See also United States tempt credibility. 1968); impeach their v. Schwartz, 390 F.2d 1 Gilbert, Virgin Pondt, U.S. at 87 S.Ct. 1926. Government of Islands v. here, per- 1972). of evidence Cir., local law 456 F.2d 679 filed Be- dangers prior hearsay mitted out-of-court use of cause of the discussed truth matter Rosenn in United States Small, supra, permit asserted. 388 n. would not the Gov- Supreme prior 1951. The Court found that ernment use dangers just the combined much too for the truth of the matter asserted. prior identify

for use in a criminal trial unless ad- identification or failure to safeguard reliability would, course, pres- ditional im- be available for Nothing II, peaching purposes. ence was added. semantic in Title 701(a) route which Court took in the Omnibus Crime Control § arriving judgment at result that this Act of P.L. 90- Safe Streets constitutionally pre- purports mandated now tends 18 U.S.C. § excluding to obscure fundamental vent use reasons for affirmative us exclusionary the rule. Wade is out-of-court identifications.

Case Details

Case Name: United States of America Ex Rel. Cleveland Reed v. Raymond Anderson, Warden, Delaware Correctional Center

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 11, 1972

Citation: 461 F.2d 739

Docket Number: 71-1816

Court Abbreviation: 3rd Cir.