UNITED STATES v. ASH
No. 71-1255
Supreme Court of the United States
Argued January 10, 1973—Decided June 21, 1973
413 U.S. 300
Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, and Jerome M. Feit.
Sherman L. Cohn, by appointment of the Court, 408 U. S. 942, argued the cause and filed a brief for respondent.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this case the Court is called upon to decide whether
I
On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers’ drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.
A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash‘s picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this
Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash.3 Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment identification provides the basis for respondent Ash‘s claim that he was denied the right to counsel at a “critical stage” of the prosecution.
No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.4 The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by “clear and convincing” evidence that in-court identifications would be “based on observation of
At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-cоurt identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey‘s counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey‘s counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey‘s counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor‘s request and over the objection of defense counsel.5
The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his mоtion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.
The five-member majority of the Court of Appeals held that Ash‘s right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court‘s lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967).
The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F. 2d, at 105-106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins.
Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a “critical stage” requiring counsel, and criticized the majority‘s suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F. 2d, at 106-134.
The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification.
In Powell v. Alabama, 287 U. S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that “in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes.” Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule.
Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but
A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalitiеs long has been recognized by this Court. Mr. Justice Sutherland‘s well-known observations in Powell bear repeating here:
“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U. S., at 69.
The Court frequently has interpreted the Sixth Amend-
Another factor contributing to the colonial recognition of the accused‘s right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:
“[E]arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe‘s inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” F. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted).
“It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
This historical background suggests that the core purpose of the counsel guarantee was to assure “Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.7 Later developments have led this Court
This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:
“When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today‘s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused‘s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’
statute granting prisoners the right to counsel at treason trials. 7 Wm. 3, c. 3 (1695). Hawkins explained that the professional ability of king‘s counsel motivated this reform because it had “been found by experience that prisoners have been often under great disadvantages from the want of counsel, in prosecutions of high treason against the king‘s person, which are generally managed for the crown with greater skill and zeal than ordinary prosecutions . . . .” 2 W. Hawkins, Pleas of the Crown 566 (Leach ed. 1787). The 1695 statute weakened the English rule and, after a century of narrowing practical application, see n. 6, supra, the rule was finally abrogated by statute in 1836. The Trials for Felony Act, 6 & 7 Wm. 4, c. 114 (1836).
The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.
Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a “critical stage” preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.
The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:
“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 U. S., at 235-236.
The function of counsel in rendering “Assistance” continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused‘s memory might be dimmed by “emotional tension,” that the accused‘s credibility at
This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.
III
Although the Court of Appeals’ majority recognized the argument that “a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,” the court concluded that “other forms of prejudice,” mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. These forms of prejudice were felt by the court to flow from the pоssibilities for mistaken identification inherent in the photographic display.8
The above discussion of Wade has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render “Assistance” in counterbalancing any “overreaching” by the prosecution.
After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the “gathering of the prosecution‘s evidence,” such as, for
not justify a lineup without counsel. The same may be said of the opportunity to examine the participants as to what went on in the course of the identification, whether at lineup or on photograph. Sometimes this may suffice to bring out all pertinent facts, even at a lineup, but this would not suffice under Wade to offset the constitutional infringement wrought by proceeding without counsel. The presence of counsel avoids possibilities of suggestiveness in the manner of presentation that are otherwise ineradicable.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101.
The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not “critical.” Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:
“Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government‘s case at trial through the ordinary processes of cross-examination of the Government‘s expert witnesses and the presentation of the evidence of his own experts.” 388 U. S., at 227-228.
The structure of Wade, viewed in light of the careful limitation of the Court‘s language to “confrontations,”9 makes it clear that lack of scientific precision and in-
“Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.‘” 388 U. S., at 239 (footnote omitted).
See, however, id., at 262 n. (opinion of Fortas, J.).
The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F. 2d 888 (1969), recognized that the “criticality” test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:
“None of the classical analyses of the assistance to be given by counsel, Justice Sutherland‘s in Powell v. Alabama . . . and Justice Black‘s in Johnson v.
Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant‘s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution‘s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense‘s interviews, notably with alibi witnesses.” Id., at 899-900.
We now undertake the threshhold analysis that must be addressed.
IV
A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.
Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor‘s trial-preparation interviews with witnesses. Although pho-
That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.10 No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.11 Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of
The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.14 This Court has
Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,16 who, as so often has been said, may “strike hard blows” but not “foul ones.” Berger v. United States, 295 U. S. 78, 88 (1935); Brady v. Maryland, 373 U. S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384.
this argument is that photographic identifications may be used to circumvent the need for counsel at lineups. Brief for Respondent 44-45.
We hold, then, that the
Reversed and remanded.
MR. JUSTICE STEWART, concurring in the judgment.
The issue in the present case is whether, under the
The
In United States v. Wade, supra, the Court determined that a pretrial proceeding is a “critical stage” if “the presence of . . . counsel is necessary to preserve the defendant‘s . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 388 U. S., at 227. Pretrial proceedings are “critical,” then, if the presence of counsel is essential “to protect the fairness of the trial itself.” Schneckloth v. Bustamonte, 412 U. S. 218, 239; cf. Coleman v. Alabama, 399 U. S. 1, 27-28 (STEWART, J., dissenting).
The Court held in Wade that a post-indictment, pretrial lineup at which the accused was exhibited to identifying witnesses was such a critical stage, because of the substantial possibility that the accused‘s right to a fair trial would otherwise be irretrievably lost. The hazard of unfair suggestive influence at a lineup, which, because of the nature of the proceeding, could seldom be reconstructed at trial, left little doubt, the Court thought, “that for Wade the post-indictment 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.‘” 388 U. S., at 237.
“a little drama, stretching over an appreciable span of time. The accused is there in the flesh, three-dimensional and always full-length. Further, he isn‘t merely there, he acts. He walks on stage, he blinks in the glare of lights, he turns and twists, often muttering asides to those sharing the spotlight. He can be required to utter significant words, to turn a profile or back, to walk back and forth, to doff one costume and don аnother. All the while the potentially identifying witness is watching, a prosecuting attorney and a police detective at his elbow, ready to record the witness’ every word and reaction.” 149 U. S. App. D. C. 1, 17, 461 F. 2d 92, 108.
With no attorney for the accused present at this “little drama,” defense counsel at trial could seldom convincingly discredit a witness’ courtroom identification by showing it to be based on an impermissibly suggestive lineup. In addition to the problems posed by the fluid nature of a lineup, the Court in Wade pointed out that neither the witnesses nor the lineup participants were likely to be alert for suggestive influences or schooled in their detection. “In short, the accused‘s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” 388 U. S., at 231-232.
A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influences can be readily reconstructed at trial. It is true that the defendant‘s photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness’ description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive manner, or that by comment or gesture the prosecuting authorities might single out the defendant‘s picture. But these are the kinds of overt influence that a witness can easily recount and that would serve to impeach the identification testimony. In short, there are few possibilities for unfair suggestiveness—and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was
“If . . . the identification is not in a live lineup at which defendant may be forced to act, speak or dress in a suggestive way, where the possibilities for suggestion are multiplied, where the ability to reconstruct the events is minimized, and where the effect of a positive identification is likely to be permanent, but at a viewing of immobile photographs easily reconstructible, far less subject to subtle suggestion, and far less indelible in its effect when the witness is later brought face to face with the accused, there is even less reason to denominate the procedure a critiсal stage at which counsel must be present.” United States ex rel. Reed v. Anderson, 461 F. 2d 739, 745.
Preparing witnesses for trial by checking their identification testimony against a photographic display is little different, in my view, from the prosecutor‘s other interviews with the victim or other witnesses before trial. See United States v. Bennett, 409 F. 2d 888, 900. While these procedures can be improperly conducted, the possibility of irretrievable prejudice is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses.
The presence of defense counsel at such pretrial preparatory sessions is neither appropriate nor necessary under our adversary system of justice “to preserve the defendant‘s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade, supra, at 227.
The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today‘s decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today‘s decision marks simply another step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). I dissent.
I
On the morning of August 26, 1965, two men weаring stocking masks robbed the American Security and Trust Co. in Washington, D. C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers’ facial characteristics. Some five months later, on February 3, 1966, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent‘s photograph was included because of information received from a Government informant charged with other crimes.2 None of the wit-
On April 1, 1966, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 1968, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than 24 hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent.
At trial, all four witnesses made in-court identifications of respondent, but only one of these witnesses was “positive” of her idеntification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evi-
On appeal, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent‘s conviction. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). Noting that “the dangers of mistaken identification from uncounseled lineup identifications . . . are applicable in large measure to photographic as well as corporeal identifications,”5 the Court of Appeals reasoned that this Court‘s decisions in Wade, Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a “critical” stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his
II
In June 1967, this Court decided a trilogy of “lineup” cases which brought into sharp focus the problems of
At the outset, the Court noted that “identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, supra, at 228. Indeed, “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. Apart from “the dangers inherent in eyewitness identification,” id., at 235, such as unreliable memory or perception, the Court pointed out that “[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.” Id., at 228. The Court recognized that the dangers of suggestion are not necessarily due to “police
The Court also expressed concern over the possibility that a mistaken identification at a pretrial lineup might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed 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.‘” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482.
Moreover, “the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.” United States v. Wade, supra, at 230. For “as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups . . . .” Ibid. Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle “impropеr influences” that might infect the identification.7 In addition, the Court empha-
sized that “neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.” Ibid. As a result, “even though cross-examination is a precious safeguard to a fair trial, it cannot [in this context] be viewed as an absolute assurance of accuracy and reliability.” Id., at 235.
With these considerations in mind, the Court reasoned that “the accused‘s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” Id., at 231-232. And “[i]nsofar as the accused‘s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. Thus, noting that “presence of counsel [at the lineup] can often avert prejudice and assure a meaningful confrontation at trial,” the Court concluded that a pretrial corporeal identification is “a critical stage of the prosecution at which [the accused is] ‘as much entitled to such aid [of counsel] . . . as at the trial itself.‘” Id., at 236, 237, quoting Powell v. Alabama, 287 U. S. 45, 57 (1932).
As the Court of Appeals recognized, “the dangers of mistaken identification . . . set forth in Wade are applicable in large measure to photographic as well as corporeal identifications.” 149 U. S. App. D. C., at 9, 461 F. 2d, at 100. To the extent that misidentification may be attributable to a witness’ faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.8 But “[b]ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, . . . a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification.” P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965). Indeed, noting “the hazards of initial identification by photograph,” we have expressly recognized that “a corporeal identification . . . is normally more accurate” than a photographic identification. Simmons v. United States, 390 U. S. 377, 384, 386 n. 6 (1968). Thus, in this sense at
Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See id., at 383. Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.10
Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, “increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Ibid. And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, “any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone.” P. Wall, supra, at 81.
Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain
Moreover, as with lineups, the defense can “seldom reconstruct” at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But “it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101. Cf. United States v. Wade, supra, at 239 and n. 30. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not “apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect” since the witnesses are hardly “likely to be schooled in the detection of suggestive influences.” Id., at 230.
“When the defendant is present—as he is during a lineup—he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. . . . [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in ‘sloppy or biased or fraudulent’ conduct . . . , it would be far more likely to do so when the accused is absent than when he himself is being ‘used.‘”
Thus, the difficulties of reconstructing at trial an uncounseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.15 And, as the Government ar-
gued in Wade, in terms of the need for counsel, “[t]here is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.”16 For, in both situations “the accused‘s inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” United States v. Wade, supra, at 231-232. As
IV
Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused‘s right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by engrafting a wholly unprecedented—and wholly unsupportable—limitation on the
In support of this rather crabbed view of the
The fundamental premise underlying all of this Court‘s decisions holding the right to counsel applicable at “critical” pretrial proceedings, is that a “stage” of the prosecution must be deemed “critical” for the purposes of the
This established conception of the
Moreover, despite the Court‘s efforts to rewrite Wade so as to suggest a precedential basis for its own analysis,19 the rationale of Wade lends no support whatever to today‘s decision. In Wade, after concluding that compelled participation in a lineup does not violate the accused‘s right against self-incrimination,20 the Court addressed the argument “that the assistance of counsel at the lineup was indispensable to protect Wade‘s most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” 388 U. S., at 223-224. The Court then surveyed the history of the
The Court next addressed the Government‘s contention that a lineup is “a mere preparatory step in the gathering of the prosecution‘s evidence, not different—for
“the accused has the opportunity for a meaningful confrontation of the Government‘s case at trial through the ordinary processes of cross-examination of the Government‘s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the
Sixth Amendment ; they are not critical stages since there is minimal risk that his counsel‘s absence at such stages might derogate from his right to a fair trial.” Id., at 227-228 (emphasis added).
Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that “[i]nsofar as the accused‘s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. The Court therefore concluded that “[s]ince it appears that there is grave potential for prejudice, intentional or nоt, 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 post-indictment 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.‘” Id., at 236-237.
Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a “critical stage” of the prosecution did not in any sense turn on
There is something ironic about the Court‘s conclusion today that a pretrial lineup identification is a “critical stage” of the prosecution because counsel‘s presence can help to compensate for the accused‘s deficiencies as an observer, but that a pretrial photographic identification is not a “critical stage” of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned