United States v. Charles J. Ash, Jr.

of America STATES UNITED Appellant. ASH, Jr., J.

Charles

No. Appeals,

United States District Columbia Circuit. 1, 1972.

March

Certiorari Granted June See 92 S.Ct. 2436. Flannery, Messrs. A. S. Thomas U.

Atty., filed, time brief was Terry Block, A. John and William S. Attys., Asst. S. U. the brief for Roger appellee. Zuckerman, Messrs. E. Harvey Price, Crimmins, S. and Robert C. Attys., appear- Asst. U. S. also entered appellee. ances for BAZELON, Judge, Before Chief McGOWAN, WRIGHT, TAMM, LEVEN- THAL, MacKINNON, ROBINSON, Judges, WILKEY, ROBB Circuit sitting en banc. Judge: LEVENTHAL, Circuit April 1966, appellant On Jr., co-defendant, Ash, and a Charles J. Bailey, on five John L. were indicted relating robbery counts armed to an Security American and Trust Com Capitol Ash pany, Street Branch.1 East jury May by was convicted and in due was sentenced to course years. to effective term of five fifteen principal presented by question The his appeal is whether his constitutional rights by violated introduction pretrial photographic certain identifi arrest, cations and indeed obtained after indictment, or after without notice to presence It of his counsel. is fortunate concerning appellant issues raised in the brief identification were ap by appointed counsel filed his sought granted pellant to leave and was by pro points The raised continue se. pro appellant no merit.2 But we se have identifica merit issues find Ash, a brief Charles J. Jr. filed Mr. counsel, by filed raised in the brief pro se. amicus on an this court continued Washington, Dick, C. Mr. D. Jerome J. reverse the conviction curiae basis. We (appointed by court) proceedings this filed brief further and remand for opinion. as amicus curiae. this inconsistent with entering testimony. charged put Count one crime certain him allow rulings. federally intent of these insured bank with the in either find error We op- robbery therein, Although appellant commit § 18 U.S.C. himself was denied (a) ; robbing minutes, four, portunity his at- two counts two and to examine torney permitted tellers of 18 violation U.S.C. to see them. § only (a) ; robbing testimony five, col- constituted counts three excluded tellers, impeachment. same this two time violation The exclusion lateral if the error even D.C.Code not have been reversible § counsel. offered had been Appellant trial denial also contends the issue of Counsel raised judge refusing trial, speedy see in Part erred in him to referred to IV allow grand jury minutes, refusing opinion. and in hearing developed At this I. FACTUAL BACKGROUND that at the time of the crime none four August gunman 26, 1965, a entered On give was able witnesses gun air, bank, waved gunman’s police description everyone in not to move. ordered the bank description facial characteristics. later man dashed A few seconds another given police robbery time through lobby of the bank was not in terms facial features but money scooped up cages, some tellers’ weight g., height rather, e. —that gunman. again, by the followed ran gunman was tall slim. The robbery place three took about gunman him call for the described At identi- four minutes. Ash Negro years old, six male, 19 gunman. teller, Mrs. fied as A bank tall, pounds, feet thin build. Ruby Paugh, similar said Ash looked gunman, certain not be but she could hearing Agent At Special FBI in view could not his face because she see Patrick Markowvich testified that on teller, stocking of Another mask. February 3, 1966, some 5 months after Major, unable was who likewise Jean Mrs. crime, Paugh, he Mrs. interviewed gunman’s face, she said to see the Major, Apple Taylor Mrs. Mrs. Mr. gunman, was but Ash believed was concerning robbery in order “[t]o customer, absolutely certain. A bank attempt to effect an identification.” The Joseph Taylor, sort “looks said Ash agent group showed each of them a gunman not be could but he like” the police mug black and white shots of the observed witness had certain. This Negro including males, ap- faces of five gunman he entered for a few seconds pellant Bailey, “generally all of mask. his he donned bank, before height age, weight same as Mr. Ash an identification also There was Bailey Apparently, and Mr. Ash.” Mr. an seated Betty Apple, was who photograph Ash’s was included because outside, outside that and said automobile information received from one mask. She a man wore neither the bank McFarland, Clarence an informer “fleeting only got a she admitted charged (see with other crimes note not able glimpse” of them was infra). Agent Markowvich testified faces. full see their photograph four witnesses selected the although interjected gunman. It appellant as the cross- On Bailey in court was also identified “[t]hey examination he testified were hung jury Apple, as to was Mrs. there positive in the identification.” Ask- granted judge his motion any him. The trial positive, of them he ed cited was acquittal. gunman Taylor had seen the Mr. —who he testified before donned his mask —and against proof Ash other Since Taylor said that to the best “Mr. testimony who informer was the an gunman “but he his belief” Ash was the offenses, under indictment for other say positively if he could see him carefully could it becomes material consider (Tr. 16). Apple person.” Mrs. said pertaining to the identification issues photo but she “looked like” Ash testimony. Apple identified wasn’t sure. Mrs. began May 1968.3 Bailey’s the second photograph that of morning pre-trial hear- the court held Apple Mrs. few weeks later robber. A showing whether to determine Bailey cor- in a pointed also rendered photographs to the witnesses Building. testimony ridor of the General Sessions inadmissible. their to determine delay Elizabeths long at St. number of animations due to competency pro trial. Trial Appellant se to stand filed numerous factors. changed of occasions court, on a number continued also in the trial motions unavailability Appel- of Govern- fewer than times. because four psychiatric ex- ment counsel. lant also underwent two Hugh Agent Berry they gave

Special FBI trial5 —and as set May day ques- that on above. forth None of them was testified together concerning trial, prosecutor, photo- tioned graphs. Bailey’s on direct pictures visited, five color and showed counsel was interested to, Paugh, Major bringing Apple and Mrs. Mrs. out that Mrs. had not Mrs. picked Bailey’s Apple. photograph. of these witnesses identified Each color objected appellant’s picture, proce- selected out Bailey’s. but none Counsel Ash morning agent proffer of trial dure would “make the On Accordingly photos pictures Berry to Mr. show Bailey’s showed same Ash.” questioning Taylor, counsel confined his who was unable make establishing Apple of Apple Mrs. Mrs. identification. had been shown five color only ap- photographs, the five color Of graphs. Later, Bailey’s counsel elicited full-length; Bailey’s pellant’s were agent Berry Apple FBI that Mrs. standing they pictured to a next being no identification made height marker, pole, possibly which had Bailey. photograph shown a color bearing police plaque attached to These numbers numbers. Bailey of When counsel for up by sticker the exhibit were covered Bailey photograph, fered trial,4 apparently were uncovered prosecutor of all insisted on admission photos to the four were shown when the Mrs. shown to five color remaining the three witnesses. Of (Tr. objected Apple. for Ash Counsel subject’s pictures, one terminated at the 413): object “I Ash’s Mr. waist, thigh, another at the one picture. I to Mr. don’t want see Stan- three None of these the lower chest. getting [Bailey’s bad marks ford counsel] police photographs bore o,f my objection, this client.” view numbers. Bailey’s offer of withdrew his counsel Paugh, being eyewitnesses, exhibit, Mrs. photographic of the content One Bailey’s photo- testimony she could rely said that also She on that testified. anyone, surely identify and that In due graph had not been identified. do, questioned adduced, testimony or shown she when could was course such photographs, completed an identifica- to make was had he announced that he questions per- general 413-15). agent (Tr. “as to the build FBI of the prosecutor color point that inter- son.” stated She But this day had not graphs photographic jected her shown that the and insisted refreshing recollec- her had effect of In due admitted. evidence should be image recreating 416), (Tr. mind an her tion or offer he made a formal course person of the at the time judge of the she saw admitted ruled it would be and the ruling robbery. 416). (Tr. on The court’s plainly photographs based prosecu- judge color that the four ruled view, contrary assumption our permitted an developedlater, tion witnesses would admission appellant at that the make an identification prosecutor’s ruling tive, judge prejudice sustained under avoid To question saying U.S.App. objection, States, “the that Barnes v. United (1966). 318, was unnecessar- whether the identification ily suggestive,” F.2d 509 D.C. ques- this was a and that judge see juncture do not court. We ruled that tion for the trial 5. At this justifies the limitation this comment of show- how met its burden Government testimony, it but suffices based on identification was that judge point make did not suspect that to note other than observation of the photographs finding intervening photographic presentation. were the color anything unduly suggestive, pre-trial ques- following day, when The tioning Bailey’s finding on an Apple rested source of Mrs. unduly sugges- they assumption subject photographs, were went into the apparently of color they sugges- were to elicit tive. photograph timony eyewitnesses color Ash constitution- of the four and thus ally impermissible, prejudicial deprived error.6 appellant process. of due Stov 1967, 293, all v. Denno, 388 U.S. S.Ct. presented The Government also in its (1967). 18 L.Ed.2d 1199 This re claim direct Mc- case of Clarence quires showing that “the serving Farland, who was then a sentence procedure impermis robbery. was so with another Mr. connection sibly suggestive give very as to rise to a McFarland, whose extensive criminal irreparable substantial likelihood mis brought exami- record was nation, out on direct identification.” August 1966, Simmons v. United 25, testified that on States, 967, day 390 U.S. Security S.Ct. before the American rob- 19 L.Ed.2d 1247 appellant help bery, had asked him to rob go bank, McFarland refused to undeniably There are troublesome along. stated he next McFarland aspects concerning sitting August 27, appellant with saw identifications. Because three of the five Lounge Bailey at Cecilia’s on Seventh photos black and white were unaccounta- According T to McFarland and appellant Streets. bly (see 18), lost note cannot make a we told him that had robbed analysis February detailed approximately $3,100,and that he bank of not with- identifications. However leaving angry Bailey him significance, perspective, in terms of McFarland was cross- in the bank. seeking an identification with he had been examined as to whether February black and white promised “favors” connection certain crime, months after five against pending him. with several cases agents mug as the used facial shots an Assistant The defense later called identification, when vehicle for that testified, Attorney who fact the witnesses had described alia, had indicated he that he inter testify in terms robbers parole in Mc- board before the Though age weight, height, and build. Farland’s behalf.7 positive,” “not the identifications expressly be- and one of the witnesses subjects sought opportunity see the II. PROBLEM OF SUGGESTIVE- arrangements made person, in no IN THE THE NESS VIEWING OF lineup. COLOR PHOTOGRAPHS identifications, May Appellant pre As the claims that the photographs photographic from color on eve trial shown the identifications, and trial, suggestive pictures in of the are the the surround circumstances ing them, recalled that record before us. It will be tainted the identification tes- by judge admissible, Bail- should be offered If the in had been accord with held prosecutor. ey’s premise, the counsel or our constitutional we are confi- dent that he would —and we hold that he objection appears of these from the It should —have sustained the of before counsel, ruled, had been that McFarland Ash’s witnesses and not have as he separate regard did, grand jury photographs to five with the the were admissible robbery, offenses, subject his bank in addition to because the iden- them, by “opened up” on been indicted and had not tification had been defense,” “the including Bailey. confessed meaning in he had one objection guilt. At- The Assistant United The threshold of Ash’s counsel torney arranged waived, view, by have McFarland had in not our his acces- ruling— to a local the Jail D.C. sion —in transferred the face of the court’s Maryland, jail Rockville, procedure whereby and in addi- (a) in to a all five helped graphs (“that move might wife McFarland’s tion had be admitted apart- Washington prejudice against Ash”), (b) to an avoid from Southeast parochial Mc- by stipulation school near be ment admitted resolve a —to already squabble photographs, to attend. due children were whether the Farland’s there was a only description arrest If were established that at the time of showing legal being color defect in the of thin tall and terms of day photographs then as photographs in before trial The color build. Bailey (see 20), it would be hard noted below fn. Ash and that both record show they accept did slender, three conclusion that while other tall and are appear in-court identification. photographs were used affect the men whose Despite wit- stocky build. to be of are aware that We there are indica- time of crime nesses’ reliance offsetting part tions the inference of bodily description terms of on characteristics, suggestiveness. they undue But are Bailey only-Ash are hardly conclusive. identifications at full-length; three the other pictured weak, stronger trial were and in fact no waist, mid-thigh, subjects off at are cut given years than those two on Finally, respectively. mid-chest, mug basis of the In shots. some cases Bailey, shown Ash and photographs of the weakness of in-court identification height poles, standing bear next to tending be a factor to indicate that numbers, are there while though identification, improper, three the other on numbers such failed to influence the witness’s testi- photographs. mony. Here, however, it almost years fixing the ulti three since the in the events bank the moment Without at gain August 1966, passed legal consequencesit events that swift- cannot be mate appellant’s very ly, by only least face seen two are at said strong there by only suggestiveness in this witnesses each of them fleet- elements ingly. possi May photo The color confrontation. color negatived suggestiveness hardly justified bility is not 1968 can be on ground response, for as recollec- witnesses’ the witness’s weak showing cogently pointed out reinforced had been MacKinnon sugges holding unduly photographs in of the February 1966, and white —in black the course assuming presentation that was policeman’s of colored even tive entirely proper, course was not since that photographs to the witness showing preparing focus remote in but was time “[T]he for trial — mug display and not to witnesses who itself facial shots on given description to it.” terms of facial witness reaction U.S.App.D.C. Gambrill, of inter- characteristics. absence States v. vening color And the reinforcement F.2d 1148 might photos suggestiveness in-court cannot elements necessity, ground less than even like diluted to justified well have been February color That the urged a scintilla substance. With Stovall. white) (black photos may material have been photographic 1966 provide weak enabling a yielding tentative witnesses identification results, gunman in court opportunity to hold of the full there was sug negatived wit- that the organized the fact lineup, as to avoid so a gestiveness, during pre-trial in the recollection such a the two void nesses was not that it appellant in detention. unarmed years of the offender when photographs. by the color revived Certainly suggestive- elements of reject appellant’s strong enough We could not sub- ness were so it can- sugges- impermissible stantial claim of assumed that there no undue be thorough suggestiveness explicit tiveness without a hear- more in the absence of findings findings than this more definite the trial As we have court. presents. already remand (fn. record But we do not 5), no noted the court made purpose this is another finding, anything for because there its in- and if such objection photographic identifica- dependent source rested on determination suggestiveness. the need for assumption establishes reversal. of undue

99 this is the means that best combines and III. APPELLANT’S CONSTITUTION- integrity assures BY both effectiveness DENIED AL WERE RIGHTS investigation proce of law enforcement OF GOVERNMENT’S SHOWING States, dures. Williams United WIT- v. 136 COLOR PHOTOGRAPHS TO 158, 161, U.S.App.D.C. 740, ATTEND- 419 F.2d 743 NESSES WITHOUT (en 1969); Greene, banc United States v. ANCE COUNSEL OF U.S.App.D.C. 9, (1970); 139 429 F.2d 193 necessary to it not find We do States, U.S.App. Adams v. United 130 appellant’s Fifth whether determine 203, (1968), D.C. F.2d 574 cert. 399 rights because were violated Amendment States, denied sub nom Roots United v. impermis photographs were the color 1067, 722, 21 393 L.Ed.2d U.S. 89 S.Ct. suggestive. sibly In the circumstances (1969). 710 case, defendant’s constitutional stages prose of the Government did to counsel critical this case the had, opportunity when the Govern cution was violated not avail itself of the having having custody, following arrest, ment, him in a defendant’s to hold lineup, arrange corporeal made corporeal lineup. presentation failed to presentation photographic photographs subsequent to witnesses color to arrest— of counsel. like without attendance indeed on the eve of trial —was being stage lineup on admission of insistence a critical of the Government’s prosecution, requiring presence the trial of coun these color meaning Ash, produced error. sel reversible within the Wade. corporeal A is a “critical stage” de prosecution ap- at which It is contended that Wade has counsel, plication to the aid of fendant is entitled whatever though prior or graphic to trial even held are aware even identifications. We charges. filing United of formal of the courts that have 218, Wade, question 87 S.Ct. U.S. held Wade in- States 388 ruled on the have v. viewings 1926, This applicable L.Ed.2d 1149 18 explicit to confirm court has been identification.8 courts Some deciding authority question without

latitude mentioned the suspect’s participation in a time isWade hold that secure it.9 decisions Other present, applicable ly even lineup, applicable, least or eligible though release on identifi- in some measure recognizance bail, precisely because cation.10 Bennett, (1st g., See, Butler, 409 e. States v. F.2d 1275 United 426 v. ; ed States Marson, (2d Cir.), 1970) denied sub nom 408 cert. v. F.2d 888 States United Cir. 852, Haywood States, (Winter, J., 1968) (4th 396 U.S. con v. United Cir. F.2d 644 ; (1969) 113, dissenting), curring 24 L.Ed.2d 101 cert. denied 393 90 S.Ct. Ballard, 695, 1056, F.2d 127 v. 423 L.Ed.2d 698 States 21 United 89 S.Ct. U.S. Robinson, (5th 1970) ; Quarles, ; v. (1969) States 387 Cir. United v. United (7th Cir.), 1967), (4th cert. denied F.2d 391 06 64 cert. denied Cir. F.2d 551 4 1783, 23 L.Ed.2d 659 395 89 S.Ct. 20 L.Ed.2d U.S. 88 S.Ct. U.S. States, (1969) ; Valez, (1969) ; v. 431 F.2d McGee United States v. (10th 1968), 1970). (8th cert. Cir. denied F.2d 434 Cir. 1020, 22 L.Ed.2d 394 U.S. Zeiler, F.2d v. United States State, Md.App. (1969) ; Baldwin 1970) ; (3d of Penn Commonwealth Cir. Stamey, ; 22, (1968) v. 245 A.2d 98 State 205, sylvania Whiting, A.2d Pa. 266 439 v. (1968) ; 200, N.C.App. 164 S.E.2d 547 3 919, denied, 738, 91 S.Ct. cert. 400 U.S. Lawrence, 273, People 93 Cal. v. 4 Cal.3d (1970). 173, See also L.Ed.2d 159 27 Rptr. 204, P.2d 481 9, supra, Marson, note v. United J., concurring (Winter, 9. Some courts have refused decide the is- to at 651 408 F.2d State, sue, ; Thompson dissenting) 85 either because the identification oc- v. and denied, prior Wade, 704, 134, to or there was evi- 396 curred P.2d cert. Nev. 451 189, 893, dence of 24 L.Ed.2d 170 source or the record 90 S.Ct. U.S. present adequately. (1969). not did the issue Unit- 100 presence counsel, applica- of a ment of are we aware view are the While photo- to a con- ble Government exhibition courts that have of the graphs person custody equally a of- matter, are the we aware for sidered identify the the fense witnesses called to in which view advanced of instances appeals person by majority who the circuit courts of committed offense. a contrary rejected, view of and the was Circuit, The Third reconsideration by upheld, finally or two one circuits (cited problem, fn. held in Zeiler See, g., Kaufman e. the Court. 10) into a defendant is taken once States, 217, 220, 89 U.S. v. custody, have counsel photographic is entitled (1969) (sus- 1068, L.Ed.2d S.Ct. subsequent present any taining by the 4th and position taken the lineup. rule is sub- think the we While rejecting position Circuits, the 10th agree ject exceptions, Zeiler’s we 7th, 3d, 5th, by 2d, 9th 6th, the taken dangers analysis mistaken the Circuits); v. United Simmons D.C. lineup identification from uncounseled 967, 377, 392, States, 390 U.S. are forth in Wade identifications set (sustaining (1968) the 19 L.Ed.2d 1247 large photogra- applicable in measure to Circuit; by re- position the D.C. taken phic corporeal as well as identifications. 5th, by 4th, jecting position taken the include, notably, possibilities These Circuits); v. Putnam 7th, 8th and 10th par- suggestive of ticularly influence or mistake — Revenue, 352 Internal Commissioner little or where witnesses had 1 L.Ed.2d S.Ct. U.S. opportunity dur- for detailed observation appellate opinions of other difficulty crime; recon- con- attention and courts merit careful sideration, structing suggestivity greater —even accorded, this we present; not when defendant is even controlling prece- they not are tendency identifica- of witness’s by oath of office Bound our dent. tion, given circum- once under these give independent consideration stances, dif- frozen. While these they claims, we conclude

constitutional by may mitigated be somewhat ficulties preserving sustained. should be shown, photograph it photograph pre- rule We conclude that can the sound also be said that prescribes subject general, yet lineup; this of a serve record exceptions, require- justify certain Wade its coun- without does hearing Zeiler involved two eacli trials. As to therefore remanded trial, required admissibility reversal held because at retrial in-court identifi- prosecution previous following subsequent opinion, had elicited the cation. during pretrial remand, identification of Zeiler court determined that photographs: exhibition of “This error Government had established clear requires convincing in itself reversal of both convic- in-court identifi- evidence tions.” F.2d at 1307. cations the witnesses involved would photo- origin independent to tlie As conviction “sec- obtained “have an graphic trial” ond held June court identification made outside presence manded for a new trial the wit- of counsel.” United States permitted identify Zeiler, (3d 1971). ness “shall not be For 447 F.2d 993 Cir. accused,” inspected photo- determining purposes issue, because graphs witnesses, naturally shown to the concluded considered whether they “unnecessarily suggestive,” suggest) were ve. thought However, the District Court’s determination prosecutor impermissible— had established that itself was required the in-court identification been in- a new trial or not whether prior photo- improper “suggestive” fluenced rule the court’s —because graphic permissi- confrontation “was not a that “once an accused is taken into cus- (427 1308). tody, ble conclusion.” F.2d at he is entitled under the Sixth As to the conviction the “first trial” Amendment to have counsel when- January, (Criminal held No. 67- ever law enforcement authorities confront 186), the court did not know “what witnesses with a series of graphs identifying shown wit- identification.” 447 F.2d at nesses the absence of counsel.” It may op- pre- tions where The be said of the the defendant sel. same is not portunity participants However, sent. as See F.2d at 900. examine possibility in the course of the Wade itself what went on demonstrates lineup resulting identification, of other prejudice, whether at or on forms of may photograph. suf- not from Sometimes this actions of the defendant but facts, bring manipulations pertinent by others, even from fice that lineup, quire present. at a but this would not suffice to be The fact manipulation under offset in one Wade to the constitutional instance the infringement wrought may by proceeding body, the defendant’s as in presence lineup, a may The of coun- and in without another instance counsel. suggestiveness possibilities photograph, sel avoids be of his does not remove presentation protection. in the that are need for manner of otherwise ineradicable. agree Nor do we with the Court, Pennsylvania Supreme fol- The (supra assertion in some decisions note lowing Whiting Zeiler, opin- stated its 8), application pho of Wade to 10) (cited in ion note : viewings tographic held under aus pices lineup prosecutor photographic of a for em- is “As tantamount requirement ployed case, every a instant the neces- of counsel at con confrontation, sity prosecutor ference between the for counsel at that and Gov Wade, factually implicit ernment witnesses. is As this court has noted, corporeal lineup. Wade there is a crucial

concerned a distinction be simply by pros tween these sub- two cannot be undercut situations. stituting pictures people, testimony ecutor nor can cannot introduce di for prepare given by rect of the statements a a witness wit by privately showing in an ness earlier the wit- interview with the prosecutor. pictures But he ness of the accused.” introduce prior witness’s identification. note that de- We Court Kirby, 340, U.S.App.D.C. States v. (see 10). Whiting nied certiorari note 342, 612, 2, 610, (1970). n. 427 F.2d 2n. note, too, We its brief to Su- photographic If the witness’s confron preme Wade case Gov- lawful, tation was as the Government 34, argued (Br. ernment Term October contends, now it in would not have 7): meaning- 1966, p. “There is no dependent standing evidence, in pre- ful difference between witness’ deed, already pointed court has identification banc, out en of a witness’s and a similar identification made pre-trial likely to have lineup.” weight jury far more than precedents contrary to Zeiler are taken-for-granted in-eourt identification. conclusionary, to some extent rather States, U.S.App. Clemons v. United analytical, than and to extent some based 40, (en 408 F.2d D.C. premises. on erroneous most ana- 1968), denied, banc cert. U.S. lytical Bennett, su- United States v. 22 L.Ed.2d 567 If pra, Judge Friendly wherein concluded is not defici appli- the Sixth Amendment has no ent, and the witness available proceedings cation “out-of-court where cross-examination, is considered to present.” the defendant himself is not greater probative value than is, think, F.2d we too 899. This say in-court identification. To Id. reading narrow Amend- of this Sixth viewing the nature of a in right. Judge Friendly’s ment It is view herently establishes it as less than major purpose that a behind stage prosecution critical is to protect to counsel is to the defendant reality. blink might from errors that himself make he appeared alone, in which in court and that There are instances though exhibition —even this rationale has no relevance to situa- 102 being that in Wade at considerations led capable of adduced the court event guarantee right prepara- counsel at line- preliminary to too

trial —is stage ups apply equally photographic regarded iden- to tory a critical be as to defendant requiring attendance tifications conducted after the prosecution of the custody,” Certainly a F.2d at 1307. when is see 427 defense counsel. investigative may exception a to this pre-arrest There be limited is case special justification requirement, cir- stage for derived there is cumstances, viewings, exceptional assuming no undue cases where graphic as investigation on-going suggestiveness, v. United there is an Simmons 967, though, 377, essence, States, 19 as 390 88 S.Ct. even U.S. time (1968). noted, There obvious Zeiler the need for L.Ed.2d 1247 investigation police in most inves- “is in terms of as a tool of need effective tigation unnecessary” other wit- accused has ask the or cases after the victim to organized (See custody. photograph 427 F.2d to taken into ness view books been 3.) operandi 1307, police To there of modus extent terms note exception may it be limited of offense. be an would nature circumstances, special as in to a case Wade, recognized in The Court necessity investigative where a case of 227-228, 1932- at 388 U.S. slight delay in attend- even the involved 1933, 1149, 18 L.Ed.2d certain counsel of counsel ance or substitute step[s] gathering “preparatory jeopardiz- not be feasible without prosecution’s evidence fairness the effectiveness 11 stages.” This court are critical not police continuing investigation. viewings photographic has held that taking responsibility proceed, to pre-arrest stage subject to not are whole, process so requirement be Wade and photographic such an uncounseled or conducted of counsel absence unnecessarily un- confrontation does not suspect. substitute for subsequent reliability dercut U.S.App. Kirby, United v. 138 States lineup. counseled 340, In 610 F.2d D.C. Hamilton, U.S.App. possible basis for There is no 89, 6, 1294, 1292, n. D.C. n. 420 F.2d special exception, invocation of the (1969), at an we “Counsel stated: investigative neces like circumstances designed identification session to narrow Ash, sity, where case like that suspects, the field of no at a when time to failed use officials Government charged one has been there is one arrange corporeal opportunity their particular represent, is an obvious pho indictment, lineup prior and the impracticality.” however, Kirby, we exhibition, tographic notice without open (see 2) left F.2d at n. eyewitnesses counsel, known question, right “a whether of counsel only not came since the crime might be after defendant’s arrest after urged as to defendants who have been and trial counsel indictment had issued having custody taken into cause day appointed, been committed the offense.” These facts the trial start. decisively possibility Essentially eliminate we in accord are premise excep- with the comes within of Zeiler case that “[t]he supra, Wade, S.Ct. Since is as much U.S. subject modes of These to the risk mis 18 L.Ed.2d 1149. of influence and they corporeal clearly proof, depending lineup, take as a dis circumstantial compari tinguishable investigative scientific and technical from other tech do on error, finger sons, niques, analysis least lack the risk of such as the error, prints, samples like, the more that attends undetectable blood and the memory comparison subjective between in Wade held to “preparatory subject photograph. steps” mere the Sixth Amendment to counsel. general concept description tion rather than the rule suspect given by po quiring post-arrest counsel at exhibition witness available, Wilson, they photographs, Spriggs an lice establish be see v. independent requirement U.S.App.D.C. 177, even 136 of counsel 419 F.2d 759 (1969). generally applicable Wade to The law enforcement authori were not avoiding post-arrest photographs; ties have an exhibition of also interest in de protracted v. tention or the in for it been clear since Massiah detention of has nocent, 201, States, and their exoneration is indeed United 377 84 S.Ct. U.S. 1199, (1964), one of the reasons forth in 12 L.Ed.2d 246 set Simmons (390 967, authority police 384, in the at 88 19 L.Ed. existence U.S. S.Ct. 1247) investigations suspects pre-arrest scrutiny pho 2d be- continue obliga- subject tographs. comes a constitutional precludes tion that the use of evidence abiding This court has an concern for gained him after indictment in the ensuring in interest a combination of his counsel. absence intelligent of fairness and and effec- techniques in tive law enforcement. appropriate We think it society That is the hallmark a decent develop underlying considerations our justice. concerned both order and with emphasis on the failure of the Govern past It led in has us to countenance arrange corporeal lineup. ment We personal confrontations were both begin noting, this discussion as the suggestive in the absence coun- recognized Simmons, in circumstances, sel when in time close photographic viewing plays while place offense, relia- enhanced investigation, a useful role effective bility for and thus en- law enforcement particularly early stages, in the in hanced fairness.12 This results herently “hazards,” inescapable involves 13 interests,” pertinent in a “balance of (390 967, 384, U.S. 88 S.Ct. 19 L.Ed. goals, reinforcing mutually but in as the 1247), significant 2d reflect procedures same result release both reliability shortfalls in even when so opportun- innocent and enhanced impermissibly suggestive rise to ity ap- to renew search for and process, the level of denial of due 390 see serving prehend guilty, both 386, 6, 967, U.S. n. 88 19 L.Ed. S.Ct. spects proper to further interest 2d photo 1247. An identification aof citizens. These concerns stand graph, group, manifestly even out of a juris- court, zenith for has which reliability of lesser stature than responsibility supervise diction and suspect identification of the himself out concerning justice the administration of corporeal of a lineup. reliability sweep street crimes the broad of serious corporeal lineup height is of course capital, crimes that beset the Nation’s ened the attendance of the counsel or identity typically the cen- required substitute counsel under Wade. question. tral Such appropriate have role remarking any judicial suggestivity approach for an Our concern is proposing changes procedures “and to identification that com- to avoid suggestive features,” police responsibility see bines fairness with United States Allen, 84, U.S.App.D.C. police 133 are like- F.2d 408 effectiveness. 1287, (1969). ap- particu This role is wise concerned with such sound larly meaningful conjunction proach. approval with with We observe Reg- part pertinent puts Metropolitan of Allen which Police forward D.C. States, 964, 1069, U.S.App. denied, 12. Russell v. United cert. 390 U.S. 88 S.Ct. 77, 79-81, 1280, 1282-1284, D.C. F.2d 19 L.Ed.2d 1164 denied, 928, 1786, cert. 395 U.S. (1969), States, supra citing 23 L.Ed.2d 245 v. United note Wise v. See Wise States, U.S.App.D.C. U.S.App.D.C. F.2d 282-283, (1967), 383 F.2d 209-210 at counsel, geared been various dis- both has done ulations have instructions judges pretrial procedures.18 trict fairness of assuring corporeal and to follow-on do not consider in this We fair lineup.14 concern principle extent whether to what its timely procedures as- applicable photo of a should in case (a) more sures identifications that are graphic showing lineup. subsequent to a (b) in court— admissible reliable and judges make this clear We because impact more than in-court and with concurring in their in Ash differed identification.15 Brown, Proc in United States v. votes 24,452, Williams, 149 U.S. fair- It the of tor No. was combined interests companion 134, police App.D.C. -, 461 F.2d ness and effective administration Ash, day. judicial opinion approve filed this that led court case dissenting opinions orders, application prosecutor, in Brown set forth of the on judges long-standing police concur the views of some that reinforced the of ring princi recognition corporeal in this Ash that its the need for of custody logic ples lineups persons be ex into should and fairness for taken Judge identification,16 by tended to that McGowan case. safeguards police-con- ade quiring and I concluded that at a attendance presence persons quate lineup of on rec- for constitutional ducted released ognizance may present But like- of counsel were or bail.17 Brown.19 Orders among request to cases at of defense the differences relate issued us wise be U.S.App. Metropolitan regula- McNair, v. 18. United States 140 14. Tlie D.O. Police (1970). dealing 26, with identifica- D.C. 433 F.2d 1132 tions judge may lineup provide suspect’s photograph order be con that a that ducted, eight presence grouped of coun others of course must be at least sel, by general description, police, ad take that ade- and thus of the same quate vantage space, photography photographs must be records of facilities of geared lineup pro personnel kept, that each must view to fair witness prosecution good photographs If the has rea the immediate cedures. the presence They deferring also for the names of other witnesses. son disclosure of police notify witnesses, provide the court shall of identification that order, arrangements appropriate protective prosecutor or that be issue an may so can lineups on the eve in order to consider conducted made assure by during graphic a cor- its identification is followed of trial course. lineup. poreal Memorandum Order I stress the 19. McGowan and would Eyewit- Obtaining for Pretrial Procedures prior presence of defense counsel Identification, May 15, ness against lineup, corporeal protecting pro- mis- fair identification identification errors attributable chance, zeal, possibility reduce clumsiness or excess cedures also ruling interposition against in- the limitation the Brown constitutional identification, presentation photograph of a of such and of a claim lineup, provision, at- in 18 witness who override the counseled to a this must admissibility prosecuting lineup, by 3502, at- for the tended torney. § U.S.C. possibility by eyewitnesses. We considered the in-court prejudice for and the sound is taken minimal An in-court attorney’s functioning prosecuting jury, especially granted since the preparation setting material. the defend- trial to be itself focuses on sug- “strong no ab- were aware there can be table with a We ant gestiveness,” possibility guarantee against v. Gam- see United solute prejudice defendant, brill, supra, but concluded 449 F.2d at 1158. quality minimal underscored its was States, See, g., e. Dorman v. United attorney’s pr-osecuting awareness 313, 325, U.S.App.D.C. F.2d 435 140 complete exposi- the need for a and candid 1970). (en 385, banc 398 any process resulting change in a tion of (Coleman make the failure of the witness to 17. Williams v. United States 158, 161, States) U.S.App.D.C. defense counsel the identification when perhaps lineup. 740, (en 1969) ; It Adams F.2d banc tral, States, U.S.App.D.C. the Brown immaterial v. United following (1968). en March our banc order of 399 F.2d 574 February, photographs qualify white Ash, and do other than concurrence, voting photographs, judges these facial of all the given had not' conviction, shown to witnesses who Ash reversal of the principles police any description of opinion’s facial Ash statement require were “not reversal. features. The identifications which we conclude positive,” indeed witness who a cor there was Another case where clear an identifica- most made Hines poreal lineup United States v. belief, saying tion to the best of he Ware, 23,281, U.S.App.D.C. & No. positive could be more could see court, 455 F.2d 1317 This person. defendant Yet there was no has witness there decided that when a arrangement corporeal lineup. for a day already at a may, the defendant identified trial, long past on the prosecutor counseled investigation the time when active defense without notification of advance had ceased, case the Government already counsel, the identification review showed color to the wit- through the use made witness nesses, without notice to defense counsel. photographs, memory, in a to refresh his showing We was a “criti- hold this preparatory for his session stage” prosecution, cal at which hearing. a rule also court same presence required defense counsel’s applied prior iden as to a witness whose prejudicial unless waived. There was tification of was at a confron defendant prosecutor error the trial the when by tation not that was attended counsel jury insisted that the graph Ash, entrenching see the color exception of because it came within the of that supra,, (cited States, Russell v. identification, notwithstanding the 12). cases, wit note In the these where objection pointing of counsel for Ash already physical made a reliable ness identification, - prejudice the to Ash the trial court safeguard a there was ruled it would be evidence. received lacking Brown, where witness identify failed to when defendant Appellant entitled to is a new lineup. she attended But counseled trial at which will exclude the court Brown is limited—as has noted— been prosecution identifica evidence photograph to the use of a the coun photographs. on tions made the color At lineup. seled may prosecution trial tender witnesses make in-eourt identifica IY. AND CONCLUSION REMAND necessary tions of Ash. If it had been ORDER to decide that to the trial issue as al Although requirement there was no ready we held that we could doubt sus presentation of counsel at the of black finding independent tain a source.20 15, 1971, permitting vincing evidence. Here witnesses identification, acquittal. resulted in an could refer to the at the observations premise ruling It is of our Brown before, crime, time months 33 problem impedance justice which, disguise fleeting because of or by steering is so insubstantial in the case observations, character of were of such attorney prosecuting of a has stand- given by description —who a nature that apart court, as an officer of witnesses made no reference jeop- from the deterrence inherent in his to facial whatever characteristics. ardizing professional of his career —as considerations, view of such and the ab- straight- to warrant the hindrance on the lineup, sence of is hard see how the busy preparation by forward for trial shown, by Government can be held to have prosecuting attorneys in- convincing evidence, would be clear and these by volved a second attendance defense color not affect the in- did showing photograph day at a of a one later. made lineup already by attended defense coun- (Anthony) Long States, v. United corporeal stage. sel at the U.S.App.D.C. 311, F.2d Gambrill, (1969), supra. prov- United States v. Government has the burden of ing independent source clear con- companion dissenting 22,340, and be different But situation Brown, Proctor case of United of in-court to Williams, 24,452, opinion filed trial,21 & No. if determinations new fered U.S.App. day, page-of found source are based as to D.C., F.2d of United page (see 145 of analysis fns. issues careful Brown, sug & Williams. including findings Proctor States v. 20), as to 10 and not, examina gestiveness and careful Judge (dissenting): WILKEY, Circuit pre proposed at a witnesses tion of the hearing. major elements of are two trial There Leventhal’s held, there If a trial new give rise this dissent. appellant’s claim to be determination speedy First, rationale constitutional the Sixth Amendment delay between apply Ash, trial was violatd of Wade1 does not May April majority opinion indictment effort to rest appears Although produced faulty a dis- there trial. foundation has among unique de- considerable substance Govern- be almost torted result primarily due claim that this ment’s cided cases. doings, including appellant’s non- own Second, principles Fifth Amendment counsel, eooperation in view with defense case, recognized applicable type in this skimpy us con- record we the Su- decisions of established left for further should clude this issue circuits, Court, preme and sister our own judge exploration by if a new the trial correctly applied have not been sought. facts here. further and remand We reverse Rationale I. The Sixth Amendment proceedings inconsistent Apply Does Not to WADE ASH opinion. ordered. So Display Photographs to A. The of Prosecutor in Witnesses the Judge: BAZELON, Chief Preparation Not Trial for opinion Stage the Prosecu- in of “Critical I concur the the While of Requiring the tion” Presence in of the Court in Ash its statement of calling principles for of the con- reversal Counsel Defendant’s viction, view, the of reasons I am the v. we in United States As noted dissenting my opinion in forth in set Williams, 24, Brown, Proctor and No. logic concurring Ash, Brown and throughout 452, opinion day, filed this require application those of fairness part opinion majority in Wade IY of custody. principles persons in to there runs a two-factor rationale Judge required lineup: opinion presence Bazelon The of Chief of counsel aat Ash, (1) concurring suggestivity, possibility No. in United any approach obligated determination to did address itself to The trial independent on the issue of source made in- when it these considerations after careful examination dependent ruling. each liad been If source it proposed necessary issue, witnesses. we decide that would to may legal There difference in be a have for elucida- at a minimum remanded subsequent due to enactment situation trial court the basis of its tion of 18 U.S.C. 3502. We no com- § intend ruling. applicability ment either on the vel non may be as to facts: There differences following of this statute a retrial re- to photographs showing of color prior versal of enact- conviction possible to its so trial. On the would not be close to ment, or to constitutional limita- hand, if the in-court identifi- other application. tions on its tainted, together with cation was that — Wade, 1. United States v. presentation— U.S. color'photograph the 1968 228ff., might any L.Ed.2d be found to new in-court affect judge would be The trial identification. presence of de- trace be averted residuals counsel; capability willing accept (2) “imper- seemed fendant’s as not trial, suggestive.” missibly if defendant’s possibility of reconstruction at This during present apply equally pre-arrest photo identifica- counsel is process. tion identification. majority noteworthy opinion Wade, enumerates It here where “dangers principal

three of mistaken the Court remanded the case for a hear- lineup identification from uncounseled whether as the in-trial identifica- Wade,” independent origin, forth had an identifications set untainted Court, describing concludes these ways where witness had constructing tifications. influence tunity for are er when the defendant ^[1] crime; applicable possibilities detailed or mistake — ^[2] suggestivity —even as well as These little observation large include, difficulty corporeal or is not even particularly measure suggestive notably, during oppor- great- iden- which the plain witness graphic ant relevant ence gatory prior of counsel —is an identification.4 inference identification —without proof could preparatory by picture be lineup.”3 proved, validity recollection of the technique and is accepted of the defend- listed “the This of the in- investi- pres- is a present; ness’s these circumstances, identification, ^[3] tendency once to be frozen.2 given of a wit- under basis “The Yet presentation Judge contrary Leventhal’s conclusion forms the of color opinion here. subsequent to arrest —indeed on the eve turning great majority Before being like a trial —was disagree in other circuits which cases stage critical prosecution, requir- reasoning result, might with this ing presence Ash, of counsel for within helpful analyze Leventhal’s meaning Wade.”5 His interpretation of the rationale of Wade goes recognize on to are aware “[w]e dangers three of mistaken iden- that a of the courts tification, applied photographs: question ruled on the have held in- Wade suggestive “possibilities applicable photographic viewings influence or mistake” are identification.” There are fundamental procedure. Furthermore, why reasons this should be so. viewing any photograph the of the of any likely reconstructing accused at time is to add an Aside from ease of the quantum certainty (see immeasurable photographic to the a identification I.B. identification, of a infra), witness’s these and I.C. a identifi- Judge opinion, identification, Leventhal’s on the state of the record (hereafter “Majority Opin- pre-lineup 100 cited as we in remanded order that the ion”) photo . part be identified and made of the record, and for the District to am- 241, 1940, 3. 388 U.S. 87 S.Ct. at 18 plify modify finding or his thereon. We L.Ed.2d 1149. thus assumed as a matter of established States, 4. See Simmons v. United 390 U.S. proper finding pre- law that a of a valid 377, 384, 88 19 photo L.Ed.2d 1247 sup- S.Ct. identification is relevant (1968), II.A., in in discussed fuller detail port the in-trial identification. So This court and the District Court infra. did the Second Circuit United States Recently have acted on this basis. Bennett, (1969), v. 409 F.2d 900 (United United v. States Garner States v. a case in which the defendant was al- Parker), U.S.App.D.C. 15, ready 439 F.2d under arrest the time of dis- (1970), den., cert. playing U.S. photographs. the (1971), S.Ct. 30 L.Ed.2d 727 where Majority Opinion, at 99. the trial court had relied on a establishing Id., at 99. an source for a courtroom thing, any hint of many a of the of one additional cation lacks elements suggestion way photos were

lineup the the which caused the displayed of lineup in the conversation as a “confronta- or to characterize a conducting stage prose- Both the interview. a of the official tion” and “critical afterwards, drama, easy of reconstruction A is little are lineup cution.” pre- photos stretching span appreciable of in this were case. The over an flesh, served, recollections witness’ time. accused is there full-length. relatively in- always brief circumstances three-dimensional Further, thoroughly merely plumbed there, he acts. terviews were he isn’t glare stage, trial. counsel before and at He walks he blinks defense lights, twists, mut- often turns and This was no “confrontation” sharing tering spot- asides to those stage Ash, no “critical this was sig- light. required He utter can presence of requiring prosecution” back, profile or nificant to turn a words, counsel, requiring the reversal his forth, cos- to walk doff one back and his counsel of Ash’s conviction because tume and don another. All the while criteria absent. Nor other identifying potentially is witness stage” of the Wade is a “critical this watching, attorney prosecuting ap- rather, prosecution; is fair police ready elbow, detective at his carrying praise as one the situation every record witness’ word and his absence “minimal risk that counsel’s action.7 might derogate stage[s] from at such Obviously right counsel fair trial.” defendant’s ought throughout to be authority and v. California Gilbert lineup, drama of the within earshot analogy position. provides for this notes, making witness, likewise handwrit- had secured There object ready anything which would accused, ar- samples after from the unfairly, unnaturally, therefore counsel, not rest and the absence single among other his client distinguished yet appointed. The Court lineup. suspects plain “fillers” in the lineup Wade: rationale of usually lineup nerv- witness at a taking exemplars being spotted by per- ous, afraid of pro- stage a “critical” of the criminal petrator there, and of the crime if he is ceedings entitling petitioner frequently incapable too thereafter Putting aside of counsel. assistance recalling any significant de- exemplars taken the fact that place over tails which took appoint- indictment period of time. counsel, risk is minimal ment of there might atmosphere Compare absence in which derogate trial. fair photo from his to a witnesses this case their made If, supra. Wade, Cf. Ash —and failed reason, unrepresentative identify Bailey their for some co-defendant —in brought taken, customary places exemplar can be homes. business or through ad- the atmosphere, need In such an corrected witness only, process thing versary ac- trial the focus at on at since time one number photographs, unlimited recall cused can make an the and be to able place participants tion than Because so mucli more takes at a examination of lineup photographic photographic the than does identification. at identifica- tion, greater partici- disagree I I the the Tims see need for the with assertion of pation lineup may of of in the case of the that “the same be said counsel photographic opportunity partici- than in of the the to examine the the case pants as to what went on identification. in the course identification, lineup or of the whether at 8. 388 U.S. at S.Ct. at photograph.” (Majority opinion, on at 101) lineup 18 L.Ed.2d The drama of a seems 388 U.S. little to me much difficult more of reconstruc- analysis prosecution’s exemplars for stitutes the case in chief. of additional by government information, comparison and Armed this defense with Thus, handwriting experts. precisely counsel at trial knows where defense evidence, opportunity prosecution’s for to attack the the “the accused has cross-examination, meaningful press of the confrontation where to through lightly trial where tread or not at all. case [State’s] regard prose- ordinary phase processes cross-examina- to no other of of expert cution’s case these tion of the does the [hand- defense have [State’s] advantages. writing] presenta- opportunities witnesses of his own tion evidence advantage example No better [handwriting] experts.” given pre- defendant’s counsel such a Wade, supra U.S.,] at [388 hearing trial could found than this 227-228, S.Ct. 1932-1933].10 [87 Bailey. capacity of Ash and case handwriting Pre-trial every of defense counsel to reconstruct subject obviously identifications are pre-trial photo detail of the identifica- by defense similar cross-examination beyond proved peradven- tion has been position counsel at trial. of de- ture, capacity and likewise of counsel dealing counsel these two fense with to utilize other information obtained. similar, quite matters trial Now to reverse the conviction of Ash regard position his with to a his because counsel was not quite from either. submit different I prosecutor’s interview with his wit- applicable Ash’s rationale day trial, nesses before at which photographs is the rationale of Gilbert photos displayed, time the is to handwriting samples, re go not that of beyond any far Wade or de- other lineups. Wade re cision, reality” and is indeed to “blink at justice. the administration pre-trial That identification provable producible There are basic trial stem- considerations ming requir- fundamental Leventhal takes as a reason for structure ing system justice applicable preclude our different rule from that adoption any phases pre-trial such other of a inter- broad rule during True, prepara- the effect pre-trial view.11 such identifica- prosecutor may tion a tion can be offered show graphs but, received, to the witnesses it the absence before can be evidence — system request defense counsel. must Our defendant’s counsel justice adversary system; is an opportunity pres- all have the outside the safeguards granted jury searching ence of constitutional for a cross- defendants, necessarily must prosecution’s be. examination of all display explore wit- He can witnesses. part nesses in Ash test- counsel’s the details of the pertinent their identification, recollection of facts but also putting opportunity ease them on the exact each witness questioning. stand point pre- crime, observe at At scene of the opportunity sug- there is no more opportunities vious each witness gestion as to descrip- what testi- accused, have had witness’s see mony regard should be in gave to identifica- tion each witness at the time, than there is strength other facts of and the current of each might the case to which the witness tes- capability identifying witness’ ac- tify. A doing witness’ from a competent cused. In so defense photograph danger carries im- usually manages every less to extract suggestion proper types important than other detail the crime which con- Majority 101, citing Id., Opinion, 267, 1 1. 10. at at Unit 87 S.Ct. 1953-1954. U.S.App.D.C. Kirby, ed v. 138 States 340, 342n., 610, 612n. F.2d 427 110 photograph parts

testimony, is discussed detail under I.B. because part visible, producible at least record of I.C. infra. interview, in this case. as it was Judge danger, 3. Leventhal’s third centuries, prosecutors and defense For tendency “the of a witness’s identifica- pri- opportunity in had the counsel have tion, given once these circum- under with witnesses vate interviews stances, equally be frozen” would be testimony. improperly influence their (or presence de- more) true in to have been has been shown When Furthermore, fendant’s it counsel. done, known courts have what the trial pro- would be true of all identification matter, has to do about the cedures, above, and as noted the Su- remedy yet preventive for held that the preme over Court manifested no concern improper possibility influence such a strengthened these trace residuals of every place opposing counsel is to identification.13 I do read Wade with the witness. interview resting ground all, on this third remedy prescribed presence Su- since or absence Wade, preme effect, defense where Court counsel would have no I fail present why line- provides at the counsel had not been up, see Amendment a Sixth reversing to the trial court to was to remand for rationale the conviction hearing conduct a to determine the Ash. identification had an in-court witness’s Turning Judge authorities, now hearing origin. type That opinion relies Leventhal’s heavily Ash, already held and for has been de on the Third first Circuit’s fully analyzed other reasons this and Zeiler,14 cision United States v. infra, rationale of Wade under I.C. contrary precedents considers “the apply does Ash. to Zeiler are to some extent conclusion ary, Judge danger, analytical, 2. Leventhal’s second than and to some rather sug- reconstructing “difficulty premises.”15 extent based on erroneous gestivity,” appears over- to me to be the question in On the Amendment Sixth Supreme powering Ash, reason which the popularity volved in clusionary of con designated among in Wade Court decisions the United stage prosecution,12 as a critical calling Appeals state States Courts of and the presence for the of defendant’s impressive courts indeed. Decisions Sixth, It Amendment. Second, Fourth, counsel under the Sixth Fifth, compared a Ninth, is undeniable that as explicit and Tenth Circuits reconstructing lineup, difficulty ly position unequivocally taken the suggestivity in a identifi- apply photo Wade does not that graphic much, cation is much less. The record occur identifications which demonstrates, amply case so Forty-two judges federal arrest.16 after Likewise, 12. as under Leventhal’s 16. Second Circuit: United States v. Ben danger point, nett, 888, denied, first same 409 F.2d cert. sub nom. pre-arrest photographic Jessup identification as States, 852, v. United 396 U.S. post appointment 117, (1969) arrest. While the ; 90 24 L.Ed.2d 101 S.Ct. post- arrange is easier Baker, v. F.2d United States 419 83 situation, (1969) ; Sanchez, arrest 422 United States v. 1198, (1970) ; Wade did not seem to be concerned about F.2d 1200 United States any danger pre- post-arrest Roth, (1970), v. 430 F.2d 1137 cert. de graphic nied, 1021, 583, identification. See text accom- L.Ed. U.S. panying supra. (1971) ; note 2d 633 Fitz United States v. patrick, (1970) ; 437 F.2d United Wade, supra, 13. U.S. S.Ct. Mojica, v. 442 F.2d (1971) ; Fourth Circuit: United States (here- (3rd 1970) F.2d 1305 Cir. Marson, ; (1968) 408 F.2d 644 after, Majority I). Opinion, Zeiler See Collins, (1969) ; States v. 416 F.2d 696 at 100. Canty, United States v. 430 F.2d 1332 Majority Opinion, ; (1970) at 101. Circuit: United States v. Fifth

Hl apply have held that Wade does not possi to counsel but photographic Only bility suggestiveness.19 identification.17 Third Circuit reached a has decision Virtually all of those state courts contrary, subsequent decision which have had occasion consider in accord with the other and rejected circuits,18 Wade applica- have likewise its identification, followed decision same case photographic demonstrating real concern Mis- Illinois21 California,20 Maryland,22 ; (1970) Ballard, Cir Sixth Judge 423 F.2d 127 Fifth Cir- Jones ior Circuit Serio, F.2d Rech, supra; 440 827 by designation v. sitting cuit : United States cuit (1971) ; v. ninth States Seth, joined Circuit: United Judge District Circuit ; (1970) Sartain, designation United sitting by Judge Templar 422 F.2d 387 1290; Smith, cert. F.2d Roeder, supra; v. 423 States Eastern District Von 1825, denied, 930, ; 90 26 Pennsylvania: Judge U.S. S.Ct. 398 Masterson District Rhay, (1970) ; Craig. Judge 431 94 Allen v. L.Ed.2d District District Arizona: (1970) ; 1160, States 1167 United F.2d (1970) ; 357, circuits, Edwards, First and 433 F.2d 358 18. In v. two other Goetluck, applicability Eighth, F.2d v. 433 971 the issue of United States Roustio, (1970) ; v. 435 Wade identification United States (1970) ; v. v. Wil States raised decided. United States F.2d 923 United but not (1970) ; (1st 1970), liams, 1166, Butler, F.2d 1169 436 426 F.2d Cir. 1275 Fowler, F.2d 133 v. 439 held that the in-court identifications independently United States based, (1971) ; v. United Tenth Rech it was Circuits: and therefore denied, 1131, States, unnecessary cert. 396 Amend- 410 F.2d to reach Sixth 970, 457, argument. 24 L.Ed.2d 438 90 S.Ct. ment Wade United U.S. Roeder, (1969) (8th 1970), ; Valez, v. Von United States v. 431 F.2d 622 Cir. 1004, (1971). plenary hearing F.2d 1010 remanded for 435 court lineup, counsel is The issue of whether defense the circumstances post-arrest photographic required present, iden whether whether yet to have arisen does not seem source tification the witness had Circuit, it has been also Seventh in-eourt identification. authority pre-lineup photo- v. held on the of Simmons footnoted the evidence graphic identifications, remarking States, 967, 377, without United 390 U.S. (1968), preference divergent indicating L.Ed.2d 1247 absence 19 required presence counsel at a views on the of counsel custody yet post-custody photographic is not when accused identifica- reception tions, citing barrier of such I for is no Zeiler one view Second, Fifth, evidence trial. three cases from the (7th Robinson, contrary v. 406 F.2d 64 States Cir.), Tenth view. Circuits for 926, denied, 89 cert. 395 U.S. S.Ct. Zeiler, 1783, (1969). 19. v. F.2d 993 United States 447 23 L.Ed.2d 243 (3d Cir., 1971) (hereafter, II). Zeiler Second, Judges 17. Circuit: Circuit Ander- Friendly, son, Smith, Kaufman, Lumbard, People Lawrence, 273, 4 v. Cal.3d 93 Feinberg, together Waterman, Cal.Rptr. 204, 212; People 481 P.2d v. Judges Frankel, Zampano, District Palmieri; Stuller, 582, Cal.Rptr. Cal.App.3d 10 89 Judges Fourth Circuit: Circuit (1970) ; People Wesley, 158 v. 10 Cal. Butzner; Haynsworth, Bryan, and Fifth App.3d 902, Cal.Rptr. (1970) ; 89 cf. 377 Simpson Judges Wisdom, Circuit: Circuit People Williams, Cal.App.3d 752, 6 86 v. ; Judges and Clark Sixth Circuit: Circuit Cal.Rptr. (1970). 379 Kent, Peck, Brooks, and ninth Circuit: Judges Wright, Hufstedler, Circuit Cham- People Martin, 331, v. 47 Ill.2d bers, Browning, Barnes, Hamley and Car- (1970) ; People N.E.2d Holi v. ter, joined by Senior Circuit Tuttle day, 300, 265 47 Ill.2d N.E.2d sitting by designation Fifth Circuit Smith, supra; Judges Trask, Circuit Hamlin, Ely, Duniway, Kilkenny, State, Md.App. v. Smith and Samuels joined by Judge Taylor, sitting (1969) ; District 250 A.2d 285 v. Johnson by designation Edwards, supra; State, Md.App. 327, Tenth A.2d 280 Judges Pickett, ; (1970) State, Md.App. Circuit: Circuit Breiten- Crenshaw stein, Hill, Holloway, joined by Sen- 283 A.2d 423. 112 30 Washingt boundary.” Carolina,24 v. Cun- In sissippi,23 North 31 ningham Wisconsin,26 Delaware,

on,25 Massachu a witness interrogated presence outside setts, held that and Florida27 only applies counsel where both accused Wade the rationale of Fourth identification. present and confronted witness’s defendant is is entirely procedure Pennsylvania,28 influ Circuit held this by witness. possibly saying: Circuit, (and proper, by Winter Third enced 9 ada)2 illuminates alone Nev Here, lineup was terminated path majority takes here. interrogated being were witnesses suspects. presence of decisions outside of circuit In one the earlier correctly Wade, Judge Friendly and was had occurred Confrontation after “ By Wade . the rationale of . terminated. appraised . of Wade: limits longer Gilbert, al- counsel was require be defense counsel prepared to required out-of- unless we were appointed to attend lowed be must hold counsel proceedings defendant that defense where the government in- present press the whenever is would himself terrogates beyond previous a witness whose Amendment Sixth 30, custody suspect Mississippi, if local while 244 So.2d v. 23. Stevenson but (Miss.1971). law enforcement authorities would 33 legal preserve competently in the sense 65, Accor, S.E. v. N.C. 175 24. 277 State photographs displayed to that are 583, (1970). 2d 592-593 guidelines proper witnesses, provide 860, Washington Wash.App. Searcy, procedures, 4 v. 25. (1971). 417, pic- guidelines. P.2d 419-420 484 and follow these If the preserved presented in tures are 71, State, N.W. 26. Kain v. 48 Wis.2d 179 subsequent proceedings court at 777, (1970). 2d 782 same foundation as other similar evi- Delaware, (Del. 142 27. v. 281 A.2d Reed dence, able to defense counsel will be Sup.Ct.1971) ; Gera v. Commonwealth intelligently cross-examine the witnesses 423, way, 433, 245 N.E.2d 427-428 355 Mass. provide guidelines trial. The (1 969) ; State, against suggestion v. 248 So.2d improper Staten which could (Fla.App.1971). McClain See also 697 not be cross-examination. cured 99, State, 33, 444 102-104 v. (1 Ark. S.W.2d 247 In this no one was case sure State, 969) ; 219 see Cox v. photographs, appellant’s, other than People 762, (Fla.App.1969) ; So.2d 765 were were same Rowell, Mich.App. 190, 165 N.W. v. 14 pretrial used at the identification. 423, (concurring opinion). (1968) 426 2d difficulties of cross-examination and possibilities suggestion irreparable are 205, Whiting, Pa. v. 439 Commonwealth apparent. 919, denied, 738, A.2d cert. 400 U.S. 266 451 P.2d at 707. 173, (1970). L.Ed.2d 159 27 Bennett, 888, 30. United States v. 409 F.2d 134, Thompson State, 451 v. 85 Nev. (2nd 1969). considering 899 In Cir. State, ; (1969) P.2d 706 Carmichel v. Judge Friendly’s Bennett, Judge view 108 86 Nev. P.2d 467 Leventhal seems to consider that other do Su- We not think the Nevada possible prejudice recognized were forms of holdings preme support the rule Court required pres- in Wade counsel to In both enunciated here. Majority Opinion, ent. at 101. The need Thompson State, P.2d 85 Nev. presence protection of counsel (1969) State, 86 and Carmichel v. largely dissipated if the circumstances (1970), P.2d 108 after due Nev. of the identification can be reconstructed. re- notice was of the constitutional taken amply I.C., As demonstrated I.B. and quirements, errors, any, held infra, done in was well the case at harmless the convictions affirmed. bar, impossibility and it so Thompson Supreme the Nevada Court doing principally in Wade that concerned registered completely a view consistent Supreme Court. with this writer’s dissent the case (4th 1970). bar: F.2d Cir. pho- require We would tographic proceedings subsequent govern- on identification part decisions be used Wade, court decision U. S. at trial.32 ment’s case reaching a rationale the same result on California suggest majority’s here, I similar “confrontation,” as cently differentiated majority’s Zeiler even the reliance Supreme has Court Judge may misplaced. Leven be While term, photographic iden- from used the apparently Zeiler I more thal deems tifications, in defend- in a which case analytical34 other circuit than the at present either not ant’s counsel was analysis decisions, 1 in Zeiler state showing photograph or sufficiently mention detailed to not lineup: year-previous decision same circuit’s Gilbert, Stovall, Wade, In reaching Conway35 in United States v. police to wit- the accused exhibited contrary is no result. Hence there corporeal person. in At such nesses explanation by the the differ court of . . witness [t]he . exhibitions in cases. results the two suspect person in observes the implies was so Leventhal that Zeiler I very performing a short distance because the identification was decided during per- acts the criminal did Conway post-arrest. photo petration At of the crime. graphic post-arrest, identification was proceedings, graphic identification pre-indictment, apparently had however, the accused is not assigned, lineup not been and no only static and the observes witness ever held.36 The Third held Circuit poses pictured. We of those . . . by required presence not of counsel was showing conclude, therefore, interpreted Amendment as Sixth photographs accused to Wade, Amend Fifth nor was there ex- is a confrontation witness not under ment violation Simmons as those words are used hibition ,33 photographic I , Stovall. In Zeiler Wade and Gilbert. . post-arrest, also also identification was Third decision While Circuit’s ap pre-indictment, had but counsel been supra, I, Zeiler out of the innumerable ignoring vietion, the Third the latter court Id., 32. F.2d at 423 1274. I, supra, holding in Zeiler Circuit’s People Lawrence, 273, 278, 33. 4 Cal.3d declining rule to extend the Wade Cal.Rptr. 204, 207, 481 P.2d examination witness’ out-of-court dissenting justices The three did so on the ac identification grounds applicable here. Delaware, 281 Reed v. State cused. clearly First, the record demonstrates (Del.Sup.Ct.1971). Dela A.2d pro- aligned itself Court ware question cedure was undertaken with Court termed District with what U.S. purpose evading the conscious authority” split one-sided a “rather requirements of Wade and Gilbert. post- at a to counsel there is no Second, . im- . showing photos at which arrest proper to resort iden- present. Reed v. Ander is not defendant procedures when, tification after arrest supra. Mimeograph Opinion, son, case, instant the authorities However, CrL, Dis the U.S. at 2324. have failed to demonstrate the need to (before II) Zeiler found itself trict Court inherently an utilize such less reliable corpus compelled grant relief to habeas corporeal lineup method rather than a holding in Third Circuit’s under the Reed protections. with full constitutional doing, however, the U.S. Zeiler I. In so Id., Cal.Rptr. Cal.3d strong gave hints that its District Court 481 P.2d compelled Zeiler I and conclusion was analysis might its own unrestricted 34. For Zeiler I accord with result, on the a different have reached quite properly I submit could be split strong" of the “rather one-sided side “conclusionary,” classified as see Reed v. authority.” Anderson, F.Supp. 15, 1971, U.S. District Court came Delaware. Reed be- 1969). (3rd 35. 415 F.2d 158 Cir. fore the District after the Delaware Supreme Court had affirmed Reed’s con- 415 F.2d at 162-163. definitely state, pointed, lineup had and a been have held that Wade does large apply comparable scheduled. last factor loomed situations to that ig- case at the Third Circuit’s rationale. bar for this nore what the established inter- now sug- induced such A witness once pretation of Wade. For an obvious making gestive into confrontation reason, analyzing lated task of extremely mistaken non-application of Wade the vari-hued unlikely change mind. later represented in mul- situations fact safeguards . the constitutional wisely titude of decisions is more done lineups guaranteed that Wade by considering the rationale of Wade completely nullified Ash, applied itself in Part is done privately to confront are able I.C. infra. prior witnesses suggestive photographs.37 Opinion’s Majority fully The B. de- quite different. The of Ash are facts veloped alleged analysis the of year a half be- Ash a was arrested Amendment violation Fifth lineup fore Wade decided. No proves the absence a Sixth of yet no court ever There scheduled. violation. Amendment lineup holding decision a is constitution- validity An inherent refutation to required. the ally display photo- the of opinion majority’s the Sixth graphs giving to the rise III) (Part Amendment to counsel solely in occurred reversal of case preceding portion (Part found in attorney’s the prosecuting the course the of dealing II) Judge of Leventhal’s preparation inter- normal in trial process with Fifth Amendment vio- due viewing no con- There is witnesses. along noted, pre- As lations. with the tention at bar whatsoever the case possible suggestivity, FBI, vention of the prosecuting attorney, that the the requiring pres- Wade rationale the sought any con- or the to avoid primarily of ence counsel rests on the requirement. stitutional sug- inability any to at reconstruct trial impres- It will not to dismiss this do gestivity defendant’s counsel was unless sively long decisions, list of this “one- lineup.38 present at the The fact holding split authority,” square- sided of Judge to an Leventhal is able write ly requirement at the of counsel opinion developing fully so and in such lineup post- apply Wade does not alleged process detail violations due identifications, photographic arrest with presence establishes counsel any deprecatingly descriptive adjectives. photographic at the identification would “weight authority” While value, been of additional no slippery sometimes rock on which ground therefore the Sixth Amendment stand, give heed and while courts must opinion, relied the one on for cases, reasoned neverthe- better versal, is not valid. rationale less, at Third one decision Circuit logically simply Wade does not cover Pennsyl- Philadelphia, followed Ash situation. by Harrisburg, preceded vania court at yet an as decision in the unreconciled Leventhal is able write by alleged Circuit, opinion developing same and followed another violations reaching process, spite decision in the same due of the absence case hardly contrary result, ultimate of counsel at exhibi- enough against weigh tion, the multitude because circumstances sur- many by rounding photographic Too decisions elsewhere. courts, many judges, pre- capacity too federal do witness have the to be (emphasis sup- clearly at 427 F.2d 1306-1307 an intent to evade the re- showed plied). Of., quirements reason advanced of Wade. judges dissenting People three Law- rence, supra, I.A., supra. n. where the record 38. See suggestive removing trial and have the effect at for examination served obliga- (the police features under been added appeal. would have are What accept Suppose the tion the criticisms of defend- presence of counsel? presence photo- counsel), ant’s but found the counsel’s had counsel defendant’s intelligently comparison and there- does enable him to attack graphs unfair lineup ? pre-trial suggestive witnesses both the and the in-court fore do more if This is what offered. been able he have Would had hearing, trial been pre-trial or denied Wade’s counsel. at the itself, appeal, if he had been on this Wade, Presented with situation in examination there? had counsel where defendant’s themselves, graphs cross-examination lineup not been hearing, pre-trial addi- counsel pre-trial trial court had not conducted a tional examination hearing lineup to determine if the hearing outside benefit suggestive and, eyewit- been so, if the en- presence jury of this —all independent origin nesses had an defendants’ abled the two identifications; could validate their as- possible bring every viola- facet suming because of the of counsel absence process. tion of due sug- improperly had been exhibi- I submit gestive, remanded in the absence to a witness hearing. for such a The did not Court stage simply a critical not is defendant lineup remand for another at which presence is counsel’s defense at which present, counsel should be remanded but required the rationale should or be origin, independent to determine because Nothing proves this better of Wade. evil the the with which ultimate Court stage of of character non-critical testimony. was concerned was altered preparation the prosecution’s than the right The Court found the denial of a to the explicit of of II detail Part lineup counsel at the a violation the of alleged dealing Fifth with the Amendment, Sixth it- this violation process violations. due Amendment producing self of be cause testimony. producing colored cause to Amendment C. The Sixth testimony sugges- of altered could be a to counsel in relation lineup improper tive or other identifica- and in-court identification. procedures, tion hence the “cure” was hearing for the trial court hold Analysis Wade if, assuming ascertain the because of necessary a close take Here it is lineup absence counsel had the Court look ultimate evil improperly suggestive, been the wit- seeking prevent or cure Wade. origin independent nesses an infusing a taint The ultimate evil is testimony.39 their in-court suggestive testimony by a a witness’ substituting eyewitness’ lineup, summary, the rationale image trilogy recollection of the offender Wade-Stovall-Gilbert is that improper producing from an testimony of the accused derived cause altered procedure. lineup eye-witness suggestive lineup or other identification an or is a of defendant’s improper procedure. It is not the absence other identification producing capable is counsel which But where the circumstances lineup procedure tainted either of the simple identification are later, reconstruction, itself or court is case with suggestive lineup improper or identification, no there is may procedure pre- color presence, other identification need for counsel’s and the presence of testimony. hearing witness’ counsel trial at which defense may lineup fully or explore counsel at is can all avenues suffi- 241-242, 388 U.S. L.Ed.2d suggestive. protect proceeded It then to an- equip counsel cient Wade, question, same where other as the second Even at trial. client (de- question in a Fifth Amendment involved at the stage prose- wit, prosecution inquiry, to whether the “critical” as a scribed origin. independent If instructed could show an cution) court the trial could, notwithstanding judgment of conviction it then the Sixth reinstate the violation, independent Amendment Wade’s conviction an the trial court found origin testi- would reinstated. the witnesses’ to validate sought to mony. evil Court example, in each Fifth or Note testimony; altered exorcise was violation, Amendment Sixth gard presence of the absence to this hearing is to determine whether neither nor cure. counsel was cause prosecution independent the origin can show pro- of identification. If a due account, Taking foregoing into alleged, violation cess is then defendant distinguish important between is suggestiveness must establish the violations Amendment Fifth Sixth requiring prosecution to overcome resulting in re- questions raised and the gard it. If a denial of a critical allega- counsel at If the to identifications. stage alleged proved process due is a Fifth Amendment —and —then suggestiveness prose- is assumed and the suggestive identi- of a violation because put proof independent cution is origin, to its inquiry procedure, fication hearing once first, the denial of counsel allegation because is, on the stage prosecution at a critical procedure whether established, inability defendant’s suggestive, impermissibly inwas fact suggestiveness recog- prove counsel to second, was, and if it then whether nized. prosecution can overcome this show- origin applied 2. Wade to Ash an identi- the witness have made could recognized What sugges- improper fication without Wade, in defendant’s where true allegation If the is a Sixth tion.40 lineup, counsel from a has was absent denial violation because of a Amendment decisively Ash, been in refuted where right counsel, ques- the of defendant’s only display counsel from a was absent de- tion is first defendant was whether photographs.41 We are forced a, stage presence nied counsel’s at critical assume, inability to because of counsel’s prosecution. of the the Wade Su- the reconstruct the circumstances of preme lineup held that a was Court Wade, identification, in as the Court did stage prosecution, and critical of the procedure identification the was Logically Question that answered One. suggestive, and remand the trial thus Question to whether Two would seem be origin. explore independent court to We suggestive lineup impermissibly the already know, from defense counsel’s (no so as to in-trial identification bar circum- able use trial of all the at the lineup was of- evidence of brought pre- in at stances detail the Wade), Supreme Court fered but the sug- hearing, any trial gestiveness full extent of the length handicaps considered the de- origin and the fendant’s counsel would establishing under of the witnesses’ identifications. circumstances of the assumed, brought lineup, apparently Bailey’s because Co-defendant counsel upon prior of the absence of counsel at this critical out and the witnesses’ dwelt stage, lineup the was unfair and identifications —or lack of them—and U.S.App. States, determining Clemons United relied in the standard court (1968, U.S.App.D.C. D.C. 408 F.2d set forth Clemons. banc). 32-33, en also Simmons v. See 408 F.2d 1235-1236. States, 377, 383, 384, S.Ct. U.S. 1247, upon supra, 19 L.Ed.2d which this I.B. See Part

H7 Bailey acquitted. by had far Ash’s counsel from the situation described by Supreme pre-trial hear- Court: been forewarned ing, skip or dwell where could predicament . in which recollection. in the witnesses’ wished Wade’s counsel found himself—realiz- possible Amend- unfairness makes Wade a Sixth What why lineup right Ash is not— be the at- ment case—-and sole means of deprived upon unequivocal of his coun- tack identification, courtroom Wade was place having presence probe in at a where time and sel’s lineup. attempt in an it counted—the dark to discover stage” truly prosecu- unfairness, bolstering “critical reveal while government tion at the Sixth Amendment witness’ courtroom identi- which dwelling counsel, by bringing quires demonstrated fication out and handicaps upon prior under which Wade’s counsel identification.44 appellant Not labored at trial. so with prove inappositeness To present— no Ash. He had counsel procedure Wade rationale prosecuting neither attorney was Ash—when bar, case at altered the consider how displaying photographs to Supreme opinion in Court’s Wade would government preparation witnesses necessarily have been if there had al- trial. at trial was under But his counsel ready hearing a trial in- been court defense, handicap in his for two rea- dependent source, such as Gasch (1) inherently different na- sons: here, case conducted v/hen the reached of a ture Supreme Court.45 Even the Su- lineup,42 pre- (2) from a the full lay preme had desired to Court down hearing process de- trial due requiring rule defendant’s counsel’s himself familiarized fense presence lineups, not have at all it would thoroughly preceding events vacated conviction on basis testimony. anticipated Amendment denial of Sixth Supreme Court directed What the counsel, al- because would have already be done in has been done Wade ready trial moot been rendered been done Ash. Not has it hearing been and could but, court, important, the trial most both Wade, Even decisive. defendants’ utilized to the trial counsel recognized ultimate unde- Court fullest weaknesses extent at the vio- cisiveness Sixth Amendment un- the four identifications witnesses’ by saying lation the District hearing.43 covered at conviction, if the could reinstate exploitation There was the fullest origin hearing independent an showed pre-trial photo of circumstances the for the identifications.46 hearing pre-trial and identification the majority precisely Third Cir- the the —reflected Part II of This is what II, supra, 19. note Ash’s trial counsel was did in Zeiler here. cuit 7-8, supra. hearing accominmying 42. at which defend- completely analysis. confirms (P. 100) offense. issues decisive of this case therefore turn on the content of that hearing ence of graphic suggestiveness any Judge Gasch, i. in the e., pre-trial pres- whether or to what extent its We do ^[******] consider in this not principle applicable exhibition and the existence of pho- should be in case a independent origin tographic showing eyewit- subsequent for to a testimony. (P. lineup. 104) nesses’ II, Id., 47. Zeiler F.2d at 994. 48. 447 at 996.

119 sequently requiring promulgated rules merits of this rule Whatever every placed abstract, in a line- vehicle could be defendant to weaker up immediately launching the ease than found for its after arrest—-in arrest some cases Ash. Ash’s —for identification. To reverse foundation, rule, Analysis its of, use conviction because or to bar the logical applicability to the situa- and its of, photo pre-trial identifications respect pre-trial here, with to both ground Amendment of coun- Sixth why. identifications, shows and in-trial being present apply sel not tobe unsup- action of per exclusionary it could se rule where ported by in re- the rationale of Wade possibly not have a deterrent As effect. (or pre-trial gard photographic line- to clear, Gilbert made “[i]n (Jus- up) identifications. The Court’s legislative regulations absence of [when] Brennan’s) implied opinion in Wade tice desirability deterring exclu- that sionary deterrent effect prevail must the undesir- . over for rule the rationale would be 51 ability excluding evidence.” relevant barring testimony pre-trial identifi- “legislative regula- We now have defendant’s counsel cations at which adequate tions avoid the hazards to present.49 made This the Court not been 1971, fair trial.” As since of December explicit in California: Gilbert v. Metropolitan Department Police drew exclusionary Only per rule as se up procedures conducting uniform they identified such [that police lineups, single there not been a has lineup] an effec- at the can be Gilbert sugges- improper case dismissed for law en- sanction assure tive lineup police tive identification.52 The respect the forement authorities will prohibit repe- rules themselves thus right accused’s constitutional peculiar tition of the circumstances presence initial at the of his counsel this again occur, such case. Should circumstances legislative lineup. In the absence of logical then it will be adequate regulations the haz- to avoid per apply exclusionary such a se rule. inhere in ards to a trial which fair on in-court 4. The rationale Wade conducted, lineups presently de- missing is likewise deterring sirability constitution- objectionable practice pre- Ash. ally must undesirability vail exclud- over It is even more certain that Sixth ing relevant evidence.50 May right Amendment to counsel states, 1968 has no majority opinion relevance whatsoever itself As the in-court identifications the witnesses police have the District of Columbia sub- early 1966, admissibility “Where, here, Wade was Ash was arrested 49. of evi year later, lineup a half decided a itself dence of the involved, per notice until then that were not on se rule of exclusion put approved technique unjusti would be most would be courtroom identification present. lineup States, Ash in a with his counsel Nardone v. United 308 fied. See display witnesses 338, 266, L.Ed. [60 S.Ct. U.S. day day 240, 1939, of trial before and on the at 307].” 388 U.S. S.Ct. May added, to be 1968 was intended in a The Court 18 L.Ed.2d 1149. merely (it part equivalent contrary footnote, of a conclu “We reach a preparation), prosecutor’s U.S. [388 sion in Gilbert California Wade, Gilbert, sub- 1951, nor 263, and neither L.Ed.2d 1178] 87 S.Ct. sequent ra- admissibility the Wade had held case tes of the witness’ as to applied timony to counsel tionale the accused that he also identified 240n, 32, identification. lineup." at the 388 U.S. S.Ct. 273, at 1957. 388 U.S. Chief, Metropolitan (Deputy 52. M. E. Pitts S.Ct. U.S. D.C.), Washington, Department, (emphasis supplied). Police L.Ed.2d 1178 Lineup,” exclusionary Police Is Your “How Sound rule The rationale of the (Decem- effect, purported Bulletin FBI Law Enforcement which deterrent thus its 1971). applicability Ash. the facts of ber to has no origin necessarily independent case, an . was not . . this which on retrial of pho- Depending years an issue at trial.” on the after almost four will be tographic hearing on complained of. outcome identifications source, above, re emphasized District Court was' “to Leventhal’s As ground a new instate trial, may conviction or order clear that the makes proper.” the case In Amendment be here is Sixth reversal right already has de- Ash the District Court defendant was which hearing pres- prived,53 held this and determined inde does the relevance so what pendent origin, after both defense coun counsel at of defendant’s ence or absence given every May opportunity sel had been identification proffered to in-court identifi possible attack the iden- to witnesses’ have early cation. in court of the accused tification 1972? Due Under II. Process Fifth Again majority opinion is con- Amendment trary to Amendment rationale the Sixth There the Wade. Development A. Evidence and Its The exclusionary pointed out an rule the Su- Simmons v. United States only lineup which concerned evidence preme Court, unanimously speaking regard admissibility “without to point, this laid standard for down the identification, render courtroom would resolving arising questions initial empty an one.”54 to counsel by photograph in identification these pres- The Court stressed “counsel’s terms: lineup equip him ence at Despite of initial iden- the hazards only attack not identification by photograph, proce- tification well,” but the identification as courtroom widely dure has been used and effec- used, lineup is most often “[t]he since enforcement, tively in criminal law crystallize case, as in the standpoint appre- from the hending both of the defend- witnesses’ identification of sparing inno- offenders and of crys- ant for further reference.” suspects ignominy cent arrest might carry tallized identification then allowing eyewitnesses to exonerate over taint the identification witness’ through scrutiny photographs. them at trial. danger technique that use of the Court, remedy this, said may result in on mis- convictions based permit is to defense to attack the substantially les- be proffered identification, in-court sened of cross-examina- course per exclusionary to invoke se rule jury exposes tion at trial which might regard justified which be potential for error. We method’s pre-trial identification which was either unwilling prohibit employ- are ment, its unfair or from defendant’s coun- our either in the exercise of Rather, sel had been absent. Gov- supervisory power or, less, as still opportunity ernment should requirement. matter constitutional “ that its have ‘been show identifications Instead, we hold that each case must .by sufficiently come at distinguishable . means . facts, considered on its own be purged pri- be eyewitness that convictions based mary e., ”,56 “inde- taint’ i. familiar following pre- identification at trial origin.” pendent by photograph trial identification will ground set So Wade the case remanded for aside on that “ proce- such determination because . suggestive impermissibly whether the dure in-court identifications so Majority Opinion, 53. 56. 388 at Part III. U.S. 87 S.Ct. 1939. 54. 57. 388 at 1940. 388 U.S. U.S. 87 S.Ct. Ibid. Ibid. give very frankly they nesses testified rise to a substantial that were irreparable not certain of their likelihood of misidentifi- identifications light [Emphasis supplied.]59 cation. accused. of the degree standard the exact of identifica- pre-trial hearing, at Both at the tion established each witness is of judge that the witnesses ruled importance, considerable it is hence set identifications,60 could make in-court pertinent eyewit- forth in detail below.61 The four at the trial itself the 60. From 59. 390 U.S. two Mrs. for the part was ing source testified at that will elaborate one into account —at the fied at trial: Transcript, pp. 122-134 for the L.Ed.2d 1247 plains to the foundation for the ion, A. your minutes. walked who waved the end of the table robbery, young want scribed? tion. lar to the one in the and tell whether or not person? us A. A. A. Q. A. A. Q. sj« Q. Q. You stated that. A. Not Q. Q. Q. Can pre-trial hearing. might eyewitnesses. quite Mrs. if that man is here? at 96. of which was one of the Apple independent source, not the smallest kind of identification of person? my you doing? best estimate of the time of determination, you I I During Would This Other than the fact I can Mrs. reading . . man that is testimony hearing us cannot be sure Paugh, from the time be left with sufficient difference . . ífs to look }{: definitely. (See Transcript, pp. young you Paugh, loth of make . Perhaps infra, . you hearing, —of Just say I eyewitnesses gun bank, identify one am around (indicating of Mrs. man kindly point no definite sj« s}s I conclude that support for the find- here three with the approximately around look around and Mrs. lobby. See since the witnesses who sorry, this the man you Mrs. question was, impression Majority Opin- that of the the Courtroom minutes, if he is here. Apple). you ;{; ¤ I am partially Paugh; in the bank? tellers, did first noticed 967, 971, here at testified there is looks simi- Paugh Ash). identifica- man who testimony can make the man out that majority you you 88-102, taking what three there testi- sk sfc As that give tell ex- de- I I B. The other testified: At the tell us with the same mind tainty, lection of whether or not the bank pointed out gun, what some were short and me with cause sion scribed might have seen at the time of the of- man your noticed that first utes, you ticed fense? on the refresh at the time of the offense? these day person three minutes did room? (indicating trial: A. A. Q. A. Q. A. A. Q. Would A. Q. Q. Q. A. Most ^[*] A. was Q. What its sizes. Courtroom, look at that recreated you mentioned, that until mind an him, I cannot after All Did these Now, I No, sir, It is this Now, did No, pre-trial hearing, an Well, I I portion, . I right no. that is or is not your believe didn’t appearance ^[*] right. }}: sk you what man, the two men left I you photos like Ash). all the time. today? you I portion teller, impression who was sitting you absolute recollection or recreate want would mean, day really. They image they he is. had or created From took at Mrs. gentleman, first noticed the photographs in say saw or that man that portion these —isn’t your kindly man, any, of that first man? Are sjs ^[*] ijc present in this Court- you that is the Mrs. did there you with absolute say constantly, after Major, of the man they the time taking mind the certainty the man tall and you prepared look at him? those three min- Mrs. might you not. state who Major, same man petrified. if* ^[*] -í* you the first any you me, didn’t look around person saw young were person you the Paugh first it a fact you time did any with the first no- really. testified of those you de- varying saw impres- money. yester- tell us gentle- it is? bank, ^[*] % leave ones, your first or a seen way man you cer- col- one be- ^[461] F.2d —8V2

ing. tified at trial: She bank that absolute said on? full features? he first came in? you described, sort did whether or not the from—about that distance how far Q. did down, just out of the corner of fall the bank and —he in and then we resumed our conversa- said, glanced my is one of the tellers and in the course tion. of our I cannot mind ? A. A. Q. You Q. Q. Are A. Not Q. You were able to make out his A. Not when I saw him. A. When life first came A. When was that? v A. The Q. Q. All First H: Q. All A. A. Just a matter of seconds. Q. For * A. Momentarily, A. A. Q. You have some doubt (Ash). was not called for the drop you And in Courtroom, you O. on the he looks like—I I said it looks like him. All No, “Don’t Very I I the same man who was like the man conversation, was see his full face? have no certainty look at this away right. right. x I cannot. $ right. morning? just * * say you prepared fully. first how in this Courtroom? gentleman off, close. floor, bullet, move, talking terms of depositor, with absolute said that— left and when he first came Mr. thereafter, he, long man Would you doubt in Did he That When ^[*] sfc the man and I saw him * left out * I this is a person you I you Taylor, to Mr. guess was not the door looked at person? on the end looks moved around heard saw a is the reason You you Mr. inches period you I pre-trial hear- ^{[*] [*]} * my in, * about tell us with (indicating). you pointed saw look around holdup.” Burton who Taylor, mean when certainty. turned as man come certain. yes. him? mind, described opened, appeared or a mask my eye. of time coming tell us maybe object in? ^{[*] [*]} reach man, * * man, feet, your tes- I I fondants before the At the trial after on cross-examination: the car hearing: D. on their tinguishing profile, glasses was a see his full face? people their full face? 9th too. know there was a rect. know. when glimpse you that correct? Markowvich of the FBI at Was graphs these ficers at A. A. No. Q. The A. Yes. Q. All Q. And Q. Then A. Yes. A. Yes. Q. A. He went Q. On either A. No. ^[*] Q. Q. All A. That Q. A. H: A. At Q. A. Yes. A. Q. Q. A. No. robbery? Q. Wliat those Mrs. Street, saw That As Now, Now, That Also You were Well, What did profile? anything outside, isn’t ran that were shown to face, two he ran Apple, * right. two the first man right. ^[*] % the first anything came you only you is marks is also at that which direction did he past you, I said was told men, time, right. right. right. a scar or a mustache or individuals is the second man ran testified at the through identificaion side of their face? person, didn’t know there you occasion, facing said so? You identifying around the past you, you Were there * * * * ^{[*] [*]} you might I robbery, were shown to like that? the officer or jury, believe them to be? moment, wasn’t sure. only got saw at witness about you south. You isn’t that so? time carrying I you by ^{[*] [*]} as these two you she testified thought did not see is the two der alley way, you have seen you corner, sitting the most ? I didn’t the time pre-trial did not fleeting the of- didn’t made Agent :}.(cid:127) % you? dis- that cor- go? bag say up in is your memory Q. You have some reservations? And Q. has dimmed since that time? A. I cannot be certain that he is. hearing. Yes, He was not called at the A. it has. Agent Hugh Berry at the Res- had been outside au- Savarin witness who May opportunity see taurant Union Station on and had tomobile (see 45-46, fleeing Transcript, pp. a mask on Pre-Trial both men without Hearing 1968). May identification. of 8 At was the most firm her ques- response questioning by Bailey’s Neither of four witnesses attorney, Berry concerning Agent prosecutor testified that Mrs. tioned Apple pictures previous photographic identified one identifications of of the color (then although appellant, de- marked as Defendant’s Exhibit the counsel Bailey Identification) brought No. 5 for out from one wit- “as man fendant day engaged holdup” who that had been was ness she unable (Transcript, p. 411.) identify Bailey’s picture bank. This was attorney photograph Bailey’s group colloquy Ash. After five. Agent Berry bench, including parties, appel- then showed Defendant’s all counsel, Identification, stipulated Exhibit 4 for lant’s own trial then No. which picture Bailey, was the photographs and all five color could re- establish- be ed jury. Apple that Mrs. no ceived evidence for the made identifica- picture. tion Bailey’s attorney of that agree I am with the conclu- unable to then offered Defendant’s Exhibit 4No. majority “[tjhere sion of the (the Bailey picture) into evidence. Ash’s prejudicial error at the trial when counsel then stated that he had no ob- prosecutor jury insisted that see jection picture coming to that into evi- photograph Ash, entrenching color 412.) (Transcript, p. dence. After this identification, and notwith- by Bailey’s attorney, offer but before the standing objection of counsel for rule, prosecu- court had a chance to pointing prejudice Ash out the to Ash thought tor pic- stated that he the Ash the trial court ruled it would received be (Defendant’s 5) ture Exhibit No. should Majority Opinion, in evidence.” at 105. go evidence, into also and Ash’s coun- This is because I do believe object sel noted that he would to that. majority draws the correct inference only making point from the one events at the trial this Observe that evidence, being their picture assertions footnote that “The offered objection attorney, threshold Bailey’s, by it has Ash’s counsel and own pic- by only suggested waived ... a second his accession— been ruling ture, the face court’s introduced. While Ash’s be —-to procedure whereby (a) photo- by prosecu- five made formal offer was graphs would tor, be admitted informed the . . . has Ash’s counsel (b) by stipulation pic- object be admitted to the second would court he —to squabble solve a whether Ash’s counsel that what ture. Observe graphs, already admissible, object held is a situa- should has said he would by Bailey’s be only pictures, offered those tivo tion in which counsel prosecutor.” Ash, put Bailey evi- will be into dence. up point I what believe order to majority’s here is nec- error it be the point all counsel went At that essary detailed review of rather bench, prosecutor stated majority trial, part which the this thought photographs of the color all five 96ff. discusses at Bailey’s go at- into should evidence. torney apparently controversy his mo- are then withdrew with which we (Bailey’s showing to admit Exhibit No. concerned was related to the 413.) (Transcript, p. photograph). Fol- Apple the color to Mrs. say A. I still so. your question in There is no mind? Q. you prepared Are to tell us with Q. No, A. there isn’t. certainty people absolute the two who you you profile past ran saw their people are the two here? same sugges- Thus it can seen that lowing this, proceedings the bench follow, tion of the quite but soon Ash’s difficult are after, Bailey’s attorney again trying objection made an was not waived evidence, stipulation something is inaccurate. As dem- offer into to appears above, photograph onstrated counsel never ac- of Ash that Ash’s to be tually making objec- (Defendant’s got Ex- as Apple identified Mrs. far tion, 5). (Transcript, p. 416.) qualms To he did ex- No. whatever hibit after, stated, press before, “I were made and not this Ash’s counsel offer 416.) pic- (Transcript, p. oppose this At Government’s it.” offer five important, embryonic point being tures. still Most this what is offered is Ash, by objection photograph, directed to a one time situation this attorney. court, picture Bailey’s ei- had which Ash’s would be offered who Bailey’s pair Bailey, ther not attorney, latest offer alone or as a ruled positively suggested, Ap- then we in- identified the witness “Should 417.) ple holdup being (Transcript, p. man in troduce all five?” contrast suggestion court, Bailey by that of which she did not To this Ash’s to identify. might prej- Understandably, replied, counsel Ash’s coun- “That avoid 417.) this, against object p. sel udice Ash.” would but also under- (Transcript, object standably, did to- all not five Next, court, open prosecu- in back photos coming in, Bailey because could stated, Honor, tor “Your it has been not be denied his show stipulated that Defendant’s Exhibits identifying eyewitness, capable of while through 5 are in fact the five another, had not identified The him. graphs by Agent Berry shown to Mrs. chosen, method photos, admission of all five Apple, they stipulated and it is further possible preju- carried the least may be introduced into evidence.” Ash, dice to and therefore his (Transcript, pp. Bailey’s 417-419.) at- object. did not torney said, stipulated.” “That is And so majority opinion plainly unqual- holds Ash’s counsel then ifiedly photographs stipulated.” (Tran- admission prejudicial these stated, five was “So Ash, finally script, p. 418.) in “IV. Con- The court then con- saying cludes, “They may clusion and Remand Order” received evi- dence,” prejudicial duly “There was error at the trial photographs and the were notwithstanding 418.) when . (Transcript, . . the ob- p. received. jection of counsel for Ash . . . objected Thus what Ash’s counsel photograph] trial court ruled it [Ash’s (and it should be noted that he never (at 105). would in evidence” be received really gets making objec- far as as an majority opinion thus rests on tion, actually because no one offered major factual error —there was never Bailey’s photograph Exhibit No. 5—the objection, by explicit implicit, or open Ash—into evidence court counsel, Ash’s admission of is the picture, offer of Ash’s alone completely un- five —and coupled only Bailey’s, un- thus legal Bailey’s premise, tenable attorney for both questionably picture identified as the prosecutor and the were entitled Apple picked that Mrs. out one evidence, photos have the five holdup men. offer This was never made eyewitness’ first to show the failure to open court, only and indeed the offer identify Bailey, (lat- the second to show controversy (Tran- made in this entire er) eyewitness’ the same script, pp. 411-418) ruled on of Ash. accepted by was the offer by prosecutor (Transcript, pp. made they The tellers both testified 417-418), pictures. to admit all five This could out make the features gunman’s stipulation, is the to which no one ob- mask; face of his because jected. depositor gunman did look at the (allegedly appellant) when he first and we immediately wrote them down bank, apparently entered the following robbery. before he (Emphasis sup- stocking mask; lady donned his plied.) appellant only the car outside saw as he In all record of this case—with black running past her car. Thus photos, photos, white with colored identification as to facial characteristics person and in in the courtroom —there time, descrip- weak but the was never an identification of other height, weight, general tion as to person being group photos in the proved build was accurate. robbery, appellant’s co- even Although Judge Leventhal defendant, except states that the witness February first identifications in outside, car who to make a firm declined showing mug “a Bailey facial shots identification until she had seen given descrip- witnesses who had not in the flesh. characteristics,” terms of facial Alleged B. Taint In-Court yet eye- this does not mean that the four Ash Pre-Trial Identification of impossible witnesses would find it His Pictures Identification of identify appellant group in the first ways In two decisive (the pictures whites) black and sub- grips squarely fails to come mitted to All them. four of them did Simmons, supra, our test with the pick appellant’s although picture, banc-prescribed procedure in own en identify very tentatively one was able to Clemons v. United States.63 This seem to codefendant. indicate the witnesses retained 1. impression and sufficient of the facial First, in Simmons gun- other related characteristics placed appellant to estab- burden on identify him, although man to each ex- “Con- violation: lish a Fifth Amendment pressed uncertainty. One ex- honest eyewitness identifica- on victions based planation of at abil- least the tellers’ two following pretrial identifi- tion at trial ity pick photo out Ash’s and to iden- aside photograph will be set cation tify they trial, him at where course ground only on that if man, saw the whole revealed in one imper- so procedure was testimony: teller’s suggestive give missibly to a rise toas Q. face, You couldn’t make out his irreparable very likelihood of substantial is that correct? sup- (Emphasis misidentification.” A. That is correct. plied.)64 Q. anything Was there distinctive test, preliminary On this critical appearance, height, about his his majority “elements It finds vacillates. weight, strong his build? suggestiveness . . . enough assumed things cannot be so that it Yes, A. I noticed several at suggestiveness,” no undue there was I noticed that he was time. recognizes light-skinned “indications off- negro, it also I but setting noticed he of undue part inference neighborhood, or in six feet about 66Judge then suggestiveness.” Leventhal I noticed I that he was slender. “The immediately rationale: to the neatly turns very dressed. noticed he was weak, and trial were things at identifications are to notice These we trained given stronger two those than details, no event, fact in the notice all the little 377, States, 390 U.S. Majority Opinion, v United 64. Simmons 62. at 98. L.Ed.2d U.S.App.D.C. F.2d 1230 63. (1968). Majority Opinion, at 98. Opinion, Majority at mug- points Either of reasons these years basis before authenticity witnesses’ identifica- shots.” photographs of Ash photographs shown toAs the five color negates any trial and inference likewise day three- witnesses the sugges- photos that the themselves were morning of on the and to one witness any way tive or contributed to eyewitnesses trial, only four three of Ash trial. photographs identify could Ash in these only Considering Again, above, identify Bailey. all of I can one could photographs suggestive, it conclude that suggestive were if these photographs only Ash, strange suggestive as to least to the they were having any witnesses, extent effect whatsoever and for as to Ash three eye-witnesses’ nothing although suggested on the in-eourt identifica- fourth — failure identify tion of Ash and their in-eourt day trial. the same he did Ash (with exception of the out- witness three listed contrast to factors ear) identify Bailey at all. side Leventhal, is a factor there suggestive other three one eyewitnesses At trial the four stated photographs persons. were three There ap- that their in-court identification person, of this full-face and op- pellant upon Ash their was based Bailey profiles; there left of Ash portunity at the time observe each. a full-face gave robbery, each the details bank opportunity his or to observe. as to her We must that the assume significantly, em- good each reasonably Most witness Bailey are of Ash phasized likenesses; judge or her identification that his not, either the trial appellant certain conclusive. hearing was not at the language quoted in foot- As shown prosecution of the defendants or one 61, supra, identifica- surely note each witness’ pointed this out. highly qualified, tion was even question of course is what outside) Apple (in who the car Mrs. viewing pictures influence these had on finally saying up that she wound identification at the trial. While the given “certain,” prior thereto might lists three factors that uncertainty. ample her evidence of suggestive appear as identification picking Ash when the witnesses were above, key to the the As stated photograph, out his these same factors position majority’s Amend- Fifth the pick would lead the witnesses photo- suggestivity ground ment sug- Bailey, truly these factors were suggestivity graphs. Where issue is the gestive. None of the identified four identification, in-court and taint of the Bailey. Furthermore, the. four one of key question the in- is not the whether identify witnesses who did Ash at trial weak, strong or identification is court pick was unable him out from the key emphasizes. The as Leventhal though photograph, full- even it was question identifi- the in-court is whether length. with the cation consistent why opportunity the Bailey As to and the was not identified identification eyewitnesses appellant at pictures by anyone, these are two to see the there had possible explanations: (1) Bailey the I actual- crime. the scene the think ly eyewitnesses participate did not rob- in court the bank of the bery ; (2) identifying or less appellant had Ash consistent the witnesses alleged eyewit- opportunity Bailey opportunity in his that these to see with money scooping up individually at role of behind Ash nesses had observe gun- crime, they their as did see the shown tellers than scene 61, supra. (allegedly Ash) testimony quoted man who was in the bank footnote longer language in-court witnesses’ attention. attracted more

67. Hid.

127 fact, they previously the men is, identification also consistent had chosen” degree certainty —as manifested this court said in United States v. identifying appellant Ware, each witness Hines and decided 1 November original set 1971. Ash from of five black photographs and white shown a little over prosecutor In Hines and Ware the five months after crime.68 doing exactly prosecutor did, Ash’s what Precisely original because the black group photo- show the in a accused identification of white graphs on the each witness eve of witnesses, only Ash the four each of trial, in order to make sure the witness’ five crime and before months after the same as in the recollection was still arrested, Ash was was consistent with previous In neither Ash identification. degree certainty in- of both the nor in there Hines and Ware was an at- photo- colored identification tempt original identification; to secure an legal graph identification, it is of some rather, already done under that had been importance. Wade retro- Since permissible at the circumstances time active,69 it cannot be maintained original was made.71 In requirement there constitutional fact, depositor, (the in Ash one witness February at the Taylor) identify Ash from the did not Thus, graphic lineup. it said of can be trial, photographs colored eve “ . each these identifications . . although so from black done had testifying eyewitnesses trial had at photographs Ash was white already a valid identifications at made in the courtroom at arrested and did so viewing showup lineup prior the trial itself. eyewitnesses photographs. These [color] ability had established their recognize, course, [whatever the court’s I strong identify the states, or weak] and Ware Hines was — viewing suspects; photographs “Where, here, positive identifications merely their memories already point to refresh made, served been Agent Bailey preserved, Markowvich testified that tos of Ash persons, to whom he showed four witnesses three en- names of other February photos presented abling photos on 3 black white of them to positive identifica- court.) “were not the trial time.” tiiat prose- kept in mind that It must be previous Denno, to make S.Ct. cution intended U.S. never Stovall part of its identification a 18 L.Ed.2d 1199 previous of Ash case. The Ware, Hines and United States v. came out in the color U.S.App.D.C. 249, 455 F.2d 1317 hy proof prosecution response to the (Nos. 23,281 23,291). & Bailey’s attorney no one identi- by original Bailey photographs, 71. The identification of Ash all in colored fied the jury Bailey came the to be ad- four witnesses never before which had evidence for story identifications, mitted, the at trial. made be- of wit- These the whole and including arrested, properly were of fore Ash was brought nesses’ identification Taylor’s Ash— identify pre-trial hearing, in the him—then and to failure part by stipulation. in a detailed formed of the basis on which For thus came clearly description proceedings ruled trial that the trial court the witnesses of the independent origin stipulation, in- see text follow- had an for their resulted in this prosecution 61, supra. There hint note The never court identifications. was no photos displayed photographs suggestivity in the of themselves or the colored by using presentation, purpose in the manner of done the the witnesses for court, Special Agents, resulting police. FBI not these two the identifications displays pre-trial prosecution, simply review The fact that the months as were decided, Ware, supra preserve before Wade did in Hines note but not and compari- given photos for the at trial and the these identical later of events turn son, prevent previous photo not the trial and white identifica- should court and black years prosecution considering earlier, ourselves from tions two identifica- photo finding the colored tions then made as basis was entitled to offer origin. (The pho- identical identifications. stronger weak, fact no merely were and in their trial review witnesses which the years normally given on the be two cannot than those prior identifications 74' stage mug for Sixth shots.” critical basis considered by purposes. review Such Amendment suggestively pre-trial Where taint an photographs not does means of charged procedures is as identification identification, may affect in-court here, independence key question weight chooses the defense if its identification, in-court con- develop cross-examina- the matter sistency identification, with the recognize also I tion.” from absence a taint derived in Hines previous identifications photo previous wheth- identification —not although “all “positive,” and Ware were strong er identification the [black selected four witnesses or weak —which under determines as appellant photograph [Ash] white] standard in- of Simmons whether “they positive gunman,” were court identification be can achieved 73 The identifica- the identification.” evidence. positive Ware were Hines and tions in testimony throughout, while the Ash, whether four witnesses brings This to the second of the two us photo- photographs, white color black and ways majority decisive in which the identifications, graphs, in-eourt opinion grapple problem fails to with the qualifications honest the same revealed according standards, established eye- certainty. these four were Yet as own court en banc. time our expressed witnesses, honestly un- apparently opinion relies jury always for the certainties have been (1) on the colored two bases here: not, weigh. These uncertainties suggestive, (2) be not, cause the should finding of in- District Court’s completely standard on the barred dependent sustained. source cannot be requires “procedure Simmons, which wrong legal Both, submit, I are on the suggestive impermissibly . so applied here. standard the facts give very likeli- substantial rise to first, true, even could not irreparable misidentification.” hood of issue; decisive on Fifth Amendment involving reasoning opinion’s circum- In different rests second cases reaching strong first; and, stances, in-court on true that a conclusion accused, opinion conclusion, an con- the second based Clemons, opportunity for a clear identification tradicts our en banc decision crime, supra. an would show the scene of the independence taint derived opinion places pains at two takes viewing photographs the accused be- point the trial did not out that and the time time of crime tween the expressly say situation, factual of trial. a converse suggestive,75 presentation here, trial identifica- weak as we have in- each draws the instance completely witnesses, con- tion of all the anything in- ference that [the] “[I]f with their weak sistent dependent determination rested source set of initial the accused suggestive- assumption of undue graphs, independence shows the likewise finding suggestivity ness.” Yet no of their recol- freedom from taint being present decisive on could be their time of in-court lection at (although a Fifth Amendment issue find- opinion majority suggestivity be), identification. could such of finding merely frankly places at the burden on the states, “The identifications Iiid, supra 70, 127, Ware, 74. at note at 98. 72. Hines and at F.2d. 1331 455 Hid, 96, 5, 75. fn. and 98. at at Id., 95, Majority Opinion, 76. at at 98. 73. 105.

129 “independent prosecution identification, to establish an Government’s in-court recognized clearly by origin,” Supreme majority opinion. Court as the On Wade, supra, Clemons, laid tests Simmons and down recognizes majority apparently by reference to action taken great importance, Wade, the District Court in here.77 Of Ash’s conviction must be finding an unmistakable Court did affirmed. make issue, “the Government on decisive One more consideration needs to be an in-court has a basis for established regard weight stressed in to be convincing by clear identification given Judge finding Gasch’s decisive United In Clemons v. the District Unless this Court evidence.”78 Court. States, supra, en banc un- this court Appeals try is resolved to these identi- recognized qualifiedly decisive nature record, fication ab cases initio on cold finding by court: trial such weight we judge’s owe some trial findings. has, by as noted Court We are admonished Su- preme contemplated gave recogni- expressly so, in- above, do we may be found Clemons, supra, court capable identifications tion to that feet, standing concurring Judge own their Clemons Leventhal though Judge (now preceded joined himself, with deficient whom even Justice) Burger, pre-trial pertinently It has also Chief confrontations. key emphasized the trial marked role which : exposure to court, of its direct because properly . matters are . . these plays any witnesses, such deter- judge, resolved the trial at be instance, least in appellate first . . mination.79 . resting “’independent marks rare Instead of his resolution assumption source” determination “on exception.81 suggestiveness,” the undue District impressed by pre- I am the careful Judge doing than we told no more hearing trial conducted District There we in Clemons. him to do Judge weigh op- here. should We judges to trial make exhorted the portunity to and hear the witnesses see finding origin, independent even person, and to not see though had graphs but the defendants. We should non-suggestive, if on because been found disposed upset not his determina- be finding appeal were held er- this first an in- witnesses could make that the roneous, if avoided be a remand would by their untainted already its made the District Court identifications, previous photographic finding in- independent for the source permit such would and therefore Hence, even rights process not violate due identifications.80 finding on this majority here made a the appeal appellant. suggestivity, conviction Ash’s attempted majority apparently has reversed. should explicit to finding aside trial court’s brush merely independent source be squarely the rule of within Ash falls sup held, cause a was not Wade. Whether Clemons and majority finding port recent suggestivity cites our this the Gaseh made a Long (Anthony) (clearly, cases v. think did he not), finding unquestionably source made for the With clear States regard ^[82] and United Long, I believe Gambrill.83 49, U.S.App.D.C. at Id., p. 408 F.2d 98, 105, at 81. 20. 133 77. fn. 1252. (of Hearing), Transcript 78. at 108. U.S.App.D.C. 424 F.2d 82. 137 U.S.App.D.C. F.2d 79. (1969). 1241. 34, 42, U.S.App.D.C. U.S.App.D.C. F.2d See 133 F.2d at 130 attention, my and in which has come judge that the here satisfied trial was say specified reversed Third Circuit dependent test there the source met the origin independent of Long: con the evidence prior the tainted “that justify capable quite in-court was sufficient of witness frontation

making identification. spontaneous of identification suspect upon his observations based cases, begin- The lesson 84 facts On the at the time of offense.” ning continuing Wade, Sim- with with us, they presented to have been decisions, includ- mons all our own and finding eyewitnesses who identi that the ing banc, the trial is Clemons en of observa did so a result fied Ash judge’s origin, independent decision meets of the crime him at of the time being peculiarly question he well is Long. by any requirements specified stand, decide, with equipped to should (Even only exception.” a “rare Gambrill, did the court As there make versal of trial court which we say entire record “our own view today excep- and Proctor is in Brown impel evi- us to conclude tion, made im- the trial court concerning for there an in- of existence dence dependent origin, findings satisfy plicit independent of but source is insufficient erroneously let the absence of bar upon the Govern- the burden which rests 85 testimony.) great identification differ- ment,” but view I and case Gambrill ences between this Whatever uncertainties weakness- holding any has bear- do not think that eyewitnesses’ tes- es existed timony, the four only ing one In there here. Gambrill they fully exploited both were understandably witness, an identification counsel, glaringly defendants’ and were rape victim, and her observations excited apparent jury convicted to the —which source”) (the “independent were made Bailey. Ash not codefendant but dimly-lit night, area, at and outdoors admissibility considering handker- who wore were of assailants trial, constitu- evidence during chief-type a substantial masks admission, tional infirmities will bar its have part Here we encounter. only go testimonial infirmities witnesses, each four weight the evidence. start We “independent source” observa- his own principle, phrased by with the well midmorning during in a tions made brightly-lit (now Justice) Burger in a dif- Chief outside, and two bank or thoroughly applica- ferent context but opportunity, an four witnesses eyewitness ble will- here: “When fleeting, observing the defend- albeit give testimony, oath under Gam- unmasked. The ant when was subject rigors to all the of cross-examin- compara- brill are case this case penalties perjury, ation he must ble; indeed, here I the difference 87 think be heard.” night day. between testimony eyewitness- four greater in- the far evidence of Given previous es here was not tainted their here, dependent I source we ap- examination of identification of finding uphold judge’s would trial pellant photographs. Ash Nor convincing” in- “clear and evidence of stage” was there “critical at which significant dependent source. It to counsel denied. The reversing cited case Gambrill no other witnesses’ wholly was shown holding judge testimony, their own whatever its origin, question as we strength, they properly heard. noted v. Johnson I affirm Zeiler other case Estes.86 II is the conviction. U.S.App.D.C. U.S.App.D.C. 134, 84. 86. F.2d 1363 at F.2d 1370. States, U.S.App.D.C. U.S.App. Brown v. United 85. 146 F.2d at 134, 143, 375 F.2d D.C. majority MaeKINNON, Judge. opinion, Under the after de- Circuit fendant’s arrest the defense counsel Judge Wilkey’s I dissent. concur every would have notified time a to be Amendment, I its As read the Sixth any photo- or old witness was shown new guarantee “assistance of the graphs of the defendant or other sus- require de- does not his defense” pects. This an unreason- will constitute present be the Gov- fense counsel when post-arrest able interference with inves- attorney investigator ernment or inter- tigations require and would defense witnesses, they views are shown whether present pho- counsel to be wherever such pictures defendant, suspects, other tographs may by police be shown or FBI crime, scenes, crime instruments personnel anywhere any witness prior testimony, evidence of the or crime country. or is other discussion the rele- there requirement wholly Such unreason- is given any facts in In vant the case. particularly applied able and so when any might case one these incidents is, nationwide as it must be if this as the uncover evidence that “critical” would be majority say, require- a constitutional defendant, requirement for the though great ment. Even we have a present that counsel be is restricted to many local crimes in the of Co- District legal proceedings and those instances lumbia where com- identifications are physical- the defendant himself is where pletely local matters we cannot convert ly present. provincial the Sixth Amendment into a recognize that, rule. We must if the law The Amendment Sixth majority, is as stated whenever my majority opinion view agent interrogates any FBI witness only misreads the Amendment but Sixth anywhere country suspect after a also, attempting make its decision counsel, agent is arrested and if the has appear workable, takes reasonable any photograph intends to exhibit very prosecu- unrealistic view of the accused, that defense counsel must be tion of criminal cases. It be- seems to notified, present, require- etc. Such investigation lieve of a criminal completely and, ment unworkable grand jury case ceases with a indictment my view, particularly respect report wrapped and that FBI is then crimes, many federal of which involve awith blue ribbon which is untied activity interstate out of and hence state until ease comes on for Far trial. witnesses, required by is not the Consti- important from it. An criminal tution. investigation. needs constant After a suspect arrested, may new witnesses Ash Identification of appear, may appear new facts and new I may also dissent from failure develop theories as additional facts majority recognize opinion full im- post-arrest become known. Such devel- testimony port opments may the identification further de- incriminate the against Ash. It was not limited to fendant and his conviction more make “height, weight, age they may acquittal and build” as certain or lead to an 97). (p. charges. In ad- or states dismissal of the fact testimony height, tall, made, dition to the as to arrest even has been or thin, returned, other, that an shorter than the more muscu- indictment has been lar, slender, other, justification stopping there in- taller than the vestigation. ongoing thing suspects That is an were: complected” (Tr. 125); up frequently “not until trial and into too dark “light negro” ; may (Tr. 182) “neatly the trial as defense skinned then (Tr. 182); “extremely new witnesses for the first dressed” neat” time. investigation (Tr. (Tr. 182); after “mustache” even continue [had a] glasses” 192); (Tr. 192, trial. “no [wore] required prove expected Also, 220); the witness cannot be masks. wore through solely wit- positive in- criminal conduct Betty Apple, who made worship. frequent houses of who men—she nesses of both against testify known criminals “absolutely Where and that there certain” was (Tr. 220)— it is sufficient criminal defendants question in her mind nowas jury the wit- know the record of to men ten minutes two had seen the same respect they nesses, Mc- as did with outside the them before she observed Farland, properly there- they to be instructed in a cream time were bank. At that give testimony such such that was colored convertible Pontiac weight they proper under as consider parked of her husband’s restau- in front weight of the away the testimony The circumstances. from bank rant about a block jury. (Tr. They 213-214). then un- were saw them ten minutes masked and she later, again unmasked, Photographs The Colored they from as fled large carrying paper one the bank with bag. foregoing, Having I find said the occasions seated On both she photographs, were which colored five parked at the restaurant and car shortly before to all the witnesses shown good oppor- respectively and had a bank suggestive. impermissibly trial, were tunity identify the men. In front of only Photographs of five individuals passed they five within feet bank time—one of each were at that shown her where she was seated testimony car and pictures oth- of three defendants very she valuable because (There pic- were three er individuals. time, recognized (suspected) from at the individuals.) one of other tures of running carrying paper bag, their my personal of these From examination robbery that a been committed bank had light full of the exhibits viewed in 197, 221). (Tr. She was thus alert pictures transcript, have I find these observing. consequences of what she was suggestive impermissibly been because Bailey Ash and those There also other evi- substantial defendants only photographs finding slender fully were tall dence that corroborated description prior men, jury was the committed Ash robbery suspects particularly all witnesses. crime. mony testi- This pictures were of men three all other McFarland. had a While heavy appeared not tall. who criminal record and could benefit hearing However, favors, story full the court held a still the he told Government testimony ring of truth of a num- the identification had because my opinion had person found that the witnesses ber of that a recounted elements independent source to make could if he a sufficient have known had talked (Tr. 102-103). knowledgeable person an in-eourt identification to some who was support ex- conclusion it is this about the of the crime. That he details significant tremely tes-' disqualify to note that the had a record not criminal does timony him of the identification witnesses as a can- witness. Government substantially respect pick Ash was and choose witnesses. In a throughout. There was consistent criminal must trial it take its witnesses slight Betty Apple’s where it them variation between finds and it is unusual Bailey her for it find in-court identification certain witnesses with knowledge corri- criminal who the courthouse records (See Appendix, dor.1 which charts the criminal activities others. That is principal but a fact of life. identifications Criminals associate various witnesses.) with other criminals. The Government being stronger prior respect it 1. In than been from United had differs single photographs Gambrill, U.S.App.D.C. 72, the sus- States v. shown pects. (1971), where the wit F.2d 1148 testimony substantially ness’ at trial was (Tr. 167, “right point nose” under his every to believe Thus, reason there lip (mustache 182). upper they This left the witnesses completely exposed. area) chin areas upon relying own their below the mask which The facial features they previously of what recollection exposed be observed and so proce- were could If the observed. of the skin. two majority could the color suggestive dures were contend, appellants here had distinctive features produce de- they failed to testimony. a mustache—and the this area—one upon the effect monstrable unusual-type chin. other an pure speculation for the It is suggest testi- the identification great significance to mony place I no on the strong might than less have been of the witnesses to articulate failure photo- formerly if the colored it was graphs they the individual facial features that find I thus not been shown. had person Looking at a for the observed. finding upsetting no basis many people first time to much like admis- was evidence trial court looking painting. at a sunset or a Un- sible.2 less the viewer is a trained observer his impression initial is inclined to be stated me, first troubled One factor fragmented impres- in total rather than record, reading and the briefs the cold many persons sions. And for it is diffi- majority opinion, the fact that was cult, particularly specific ques- without pictures to facial showed Government being asked, sepa- tions to articulate the only who had observed two witnesses they rate features retain their mind wearing they stock- while were robbers ing complete up features that make person Obviously, has if a masks. their individual recollection of the com- height face, it not seen one’s impermissible plete physiognomy suspect. suggestion fa- to exhibit Moreover, specific while there was no person pictures that the to him of a cial point, evidence on the it cannot be strong suspect. Un- knows is a exhibitor ruled out that masks which were sugges- implicit der such circumstances stockings used here made of sheer were merely normal tion in a could also lurk through. Obviously one could see display in- that did not various wearing who those were masks saw range physical with a close dividuals through wearing them.3 If those features that had been similar those stockings through as masks could see my However, initial observed. after them, persons then other could see some showing propriety of doubts as to the through of their the thin features fabric investigation photos, dis- facial further Thus, of the hose. other facial features closed sufficient me to conclude facts upper lip might above the have been proper that it was here to exhibit facial extent, observed to some albeit pictures to the I reach this witnesses. possibly slightly distorted state. So because, there tes- conclusion while opportunity view of the the wit- timony that both robbers had worn did nesses have to view the facial fea- masks, they stocking masks had worn suspects, tures of the I find it that was and, to the extent it was covered entirely proper to show the facial testimony, masks came down thought 3. One witness “there must have the identifica- While admission eyes. been holes for his I don’t separate question, remember tion is a (Tr. 167). that” The other witness testi- significance that de- is not without fied, stocking cap had a “He over his stipulated fense counsel to the admission (Tr. 181). face” A third witness said the colored into evidence of he did Bailey’s not have mask on the bank (Tr. 418). They defendant (Tr. 192). ap- I “when saw him” This (Tr. 418) hardly a basis for exhibits parently contradictory might evidence error find constitutional reconciled since the three witnesses against in their admis- the Government varying robbers, different views sion. slightly times. and at different distances majority opinion respect, extent that To the graphs In this the witnesses. respectfully foregoing, I examina- differs requires a close record cold dissent therefrom. out true situation. find my view, majority opinion, does not the views with ROBB concurs expressed. herein this. reflect APPENDIX Robbers Observed With- 3,1966 Feb. Witnesses . 7,1966 May 8,1968 May With Black & White Offense of

Aug. Trial Identification Photos Mask Color Photos 26, 1965 Mask Paugh (Teller) no make definite Could photo. Ash Selected positive- Mrs. Not Ruby sim- absolutely Identification —"looks Was identified X 160) (Tr. ilar" Thinks this certain. (Tr. 51) him gunman Major (Teller) Ash Ash Believed (Tr. photo. Not Selected positive— Mrs. Jean 182) 45) (Tr. "I Was identified X I my doubt mind but certain. absolutely say cannot absolute this was him. Thinks (Tr. 183) 52) (Tr. certainty" sort Identify like the Looks To best his be- Unable Taylor Mr. Joseph (Tr. (Tr. 16) coming (Pastor, customer) May man I saw In photo lief Ash color 188) (Tr. 47) gunman, cer- "absolutely Not 8, X tain ... It looks say could positively like him. I cannot be If he could see him 194) (Tr. certain" In person. both defendants photo. Ash Identified Betty 2"Wasn't It Selected Apple sure, X1 (Street observer) [Ash]" person sure. Be- In (Tr. In court room Was not looked like (Tr. 198) 200) ab- "With 16, photo 197, lieve (Tr. 52, certainty Is robber solute —there 201). [my] Did se- question mind" (Tr. 220) Bailey lect photo (Tr. 201) STATES, Appellant, UNITED

Rufus BROWN et al.

No. 24452. Appeals,

United States District of Columbia Circuit.

Argued En March Banc 1971.

Decided March 1971.

Opinions Filed March pointed February 18, 1966, away she both Observed defendants one block On robbery Bailey persons among from bank ten minutes 50 other ten minutes later in front bank. Build- Sessions Court of General corridor 372). 72-74, ing (Tr. “believed” She photos shown She had been Janu- 82). (Tr. ary (Tr. Bailey by policeman 370). the men one See text notes been a trial court probed cir- counsel could have ant’s following supra. 43. See text note lineup, the trial of cumstances Wade, whether there 44. have ruled on 388 U.S. court could 240-241, 1926, 1939, suggestiveness 18 L.Ed. in the identification procedure was an if so whether there 2d origin, question of then length the Court have at Would dwelt presence at or absence the line- counsel’s right on the Sixth Amendment to counsel decidedly up become subsidi- would have handicaps defend- ary. controlling would neces- issue ant’s labored counsel under at the trial be- adequacy sarily of the trial have been unfamiliarity cause strengths of his suggestiveness hearing and inde- on govern- and weaknesses of origin. pendent ment I submit evidence? 241-242, S.Ct. is clear the Court not 388 U.S. opinion. written an If such there had L.Ed.2d 1149. resulting analysis correct, If of trial then Part Since record majority opin- indicate III of Leventhal’s “did two convictions ion, developing to the a Sixth Amendment ra- photographs what were shown extrapolating identifying tionale for reversal and witnesses absence counsel,” therefrom a duct, for future con- rule two convictions these Zeiler’s point. hearing The relevant pretrial beside the were for a “remanded portion II, dealing is Part with Fifth in order to afford the Government sug- questions possible Amendment ‘by opportunity prove con- clear gestivity independent origin. Yet vincing were evidence’ its witnesses majority specifically rejects this as prior photo- so, influenced the basis for its decision. do “But we graphic incom- confrontations to be purpose not remand for this more [a petent make in-court identifica- sug- thorough hearing impermissible on tions.” remand the District Court On gestiveness] there is another ob- because ruled shown all witnesses who had been jection identifica- photographs presence de- outside the tion that need for establishes the rever- attorney incompetent to were fendant’s . . sal. sary . We not find it neces- do testify (in Circuit Third retrial. The appellant’s whether determine (1) II) holding again, Zeiler reversed rights Fifth Amendment violated were procedure photographs and fol- photographs because the color im- were exhibiting unduly lowed suggestive, them were not permissibly suggestive. In the circum- (2) Government case, stances of this con- defendant’s brought out substantial evidence “that stitutional stages counsel at critical the in-court first identifications at the prosecution was violated. 48< independent origin.” (Majority 98) Opinion, .” Zeiler still has not had thing majority pos- So one is clear: any prosecution exhibit validity ition stands falls on photographs witnesses, when to these reasoning its on the Sixth Amendment retried, per- he is all witnesses will be ground purported counsel, aof denial of mitted to make an in-court identifica- ground. not on Fifth Amendment applicability is, tion. The to Ash course, that Zeiler and Zeiler II hold I 3. The deterrence rationale Wade the trial court a review- once makes is miffs- ruling suggestive- question able on the Ash. independent origin, ness and the absence precise now come to We rule the majority of counsel the here think is promulgate seeks case required by the Sixth Amendment at bar: utterly immaterial. We conclude that rule sound Supreme What found un- prescribes general, subject that in decisive as to the result for ultimate exceptions, certain quirement Wade and its Wade is likewise tmdecisive for Ash. presence counsel, are hearing, And the trial court applicable to a Government exhibition Court ordered Wade custody person of a Wade, whose result was to be decisive for for an offense to witnesses called to already has II been had for Ash. Zeiler identify person who committed the

Case Details

Case Name: United States v. Charles J. Ash, Jr.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 12, 1972

Citation: 461 F.2d 92

Docket Number: 22340

Court Abbreviation: D.C. Cir.