*1 majority opinion respect, extent that To the graphs In this the witnesses. respectfully foregoing, I from examina- differs requires a close record cold dissent therefrom. out true situation. find my view, majority opinion, does not Judge the views with ROBB concurs expressed. herein this. reflect APPENDIX Robbers Observed With- 3,1966 Feb. Witnesses . 7,1966 May 8,1968 May out With Black & White Offense of
Aug. Trial Identification Photos Mask Color Photos 26, 1965 Mask Betty Mrs. Jean Mr. Joseph (Street observer) X X (Pastor, customer) X Ruby Apple Major (Teller) Paugh (Teller) Taylor X1 could looked like (Tr. lief If he could see him identified In person. To best Not identified Not 2"Wasn't gunman, positive— positive- 16, (Tr. 16) say 200) positively sure, his be- [Ash]" Ash he absolutely color Was Selected was Thinks 201). lieve certain. Selected 8, lect photo (Tr. 201) Was not Unable (Tr. Selected (Tr. robber 52) him 45) not photo photo this was him. Did Thinks this Ash Ash Ash (Tr. 47) (Tr. 51) sure. Be- Was absolutely (Tr. 52, Identify certain. photo. photo. photo. Bailey May man I saw se- tain solute Identification —"looks Identified doubt Could (Tr. 220) In (Tr. cannot 188) certain" certainty" ilar" Believed (Tr. like him. Looks person 177, 197, Not (Tr. ... certainty make sort say Ash (Tr. 182) 198) my "absolutely both defendants 160) (Tr. 183) In court coming I cannot be was 194) no mind but [my] "I "With —there like the absolute It definite gunman In mind" room looks sim- cer- (Tr. ab- Is I 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 both Observed defendants one block On robbery Bailey persons among from bank ten minutes 50 other out 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 *2 Higgins, U. S.
Mr. Robert J. Asst. Atty., A. whom Thomas Messrs. Atty, Flannery, time the at the S.U. Terry A. and Rob- filed, brief was John Attys., Shuker, ert U. S. A. Asst. brief, appellant. on the Freeman, Wash- Mrs. Carol Garfiel ington, C., Mr. James B. D. with whom (both ap- Blinkoff, Washington, D. C. Court) pointed by onwas the District argued brief, for all appellee Brown, appellees. Washington, Dick, D. Mr. Jerome J. court) amicus (appointed
C. curiae. help Eugene Burka, she bent down P. wounded Lowe and Ira M. Messrs. up, the robber (both Washington, appoint- him. she looked Hines, As C.D. Proctor) (identified fired Court) who had were on ed the District “right back into Burka’s appellee bullet there,” Proctor. brief away. half feet three and a Washington, Rosen, D. C. Sol Z. Mr. opportunities Court) (appointed District *3 varying dis- observe both robbers appellee Williams. for on the brief eight during minutes the seven tances Judge, BAZELON, and Chief Before robbery hour later One consumed. McGOWAN, TAMM, WRIGHT, LEV- dead. Burka was Judges, ROBB, WILKEY, Circuit and MacKINNON, ROBINSON,
ENTHAL, Lineup B. sitting en banc. police infor- By 1969 the October and appellees Proctor mation Judge: WILKEY, Circuit store, liquor and had robbed the Brown by appeal an the Government This is appellee had driven that getaway Williams 3731 from order under U.S.C. quoted § as was Proctor car. “any suppressing the District Court saying man.” had “shot an old that he photographic or in-court arrest, lineup 4 November in a on After Brown and of the defendants Rufus Proctor identified 1969 two witnesses Edge- by Proctor Mrs. Barbara Paul gunmen. and Brown as the trial. The case was initial- comb” at represented lineup At the Proctor was argued three-judge panel of ly before a appeared by later the same counsel who subsequently this court. ordered We hearing pre-trial him the for sponte sua that the case be set down for represent- appeal. was also Brown argument decision en banc. Find- lineup; by different at the' ed counsel ing the erro- action trial court subsequently appointed for counsel were neous, we have vacated the order of represented him at him and District Court and case remanded the hearing pretrial appeal. and on for trial. claim that Brown does not unfair; it Proctor was. contends Proceedings Ba- I. Facts and Made the clearly only objection lineup the theAt sis the District Court Order any the de- counsel was made A. The Offense brought ille- fendants were According gal given before arrest, to the evidence at the an issue which suppression hearing, appeal. argument In on 27 June 1969 us on this eyewit- three-judge men, panel two armed for both identified counsel Brown, appellees agreed record unclear as Proctor and that the nesses sides Washington objected to liquor robbed store. Dur- whether Proctor’s counsel ing grounds robbery Proctor the course of the the retired on the Burka, persons owner, store the nine arose from was the one of Israel agreed goatee. where he had been few seated and took a who had It is gave steps. uttering word, indica- Without witnesses at way allegedly Ac- shot Burka the back. tion that Proctor was cording evidence, lineup picture unique. we to the Government’s In the lay record, appears while Burka down on the floor have in the that the face large pool blood, in Brown forced man next to Proctor has a mustache manager open safe, goatee, the store as of the nine does Proctor. Six varying appear Proctor herded customers and clerks be- to have mustaches density style. hind a counter. Edgecomb, agreed Appellees’ appeal
As Mrs. Barbara a custom- that, having lineup photo er who was the file first behind without fatally counter, stopped Edgecomb, been next shown to Mrs. her testi- policemen, “I mony at trial wasn’t sure about a be admissible give weight jury person lineup, chose to certain that I whatever say yes sure, that I’d like wouldn’t it. pictures.” May to see On 19 Edgecomb prior The Witness C. about two weeks scheduled came to hearing In the prosecutor office who was to gunmen she saw comb described try pre- case. the course of the killing, and was time of the them at the witness, said, he interview description very give a detailed able picture “You wanted to see light in the men. said the both She Edgecomb, here being is.” Mrs. good, liquor fairly that there store was instructed, without presence asked or light no trouble at all. prosecutor of and a detec- minutes, She Brown about three saw squad tive of (her homicide husband at times as close four feet.1 Proctor office), picked up outside the specially *4 she remembered when she was lineup photograph systematically and standing next head of the fallen to the line, reading went down the from left to Burka while hovered over Bur- Proctor right. Originally focused on she Proc- Immediately killing feet.2 after the ka’s ter; Proctor, Brown, then she “liked” police she and her husband went to the and on the man the left end to next building, great pic- a saw number of (with Proctor goatee); mustache and tures, identify but were either unable finally she chose Proctor and then gunmen; they of the two nor were able Brown Originally as the two robbers. to do so on three other when occasions Edgecomb Mrs. had described Proctor at photographs police.3 shown other killing having time of the as “the robbery over was After beginnings goatee- aof mustache a her husband talk did not comb type seeing lineup pic- beard.” On gunmen like, “be- looked about what ture, growth she commented that forget about it at cause we wanted to different, his beard was that it was full- riding time.” While that lineup picture iner than at the time Edgecomb 1969, Mrs. on 4 November robbery. of the thought she that she told her husband again. How- the robbers know Judge’s Suppression D. The Trial lineup, she ever, she viewed when Order anyone identify under unable was “just people’s faces lights, made judge the No- ruled that Particularly she could look like blobs.” properly con- vember differing complexions. Under not tell witnesses, li- ducted and that two lighting she felt conditions that testify employees, quor could store “fairly say could not for sure.” and make their identification they identification way police whatever in-court head- On out Edgecomb, quarters say As to Mrs. did to one could. burgundy-ma- man; wearing cheekbones; 1. a tallish a She described Brown as shirt, slender; long long face, and his sleeves a with a cheek- roonish kind beginnings jawline, forehead; high had the weren’t short. “He bone to the goatee-type shortish, lightish complexion; beard.” of a and a hair cut mustache lids, heavy “lazy,” beginning fill, eyes His with Afro cut not an brows, inch long; wearing well-shaped an hair about about an inch and half a length. sleeves, long greenish and a half shirt kind wearing grayish thing; checkish of these the latter two 3. tan slacks. occasions, 26 October pictures descrip- Proctor were According Edgecomb’s Brown to Mrs. groups tion, heart-shaped face; included had infra, pp. complexion; 346-147. viewed. See medium dark about 5'11" high height; cheekbones, accentuated below,4 nor toto sequentially ed However, feels that the Court finding specific pick did she make fact did not that she view independent source, appears people at of the line- the time out the ruling Judge’s in the relevant up, District of caution and with abundance following points al- manner defendants, the Court behalf of leged appeal: to be at issue on this deny the use of her defendants Appellees’ claim Amendment Sixth at a later time. under doctrine United States representation added, Wade5 that The court further stage: denied at a critical photo- view of fact “It a. is felt since this was graphic is excluded after and close to the that she make should not feels perhaps it would have been better de- in-court present if counsel had appear- been the time her fendants time.” here in fear ance be tainted way viewing they some the recent been “I if think b. photograph. been there would question it.” about men- Although did not trial court always Amendment Fifth Sixth “But c. ruling, suppression foot-not- making minds, counsel’s defense in their opinion, viewing oral- delivered trial court’s taint *5 bench, together ly the with graph from the ? respect inquiries there- with an abun- of counsel Just with THE COURT: to, appear in the record as follows: the defend- insofar as of caution dance has tak- THE Court COURT: are concerned. ants question any ques- the of en under advisement if there is feels court Edgecomb. Mrs. in favor the identification that it should be resolved tion appears Edgecomb and, therefore, that Mrs. did that of the defendants ruling. ample opportunity to observe an the have the two defendants the reason Court’s while in the store. she bad of the fact that In view However, period the feels that a of time Court over seen pick not fact did view of the that she identification before and not made tile people the line- the tlie at the of the defendants out time at the up, an abundance caution and with that the later identification feels Court just defendants, subject question. might the the on behalf of Court to deny use of her identification As I un- will PROSECUTOR]: [THE photograph it, of the defendants in the Honor had stated Your derstand opportunity for later time. at a was that there amide question There no in the Court’s it was her to that observe improper nothing feeling mind that there was insofar as her graph that should Court’s photo- having present seen the been when viewed have photograph she prosecutor’s] lineup? in [the office. However, they it is felt that since I think that if THE COURT: present after was close there have had been perhaps question that trial better it would have been it. been about present anything if at counsel had been I don’t feel there was improper having time. all shown her the about counsel’s actually photograph In view of fact that graphic always looking identification is excluded the her it over but there is minds, question Court feels that she should not make in their defense exactly minds, just an in-court identification of the defend- counsels’ appearance happen ants at the time of her what did that time when here some fear she had not been able to determine tainted way prior viewing the recent thereto. photograph. you, [DEFENSE Thank COUNSEL]: U.S. L.Ed. S.Ct. Your Honor. 2d 1149 [THE : PROSECUTOR] Is Your ruling Honor’s then that there is some exactly Mrs. just did in-court minds, what as to comb, that contends Government happen time at that she when Judge analysis District prior what thereto.” an to determine been able gives support absolutely no Green said Appellees’ claim Fifth Amendment forbidding or in-court grounds process denial due process due Stovall6 procedures “so that followed grounds, clearly that court unnecessarily suggestive conducive display lineup pho- ruled identification,” irreparable mistaken tograph proper, itself or non-existence the existence impliedly independent court found any independent source for the in-court source for the witness’ identification: judge’s and that the trial rationale appears “It a. simply suppression absence ample opportunity ob- did viewing of defendants’ counsel at the in the serve the two defendants while lineup photograph, which is Sixth store.” ground under Amendment the rationale “However, feels that b. Court of Wade. fact view of the did pick people out the time Right II. The Sixth Amendment lineup, and an abundance of cau- Counsel in Relation to Witness' defendants, on behalf Photographic Post-Indictment Iden- deny use of identi- tification of Defendant pho- fication of the in the defendants tograph at later time.” Photograph Question A. The “There c. nothing mind Court’s following: At the outset we note the having seen improper as her insofar appellees 1. Counsel for both of- photograph Shuker’s Mr. Brown were fice.” reproduced shown fact “In view d. Edgecomb. *6 is excluded photographic identification or no fault unfairness 2. We find not should that she the Court feels judging picture lineup, it- from the this an in-court identification make concerning testimony it. and the self appear- her the time of defendant at Court. Brown did the District Neither might tainted it in fear ance here unfairness. no claim of now makes even viewing way the recent some agreed sides it both the record On photograph.” Proctor’s it whether is unclear she “In the fact e. view of lineup counsel, as on the same at period of over a had seen any allegation appeal, made this made the time and not goatee; one with a Proctor was lineup the defend- or at appears later the Court feels ants standing left, next first man just lineup photo] [of Proctor, a mustache and also have does might question.” subject to goatee. only claim to unfair- Proctor’s possible anything lineup absence “I don’t feel there was is a f. ness having goatees. improper at all about counsel’s of sufficient actually photograph or shown her the being lineup fair, 3. The looking over.” comparison graph provides fair itself Although appellees persons have briefed nine from which argued any due other rob- and Fifth Amendment witness at comb or process justification suppression of bery could make identification. for Denno,
6. Stovall v. 18 L.Ed.2d1199 U.S. judge’s supports which did Wade reason 4. The appellees’ position here. lineup action or at the make an identification majority Throughout Part IV clearly stated plainly and opinion Wade runs a two-factor i.e., present, all of to those time faces, required presence of complexions, rationale for the shapes and their lineup: counsel at a her because equally indistinct fairly lightihg, could not she major contributing to the A factor take this any We kind choice. make high miscarriage jus- incidence of un- an identification to make reluctance has tice from mistaken conditions, indica- not as der these suggestion degree inher- been the uncertainty Edgecomb’s or tion of Mrs. prose- ent in manner in which the ability an identification make lack of presents suspect cution to witness- conditions, an in- but as under different pretrial identification.7 es Edgecomb’s desire to be dication of Mrs. And, and accurate.
fair
requested,
difficulty
herself
depict-
The
There is serious
leaving
lineup, to
ing
transpires
lineups
the time she was
what
lineup,
photograph of the
because
see
other
of identification confron-
forms
to make
she believed
be able
The
.
.
defense can sel-
tations.
.
person
identification of at least one
dom
mode
reconstruct
manner and
photograph.
judge
from a
identification for
jury at trial.8
complied with
Government
immediately
request,
after
opinion
From this Justice Brennan’s
later,
lineup, but
months
some seven
concluded:
trial,
part
immediately prior
weeks
grave
appears
Since it
there is
preparation
of its
interview-
potential
prejudice,
intentional
ing
prospective
to their
the witnesses as
not, in
testimony.
capable
not be
reconstruction
initiated
witness herself
since
of counsel it-
photograph,
prejudice
self
can often avert
and as-
discussion
prose-
meaningful
any prompting from
sure a
trial,
confrontation at
without
first
present.
She
detective
there can
cutor or the
be little doubt that for
post-indictment
down
she went
picked
Proctor as
Wade the
out
awas
picked
right,
stage
then
prosecution
critical
from left
standing
next
which he
and one
was “as
Brown
much entitled to
goa-
such aid
(also
[of
.
.
. as at
counsel]
mustache
Proctor
the trial itself.’’
finally
tee),
*7
settled
then
However, prior
robbers.
the enunciation
Brown as
right
at
to counsel
rationale
this
Supreme
lineups Wade, the
The Authorities
B.
opinion had considered
III of its
Part
techniques,
preparatory
pre-trial
another
be said
Whatever
different
these were
and concluded
identifica-
post-custodial
lineup. The Government
from
photos
type photo
differ-
prepar-
tion with a
urged
lineup
mere
that the
in the case at
atory step,
we have
Sixth
ent from that
not different
oth-
purposes from various
of Amendment
rationale
bar,
little in the
there is
236-237,
218, 228,
1937.
Id.
87 S.Ct.
9.
Id. at
at 1934.
S.Ct.
analysis
ney
actions,
showing
photograph to
such as scientific
er
clothing,
witness,
samples,
do not
risk of
fingerprints,
we
think the
blood
considering
impeding justice
hair,
the like. The Court said:
is
such—
responsibilities
professional
and sta-
differences which
there are
We think
prosecuting attorney,
tus of the
being
stages
preclude such
character
right
defense
counsel’s
cross-examina-
stages
ac
at which the
ized as critical
require
phase
tion —as
this
right
presence of
has the
to the
cused
preparation
by
busy prose-
for trial
Knowledge of
counsel.
the tech
his
cuting attorney
with at-
be encumbered
niques
technology
is
of science
by
tendance
defense
al-
counsel who has
sufficiently available, and the varia
ready
lineup
attended the identification
enough,
techniques
bles
few
photograph.
recorded in the
opportunity for a
the accused has the
many
There are
different kinds of
meaningful
confrontation
the Gov
photographs,
variety
and a wide
of cir-
through
case
or
ernment’s
validity
cumstances
in which the
dinary processes of cross-examination
pur-
their use for criminal identification
expert
of the Government’s
witnesses
poses may arise. The case
in-
before us
presentation
evidence of
very special
volves a
photograph
kind of
experts.
right
its own
denial
very special
and a
set of circumstances
present
to have his counsel
at such
giving
to its
rise
exhibition to the wit-
analysis does not therefore violate the
ness. To hold that
Sixth
Amendment;
they
Sixth
criti
case,
Amendment violation
we
stages
cal
since there minimal risk
need not,
apparently
as some courts
that his counsel’s absence at such
general
have,
principle
embrace a
to the
stages might derogate
right
his
to a
photographic showing
effect that no
can
supplied.)
(Emphasis
trial.10
fair
ever fall afoul of the Sixth Amendment
right
for the reason that the
to counsel
photo
Obviously the
attaches
confrontations,
and con-
to the
is not similar
here
by
frontations
definition involve the
Court as ex
cited
tests
scientific
presence of the accused.12
investigative
steps,
we
amples
reasoning
the same
think
—“there
a con-
In the
before us there was
case
risk
counsel’s
minimal
that his
absence
present. That
frontation with counsel
derogate
right
stages might
his
at such
lineup.
decide is
All we
applies.
appel
Since
fair
trial” —
showing
subsequent
of a
whether
represented
lineup
lants were
lineup
counsel,
itself met
Sixth
necessitat-
occurred under circumstances
requirements of Wade. The
Amendment
ing
record
This
of counsel.
complete
photograph of that
defense
need.
shows no such
Since
wholly
rep
ly neutral
exact
counsel was
ion.11
possibility of
As
fair,
roduct
picture
array was
and the
prosecuting
manipulation
itself,
thus
attor- was of
there is
227-228,
many
at 1932.
elements difficult of reconstruc
10. Id. at
S.Ct.
line
“little
does the
drama” of
judges
dissenting
dissenting
accuse
up
1 1.
us of
itself.
See
writer’s
opinion
*8
missing
Wade,
Ash,
in that
do
the thrust of
we
in United States v.
149
(No.
-,
Wade rationale of the
-,
not believe
the
106
461 F.2d
difficulty
day).
22,340,
at
trial of
of
reconstruction
this
decided
“precise
mode of
manner and
photo
applies
pre-trial
these
of
to a
See the extensive discussion
identification”
dissenting
majority
identification,
graphic
as we have
cases
both the
such
opinions
Ash, No.
in
States
belief because we
here. We
of this
22,340,
-,
photographic
F.2d
pre-trial
not feel
do
presents
day.
this
in this
case
decided
identification
III. The
Amendment Claim
trial
preserved
reconstruction
for
of
Fifth
Supreme
Process in the Identi-
Denial Due
factors which
of the
most
of
pres-
required
Procedure
in Wade felt
fication
by appellees’
counsel, even
ence of
Suppression
Pho-
A.
the Pre-Trial
manner in
which
definition.13 As for
to Identification
presented
photograph
Ruling
1. The District Court’s
persons present
witness,
all three
cross-examination,
vigorous
subjected to
Among
suppressing
reasons
suggestivity or unfair-
no hint
Edgecomb’s
identification
part
presentation on the
in the
ness
judge
lineup photo,
enunciated
Having
prosecution
elicited.14
two which did not relate to denial of
hearing,
pre-trial
this
the benefit of
First,
pick
did
counsel:
that she
not
pre-
thoroughly
is now
defense counsel
people
lineup;
out at
the time of the
pre-
pared
on this
for cross-examination
and, second,
that she had seen
photographic identification.15 The
graphs
period
over a
and had
time
application
no
of Wade
has
rationale
identified the
in
two defendants
might appear
them.17 This
here.
underpinnings
present
the Wade hold-
had been
or not.
we feel
13. “The
Thus
First,
presence
possibility
prosecutorial
ing
bad
are twofold:
that the
may prevent
problem
faith has little relevance to the
of defense counsel
unfair-
lineup array
in the
itself and
at hand.
ness
under which the witnesses
circumstances
dissenting judges
15. The
criticize our de
may
suspects,
view the
and therefore
avert
they
light
cision
great
of what
see as
identification;
and, second,
an erroneous
difficulty
of reconstruction of the
equipped
will
that counsel
be better
photographic
identification at
identifying
examine the
witnesses
cross
difficulty
substantially
greater
this
“is
trial because he has been able to observe
lineup,
than an
at least
uncounselled
proceeding
and is thus
present at the
the accused is
many
factors relevant
aware of
of the
his at
can relate what occurred there to
validity
Appel-
of the identification.”
torney.”
(at p. 150.)
should be
police pro
brief, 24.
lees’
pointed
out that
the lastest
District,
cedures, for instance now in the
presence
14. The dissenters would favor the
lineups
goal
im
to make it
identifications such
of counsel
possible for the accused to see the iden
in order
as the one
the case at bar
procedures,
re
lest
there be
tification
guard against prosecutorial
faith,
bad
identifying
prisals against
witnesses. Arari
“wholly
nuances
even
unintentional
implement
devices are used to
ous
may
response.”
suggest
‘proper’
policy,
perhaps effective
most
latter,
far from sure
As to the
we are
AVashington police,
being that used
presence
of counsel can counter
one-way mirror behind winch the men
responses
or hold
check the unconscious
they
stand,
in the
where
(cid:127)
problem
prosecutor,
and as for the
by witnesses,
may not
viewed
see
faith,”
while we believe such
“bad
Furthermore,
them.
the comments of wit
very rare, we are certain
instances to be
are not
on the other
nesses
audible
side
prose-
accomplished and hardened
that an
glass section,
and the
communica
easily
fatally bent on mischief could
cutor
sway
by tele
tion between the two areas is
phone
through
a witness
a hundred subtle
the officer with the wit
’between
example,
For
or not-so-subtle means.
and the officer
control of
nesses
subjects
comparatively easy in a
it would be
lineup.
or
prosecution
U.S.,
231-232,
particularly,
16. See
in ad-
to let a witness know
240-241,
vance the identification numbers
2b,
p.
pros-
quoted
supra
assigned
:
under
to a defendant the
As
would
the fact
that she did
A counsel
view of
[I]n
ecution wished to convict.
pick
people
“rigged”
time of the
at the
out
at such a
knowing
way
with an abundance of cau-
of such
would have
“fix,”
defendants,
on behalf of the
serve as
and his
deny
protection
her identifica-
use of
defense
court
deterrent.
vigorous
tion of the defendants
lie
cross-exami-
counsel would
witness,
time.
at a later
whether counsel
nation
*9
stating
an identification of
and Brown.
a Fifth Amendment
was
court
Specifically,
October
when
ground
suppression of the
photographs including
But,
ten
both
photo
shown
identification.
Brown,
statement,
Proctor and
she
unable to
state-
was
two
first
between
anyone.
identify
second,
ments,
trial
On
October
and after the
eight photographs,
in-
finding
ap-
she
judge
was shown
amade
of fact —“It
Brown,
cluding
Edgeeomb
Proctor and
out of which
pears
an
did have
Mrs.
she “liked” Brown and one
not in-
opportunity
de-
ample
to observe the
crime,
(2a, supra)
volved in
but was not
all
while in
store”
fendants
certain. On 4
November 1969 at
—and conclusions
law—“There
detail,
lineup, already
discussed
she
there
court’s mind that
identification,
at-
nothing
made no
improper
her
fact
insofar as
was
tempt
pick
anyone
having
out
photograph
because
seen the
Mr. Shu-
previously
did,
(2c, supra),
reasons
ever,
stated.
how-
don’t
She
and “I
ker’s office”
photograph
line-
improper
ask
of this
anything
feel there
all
up,
because she
having
felt
without
counsel’s
shown her
about
photograph
glaring lights,
confusion,
looking
actually
attendant
or
her
nearby presence
suspected
supra)
and the
(2f,
completely ne-
over”
—which
might identify
she
any
criminals
at least one
gate
process
due
violation.
person
May
lineup.
in that
On 19
We conclude that
photograph, and
shown this
ruling
unambigu
really
court’s
rested
any suggestion
pro-
without
whatsoever
grounds,
ously
Amendment
Sixth
way
identify
ceeded in her
own
both
on a
whether or not the trial court relied
Appellees
Proctor and
cite
Brown.
also
rationale,
Fifth Amendment
Edgecomb’s
to talk
Mrs.
reluctance
nothing
support
in the record to
such re
about the crime with her
husband
depicted
photograph
line
liance.
anyone else
uncer-
as
indication of
up, which we and the trial court have
tainty in her identification.
fair, during
appellees
found
which
Edge
represented by
were
counsel. Mrs.
Testimony
Photo-
to Pre-trial
as
vig
Pierson
eomb and Detective
orously
graphic
Admissible
Identification
regarding
cross-examined
interpret
Edge-
Appellees
Mrs.
interview,
nothing
May
there is
identifying
firmly
hesitancy in
comb’s
anything
the record
which
hints
perpetrators
murder
the two
way suggestive
any
concerning
man
accuracy
robbery
implying a lack of
as
ner
in which the
justifying
her
presented
Edgeeomb
oth
Mrs.
invalidating
subsequent
identifica
her
Edge-
er
taken
influence
actions
Mrs.
conclusion
correct.
tion. Neither
testimony.
comb’s
Edgecomb’s
replete
testimony is
with indications of
awareness
Appellees’
Position
crime,
seri
and of the
seriousness
Appellees’
makes
a Fifth
brief
anyone
ousness
her identification
argu-
process
Amendment
due
denial of
interpret her
perpetrating murder. We
justification
ment as
respon
hesitancy
hesitancy
suppression
Edgecomb’s
court’s
of Mrs.
performing
knowingly
citizen
sible
pre-trial photographic identification.
frequently
important
been
has
act.
relate,
support
argument, appellees
that,
more
of this
observed
sad
length upon
glib
recite
dwell
the times
sometimes
self-assured witness
stronger impression
Edgeeomb
make
on an unso-
did not
makes
2e, supra, p.
And under
the defendants
the Court
:
[of
In view of the
she had seen
feels that
the later
fact
subject
period
lineup photo]
just
over a
of time and
he
question.
not made the identification before or at
*10
ample opportunity
and have an
to observe
jury
does a careful
phisticated
than
registered
in
witness,
the store.
the two defendants while
who
conscientious
fairly
uncertainties
certainties
his
argument
To whatever extent
testimony.
aspects of
on different
his
hesitancy
Edgecomb’s
in
about Mrs.
urge
appellees
draw the same
us to
making
identification of Proctor
her
conclusion,
e.,
conscien-
i.
take
false
validity or affects
Brown has
Edgecomb to be ab-
tious
of
effort Mrs.
argu-
strength
testimony,
an
of her
it is
solutely
in
identifi-
her
fair and careful
appellees
can make
ment
an unreliable
the mark of
cation
jury.
process
But it
not a valid due
witness,
in fact
when
influenced
argument
suppressing
her identifica-
reliability
in-
probably
the mark of
lineup photograph.
of
dependence
judgment.
considering
admissibility
In
photos
significant
shown
It is
trial, consti
of identification evidence at
allegedly
October,
admis
will bar
tutional infirmities
its
Proctor,
not at all resem-
do
Brown and
go only
sion,
infirmities
but testimonial
they appear
appellees
in the
ble the
weight of
We start
the evidence.
lineup photo.
on both briefs’
In reliance
phrased
principle, well
with the
Judge (now
photo
in-
that Proctor’s
statement
Burger
Justice)
in a
Chief
group,
believe
each
we
cluded
applica
thoroughly
different context but
photos,
individual
is identifiable
eyewitness
ble
is will
here: “When an
Edge-
(Mrs.
group
one
each
shown.
give
ing
testimony, under oath and
suspect
definite
comb was not told a
subject
rigors
all the
of cross-exami
previous-
group, and had
in either
twice
penalties
perjury, he must
nation and
ly
many photos in which
been shown
be heard.”18
included;
Brown and Proctor
on either oc-
she made
Suppression
In-Court
B.
Identi-
Brown,
casion.)
appears
As for
fication
photo
group
that is similar
one
each
picture
lineup, but
to Brown’s
Ruling
1. The District Court’s
appear
photos
individual
to be
these two
ground
advanced
men.
two different
pro-
judge
suppression
for her
First,
draw these conclusions:
We
spective
testimony
in-court
of Mrs.
why
thoroughly
that it
understandable
comb was:
Edgecomb made
the fact that
view
the individ-
of Brown and Proctor from
graphic
excluded the
identification is
photos
ual
shown
in October. Sec-
not make
Court feels that she should
ond,
identi-
we conclude
neither her
de-
an in-court
identification of the
of Brown and Proctor
fication
appear-
time of her
fendants at the
possible
iden-
nor her
tainted
ance here
fear it
be
appellees
tification of the
viewing
way by
in some
the recent
by viewing
indi-
“tainted”
supra)
photograph.
(2d,
photos;
rather,
vidual
identifica-
such
course,
identi
Of
if a
spite of such
tion would be made in
viewing.
fication is found
have been obtained
appellees’
due
follows
Fifth or
argument
violation of
accused’s
process
on re-
violation
based
rights,
Amendment
the burden is
peated showings
Sixth
“in
on the
to show
then
Government
facts
accused to the witness—on the
any subsequent
dependent
And,
source” for
not sustainable.
this case—is
find-
trial.19 A
third,
did
identification made at
appears
218,
Wade,
U.S.App.
States,
United States
18. Brown v.
United
240-242,
L.Ed.2d
375 F.2d
at 319
D.C.
States,
(1967);
Clemons v.
(1968)
F.2d 1230
may attempt
ing
met
in-court
burden was
Judge’s state-
accused at trial.21
inferred from
District
*11
opposite
quoted
can
ment
above.
no
found
there were
We have
District
from
the
be inferred
what
also
Judge plainly
right
counsel nor
Amendment
to
Sixth
outset,
“It
stated
the
process
Amendment due
violations
Fifth
Edgecomb
have an
appears
did
Mrs.
showing
in the
the
involved
of
ample opportunity
de-
to
observe the
photograph
Edgecomb.
there-
Mrs.
It
to
store,”
Mrs.
in the
fendants while
showing
“in-
of an
fore
that no
follows
Edgecomb
independent
have
did
an
although
required,
dependent source” is
for
source
in-trial identification.
may
the trial court
be considered
independent
have
an
source
determined
Appellees’
Position
deter-
record
and
the
we have so
mined;
hence,
identifica-
in-court
argument appellees’ At oral
properly
be
Mrs.
that,
display
the
of
conceded
without the
trial.
admissible at
Edgeeomb’s
lineup photograph,
tes-
Mrs.
timony
for
be admissible at
would
Reversed
remanded.
weight
might give
jury
it.20
the
whatever
concurring
BAZELON,
Judge,
Chief
In-Trial
Permissible
Identification
22,340
Ash,
149
No.
United States v.
-,
dis
F.2d 92 and
461
On
whole record
the
the
24,452
senting
op-
hearing, evaluating
Edgecomb’s
in No.
v.
States
United
Brown,
&
Proctor
portunity
Williams: Given
observe at the time
entanglement
holding
complex
murder,
comparative
of our
robbery and
distressingly easy
lineup photograph
these cases it
sight
to lose
clarity
straightforward
propositions
individual
accused
of the
care,
selectivity
First,
which our
should
witness,
decisions
rest.
shown
identifications are crucial
fairness
spontaniety making
to the
identifi-
reliability of
No other
convictions.
photograph
in the
cations
aspect
accusatory process
creates
(coupled
previous refus-
she did
with the
opportunity
miscarriage
much
so
for
photos),
identify
al
we
justice
punishment of
innocent
an
Edgecomb had
conclude that
—for
Second,
safeguard
man.1
issue
independent
which she
source from
yet
protest
reliability,
regularly
(en banc),
denied,
courts
cert.
reliability
iden
lack of interest
22
L.Ed.2d 567
tifications,
opposed
suggestivity
Cunningham,
F.2d
United States v.
423
arguing
prompted them,
may
(4th
1970).
have
Cir.
simply
reliability
argument
panel
20. At oral
before the
majority
jury.
See,
g.,
e.
fact
exchange
following
occurred:
opinion
Brown,
& Williams
THE
COURT: Minus
-
U.S.App.D.C.,
144 of
say that,
you
then
already
exists, how
There
F.2d.
worth,
Edge-
it’s
whatever
ever,
great
firm evi
doubts —if
testify in
comb could
court?
accuracy
adequacy and
dence —about
FOR
COUNSEL
APPELLEES:
Unquestionably,
process.
iden
Judge
finding
Green’s
it was
perhaps
often
tifications
unreliable —
lineup photograph
it.
that did
consistently
detec
than lie
less reliable
past
tests,
carefully sequestered
21. The
accused were
tor
which we have
Frye
unreliability.
from the courtroom
excluded for
See
while Mrs.
present.
States,
App.D.C.
yet
293 F.
comb was
had no
She has
opportunity
(1923);
Wigmore,
for an
3A
Evidence
in-court
identifica-
J.
tion,
1970).
may
(Chadbourn
able to do
rev.
§
not be
999 at n.
approach to
so.
our
difference between
is,
polygraph tests and to identifications
course,
problems
not all of
con
Of
part
doubt,
attributable
least
fully
nected with identifications
can be
perceived
need
in our
differences
by requiring
cured
coun
diffi
problem
the information.
We
their
sel. One critical
concerns
obviously
subjected
police
here
cannot
would be bothersome for
judicial
telephone
attorney
the attack so often leveled at
ef
and to
the defense
postpone
Even
forts
enforce the .Constitution.
until he
police
designee
Considering
if
convenience of
his
arrives.
controlling consideration,
very
no stretch
interests of the defendant and the
imagination
safeguard
possibility
real
could
that an
man will
innocent
apprehen
tie
their hands or make the
convicted on the basis of a mistaken
identification,
sion and
more
I
conviction
criminals
am
distressed
recognize
unambiguous
failure to
difficult.
If
Court were to hold that
con-
*12
present
photo
requirement
counsel
all
stitutional
must be
that
counsel
place
graphic
post-arrest
must
take
be
identifications which
all
graphic
arrest,
after
even
most zealous critic
identifications.
argue
reasonably
could not
law en
that
Recognizing
post-arrest photo-
a
that
forcement would
hindered.2
graphic
“poor
is
a
substi-
fact,
argument
against
corporeal
lineup,”
In
tute for a
the Court
safeguard
vague suggestion
this
is a
that
holds
Ash that such an identification
process
difficulty
culty conceiving
greater
of a criminal
iden-
that
whites
identifying
operates
tifying
aid of lie de
than
without
blacks
that
tectors,
de
lie
that
if we assume
it also seems true
even
whites. And
identify
instances enhance
more
tectors
some
blacks can
other blacks
they
identify
process.
easily
how
it is hard
see
whites.
But
than
can
operate
122-125; Malpass
process
Wall, supra,
iden
the
tifications,
could
without
See P.
bravely
Kravitz, Recognition
assumed
and we have
&
for Faces
evaluating
capable
Personality
jury
Race,
is
13 J.
Own and Other
reliability.
Psychology
(1969);
their
&
Fein-
Social
validity
accepting
gold,
Even
Influence of Environment
balancing approach,
Things,
it
to me clear
seems
and
Identification
Persons
39,
J.Crim.L.,
(1914);
about
need more information
that we
O. & P.S.
proc-
reliability
Seeleman,
of the
The Influence of Attitude
of.
cope
jury’s ability
Upon
Remembering
ess
about
of Pictorial
responsibility.
Material,
Psychology
For
should
with its
Archives of
No.
258,
(1940) (“Unfavorable
strike a rea-
be obvious that we cannot
at 61
attitude
intelligent
Negro
if we take
sonable and
pains
balance
toward the
recognition
tended
obliterate
pit-
ignorance
of the
to remain
individual
differences
process.
among Negro pictures,
falls
empirical
whereas
favor-
recog-
heighten
indicates
data now available
able attitude tended to
problem
differences.”).
is far
from fanciful.
nition of
More
these
Wall,
generally
Eye-Witness
jury’s
See
P.
Iden-
information is needed to assist
(1965);
issues,
I.
tification in
Cases
Criminal
resolution of identification
Hunter, Memory
(1964);
169-175
H.
that information
reveal that in some
Munsterberg,
questions
reliability
39-
On the Witness Stand
instances
should
(1908);
Yin,
Recognition:
ques-
R.
Face
be resolved
courts as threshold
Special
(1970)
(un-
any case,
A
Process?
35-71
tions
law.
our doubts
published
disappear merely
dissertation submitted
will not
run
because we
Department
Psychology,
away
problem.
Massachu-
from the
Technology).
Institute of
But for
setts
variety
a
Assuming
reasons
we have been un-
it were clear
con
willing
up
police
to face
to the doubts to which
venience of the
could be raised
gives
despite
opposition
this data
peated charges
And
re-
rise.
to a claim of constitutional
counter-charges
right,
appropriate
con-
course would be
cerning
accuracy of
inter-racial
iden-
to remand the case to the District Court
tifications,
developed
inquiry
extent,
any,
we have
a reluc-
for an
into the
if
taboo,
People
tance that
almost
of the inconvenience that
im
would be
cf.
Hearns,
922,
App.Div.2d
posed. Nothing,
v.
in the record before us
Dept.1963),
(2d
begins
N.Y.S.2d
against
174-175
even
to indicate that
con
this
acknowledging
question,
requirement
even
stitutional
of counsel would
providing
jury
impose any
much less
with all
discernible
burden
police
prosecution.
of the available information. The data
United States
Cf.
point
unfortunately meager,
Wade,
218, 237,
on this
support
least
offers
tentative
I47
stage
City,
prosecution
80 Yale
1597-1598
L.J.
critical
(1971):
presence of
is re-
which the
points
quired.
explicitly
But the Court
ofAll
us
Law
[Consumer]
not consider
out that
do
“[w]e
Enforcement
liber-
Division were civil
opinion
extent [the
whether or what
Supreme
applauded
We
tarians.
principle
applicable in
should be
Asft]
requiring policemen
Court decision
showing
photographic
case of a
subse-
suspects
warn
their admissions
quent
lineup.”
to a
against
them,
could be used
police
scoffed
claimed
officials who
opin-
By
limitation,
means of this
“hamstring”
that the ease would
law
ion in Ash
for the decision
leaves room
enforcement officials.
condemned
We
Brown,
where the Court validates an
eavesdropping
wiretapping.
We
uncounselled identification at which
privacy
decried
in Ameri-
loss of
of a
was shown
po-
can
We demonstrated when
life.
opinion
prior
lineup.
inYet
neither
lice
took
law
their
forces
into
own
why
convincingly explain
does the Court
head,
and beat
over the
hands
kids
identification ceases to
they
by passively
when
while
stood
stage
prosecution
critical
*13
pro-
construction workers did so. We
merely
of
comes on the heels
because it
tested the use of
and secret
informers
course,
are,
corporeal lineup.
a
There
of
agents
Jimmy
to convict
Hoffa.
Ash and Brown.
differences between
were,
experienc-
here
Yet
we
after
amount to
But
those differences
whether
only
ing
year
one
the frustrations
meaningful
a
is a
distinction
eager
enforcement,
of
to emulate
law
negative
conclusively in the
answered
every police
despised,
trick we
and in-
Wright’s dissenting
by Judge
opinion,
ready
deed,
invent
of our
to
a few
join,
which I
in Brown.
year
By the
of that
we
end
had
own.
According
opinion in
to the Court’s
inventory
impressive
of electronic
prose
Ash,
premise Brown is
of
including
gadgetry,
a subminiature
attorneys, given
profession
cuting
their
tape
microphone
recorder with one
jeopard
responsibilities
of
al
and fears
vest-pocket
that looked like a
fountain
careers,
izing
professional
are so
their
pen
onto a
and another
hooked
unlikely
that we
steer identifications
to
thought
press
bra-strap. We
busy
impose
on their
sched
should
for our
of arrows
one of a number
presence
by requiring
of de
ules
safeguard
bow,
a
rather than
which
fense
identifications
counsel at
govern-
against oppressive
people
free
Majority
lineups.
counselled
follow
opinion
gov-
learned that
We first
ment.
-
U.S.App.
Ash
149
lie
discovered
to when we
ernment
92; majority'
D.C.,
F.2d
at 104 of 461
many subpoenas
could
149
opinion in
-
Brown
get
used a ruse
served unless we
U.S.App.D.C.,of
between
phylactic
required
intro
is forbidden to
rule of exclusion
Government
testimony
of the state
on direct
because cross-examination alone could
duce
protect
rights
at an earlier
the accused
a witness
ments made
prosecutor,
unrepresented
no such
the identifica-
who was
interview with
pre
Noting
witness’
an absent defense
admission
tion.
rule bars
photographic
Unit
counsel is seldom able to
trial
identification.
reconstruct
Kirby,
U.S.App.D.C.
precise
ed
v.
138
manner and mode of
States
340,
2,
610,
lineup identification,
F.2d
612 n. 2
342
427
Court conclud-
n.
Moreover, testimony
helpless
aof wit
ed that where “the
accused
likely
pretrial
subject
pretrial
ness’
[the
identification]
jury
weight
scrutiny
with
have far more
than
effective
the accused is
granted
deprived
right
in-eourt identifi
taken
of that
of cross-examina-
States, supra,
safeguard
cation. Clemons United
tion which is an
v.
essential
40,
right
U.S.App.D.C. at
F.2d at
his
133
408
confront
the witnesses
against
And,
lineups,
Texas,
once a wit
him. Pointer v.
picked
pho
(1965),
1065,
accused at a
400
ness has
tographic display,
out the
85 S.Ct.
13 L.Ed.2d
unlikely
though
he
re
And
even
cross-examina-
precious safeguard
later.
re
tract that identification
As a
tion is a
trial,
fair
ato.
“
sult,
identity may
‘the issue of
it cannot be viewed as an absolute
* * *
accuracy
practical purposes
reliability.
assurance of
for all
* * *
pretrial
determined
confronta Thus
the first line
[at
of defense
”
prevention
tion],
must
trial.’ United States
be the
unfairness
Wade, supra,
229,
lessening
eye-
v.
Moreover, Court excluded the District
her identification as in-court “tainted viewing way by the recent
some ruling
photograph.” Implicit in this finding Government heavy
failed sustain its burden showing convincing evi- “clear
dence” that in-court solely was based on her recollection af- robbers themselves and was not subsequent exposure
fected photographs. their
defendants and
light “key played by role” determining
trial court in whether there independent
anwas source for iden- tification, States, Clemons v. United su-
pra,
trict Court’s respectfully
I dissent.
UNITED STATES of America KING,
Willie Appellant. S.
No. 24381. Appeals, States Court of District of Columbia Circuit.
Argued May 28, 1971.
Decided March ab- notes accused, hand, sence of an on the other 1SI shortly trial, she identified Procedure —Photo-Identifica Criminal tions, supra, photograph of from a at accused N.Y.U.L.Rev. ** * prosecutor’s lineup in office. “witnesses And since likely detec schooled be circumstances, pretrial [not] Under influences,” suggestive tion photographic ques- identification here consequent 1934, 230, 87 S.Ct. at at grave preju- potential carried a expose ly on to them relied cannot be dice, not, which whether intentional trial, presence of counsel the need may capable of reconstruction at compelling in the context more even presence of counsel trial. And since displays. court What this photographic possibility well have averted States, 134 U.S. in Mason v. United said App.D.C. prejudice as- such and would have 1176, 414 F.2d meaningful sured a confrontation context, slightly (1969), different in a case cross-examination fact pertinent own situa equally to our presents precise type problem tion : sought hold, I would Wade avoid. * “* * secrecy therefore, pretrial An absence * * * modest benefit best where the identifications-—even long watching. only graph So if no one is of the itself— involved is policeman stage know are, the witness lineups, like a critical * * * inis prosecution identification that an at which the accused is con- hard process, stitutionally the defendant assistance of entitled sug- myriad put being ruling subtle so, to discover counsel. This gestions passed from excluding Edge- which District Court Mrs. ” * * * policeman pretrial to witness. comb’s identification should be affirmed. majority true, Thus while it is argues, here was that defense counsel I would also affirm District improprie- hint unable uncover Edgeeomb’s ruling as to Court’s Mrs. session, ty dowe in the identification in-court identification accused. due to the not know this was whether In Wade the held that an in-court or, impropriety any such actual lack of partici- a witness who handicap rather, under to the severe pated ex- “tainted” must be required to defense counsel proves “by cluded unless the Government the cross-examination. Wade conduct convincing clear and evidence just such un- intended to eliminate upon based in-court [identification is] certainty. suspect other than observations of Moreover, identification.” 388 U.S. this case dem- the facts of Among the fac- at 1939. onstrate the need for S.Ct. making this de- photographic displays. tors to be considered opportunity of the are the termination accused comb’s during the it- only crime to observe came about under what can be witness person self, any of another “unusual” circumstances. Be- termed identification, any 27, 1969, prior tainted tween date of the rob- June prior year, identify bery, accused and October 25 of that failure to Edgecomb occasion, lapse time between selected of sever- identification. persons the in-court al defendants as the crime and other than the Here, robbers, “resembling” and on Octo- 388 U.S. at robbers, identify pictures observed ber 25 she failed to of Mrs. before, seen both Brown and Proctor. On the follow- never whom 27, 1969, ing day again identify on June