Identifications and the Right to Assistance of Counsel and Due Process

VII. Identifications and the Right to Assistance of Counsel and Due Process a. US v. Wade i. Facts: Wade was indicted for bank robbery, arrested and counsel was appointed to represent him. Fifteen days later an FBI agent arranged for two bank employees to observe a line-up of Wade and 5-6 other prisoners without notice to Wade’s attorney. Each person in the line wore strips of tape such as were worn by the robber and said something like “put the money in the bag,” the word allegedly spoken by the robber. Both bank employees identified Wade in the lineup as the bank robber ii. Issue: Whether a witness identification of a criminal suspect conducted in the absence of legal representation violates the 6th amendment right to the assistance of counsel iii. The court held that a witness identification of a criminal suspect conducted in the absence of legal representation violates the 6th Amendment right to the assistance of counsel b. Kirby v. Illinois i. Facts: The police arrested Kirby and Bean. Shard was brought to the police station where he positively identified Kirby and Bean as the men who had robbed him two days earlier. No lawyer was present in the room and neither Kirby nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel. The suspects were indicted more than six weeks later and obtained counsel. At a hearing on the motion to suppress Shard’s identification testimony, it was apparent that the identification procedure was highly suggestive. However, the motion to suppress was denied. The defendants were convicted and the conviction afÏrmed on appeal ii. Issue: Whether police may conduct an identification outside the presence of counsel before a suspect has been charged under the 6th Amendment iii. Court held that police may conduct a lineup w/o an attorney present if the suspect has not yet been indicted or formally charged w/ a crime iv. Dissent is concerned w/ the suggestive nature of the identification process 1. Wants the application of Wade and Gilbert at an earlier stage (e.g. preindictment since they only occur at post-indictment) v. The remedy available is the 14th Amendment Due Process Clause 1. It is harder to overturn a case on Due Process Grounds instead of other grounds c. US v. Ash i. Facts: Two men wearing stocking masks robbed a bank in Washington, D.C. An FBI agent showed 5 black/white mug shots of black males of similar age, height and weight, one of which was Ash, to four witnesses. All four made uncertain identifications of Ash’s picture. Ash and Bailey were indicted for the robbery. Almost three years after the crime, an FBI agent showed 5 color photos to the four witnesses, three of whom selected the picture of Ash. Based on this postindictment identification, Ash claims that he was denied the right to counsel at a “critical stage” of the prosecution ii. Issue: Whether police may conduct a post-indictment photo lineup outside the presence of counsel under the 6th Amendment iii. The court held that police may conduct a post-indictment photo identification outside the presence of counsel iv. A stage of pretrial investigation will only be considered "critical" if the disadvantage suffered by the defendant cannot be cured by ordinary trial techniques d. **The issues found in these cases are not very important these days since states now conduct line-ups/show-ups pre-indictment instead of post-indictment