Introduction

Right to Counsel at Lineups

Introduction

The Sixth Amendment opens its list of the accused's protections with the phrase "In all criminal prosecutions," and among those protections is the right "to have the Assistance of Counsel for his defence."¹ The same sentence guarantees notice of the accusation, confrontation of the witnesses, and compulsory process for the defense, and these guarantees belong together because each is an incident of the adversarial proceeding, the contest between prosecution and defense that developed in the seventeenth and eighteenth centuries.² That setting raises the question this chapter answers. When a witness is asked to pick the robber out of a row of men, must the suspect's lawyer be standing in that room? The answer depends on whether the Amendment's counsel guarantee has begun to operate at that moment and, if it has, whether this kind of event is one the guarantee covers.

The counsel guarantee began as the right to hire a lawyer, and it later grew into a right to appointed counsel for those who cannot pay, first under the Due Process Clause in Powell v. Alabama for capital defendants and then under the Sixth Amendment itself in Gideon v. Wainwright.³ Because the right is tied to "criminal prosecutions," it does not attach until the person has been formally charged, which is why the target of a grand jury investigation has no Sixth Amendment right to a lawyer.⁴ The first question on any lineup fact pattern is therefore one of timing: had adversary judicial proceedings begun when the identification took place? The timing question comes first, and a negative answer ends the Sixth Amendment analysis. If proceedings had begun, the second question is whether a live, face-to-face identification is a critical stage, meaning a point in the prosecution at which counsel must be present to protect the accused's chance at a fair trial. Courts have treated the preliminary hearing and sentencing as critical stages in this way.⁵ A lineup is run by the police, usually without a judge, so it does not obviously belong in that company.

What gives the second question its weight is how much a pretrial identification can decide. A witness who points at the accused in a lineup may effectively settle the question of guilt before the trial begins, and a lawyer who was not present may be unable later to show the jury how the identification came about. The doctrine therefore asks both when the adversarial process starts and whether the procedure is one at which counsel's presence protects the trial. A third question follows if counsel was required but absent: what evidence the prosecution may still use, including the witness's later identification of the accused in the courtroom. This chapter takes those questions in order, beginning with United States v. Wade, the decision that addressed whether a lineup is a critical stage of the prosecution.