Concept
Lineups as Critical Stages
Sixth Amendment right to counsel at a lineup
Lineups as Critical Stages
The Sixth Amendment never mentions a lineup. Its counsel guarantee speaks only of "criminal prosecutions" and of the "Assistance of Counsel for his defence," and the text says nothing about what police may do before trial begins.1 The Court filled that gap by asking whether a given point in the prosecution is a critical stage, meaning a step at which the lack of a lawyer can damage the accused's chance at a fair trial. Arraignment qualified because a lawyer is needed to keep the accused from waiving available defenses, and a preliminary hearing qualified because skilled cross-examination there may expose weaknesses that lead the magistrate to refuse to bind the accused over.2 Both are courtroom events in which legal questions are being decided. Whether a police-run identification belongs on the same list was the question in United States v. Wade.3
The facts of Wade show how ordinary the procedure was. In September 1964 a man with a small strip of tape on each side of his face walked into a federally insured bank in Eustace, Texas, pointed a pistol at a female cashier and the bank's vice president, made them fill a pillowcase with money, and left in a car driven by an accomplice.4 An indictment charging Billy Joe Wade with the robbery and with conspiracy was returned on March 23, 1965. He was arrested on April 2, and counsel was appointed to represent him on April 26.5 Fifteen days after that appointment, an FBI agent arranged a lineup at the county courthouse and did not notify Wade's lawyer. Wade stood with five or six other prisoners, each wearing strips of tape on the face, and each was directed to say words such as "put the money in the bag."6
Both bank employees picked Wade out of the lineup. At trial they identified him again from the witness stand, and on cross-examination they described the earlier lineup, after which the FBI agent who watched it also testified. Wade's counsel moved to strike the courtroom identifications on Fifth and Sixth Amendment grounds, the trial court denied the motion, and Wade was convicted. The Fifth Circuit reversed on the ground that the lineup violated the Sixth Amendment, and the Supreme Court granted review.7 That the jury heard about the lineup and also watched the witnesses identify Wade in person is why the case supplies the remedy rules taken up later in this chapter.
The Court held that a post-indictment lineup is a critical stage of the prosecution, so the accused is entitled to have counsel at it.8 The reasoning follows the framework above: the right to counsel attaches when adversary judicial proceedings begin and then reaches every critical stage that follows.9 Wade had been indicted and had appointed counsel, so the right had attached by the time the agent arranged the courthouse lineup, and holding it without telling that lawyer meant the identification was taken without the assistance the Amendment guarantees. The requirement itself is that the accused and counsel be notified of the lineup and that the lineup not go forward until counsel is present, unless the accused makes an intelligent waiver.10 In Gilbert v. California, decided the same day, the Court applied the same requirement to a state prosecution, which is why the rule binds state and federal police alike.11
Only the notice to counsel and counsel's presence moved the outcome in that pair, which shows what the rule regulates. The police remain free to hold the lineup, and the rule governs how they go about it, with the exclusion of the results as the consequence of proceeding without the lawyer.12 The rule is also not confined to a row of men. A one-person show-up, in which the witness sees only the suspect and is asked whether this is the perpetrator, is the same kind of face-to-face confrontation, and after charge it carries the same right to counsel.13 Students sometimes treat the holding as limited to multi-person lineups, but the one-person show-up is covered too. What both procedures share is that the witness views the accused in person, a feature that later separates them from photographic and scientific identifications.14
Wade also argued that being made to wear tape and speak the robber's words compelled him to incriminate himself. That claim failed. The privilege against self-incrimination protects an accused against compelled testimony, and showing one's face and voice to a witness supplies physical characteristics rather than testimony.15 With the Fifth Amendment unavailable, the Sixth Amendment is the operative protection at the lineup itself, although due process remains as a backstop, which this chapter reaches at the end.
Two questions follow from the holding. The first is why a lineup earns the label of critical stage when the accused faces no legal question at it, and the second is what the right gives the accused once it applies. The next two parts take them in that order.
Why Lineups Are Critical
A lineup gives the accused no legal question to argue, no ruling to win, and no witness to cross-examine, so it is fair to ask why a lawyer belongs in the room at all. The Court's answer in United States v. Wade was that a pretrial lineup carries a serious risk of prejudice, intended or not, that may be impossible to reconstruct at trial, and that a lawyer's presence can often avert the prejudice and secure a meaningful confrontation later.17 The Court restated that reasoning in United States v. Ash: the accused faces no legal questions at a lineup, but the event gives prosecuting authorities openings to take advantage of the accused, and counsel is more alert to suggestive influences than the accused and better able to reconstruct the events at trial.18 The argument has four links, and the rest of this section takes them in order. Eyewitness evidence is powerful and unreliable, a lineup invites suggestion, the accused can seldom reconstruct the lineup afterward, and the identification may therefore be settled before trial begins.
The first link is the weight eyewitness testimony carries. When a victim or bystander emphatically names the defendant as the culprit, jurors tend to give the identification great weight, even though such testimony can be wrong.19 The errors have two sources: perception can fail at the moment of the crime, because the witness may have had little time to look and may have been frightened, and memory can fade and shift afterward.20 The identification of strangers has long been regarded as untrustworthy, and Wade added that a major contributor to miscarriages of justice has been the suggestion inherent in the way the prosecution presents a suspect to witnesses before trial.21 That observation moves the danger from the witness's mind to the police procedure, which is the place where a lawyer can actually do something about it.
The second link is that a lineup offers many ways to point the witness toward an answer, intentionally or unintentionally. A lineup is suggestive when the suspect is tall and thin and every other participant is short and heavy, when the suspect alone wears clothing like the perpetrator's, or when a spotlight falls on the suspect.22 It is equally suggestive when an officer asks a leading question that tells the witness which man the police suspect, such as whether he is the one who committed the robbery.23 Wade's own lineup shows how quietly these influences work. The eyewitnesses waited at the courthouse, Wade stood nearby next to an FBI agent while they waited, and the other participants arrived as a group, so the circumstances signaled who the suspect was before the lineup began.24 Showing the witness the accused alone, with no other possible suspects present, concentrates the same danger, as the Court recognized in Stovall v. Denno.25
The third link explains why suggestion, once it works, usually goes uncorrected. A witness who has picked the accused at a lineup is unlikely to go back on that choice later, so in practice the question of identity may be decided at the lineup, before the trial starts.26 The accused's only recourse is then to attack the courtroom identification by showing what happened in the room, and the ordinary lineup makes that showing hard.27 The obstacles run through every person present:
- The other participants are often police officers, and if they are not, their names are seldom recorded or revealed at trial, so the defense has little way to find them.
- Neither the witnesses nor the participants are likely to be alert for prejudicial conditions or trained to detect them.
- The suspect, often staring into bright lights and under emotional tension, may be unable to see or recognize what is wrong.
- A suspect who does notice may hesitate to testify, because taking the stand opens the door to proof of prior convictions.
- A suspect who does testify is unlikely to be believed over police testimony that contradicts the account.
Taken together, those obstacles mean the trial that settles the accused's fate may be the pretrial confrontation rather than the courtroom proceeding.28 That result is the fourth link, and it supplies the reason for putting a lawyer in the room. Counsel is more sensitive to suggestive influences than the accused and better placed to reconstruct them later, and by watching the procedure counsel learns whether it was unduly suggestive and what to ask on cross-examination.29 The lawyer's presence may also discourage police from doing suggestive things in the first place.30 What counsel may and may not do at the lineup is the subject of the next part.
Because the rule rests on risk, it does not depend on proof that a particular lineup was unfair. Many identification confrontations are conducted with scrupulous fairness, and Stovall accepted that the counsel requirement and its exclusionary consequences will therefore sometimes reach cases in which no unfairness occurred, a price paid to protect the integrity and reliability of the system.31 A post-charge lineup held without counsel therefore violates the Sixth Amendment whether or not the procedure was suggestive in fact. Proof of actual suggestion matters to a different claim, the due process challenge taken up at the end of this chapter, where suggestiveness is an important factor but the reliability of the identification largely decides admissibility.32
The same reasoning draws the line between lineups and other ways of gathering evidence. The government in Wade argued that a lineup is merely a preparatory step in assembling the prosecution's case, like collecting fingerprints, blood samples, clothing, or hair.33 The Court rejected the comparison. The results of those procedures can be examined later with scientific techniques, which lets counsel confront the government's case through cross-examination, while a lineup carries the risk of mistaken identification and the suggestion inherent in the way the suspect is presented to the witness.34
Scientific identification procedures are taken up in their own right later in this chapter, where this contrast explains why the counsel right stops short of them.
Counsel's Role and Waiver
The preceding part explained why a lawyer belongs at a post-charge lineup. What the right gives the accused is narrower than a reader might first assume, and it has two components: notice and presence. Both the accused and counsel must be notified of the impending lineup, and counsel's presence is a requirement for conducting it, unless the accused makes an intelligent waiver.36 Notice comes first because presence depends on it. A lawyer who hears about a lineup after the fact cannot attend it, and an accused who is never told cannot ask for the lawyer or decide to proceed alone. In United States v. Wade counsel had been appointed on April 26, yet the lineup took place on May 11 without any word to counsel, so notice and presence were both missing and the Sixth Amendment was violated.37
Presence is what the right secures at the lineup itself, and the lawyer who is present serves as an observer. Counsel may appear, watch the procedure, and perhaps object, but counsel has no right to direct the lineup.38 The limit follows from the purpose the lawyer serves. The danger of a lineup is that the accused cannot later reconstruct what happened there, so counsel attends in order to become the person who can. By watching, counsel learns whether the procedure was unduly suggestive, decides whether it is tactically wise to expose the lineup on cross-examination of the identifying witness, and knows what questions to ask if the decision is to expose it.39
Wade leaves some room for a more active role, though the room is small. The majority observed that counsel's presence can itself avert prejudice, and the dissenters read the decision as an implicit invitation to counsel to manage the lineup, but counsel cannot compel the police to run it in any particular way and may only point out unfair features and suggest corrections.40 Even that modest role carries tactical costs. Counsel may hesitate to object because the objection can itself be suggestive: a protest aimed at one participant in front of the witnesses can signal which person the police regard as the suspect.41 Counsel may also prefer silence, so that a suggestive practice stays available for cross-examination, but at least one court has treated silence as a waiver of any suggestive procedure not objected to at the time, which forces hard choices on counsel early in the case.42 A further complication is that an observing lawyer may become a witness at trial, because the accused, the other participants, and the witnesses are unlikely to notice prejudicial circumstances. Model Rule 3.7 directs a lawyer who learns that they will have to testify for the client on a contested matter to withdraw unless withdrawal would cause the client substantial hardship.43
Law enforcement objected to all of this on the ground that a lawyer in the room would slow identifications and obstruct them. The Court gave two answers. In the two cases before it, counsel had already been appointed, and no one argued that notifying counsel would have delayed either confrontation. And refusing the right out of fear that counsel will obstruct justice contradicts the premises of the Court's Sixth Amendment cases, as it did when the same argument was raised about counsel at custodial interrogation in Miranda v. Arizona: a lawyer protecting the client is exercising professional judgment and is no menace to law enforcement.44 Counsel can even assist the police by keeping taint out of the prosecution's identification evidence, which helps assure that the right person is convicted.45 An identification that a watchful lawyer saw conducted cleanly is also harder to attack later, so the lawyer's presence serves the prosecution's interest in reliable evidence.
Two points were left open, and each marks a boundary of the rule. The first concerns substitute counsel: Wade did not decide whether another lawyer's presence might suffice when notifying the suspect's own counsel and waiting for that lawyer would cause prejudicial delay.46 The second concerns regulation. Rules, such as those of local police departments, that eliminate the risks of abuse and unintentional suggestion at lineups and the impediments to meaningful confrontation at trial might remove the basis for calling the stage critical, and the Court said its holding was not meant to handicap sound reform.47 The logic is that the stage is critical because of the risk of prejudice, so a procedure that removes the risk undercuts the reason for requiring counsel. That possibility has remained theoretical, since apparently no court has held any set of regulations adequate.48 Congress's attempt in the late 1960s to repeal the Wade principle for federal prosecutions also failed to have that effect.49 Absent a holding to the contrary, the requirement of notice and presence stands as stated, and the substitute-counsel question remains unsettled.
The accused may give up the right to counsel at a lineup, but the waiver has to be intelligent. The standard parallels the one for interrogation: a waiver must be knowing, intelligent, and voluntary, and a written waiver is the more effective one.50 That standard fits the structure of the Sixth Amendment. The right belongs to the accused personally, and counsel is an aid to a willing accused, so the choice to go forward without a lawyer is the accused's own to make, but only when the accused understands what is being surrendered.51 Whether the right should be waivable at all has been questioned, because a Miranda waiver lets a suspect speak the truth to the police, while waiver at a lineup serves no comparable purpose.52
Who must prove the waiver follows from who controls the lineup. When a lineup is held without counsel after the right has attached, the prosecution must establish that the accused intelligently waived it.53 The police chose the procedure and know what the suspect was told, while an accused with no lawyer present has little means of proving what was said or left unsaid. A valid waiver likely tracks Miranda: the accused is advised of the right to counsel for this particular purpose, is told that counsel will be provided if the accused cannot afford one, and then expressly waives, with a heavy burden on the government to show that the waiver occurred.54 A waiver of counsel for another purpose does not suffice, so a waiver following Miranda warnings does not carry over to the lineup.55
What follows from a lineup held in violation of the right is the subject of a later part of this chapter, but the sequence of questions is already fixed. The first is whether adversary proceedings had begun, the second is whether counsel was notified and present, and the third is whether the prosecution can show an intelligent waiver for the lineup itself.