Consequences of an Uncounseled Lineup

Consequences of an Uncounseled Lineup

Earlier sections asked whether the right to counsel reached a particular lineup. When the answer is yes, because adversary proceedings had begun and the confrontation was a corporeal lineup or showup, police must either have counsel present or obtain an intelligent waiver of the right. If they do neither, the prosecution bears the burden of showing that the accused knowingly gave up counsel, and a failure to carry that burden means the lineup violated the Sixth Amendment.¹ The next question is what the violation costs the government, and the answer divides in two. What the witness did at the lineup, and testimony about it, is excluded outright. What the witness does at trial, pointing to the accused in the courtroom, is excluded only if the lineup tainted it. The two items stand in different relationships to the violation, and that difference produces the two remedies.

Excluding Lineup Testimony

Testimony describing a witness's identification of the accused at an uncounseled lineup is inadmissible, and the exclusion applies automatically once the violation is shown.² This is the per se exclusion rule: the court does not ask whether the lineup was in fact suggestive, only whether the right to counsel had attached and went unhonored. In Wade the two bank employees picked the defendant at a courthouse lineup that an FBI agent arranged without notice to his appointed counsel, and the Court said that testimony about those lineup identifications had to be excluded as the direct result of the illegal lineup.³ Because the rule speaks of testimony about the identification, it reaches the account of the witness who made the pick and the account of an officer who watched it.⁴

The automatic character of the rule follows from the reason the right exists. Counsel attends a lineup because the accused cannot later reconstruct what happened in the room: how the participants were arranged, what the witness was told, and what subtle cues passed between the officers and the witness.⁵ A rule that made the accused prove actual suggestion would demand the very proof that counsel's absence caused to be lost. An incentive point runs alongside it. If lineup testimony stayed admissible until the defendant showed suggestion, police would lose nothing by skipping notice to counsel, since skipping notice itself erases the evidence of suggestion, and automatic exclusion removes that payoff. Finally, the lineup identification is the direct product of the violation, because it is the unlawful confrontation itself retold to the jury. No intervening step exists that the prosecution could point to as breaking the chain, and that feature separates this remedy from the one for the courtroom identification discussed next.

The rule also depends on timing. A lineup held before any adversary proceeding began breaches no Sixth Amendment right, so nothing triggers the per se exclusion, which is the lesson of the preceding sections on when the right attaches. Where students go wrong is in asking whether the lineup was actually suggestive before excluding the testimony. That inquiry belongs to the due process backstop at the end of this chapter, which applies a different test, while the Sixth Amendment remedy runs on the missing counsel alone.⁸ Excluding the lineup testimony also leaves one question open: whether the same witness may still point to the accused in court.

Independent Source for Courtroom Identification

The identification a witness makes from the stand at trial is treated differently. It is not automatically excluded, and it is admissible if the prosecution establishes by clear and convincing evidence that it rests on observations of the accused other than the lineup identification.¹⁰ Call that an independent source: a basis for the identification that exists apart from the illegal lineup, such as the witness's own view of the offender during the crime. The courtroom identification is excluded only when it is the fruit of the violation, meaning a product of the tainted lineup, and the burden of showing that it is not falls on the government.¹¹

Two features of the situation explain a remedy that falls between automatic admission and automatic exclusion. A witness's memory of the offender formed at the crime scene, before any lineup and before any violation, so the in-court identification can have a source the violation never touched. Excluding every such identification would give a defendant immunity from identification by a person who actually saw the crime, a result far beyond what undoing the violation requires. Yet the lineup can also contaminate the witness. Once a witness has seen the accused singled out in an organized confrontation, the memory of that scene may replace the memory of the crime, and pointing to the accused in court may then only repeat the lineup. The law therefore asks which memory is speaking. The prosecution carries the burden because its failure to notify counsel left no record of the lineup, which means the accused cannot show contamination, while the evidence of an independent basis comes from the witnesses the government itself calls.

The Court identified the considerations a judge weighs in deciding whether an independent source exists, and they are best held as a list.¹²

• The witness's prior opportunity to observe the criminal act.
• Any discrepancy between the witness's pre-lineup description and the accused's actual appearance.
• Any identification of another person before the lineup.
• Any identification of the accused by photograph before the lineup.
• Any failure to identify the accused on a prior occasion.
• The time that passed between the crime and the lineup identification.

In Wade itself the Court could not make the determination on the record before it. Cross-examination had shown that the witnesses saw pictures of Wade in FBI custody before the lineup, which is one of the listed considerations, so the Court sent the case back to the district court for a hearing on whether the in-court identifications rested on an independent source.¹³

The two remedies can operate on the same witness at the same trial. A witness may be barred from describing the lineup and still be allowed to identify the accused in court, so an answer that treats the first ruling as deciding the second has merged two different questions. The mistake to avoid is excluding the courtroom identification automatically, since Wade requires a finding about the source of the witness's memory.¹⁶ The due process backstop taken up at the end of this chapter uses essentially the same considerations, but there the effect of the earlier procedure on the in-court identification is part of the violation itself and is not a fruits question.¹⁷

Excluding Lineup Testimony

When the right to counsel has attached and a lineup goes forward without counsel and without an intelligent waiver, the prosecution first loses everything the witnesses and officers can say about what happened at the lineup. In United States v. Wade an FBI agent arranged a courthouse lineup for two bank employees without notifying the indicted defendant's appointed lawyer. Both employees picked Wade, and at trial they and the agent who watched the lineup described those identifications.¹⁹ The Court held that the testimony that the witnesses identified Wade at the lineup had to be excluded, because it was the direct result of the illegal lineup.²⁰ Gilbert v. California, decided the same day, added that denying a defendant his rights under Wade requires exclusion of the lineup identification at trial.²¹

The rule is a per se exclusion, which means the court does not weigh whether the lineup was in fact suggestive. It asks whether the right had attached, whether the lineup proceeded without counsel, and whether the prosecution can prove an intelligent waiver, and the burden on waiver sits with the prosecution.²² If waiver is not shown, testimony about the identification is excluded.²³ Because the sanction attaches to testimony about the identification, the source of that testimony makes no difference. The witness who made the pick and the officer who watched it are equally barred from describing it, so routing the account through the observing agent, as the prosecution did in Wade, gains nothing.²⁴

Two reasons explain why the sanction is automatic and not decided case by case. The functional reason is that a case-by-case inquiry would require the accused to prove what went wrong in the room, and counsel's absence is exactly what made that proof impossible to gather. The incentive reason is subtler. If lineup testimony stayed in unless the defense proved suggestion, officers would gain by skipping notice to counsel, since a lineup run without counsel leaves no defense record of how it was run. Wade put the point in terms that Kirby later repeated: "Only a per se exclusionary rule as to such testimony can be an effective sanction" for assuring that police respect the accused's right to have counsel at the critical lineup.²⁵ A lineup identification is also the violation itself retold to the jury, so no intervening event separates the testimony from the wrong, which is why the Court called it the direct result of the illegal lineup.²⁶

The per se rule remedies a Sixth Amendment violation, so it has no work to do when the right to counsel had not yet attached. In Kirby v. Illinois Willie Shard identified two men at a police-station showup two days after he was robbed, with no lawyer present, and the indictment did not follow for more than six weeks. The plurality declined to extend the Wade-Gilbert per se exclusion to that identification, because the right attaches only at or after the initiation of adversary judicial proceedings.²⁷ The two confrontations carried much the same risk of suggestion. What separated them was whether a charge had been filed, and that single fact decides whether testimony about the identification is excluded automatically or left to the due process analysis taken up at the end of this chapter.

The exclusion reaches testimony about the lineup itself, and nothing more. Whether the same witness may still point to the accused in the courtroom is a separate question governed by a different test, taken up in the next section, so a ruling that excludes the first leaves the second open. One historical limit also bears mention: Stovall v. Denno made the exclusionary rules of Wade and Gilbert prospective only, which is why a defendant whose confrontation predated them had to rest on due process instead.³⁰

Independent Source for Courtroom Identification

The automatic exclusion described in the preceding section reaches only testimony about what happened at the lineup. The same witness may still be asked at trial to point to the accused, and that courtroom identification is governed by a different rule. It is not excluded automatically. It is admissible if the prosecution establishes by clear and convincing evidence that it rests on observations of the accused other than the lineup identification.³² Call such a basis an independent source: a foundation for the identification that exists apart from the illegal lineup, most often the witness's own view of the offender during the crime. The courtroom identification is barred only when it is the fruit of the violation, meaning a product of the tainted lineup, so the question is whether the lineup was exploited to obtain it.³³

This middle position exists because two things are true of a witness's memory at once. The witness's view of the offender during the crime formed before any lineup and before any violation, so a courtroom identification can draw on a source the violation never touched. Excluding every such identification would shield the defendant from recognition by a person who actually saw the crime, which goes beyond undoing the harm the violation caused. Yet a lineup can also reshape what the witness remembers. Once a witness has watched the accused picked out in an organized confrontation, the image from that room may stand in for the image from the crime, and the identification in court may only repeat the lineup. A witness who has made a mistaken identification will rarely retreat from it at trial, so a contaminated memory tends to harden instead of correcting itself.³⁴ The inquiry therefore asks which memory the witness is drawing on.

The allocation of the burden and the height of the standard have separate reasons. The burden falls on the prosecution because the violation was the state's, and because counsel's absence left the accused with no means of reconstructing what the witness saw and heard in the room.³⁵ The evidence that a witness had a good independent look comes from the government's own witnesses, so asking the prosecution to produce it costs little. The standard is clear and convincing evidence because a lineup may already have fixed the witness's memory, and a looser standard would let contaminated recollection pass as honest recall.³⁶ Because the burden sits on the prosecution, the defense does not have to show that the lineup was suggestive, and the identification is excluded whenever the government cannot show an independent basis.³⁷

A judge decides whether an independent source exists by weighing the considerations that Wade listed.³⁸

• The witness's prior opportunity to observe the criminal act.
• Any discrepancy between the witness's description before the lineup and the accused's actual appearance.
• Any identification of a different person before the lineup.
• Any identification of the accused from a photograph before the lineup.
• Any failure to identify the accused on an earlier occasion.
• The time that passed between the crime and the lineup identification.

The reviewing court also looks at whatever is known about how the lineup itself was run, even though counsel's absence means the record on that point may be thin.³⁹ These are considerations to be weighed together and do not work as elements that must each be met. A single unfavorable fact, such as a photograph shown before the lineup, lowers the likelihood of an independent source without ending the inquiry by itself.

In United States v. Wade the Court showed how the considerations operate without applying them to a conclusion. Cross-examination had brought out that the two bank employees saw pictures of Wade in the custody of the FBI before the lineup, which is one of the listed considerations, and the Court said it could not make the determination on that record. It vacated the judgment and remanded for a hearing in the district court on whether the in-court identifications rested on an independent source.⁴⁰ The Court did not decide that Wade's identifications were independent or that they were tainted. The two illustrations below are therefore constructed by varying the considerations, and they do not come from the facts of Wade.

Both witnesses sat through the same kind of illegal lineup, so the illegality of the lineup cannot explain the different results. The difference lies in each witness's earlier contact with the offender: how long and how clearly the witness looked, how accurate the first description was, whether the witness picked someone else, and how much time passed. That is why a ruling that excludes testimony about the lineup does not decide the courtroom identification, and an answer that treats the first ruling as the second has merged two different questions.

The considerations also resemble the reliability factors used under due process, which invites confusion between the two tests. Under due process, whether a later in-court identification is unreliable in light of an earlier suggestive procedure is part of the question whether any constitutional violation occurred, and it is not a fruits question at all.⁴⁴ The Sixth Amendment test starts from an established violation and asks whether the identification was obtained by exploiting it. The final section of this chapter takes up the due process test on its own terms.