Concept
Identifications Outside the Rule
Sixth Amendment right to counsel at a lineup
Identifications Outside the Rule
The Wade right covers one kind of event, and exam stems often attach it to procedures that only resemble that event. Even after the accused has been charged, police have several ways to identify a suspect, and the Sixth Amendment requires counsel at only some of them. The sorting principle comes from United States v. Ash, which reviewed the counsel guarantee and found its core purpose in assuring assistance at trial, when the accused faces both the intricacies of the law and the advocacy of the public prosecutor. The right therefore reaches the trial itself and the pretrial events that can fairly be treated as parts of the trial, and it extends to new settings only when they present the same dangers that produced the right.1 Ash added a test that explains why a lineup qualifies. If an accurate reconstruction of the event is possible through defense counsel's adversary examination at trial, the risks of the confrontation remain, but the chance to cure defects at trial means the event is no longer critical.2 A lineup cannot be reconstructed that way, because what happened in the room is known only to the people who were in it, and that is why Wade requires counsel there.
The same test explains a decision that has nothing to do with photographs or samples. In a Ninth Circuit prosecution of a defendant named Montgomery, a witness who had sold a large quantity of red phosphorus, a key methamphetamine ingredient, asked a DEA agent to take him to the courtroom the day before he testified so that he could confirm an earlier photographic identification. The agent did so without notifying defense counsel.3 The court of appeals held that the right to counsel was not violated, because the event was not an adversarial confrontation. No prosecutor with superior legal knowledge confronted the accused, nothing threatened the loss of a defense for want of counsel, and the defendant was simply watched from the gallery.4 Counsel learned of the viewing only on cross-examination, and the witness's own testimony let counsel reconstruct it, so the episode gave the defense material to attack the identification instead of costing it anything. A live lineup differs on each point. The accused is compelled to take part, stands under an emotional tension that can blur the memory of any improper suggestion and weaken the accused's credibility as a witness, and would have to give up the privilege against self-incrimination to prove what went wrong.5 Two procedures are tested again and again as the standing exceptions, because each lacks that live confrontation.6
Photographic Identifications
When a witness is shown photographs and asked to pick out the perpetrator, the accused has no Sixth Amendment right to have counsel present, and that holds even after indictment.7 In Ash the petitioner argued that the Sixth Amendment entitles an accused to counsel whenever the government conducts a post-indictment photographic display that includes the accused's picture. The Court refused to extend the right to that event.8 The accused is not present at a photographic display and claims no right to be there, so the accused cannot be misled by unfamiliarity with the law or overpowered by a professional adversary.9
Each half of that reasoning has its own logic. The first half concerns the accused's position. The lineup was critical in part because the accused stood before the witness and needed a lawyer's guidance in a setting run by the police, but a photo display leaves no one in the room whom counsel could advise. The second half concerns proof. A lineup leaves behind only the memories of the participants, while a photographic display is a set of pictures that can be examined later, and the witness can be questioned at trial about which pictures were shown and how. Because that reconstruction is possible, the opportunity to cure defects at trial takes the display out of the category of critical stages.10
The absence of a counsel right does not make photographic displays immune from challenge. An unduly suggestive display may still violate due process, which is the backstop taken up in the final section of this chapter.13
Scientific Identification Procedures
No Sixth Amendment right to counsel attaches when police use scientific methods, as opposed to eyewitness procedures, to identify the accused as the perpetrator. Police may extract or analyze fingerprints, blood, clothing, hair, voice samples, and handwriting samples without counsel present.15 A defendant arrested for possession and use of heroin who is subjected over objection to a blood test for current drug use therefore has no right to have counsel there when the blood is drawn.16 The same defendant standing in a post-indictment lineup would be in the opposite position, and the difference lies in what the procedure produces.
The reason follows from the Ash test. A lineup produces a witness's memory, which can be shaped by the way the confrontation is run, and the shaping may be invisible afterward. A scientific procedure produces a physical sample and a laboratory result, and the result depends on the sample and the method used to analyze it. No witness's recollection is being formed in counsel's absence. The defense can retest the sample with its own expert and cross-examine the analyst about the method, so an error in the procedure can be found and exposed at trial.17 The risk that made counsel indispensable at a lineup is missing, and so is the reason for counsel.
The line follows the method of identification, not the kind of physical evidence involved. A voice or handwriting sample collected for laboratory comparison falls on the scientific side.18 If police instead have a witness watch or listen to the accused in person to say whether this is the person, the witness's memory is again the evidence, and the live-confrontation analysis from earlier in this chapter governs.
Photographic Identifications
When police show a witness photographs, whether still or moving, and ask whether the perpetrator appears among them, the accused has no Sixth Amendment right to have counsel present.20 The rule holds even after indictment, at a stage when the same accused would be entitled to a lawyer at a live lineup. Its source is United States v. Ash, which declined to extend the lineup holding of United States v. Wade to identification procedures at which the accused is absent, so a photographic array falls outside the counsel guarantee whether or not formal proceedings have begun.21 The Court's reasons come in two parts, and each part explains a different feature of the exception.
The first reason concerns the accused's position. The Court observed that an accused who is absent from a photographic display, and who claims no right to be there, cannot be misled by unfamiliarity with the law or overpowered by a professional adversary.22 That observation connects to what a lawyer does at a lineup, which is to stand beside a person who is on view before a witness in a setting the police control and to watch for suggestion. At a photo display no such person is in the room, so a lawyer sent to the display would have no client to advise.
The second reason concerns proof. If an accurate reconstruction of a pretrial event is possible through adversary examination at trial, the risks inherent in any confrontation remain, but the chance to cure defects at trial means the event is no longer critical.23 Courts applying that test ask whether cross-examination can reveal any improper procedure that took place in counsel's absence, as the Ninth Circuit did in Jordan v. Ducharme.24 Why a photographic display passes the test is an inference from how it differs from a lineup, and it should be understood as an inference rather than a separate rule. A lineup leaves behind only the memories of the people who were in the room, while a photographic display leaves behind the pictures themselves. Defense counsel can place the array before the jury and ask the witness and the detective how many photographs were shown, whether the defendant's stood out, and what the witness was told, so whatever suggestion the display carried can be exposed at trial without a lawyer having been present when it occurred.
The standard application keeps the accused elsewhere. After indictment, police bring photographs of the defendant, mixed with photographs of innocent people, to the victim and ask the victim to pick out the perpetrator. The defendant's lack of any chance to have a lawyer present makes no difference, because this is not a face-to-face confrontation.25 Bring the same witness before the defendant in person at a post-indictment lineup and the answer reverses. Wade then controls: the lineup is a critical stage, so officers must arrange for counsel or secure a valid waiver, and a failure to do so results in suppression of the lineup results.26 Nothing about the crime, the witness, or the indictment has changed between the two situations. The only difference is whether the accused stands before the witness, and that single fact moves the identification in or out of the counsel guarantee.
Exam stems invite the wrong answer through their procedural posture. A stem that reports an indictment and an appointed lawyer, and then describes a photo display held without notice to counsel, tempts the reader to apply the lineup rule because the right to counsel has plainly attached. Attachment answers only the first question, since the right, once attached, covers only those events that qualify as critical stages. For eyewitness procedures, the sorting question is whether the accused is physically before the witness, and a photo array answers no.
The absence of a counsel right leaves the accused with cross-examination at trial and the Due Process Clause, and the second matters most when the display itself was slanted.
That claim is harder to win than the facts of the hypothetical may suggest, because suggestiveness is an important factor but does not by itself require exclusion. The court's principal focus is whether the identification is reliable, judged by factors such as the witness's opportunity to view the criminal, the degree of attention, the accuracy of the prior description, the witness's certainty, and the time that has passed.28 The final section of this chapter develops that test. For present purposes the photo-array rule moves the challenge from the Sixth Amendment to due process and does not end it.
Scientific Identification Procedures
When police use scientific methods, as opposed to an eyewitness, to establish that the accused is the perpetrator, no Sixth Amendment right to counsel attaches to the procedure. Officers may take or analyze fingerprints, blood, clothing, hair, voice samples, and handwriting samples without counsel present for the extraction or the examination.30 The standard illustration involves a defendant arrested for possession and use of heroin who, over his objection, is subjected to a blood test to find out whether he is currently using the drug. He has no right to have counsel there when the blood is drawn.31 The sorting question in this section is therefore what kind of procedure the police are running. That is a separate inquiry from whether formal proceedings have begun, and it is the second of the two standing exceptions that follow the photographic-display rule.
The exception grows out of the reasoning of United States v. Wade itself. In that case the state argued that a lineup is only a preparatory step in gathering the prosecution's evidence, comparable to taking fingerprints, blood samples, clothing, and hair, and the Court rejected the comparison.32 The Court's reasoning also shows what would have followed had the comparison been sound: counsel could then have used scientific techniques to confront the government's case meaningfully through cross-examination, and counsel's absence at the collection would not have prevented a fair trial.33 Lineups were different because of the potential for mistaken identification and the possibility of suggestion inherent in the way the prosecution presents the suspect to witnesses.34 The scientific-procedure rule is thus the other face of the lineup holding, since the reasoning that demands counsel at a lineup withholds counsel from a laboratory sample.
The two kinds of procedure rest on different logic, and each half of the contrast deserves its own account. A blood draw or a fingerprint card yields a physical sample, and what the laboratory reports depends on that sample and on the method used to analyze it. The sample survives the collection, so the defense can have its own expert retest it, and the analyst can be cross-examined about method, which means any flaw can be exposed at trial without a lawyer having stood beside the collection. A lineup yields a witness's memory. If suggestion in the room has bent that memory, no later test can straighten it, and the distortion may be invisible afterward. Counsel's role at a lineup is also specific: the lawyer observes the suggestive features of the event so they can be brought out on cross-examination. At a blood draw there is nothing comparable to observe, so the reason for counsel's presence is missing along with the danger.
The facts of Wade show where the line falls. Wade, charged with bank robbery, was made after his arrest and the appointment of counsel to wear strips of tape on his face, as the robber had, and to say the words "put the money in the bag."35 Appearance and voice are physical characteristics, so one might call this the gathering of physical evidence. Yet the eyewitnesses watched and listened in order to decide whether Wade was the robber, which made their recognition the evidence, and counsel was therefore required. A voice or handwriting sample taken for laboratory comparison falls on the other side.36 The line follows the purpose of the procedure and the identity of whoever does the comparing, whatever physical trait is involved.
Exam stems tend to lead the reader toward the lineup rule by reciting an indictment and an appointed lawyer and then describing a blood draw or a handwriting exemplar taken without notice to counsel. Attachment of the right answers only the first question, since the guarantee covers only those events that qualify as critical stages. The sorting question is who or what does the comparing. A witness who looks or listens to decide whether this is the person points to Wade and requires counsel, while a laboratory analyzing a sample points to the exception and does not.39