Also known as: one on one showup · one-on-one show-up · showup · showup identification
Written by attorneys — see sources below.
A pretrial identification procedure in which law enforcement presents a single suspect to a witness for viewing. The procedure constitutes a critical stage of the prosecution once formal adversarial proceedings have begun. Counsel must be present or the resulting identification is subject to exclusion.
After formal charges were filed against Luis at his initial appearance, officers returned him to the restaurant kitchen without notifying counsel. They stood him alone before the injured server and asked whether he was the attacker. The server identified him. Because the procedure occurred after attachment of the right to counsel at a critical stage, the identification must be excluded.
Federal agents arranged for a contractor representative to view Felicity seated alone with one decoy at a government building after her indictment. No counsel was notified or present. The representative identified Felicity as the bribe recipient. The post-indictment timing made the one-on-one showup a critical stage requiring counsel.
Before any formal charges, a detective showed a coworker only the suspect's photograph. The coworker identified the suspect. Because the procedure occurred before formal charges, the right to counsel had not attached even though the method was suggestive.
On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. bank in Washington, D.C. The robbery lasted three or four minutes. A government informer, Clarence McFarland, later told authorities that he had discussed the robbery with respondent Charles J. Ash, Jr. In February 1966, an FBI agent showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses who had been present during the robbery. All four made uncertain identifications of Ash's picture. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to the bank robbery. Trial was finally set for May 1968. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were positive of their identifications. The fourth witness, who had been in a car outside the bank, made positive in-court identifications of both Ash and Bailey. The color photographs were admitted into evidence. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed Ash's conviction by a 5-to-4 vote. The majority held that Ash's right to counsel was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. Dissenting opinions joined by four judges disagreed with the decision that the photographic identification was a critical stage requiring counsel. The Supreme Court granted certiorari to resolve the conflict with decisions of the courts of appeals of nine other circuits.
View caseAfter arrest but before indictment, detectives presented a dockworker alone to a ship's officer in a station house. Counsel had not yet been appointed. The officer identified the dockworker. The pre-indictment timing meant the right to counsel had not attached.
On February 20, 1968, Willie Shard was robbed on a Chicago street of a wallet containing traveler's checks and a Social Security card. The following day Shard reported the robbery to Chicago police. On February 22 two officers stopped petitioner Thomas Kirby and Ralph Bean on West Madison Street. Kirby produced a wallet holding three traveler's checks and a Social Security card in Shard's name, and papers bearing Shard's name were found on Bean. The officers arrested both men and took them to a police station. Only after arrival at the station and checking records did the officers learn of the Shard robbery. A police car was sent to Shard's place of employment and brought him to the station. Immediately upon entering the room where Kirby and Bean sat at a table, Shard identified them as the robbers from two days earlier. No lawyer was present and neither man had requested or been advised of any right to counsel. More than six weeks later Kirby and Bean were indicted for the robbery. A pretrial motion to suppress Shard's identification testimony was denied. At trial Shard described his station-house identification and again identified the defendants in court. The jury convicted both men. The Illinois appellate court affirmed Kirby's conviction, and the Supreme Court granted certiorari limited to the applicability of Wade and Gilbert to pre-indictment confrontations.
View caseDetectives presented an indicted actor alone at a rehearsal after formal charges. A witness viewed him without counsel present. The witness identified the actor. The post-indictment timing made the one-on-one showup a critical stage requiring counsel.
In January 1964 two armed men robbed the Mutual Savings and Loan Association of Alhambra and a police officer who entered during the robbery was killed. Petitioner Gilbert was convicted in the Superior Court of California of the armed robbery and the murder. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed the judgment. Gilbert was arrested in Philadelphia by an FBI agent and later provided handwriting exemplars to another agent during questioning about Philadelphia robberies in which the robber used a handwritten note. The exemplars were admitted in evidence at his California trial over objection. Officers entered Gilbert's apartment without a search warrant after receiving information from an accomplice that led them to believe a suspect might be inside. They found and seized photographs of Gilbert in an envelope on the top of a bedroom dresser. Eyewitnesses viewed the photographs within hours after the crime. Sixteen days after his indictment and the appointment of counsel, Gilbert was exhibited at a lineup conducted without notice to his counsel in a Los Angeles auditorium. Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage had observed him at the lineup. The manager of the apartment house in which incriminating evidence was found also identified Gilbert in the courtroom and testified to her prior lineup identification. Eight witnesses at the penalty stage who were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by Gilbert likewise identified him both in court and at the same lineup. The California Supreme Court affirmed the conviction in 63 Cal. 2d 690. The United States Supreme Court granted certiorari and set the case for argument with related matters.
View caseTwo days after an assault, an officer brought a coworker to view a suspect alone. The coworker identified the suspect. Because the procedure occurred before formal charges, the right to counsel had not attached even though the method was suggestive.
In 1965, after a jury trial in a Tennessee court, respondent was convicted of rape and was sentenced to 20 years’ imprisonment. The State’s evidence consisted in part of testimony concerning a station-house identification of respondent by the victim. The Tennessee Supreme Court affirmed. On certiorari, the judgment of the Tennessee Supreme Court was affirmed by an equally divided Court. Respondent then brought a federal habeas corpus action raising several claims. The District Court held that the claims were not barred and, after a hearing, held in an unreported opinion that the station-house identification procedure was so suggestive as to violate due process. The Court of Appeals affirmed. The Supreme Court granted certiorari to decide whether an affirmance by an equally divided Court is an actual adjudication barring subsequent consideration on habeas corpus, and, if not, whether the identification procedure violated due process. On the evening of January 22, 1965, a youth with a butcher knife grabbed the victim in the doorway to her kitchen. When the victim screamed, her 12-year-old daughter came out of her bedroom and also began to scream. The assailant directed the victim to tell her daughter to shut up or he would kill them both. She did so, and was then walked at knifepoint about two blocks along a railroad track, taken into a woods, and raped there. The whole incident took between 15 minutes and half an hour under a full moon. The victim gave the police a description of the assailant as being fat and flabby with smooth skin, bushy hair, a youthful voice, between 16 and 18 years old, between five feet ten inches and six feet tall, weighing between 180 and 200 pounds, and having a dark brown complexion. Over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs but identified none of the suspects. On August 17, the police called her to the station to view respondent, who was being detained on another charge. Finding no one fitting respondent’s unusual physical description, they conducted a showup instead consisting of two detectives walking respondent past the victim. At the victim’s request, the police directed respondent to say shut up or I’ll kill you. The victim testified that she had no doubt about her identification. At trial the victim testified that she could see the assailant because there was enough light from the bedroom shining through. At the habeas corpus hearing, she stated that when she first laid eyes on him at the identification, she knew it was the individual because there was something about his face she did not think she could ever forget.
View caseThe right attaches once formal adversarial proceedings have begun by indictment, information, or initial appearance on filed charges. Before that point, even a suggestive showup does not violate the Sixth Amendment right to counsel. After attachment, any police-arranged corporeal identification is a critical stage requiring counsel.
No. The right applies to any post-charge corporeal identification arranged by law enforcement regardless of whether it occurs in a police station, conference center, gym, or rehearsal space. The timing after initiation of adversarial proceedings controls, not the physical surroundings.
The out-of-court identification obtained from the uncounseled showup must be excluded. An in-court identification may still be admitted if the prosecution proves it has an independent and reliable source under the totality of the circumstances.
…pretrial confrontation for purpose of identification may take the form of a lineup, also known as an "identification parade" or "showup," as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra . It is obvious that risks of suggestion attend either form of confrontation…