Eyewitness Identification: Constitutional Aspects

In United States v. Wade, 388 U.S. 218 (1967), a companion case to Stovall, the Supreme Court held that persons subjected to lineups after they have been indicted are entitled to the assistance of counsel under the Sixth Amendment. Subsequently, it held that the right to counsel also attaches at post-charge showups (Moore v. Illinois, 434 U.S. 220 (1977)). There is no right to counsel at a photo array, however, whether it occurs prior to or after formal charging (United States v. Ash, 413 U.S. 300 (1973)). These cases raise three significant issues: How are photo arrays distinguishable from lineups and showups for purposes of the right to counsel? Why does the right to counsel attach only after formal charge? And what is the role of counsel when the right attaches?

Wade justified its decision by concluding that "there is grave potential for prejudice, intentional or not, in the pretrial lineup" and that counsel can "avert [that] prejudice and assure a meaningful confrontation [of it] at trial." In other words, counsel is needed to make sure the lineup is properly conducted and, if he or she fails in that goal, to record its flaws and expose them at later proceedings through cross-examination and presentation of other evidence. Without counsel, defendants would clearly be unable to accomplish the first goal (recording flaws), because they are not trained to notice irregularities and may not even see them, especially if they take place behind a one-way mirror. Even if they do detect problems, defendants are almost as useless in assisting counsel in the second goal (exposing flaws), because their word will be pitted against that of the police or prosecutor.

This rationale supporting counsel's presence at lineups would seem to apply with even more force to photo arrays, since the defendant is not present at the latter type of identification procedure; here defense counsel hoping to expose procedural irregularities is entirely dependent on the police and the eyewitness, who are unlikely to be disposed to help. Yet it was the defendant's absence at the photo array that led the Court, in Ash, to reject a right to counsel claim at the latter type of identification procedure. Because the defendant's absence at the photo array means he is not confronted with the "intricacies of the law and the advocacy of the public prosecutor," the Court reasoned, there is no need for counsel at such procedures. Of course, lineups and showups do not involve such confrontations either. The Ash majority also noted that a photo array is more easily reproduced at trial than a lineup procedure but, as the dissent pointed out, the conduct of the police and witness during the photo identification is as important as the array itself in determining reliability. Ash seemed to reject Wade's reasoning, but did not overturn it.

There is no right to counsel even at lineups and showups if they take place prior to the formal charging of the defendant (which is usually the case). This was the holding in Kirby v. Illinois, 406 U.S. 682, 690 (1972), which construed the Sixth Amendment's language guaranteeing the assistance of counsel "in all criminal prosecutions" to apply only to actions that occur after the initiation of "adversary judicial criminal proceedings . . . by way of formal charge, preliminary hearing, indictment, information, or arraignment." Of course, if counsel is useful in terms of detecting, preventing, or exposing suggestiveness, that would be as true prior to formal charging as after that event. Setting the Sixth Amendment threshold at arrest might make more sense. But in Kirby, presaging Ash, the Court insisted that only at formal charging is the defendant "faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law" to the extent necessary to require the assistance of counsel.

When the right to counsel does attach, counsel's role is unclear. Wade states that counsel can both "avert prejudice" and "assure a meaningful confrontation [of it] at trial." The first role, with its intimation that counsel can suggest changes in procedures, is more active than the second, which implies that the attorney should function as an observer who will then use the observations to the client's advantage at later proceedings. It is unlikely the Wade Court meant to give counsel authority to compel particular police procedures. At most, lower courts have held, counsel should be able to make objections and preserve them for the record if police fail to heed them (e.g., People v. Borrego, 668 P.2d 21 (Colo.App. 1983)). Moreover, many lower courts have held that counsel is allowed access only to the identification itself, not to collateral components of it such as witness descriptions of the perpetrator or post-procedure interviews of the witnesses (e.g., United States v. Bierey, 588 F.2d 620 (8th Cir. 1978)). If the only role of counsel is observation of the procedure, a videotape or snapshot might be constitutionally sufficient; Wade itself recognized that "substitute counsel" may be permissible under the Sixth Amendment.