434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977)
On December 14, 1967, the victim of the offenses awoke in her Chicago apartment to find an intruder in her bedroom who choked her, forced her to commit oral sodomy, raped her, and stole a guitar and flute.1
The victim described her assailant to police and provided a notebook found next to her bed containing a letter.2 In the week after the attack, the victim selected petitioner's photograph from arrays shown by police, and investigation connected the letter to a woman with whom petitioner had stayed.3
Police arrested petitioner at his apartment on the evening of December 20, 1967, and held him overnight.4 The following morning, a policeman took the victim to the preliminary hearing in the Circuit Court of Cook County, where she signed a complaint naming petitioner as her assailant.5 At the hearing, petitioner was led before the bench without counsel, the judge informed him of the charges of rape and deviate sexual behavior, and the victim identified him after the prosecutor recited evidence linking him to the offenses.6
Petitioner was subsequently bound over to the grand jury and indicted on four counts.7 After counsel was appointed, the trial court denied a motion to suppress the identification testimony.8
At trial, the victim testified on direct examination that she had identified petitioner at the preliminary hearing.9 She also testified that the defendant on trial was the man who had raped her.10 The jury convicted petitioner on all counts, resulting in a sentence of 30 to 50 years in prison.11
The Illinois Supreme Court affirmed the convictions.12 Following denial of certiorari by the Supreme Court, petitioner sought habeas corpus relief in federal district court.13 The district court denied the writ.14 The Court of Appeals for the Seventh Circuit affirmed that denial.15 The Supreme Court granted certiorari to review the case.16
Whether the preliminary hearing at which the victim identified petitioner marked the initiation of adversary judicial criminal proceedings so that the Sixth Amendment right to counsel attached?17
Under the Sixth Amendment as interpreted in Kirby v. Illinois, the right to counsel at corporeal identifications attaches only at or after the initiation of adversary judicial criminal proceedings.18 Such proceedings include formal charge, preliminary hearing, indictment, information, or arraignment.19 They mark the commencement of the criminal prosecutions to which the explicit guarantees of the Sixth Amendment apply.20 Wade and Gilbert require the presence of counsel at such identifications conducted after that point.21 The requirement guards against the inherent dangers of suggestion by police or prosecutors.22 Such suggestion can lead to mistaken identifications to which witnesses will adhere at trial.23 Counsel at the identification can object to suggestive features before they influence the witness.24 Counsel thereby serves both the accused's and the prosecution's interests in reliable identifications.25
Yes. The Established Facts establish that police arrested petitioner on December 20, 1967, and held him overnight pending a preliminary hearing the next morning in the Circuit Court of Cook County.26 At that hearing the victim signed a complaint naming petitioner as her assailant.27 Petitioner's name was called and he was led before the bench without counsel.28 The judge informed him of the charges of rape and deviate sexual behavior.29 The State's Attorney summarized evidence linking petitioner to the offenses, and the victim then identified him.30 Petitioner possessed the right to move to dismiss the charges or suppress evidence against him at the hearing.31 The purpose of the hearing was to determine probable cause to bind him over to the grand jury and to set bail.32
These circumstances demonstrate that the government had committed itself to prosecute and that petitioner found himself faced with the prosecutorial forces of organized society and immersed in the intricacies of substantive and procedural criminal law.33
The preliminary hearing marked the initiation of adversary judicial criminal proceedings against petitioner, so that his Sixth Amendment right to counsel attached at the corporeal identification conducted there.34
Related opinions on this issue
Justice Blackmun concurs in the result and joins the remand for a harmless-error determination.35 He emphasizes that the State's concession that the December 21 hearing constituted the initiation of adversary judicial criminal proceedings makes it unnecessary to wrestle further with the Kirby issue or to become entangled with Coleman v. Alabama. He disassociates himself from any implication that a rape victim's 10-to-15-second observation of her assailant's face during the crime is insignificant or unreliable, noting that such an interval is ample to leave an accurate and indelible impression.36
Whether the prosecution could introduce at trial in its case-in-chief testimony that the victim had identified petitioner at the uncounseled preliminary hearing?37
Gilbert v. California holds that when the prosecution elicits in its case-in-chief testimony that a witness identified the accused at an uncounseled pretrial corporeal identification, that testimony is the direct result of the illegal identification.38 The prosecution is not entitled to an opportunity to show that the testimony had an independent source.39 The exclusionary rule announced in Gilbert is necessary to assure that law enforcement authorities respect the accused's constitutional right to the presence of counsel at the critical identification.40 Wade and Gilbert together establish that the prosecution may not buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of the accused's Sixth Amendment rights.41
No. The Established Facts show that at trial the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing.42 The prosecution therefore introduced evidence of the uncounseled corporeal identification in its case-in-chief.43 Because the identification occurred after the initiation of adversary judicial criminal proceedings and without counsel, Gilbert forbids the introduction of testimony describing that identification regardless of any other circumstances.44
The prosecution could not introduce at trial in its case-in-chief testimony that the victim had identified petitioner at the uncounseled preliminary hearing.45
Related opinions on this issue
Justice Rehnquist concurs in the opinion and judgment because he believes it is a correct reading of Wade and Gilbert and because the State did not press a re-evaluation of the per se exclusionary rule.46 He notes that the time may come when the Court will have to reconsider whether Wade-Gilbert violations should be judged under the totality of the circumstances rather than by a per se rule.47 He draws an analogy to the evolution of Escobedo and the treatment of pretrial identification reliability questions in Manson v. Brathwaite.48
Whether the existence of an independent source for the victim's identification permitted admission of her testimony about the pretrial identification?49
Wade permits an in-court identification if the prosecution establishes by clear and convincing evidence an independent source untainted by the illegal lineup.50 Gilbert expressly holds that the prosecution is not entitled to an opportunity to show that testimony describing the illegal pretrial identification itself had an independent source.51 The testimony about the pretrial identification is the direct result of the illegality and must be excluded to enforce the right to counsel.52 The lower courts' reliance on an independent source therefore cannot justify admission of the evidence of the uncounseled identification.53
No. The Established Facts reveal that the Illinois Supreme Court, the federal district court, and the court of appeals all concluded that the victim's testimony about the preliminary-hearing identification was admissible because the prosecution had shown an independent source, primarily the victim's earlier selection of petitioner's photograph from police arrays.54 Gilbert nevertheless bars the prosecution from introducing the testimony describing the illegal identification even when an independent source exists.55 The strict rule of Gilbert therefore required exclusion of the testimony regardless of the photographic identifications.56
The existence of an independent source for the victim's identification did not permit admission of her testimony about the pretrial identification.57