413 U.S. 300 (1973)
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.1
A government informer, Clarence McFarland, later told authorities that he had discussed the robbery with respondent Charles J. Ash, Jr.2 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.3 All four made uncertain identifications of Ash's picture.4 On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to the bank robbery.5
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.6
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.7 The fourth witness, who had been in a car outside the bank, made positive in-court identifications of both Ash and Bailey.8 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.9
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.10 Dissenting opinions joined by four judges disagreed with the decision that the photographic identification was a critical stage requiring counsel.11 The Supreme Court granted certiorari to resolve the conflict with decisions of the courts of appeals of nine other circuits.12
Whether the Sixth Amendment grants an accused the right to have counsel present when the Government shows photographs to witnesses for the purpose of identifying the accused as the perpetrator of a crime?13
The Sixth Amendment right to counsel extends to critical stages of the prosecution.14 The presence of counsel is necessary to preserve the defendant's right to a fair trial.15 A stage is critical if it involves a trial-like confrontation where the accused faces the procedural system or his expert adversary.16 Counsel is required to avoid prejudice that cannot be reconstructed at trial.17 Photographic displays for identification do not constitute such a critical stage.18 The accused is not present.19 There is no confrontation.20 Any suggestiveness can be exposed through cross-examination at trial using the preserved photographs and witness testimony.21
No. The photographic display occurred after Ash's indictment and arraignment, satisfying the point at which adversary judicial proceedings had begun.22 Yet the record shows that Ash himself was never present when the FBI agent and prosecutor exhibited the five color photographs to the four witnesses.23 Those witnesses had already made uncertain identifications from the earlier black-and-white mug shots.24 The later display served only to test their readiness for in-court identification.25
Because Ash was absent, no risk existed that he would be misled by unfamiliarity with legal rules or overpowered by the professional prosecutor.26 The color photographs themselves were preserved and introduced at trial, allowing full cross-examination of the witnesses concerning any possible suggestiveness, exactly as the rule requires for non-critical preparatory steps.27 The Court of Appeals therefore erred when it treated the photographic procedure as equivalent to the physical lineups held critical in Wade and Gilbert.28 Those cases turned on the accused's presence and the resulting inability to reconstruct suggestive influences without counsel's trained observation.29
The Sixth Amendment does not grant an accused the right to have counsel present when the Government shows photographs to witnesses for the purpose of identifying the accused as the perpetrator of a crime.30
Related opinions on this issue
Justice Stewart concurred in the judgment.31 He agreed that the Sixth Amendment does not require counsel at photographic identifications.32 He stressed that the Due Process Clause of the Fifth Amendment continues to govern such procedures.33
If a photographic display is so suggestive as to create a very substantial likelihood of irreparable misidentification, it violates due process.34 In the present case the color photographs were shown separately to witnesses who had already identified Ash from black-and-white photographs.35 No due-process claim was raised, confirming that the identification evidence was properly admitted.36
Joined by Justice Douglas And Justice Marshall
Justice Brennan dissented, joined by Justices Douglas and Marshall.37 He maintained that a post-indictment photographic identification is a critical stage because the dangers of mistaken identification and improper suggestion recognized in Wade apply with equal or greater force when photographs are used.38 The accused is not even present to observe irregularities.39
Reconstruction of subtle suggestiveness at trial is at least as difficult as in a lineup.40 The absence of counsel therefore deprives the defendant of a meaningful opportunity to attack the credibility of later in-court identifications.41 Brennan would have affirmed the Court of Appeals judgment reversing the conviction.42