388 U.S. 218 (1967)
On September 21, 1964, a federally insured bank in Eustace, Texas, was robbed when a man wearing a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, and forced them to fill a pillowcase with the bank's money before driving away with an accomplice waiting in a stolen car outside.1
On March 23, 1965, an indictment was returned charging respondent Billy Joe Wade with conspiring to rob the bank and with the robbery itself. Wade was arrested on April 2, 1965, and counsel was appointed to represent him on April 26, 1965.2 Fifteen days later, on May 11, 1965, an FBI agent arranged a lineup at the local county courthouse without notifying Wade's counsel; Wade stood with five or six other prisoners, each wearing strips of tape on his face, and each was directed to say words such as "put the money in the bag."3
Both bank employees identified Wade at the lineup.4 At Wade's subsequent trial in federal district court, the two employees identified him in the courtroom on direct examination; on cross-examination they testified about their prior lineup identifications, and an FBI agent who observed the lineup also testified.56 Wade's counsel moved to strike the courtroom identifications on Fifth and Sixth Amendment grounds, but the motion was denied and Wade was convicted.7
The Court of Appeals for the Fifth Circuit reversed the conviction, holding that the lineup violated Wade's Sixth Amendment rights, and ordered a new trial at which the in-court identification evidence would be excluded.8 The Supreme Court granted certiorari.9
Whether compelling an accused to participate in a post-indictment lineup by wearing strips of tape on his face and speaking words allegedly uttered by the robber violates the Fifth Amendment privilege against self-incrimination?10
The Fifth Amendment privilege against self-incrimination protects an accused only from being compelled to provide the State with evidence of a testimonial or communicative nature.11 It does not extend to compulsion to exhibit physical characteristics or to use one's voice as an identifying physical characteristic.12
No. The established facts show that Wade was placed in a lineup with five or six other prisoners.13 Each was required to wear strips of tape on his face and to say words such as "put the money in the bag."14 This requirement compelled Wade only to exhibit his physical characteristics and to use his voice for identification.15 It did not require him to communicate any knowledge or guilt.16
The compulsion was indistinguishable from requiring a blood sample or trying on clothing.17 Those activities produce real or physical evidence rather than testimonial communications.18 Because the lineup involved no testimonial compulsion, the Fifth Amendment was not violated.19
The post-indictment lineup did not violate Wade's Fifth Amendment privilege against self-incrimination.20
Related opinions on this issue
Justice Black dissented from the rejection of the self-incrimination claim.21 He maintained that forcing Wade to stand in the lineup, wear strips on his face, and speak the words used by the robber compelled him to supply proof of his own crime.22 Black argued that the Fifth Amendment bars the government from forcing any person to supply evidence of his crime, whether the evidence is characterized as testimonial or physical.23
He concluded that the lineup identification should therefore have been excluded from trial.24 Black emphasized that the privilege was designed to prevent the government from compelling a person to supply proof of his own crime in any form.25
Joined by The Chief Justice And Justice Douglas
Justice Fortas concurred that exhibition of the person is not a violation of the privilege but dissented on the compelled utterance of words.26 He concluded that requiring Wade to speak the words allegedly uttered during the crime was a volitional act that crossed into the historical perimeter of the privilege against self-incrimination.27 Fortas viewed the compulsion to speak as more than passive assistance to identification.28
He therefore found it unconstitutional under the Fifth Amendment.29 Fortas stressed that the privilege prevents compelling an accused to accuse himself by a volitional act and that Schmerber did not authorize extending compulsion to speech in a lineup.30
Whether a post-indictment lineup conducted for identification purposes without notice to or presence of the accused's appointed counsel violates the Sixth Amendment right to the assistance of counsel?31
The Sixth Amendment right to the assistance of counsel attaches at the initiation of adversary judicial criminal proceedings.32 It extends to any critical stage where the presence of counsel is necessary to preserve the defendant's basic right to a fair trial.33 This includes post-indictment lineups conducted for identification purposes.34
Yes. The established facts establish that Wade was indicted on March 23, 1965.35 Counsel was appointed on April 26, 1965.36 The lineup occurred fifteen days later without notice to or presence of counsel.37
The lineup was a critical stage.38 The accused's inability to reconstruct its circumstances at trial, the inherent suggestiveness of group identification, and the difficulty of detecting subtle influences created substantial risk that counsel's absence would derogate from the right to a fair trial.39 Counsel's presence was therefore required to protect Wade's interests at this confrontation with the prosecution's witnesses.40
The post-indictment lineup conducted without notice to or presence of counsel violated Wade's Sixth Amendment right to the assistance of counsel.41
Related opinions on this issue
Justice Clark concurred that the lineup was a critical stage at which Wade was entitled to the presence of counsel.42 He agreed that identification of the suspect occurs at this stage.43 With Miranda v. Arizona on the books, the requirement of counsel's presence arises unless waived by the suspect.44
Clark joined the opinion of the Court on this point while dissenting on the independent-source issue for in-court identifications.45 He emphasized that the lineup point was clear under existing precedent and that counsel's presence was required at this identification stage.46
Joined by Justices Harlan And Stewart
Justice White dissented from the holding that the lineup was a critical stage requiring counsel.47 He argued that the Court had expanded the right to counsel beyond constitutional and precedential requirements.48 A lineup is not a trial or critical stage in the sense that counsel must be present.49
White viewed the lineup as a proper investigative technique that did not require counsel's attendance.50 He concluded that the new rule would seriously impede law enforcement without advancing the reliability of factfinding.51 White stressed that the assumptions underlying the rule lacked factual support from police practices.52
Whether courtroom identifications by witnesses who previously identified the accused at an uncounseled lineup must be excluded from evidence at trial?53
Courtroom identifications need not be excluded if the prosecution establishes by clear and convincing evidence that the identifications were based upon observations of the suspect other than the lineup identification.54 Relevant factors include the witness's prior opportunity to observe the criminal act, any discrepancy between pre-lineup description and actual appearance, prior identifications of others, prior photographic identifications, failure to identify on earlier occasions, and the lapse of time between the crime and the lineup.55
No. The established facts show that the two bank employees identified Wade in the courtroom on direct examination after having identified him at the uncounseled lineup.56 The Court of Appeals ordered exclusion of the in-court identifications.57 The proper test requires the prosecution an opportunity to prove an independent source.58 On the record before the Supreme Court, it could not be determined whether the courtroom identifications had an independent origin.59
The case was therefore remanded to the District Court for a hearing applying the independent-source factors rather than automatic exclusion.60
Related opinions on this issue
Justice Clark dissented from the majority's treatment of the in-court identification.63 He concluded that the witnesses had an adequate opportunity to observe the robber at the time of the crime.64 Their identification at trial therefore had an independent origin.65
Clark argued that the witnesses' observations during the robbery itself provided a sufficient and independent basis for their courtroom identifications, rendering any taint from the lineup irrelevant.66 He diverged from the majority by refusing to require a remand for an independent-source hearing, viewing such a procedure as unnecessary given the clear opportunity for observation at the scene of the crime.67 Clark would have affirmed the conviction outright without further proceedings on the identification issue.68
Whether testimony describing a witness's identification of the accused at an uncounseled lineup must be excluded from evidence at trial?69
Yes. The established facts show that on cross-examination the bank employees testified that they had identified Wade at the lineup.72 An FBI agent who observed the lineup also testified. Because the lineup itself violated the Sixth Amendment, the testimony describing the lineup identifications was the direct fruit of the constitutional violation.73 It was therefore inadmissible at trial.74
Testimony describing a witness's identification of the accused at an uncounseled lineup must be excluded from evidence at trial.75