Concept
When the Right Attaches
Sixth Amendment right to counsel at a lineup
When the Right Attaches
The first two parts of this chapter explained why a post-charge lineup is a critical stage and what notice and presence of counsel require there. They did not say how early in a case the right begins. The answer starts from the text of the Sixth Amendment, which gives the assistance of counsel to "the accused" in "all criminal prosecutions," so the timing question becomes a question about the moment a suspect turns into an accused in a prosecution.1 The Court answered that question for lineups in Kirby v. Illinois, and the facts of that case show how early in an investigation an identification can take place.2
Willie Shard reported to the Chicago police that two men had robbed him the previous day, on a Chicago street, of a wallet holding traveler's checks and a Social Security card. Two days after the robbery, officers stopped Kirby and a companion, Ralph Bean, on West Madison Street, and Kirby's wallet held three traveler's checks and a Social Security card bearing Shard's name. Kirby first described the checks as play money and then said he had won them in a crap game, so the officers arrested both men and took them to the station, where they learned of the Shard robbery only after checking the records.3 Shard was brought from his workplace, and the moment he entered the room where the two men were seated at a table he identified them as the robbers. No lawyer was present, and neither man had asked for legal help or been told of any right to the presence of counsel.4 More than six weeks later the men were indicted, counsel was appointed at arraignment, and a pretrial motion to suppress Shard's identification testimony was denied. At trial Shard described the station-house identification and identified both men again in the courtroom, and the jury found them guilty.5
The question for the Court was whether the Wade-Gilbert per se exclusionary rule reached this showup. That rule automatically keeps out identification testimony that grows out of a lineup held in violation of the counsel right, without any inquiry into whether the lineup was actually unfair, on the theory that only an automatic sanction will make police respect the right.6 Justice Stewart's opinion, which was a plurality opinion and not an opinion of a majority of the Court, refused to extend the rule to an identification that took place before any formal charge. The right to counsel at a lineup, it held, applies only "at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."7 Kirby had been arrested but not charged when Shard identified him, so the Sixth Amendment gave him no right to counsel at the station, and the identification testimony was not excludable under Wade-Gilbert.8
The reasoning behind the line has two parts, and each does separate work. The first concerns the kind of right Wade rests on. The danger that justified counsel at a lineup, the risk of suggestion that the accused cannot later reconstruct, exists whether the lineup follows an indictment or an arrest, so a rule built on that danger alone would have no natural stopping point at the charge. Kirby therefore treated Wade as a pure right-to-counsel case and declined to rest it on the right of confrontation at trial, a right that is threatened no matter when the identification occurs.9 Once the right is one of counsel, it carries the limits of the Amendment that supplies it. The Sixth Amendment does not guarantee a lawyer at every stage where a lawyer would help, and it protects the unaided layman at a critical confrontation with an adversary only after the adverse positions of government and defendant have solidified.10 The second part explains why the formal start of proceedings marks that point. The plurality reasoned that only then is a defendant faced with "the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."11
A practical consideration reinforces that line. Wade can be read as a decision not to burden every police-conducted identification with a counsel requirement, especially on-the-scene confrontations held soon after a crime, and a trigger tied to formal proceedings leaves police free to run those identifications quickly, while the witness's memory is fresh and the identification is potentially more reliable.12 The trigger is also a clear event, so an officer in the field does not have to guess how suggestive a given identification will later look. The line has costs that critics have pressed. Counsel is guaranteed at post-arraignment lineups, which are often held only to firm up an earlier uncertain identification, and counsel is withheld earlier, when the need is arguably greater.13 Because the trigger is a court event, police can also sidestep Wade by postponing the suspect's first court appearance until after a lineup.14
Set Kirby beside United States v. Wade and the one variable that moved the result becomes visible. In Wade the bank employees viewed a courthouse lineup arranged by an FBI agent after Wade had been indicted and after counsel had been appointed, and counsel received no notice.15 In Kirby a victim picked the suspects out at a station house, with no lawyer and no notice of any right to one. Both cases involved an eyewitness and a viewing with no lawyer in the room, and the suggestiveness of the procedure was not what separated them. The dividing fact is whether adversary judicial proceedings had begun when the viewing took place.
Later decisions treat the Kirby formula as settled, even though the opinion that announced it was a plurality. Moore v. Illinois applied the same language to hold that an identification at a preliminary hearing falls on the covered side of the line, because by then the government had committed itself to prosecute, and Rothgery v. Gillespie County later repeated that the Court has pegged the start of the right to the same list of events.16 A pre-charge identification is still not left unregulated, because due process bars identification procedures that are unnecessarily suggestive and conducive to mistaken identification, a backstop taken up at the end of this chapter.17 What remains here is to pin down the events that count as the start of adversary proceedings and to see why an arrest, even one supported by probable cause, is not among them.
Initiation of Adversary Proceedings
The Sixth Amendment right to counsel at a lineup begins at a particular point in a case, and the Court has named that point the initiation of adversary judicial proceedings. The previous part of this section established that an identification held before that point carries no Wade-Gilbert right to counsel, so the remaining task is to say what the point is. The Court's formula lists the events that qualify, and each of them occurs in a court or is filed with one.19 Five events appear on the list:
- A formal charge, meaning an accusation such as a complaint filed with a court.
- A preliminary hearing, where a judicial officer tests whether probable cause supports holding the accused.
- An indictment, which is the grand jury's written accusation.
- An information, which is the prosecutor's written accusation filed directly with the court.
- An arraignment, which in this setting means the initial appearance before a judicial officer, where the defendant learns the charge and the terms of pretrial release are set.20
These events share a feature that decides the close cases: each marks a governmental commitment to prosecute that has been conveyed to a court.21 Filing an indictment or information is the clearest example, and a first appearance before a magistrate qualifies because it puts the accusation in front of a judicial officer. The commitment has to be conveyed to a court. A prosecutor's private decision to charge, or the government's firm intention to file charges once an investigation ends, does not start the Sixth Amendment right, and a person held for a long time while charges are still being developed remains an uncharged suspect, not an accused.22
The text of the Amendment shows why the commitment matters. The right to the assistance of counsel belongs to "the accused" in "all criminal prosecutions," so it cannot arise until a prosecution exists and someone stands accused in it.23 The five events are the court-side marks of when a prosecution exists. Before then the government is investigating, and the Sixth Amendment does not reach an investigation just because a lawyer's help would be useful. It protects the unaided layman who confronts an adversary at a critical moment, and the government and the suspect become fixed adversaries only once the state has committed to proceed.24
Initiation also changes the accused's position in the case, and that change is what the plurality in Kirby had in mind when it called the initiation of judicial criminal proceedings the starting point of "our whole system of adversary criminal justice."25 At that stage the accused is brought before a judicial officer, who takes up probable cause and sees that counsel is appointed for a defendant who cannot pay for one.26 The first appearance adds restraints on liberty: the magistrate tells the arrestee of the charge and sets conditions of pretrial release in aid of the prosecution, which shows the state's relationship with the defendant to be adversarial in a settled way.27 A lineup held after those steps puts a person the system already treats as a party to a prosecution in front of the government's witnesses, and the Amendment's promise of a lawyer is what keeps that confrontation from being faced alone.
In United States v. Wade the sequence ran in the order the rule expects. An indictment was returned against Wade on March 23, 1965, he was arrested on April 2, counsel was appointed on April 26, and an FBI agent arranged the courthouse lineup fifteen days later without notice to that lawyer.28 The indictment came before the arrest, so Wade's status as an accused began with the court filing, before any custody. That detail reflects a general point: where a charging instrument is filed before arrest, the person is an accused at the moment of arrest and is entitled to counsel at later critical stages such as a lineup.29 Wade was therefore a post-indictment case, and every lineup the Wade right covers must fall at or after one of the five events.
Moore v. Illinois and Rothgery v. Gillespie County mark the edges of that list. In Moore the defendant had not been indicted, yet an identification at a preliminary hearing, held without counsel, fell under the Wade rule, because the government had by then committed itself to prosecute and the defendant faced counsel for the State; an identification made before the hearing would have carried no right to counsel.30 Rothgery was not a lineup case, but it fixed when the Sixth Amendment right attaches by holding that the initial appearance itself triggers it.31 The state there had brought the arrestee before a magistrate on a police officer's probable cause affidavit, with no showing that a prosecutor took part, and the Court refused to treat that as anything less than an adversary proceeding.32 The reasoning looks to function. If the right turned on which local official files which paper, the same lineup would carry counsel in one jurisdiction and none in the next, even though the accused had been brought before a magistrate, told the charge, and had liberty restricted in both.33
Not every point on the timeline has a settled answer. Courts disagree about whether the issuance of an arrest warrant on information and oath initiates proceedings. Where the warrant is unconnected to any decision to charge and serves only to authorize an arrest, the better reading of Rothgery is that neither issuing nor executing it conveys a commitment to prosecute to a court, so it should not suffice.35 Because that conclusion is an inference from Rothgery rather than a holding, an answer that depends on a warrant alone should flag the point as unsettled and look for one of the five events that make the result certain. The next part takes up the most common pre-charge event, a warrantless arrest, and shows why it falls outside the list.
Arrest Alone Is Not Enough
The most common event that comes before a charge is an arrest, and an arrest does not appear on the list of events that start adversary judicial proceedings. An arrest places a person in police custody, but it conveys no commitment to prosecute to a court, so a person arrested before any charge is filed is not yet an "accused" for Sixth Amendment purposes.37 A showup or lineup held after arrest, and before a charge, a preliminary hearing, or a first appearance, therefore carries no right to counsel, and the Wade-Gilbert per se exclusion does not reach the identification.38
In Kirby v. Illinois two officers stopped the petitioner and a companion on a Chicago street, and the petitioner's wallet held traveler's checks and a Social Security card bearing the name of the robbery victim, Willie Shard. The petitioner gave two inconsistent explanations for having them, and the officers arrested both men and took them to the station. Shard was brought there from his workplace and, on entering the room where the two men sat at a table, identified them at once as his robbers. No lawyer was present, and neither man had been told of any right to one. The indictment came more than six weeks later.39 Even on the assumption, which the dissent made, that the arrest rested on probable cause, the identification preceded any adversary judicial proceeding, so the plurality found no right to counsel and no per se exclusion.40
The practical effect is a window that opens at arrest and closes at the first court event, which for most arrestees is the first appearance before a magistrate, usually required within a day or two.41 Police may run a lineup or showup inside that window without counsel. The same is true when a person is summoned before a grand jury to be viewed by a witness, because the government is still investigating.42 A long period in custody does not close the window early. In United States v. Gouveia the Court noted that a person detained without charges does not become an accused even when held for a substantial time and even when the government fully intends to charge once its investigation ends.43
The dissent in Kirby pressed the strongest case against this line. In its view Wade had not required counsel because the Sixth Amendment speaks of criminal prosecutions in the abstract. It required counsel because of the dangers inherent in eyewitness identification and the suggestibility of pretrial confrontations, and those dangers exist whether the confrontation follows an arrest or a charge.46 An arrest, the dissent added, shows that the police believe they have caught the offender, so a confrontation after arrest is aimed at accumulating proof to support that belief and is more than a preparatory step.47 The Kirby showup illustrated the risk, because it took place in a squad room where everyone except the two men was a police officer, and Shard's own trial testimony, which identified the defendants as the pair he had seen at the station, showed how the question of identity can be settled there and then.48 The dissent met the plurality's reasons, that only after initiation has the government committed itself to prosecute and the adverse positions solidified, by asking how else to describe them if they were not "mere formalism."49
What divides the plurality from the dissent is the difference between a functional rationale and a formal trigger. Wade explained the need for counsel in functional terms, as protection against suggestion that cannot be reconstructed at trial, and it even allowed that regulations eliminating the risk might remove the basis for treating a lineup as a critical stage.50 Kirby ties the right to a formal event instead, asking whether a court has been told of the government's commitment to prosecute, and it can do so only because it treats Wade as a pure right-to-counsel case.51 The Sixth Amendment gives counsel to the accused in a criminal prosecution, and a person who has been arrested but not charged is not yet in one.52 Later decisions kept the formal line. Moore v. Illinois placed the trigger at a preliminary hearing, and Rothgery v. Gillespie County placed it at the first appearance, and neither treated arrest as enough.53 Rothgery looked to function, but only to decide which court events count, and it left the line where Kirby drew it.54
The dissent's reasoning is persuasive enough that it tempts answers to treat arrest as the trigger, and some exam shorthand lists arrest beside indictment and formal charge as events that give the right. Under Kirby that is wrong. An arrest, even one supported by probable cause, does not start adversary proceedings, so an answer that demands counsel at a post-arrest, pre-charge showup applies the dissent's position in place of the plurality's.55 The facts to check are whether a charging instrument has been filed, whether a preliminary hearing has occurred, and whether the arrestee has appeared before a magistrate. The absence of a Sixth Amendment right still leaves the arrested suspect with some protection. The Wade-Gilbert exclusion is unavailable, but due process bars an identification procedure that is so unnecessarily suggestive that it is conducive to irreparable mistaken identification, a backstop taken up at the end of this chapter.56