Concept
Post-Charge Lineups and Showups
Critical stages
Post-Charge Lineups and Showups
Identification procedures are the clearest example of a critical stage, because they combine the features the previous section identified: the accused faces the government's evidence without help, and any unfairness leaves little trace for the trial to repair. Eyewitness identifications between strangers rank among the least reliable evidence a jury hears, and juries nonetheless tend to treat them as among the most persuasive, so a mistake made at the identification stage can carry straight through to a conviction.1 The mechanism is suggestion. A witness who is steered toward one person at a pretrial confrontation will tend to adhere to that choice afterward, the original pick is hard to retract, and the accused who stood before the witness is poorly placed to prove what influenced it.
The rule that follows is that a corporeal identification, meaning one in which the accused is physically placed before the witness, is a critical stage once adversary judicial proceedings have begun.2 Counsel's function at that event is limited. A lawyer does not run the lineup or choose its participants. The lawyer watches, objects to suggestive features before they take hold, and is later able to testify about what occurred, so that the defense can expose any suggestion at trial. Because that function protects the reliability of the identification itself, the rule serves the prosecution as well, since an identification that survived a lawyer's scrutiny is much harder to attack later. The sections below take the rule in order: the lineup, the one-on-one showup and the courtroom setting, and the consequence of holding the procedure without counsel.
Lineups After Charge
The Wade rule, as Moore v. Illinois restates it, entitles the accused to counsel at a lineup held at or after the initiation of adversary judicial criminal proceedings.3 Two conditions are packed into that sentence, and each has its own source. The timing condition comes from Kirby v. Illinois, where the plurality tied the right to identifications conducted “at or after the initiation of adversary judicial criminal proceedings,” whether begun by formal charge, preliminary hearing, indictment, information, or arraignment.4 The second condition, that the identification be corporeal, comes from the reason lineups are dangerous at all: the accused is physically on display before witnesses, under the government's control.
United States v. Wade supplies the model. As the preceding section described, the accused there had been indicted and was placed in a court-ordered lineup, wearing tape on his face and speaking words attributed to the bank robber, with no notice to his appointed lawyer. The Court held that a corporeal lineup is a critical stage of the prosecution.5 The lineup is where suggestion enters: who is chosen to stand with the accused, how each participant is dressed and what each is made to say, and what the witness is told beforehand all shape the choice the witness makes. A lawyer in the room can see those features and object to them while they can still be fixed, and can later describe them to a judge or jury. The accused, who is the only other person aware of what the procedure looked like from the front, is a poor substitute, since an accused is neither trained to recognize suggestion nor a credible witness about it. For that reason officers who plan a post-charge corporeal identification must either arrange for counsel's presence or secure a valid waiver of the right to counsel.6
The timing condition marks where the rule stops, and a pair of lineups that differ only in date shows how it works.
On an exam, students lose this issue when they apply Wade to a lineup held before any charge, treating the word lineup as enough to require counsel. The first question is whether adversary proceedings had begun when the lineup took place, and only a yes sends the analysis to counsel and waiver.
Showups and Courtroom Settings
Moore v. Illinois extends the lineup rule to two settings that look different from a lineup on the surface. The victim in Moore had been attacked in her apartment by an intruder whose face she saw for only 10 to 15 seconds, and in the week afterward police showed her groups of photographs from which she picked several men, including the petitioner.8 She then identified the petitioner at a preliminary hearing at which he had no lawyer. She had been told she was going to view a suspect, had been told his name and heard it called as he was led before the bench, and had heard the prosecutor recite the evidence believed to implicate him.9
The threshold question was whether adversary proceedings had begun by then, and the Court of Appeals had answered no because it read Kirby to require an indictment. The Supreme Court rejected that reading. Under Illinois law the prosecution had commenced when the victim's complaint was filed in court, the hearing's purpose was to decide whether probable cause existed to bind the petitioner over to the grand jury and to set bail, and the petitioner could move there to dismiss the charges and suppress evidence. He faced the State's counsel, who elicited the identification, summarized the other evidence, and asked for more time to marshal it, and the State conceded that the hearing initiated adversary proceedings.10 With attachment settled, the Court turned to two arguments for excusing counsel, and each one it rejected is an extension of the lineup rule.
The first argument was that the confrontation was a single-suspect identification, which the Court of Appeals had described as hardly a lineup. Moore answered that Wade contemplated counsel for any pretrial confrontation, whether a lineup or a presentation of the suspect alone to the witness, because risks of suggestion “attend either form of confrontation.”11 A one-on-one confrontation is generally thought to carry greater risk of mistaken identification than a lineup.12 The reason is visible in the structure of the two procedures. A lineup at least gives the witness several faces to compare, which forces some discrimination, while a showup reduces the task to a yes or no about the one person the police have already chosen to present.
The second argument was that counsel was unnecessary because the identification occurred during a judicial proceeding. Moore held that the reasons behind Wade apply with equal force there, and found it difficult to imagine a more suggestive way to present a suspect to a witness for a first confrontation than the one used in the hearing.13 The courtroom did nothing to remove the cues that prime a witness and supplied some of its own, including the bench, the prosecutor's recital, and the calling of the accused's name. A judge presides over the hearing's business but has no assignment to guard the accused against a primed witness, and counsel would have had one: some or all of the suggestiveness could have been avoided had the petitioner been represented.14
The contrast case again turns on timing. In Kirby the plurality held admissible a robbery victim's one-on-one stationhouse identification of an uncounseled suspect made shortly after arrest, because adversary proceedings had not yet been initiated, leaving due process as the protection against unnecessarily suggestive procedures.15
An exam answer that excuses counsel because the event was a showup rather than a lineup, or because it took place in a courtroom, repeats the two errors Moore corrected. The questions that matter are whether adversary proceedings have begun and whether the accused was physically presented to the witness.
Exclusion Consequences
When counsel is wrongfully absent from a critical identification, the remedy operates on the evidence. In Moore the complaining witness testified on direct examination that she had identified the petitioner at the uncounseled hearing, and the prosecution offered that evidence in its case-in-chief. The petitioner argued that, under Gilbert v. California, the evidence should be excluded without regard to whether an independent source for it existed.17 That dispute shows the two layers of the remedy.
The first layer reaches the procedure itself. An identification obtained in violation of the Sixth Amendment is inadmissible, so the prosecution cannot elicit testimony that the witness picked the accused at the uncounseled lineup or showup.18 The second layer reaches the courtroom. An in-court identification that is the fruit of the tainted procedure is also inadmissible, and the prosecution may avoid that result only by showing by clear and convincing evidence that the in-court identification does not derive from the uncounseled confrontation.19 The second layer exists because a witness whose memory was fixed at the tainted event may simply repeat the choice at trial, so excluding only the event would leave the government with its benefit. The burden also sits where the problem lies: the absence of counsel is what left the record of suggestion thin, and the party whose procedure created that doubt bears the cost of resolving it.
Because the violation is the absence of counsel without a valid waiver, an identification at which counsel was present or the right was validly waived does not trigger this remedy.20
Students lose points by stopping once the lineup testimony is excluded and forgetting that the in-court identification remains subject to the independent-source inquiry. A pre-charge identification lies outside this Sixth Amendment remedy, although due process may still bar an unreliable and unnecessarily suggestive one.21
Lineups After Charge
The accused is entitled to counsel at a corporeal lineup held at or after the initiation of adversary judicial criminal proceedings, which is how Moore v. Illinois restates the holding of United States v. Wade.23 Two conditions sit inside that sentence, and each has its own logic. The timing condition marks where the Sixth Amendment right attaches: in Kirby v. Illinois the Court declined to extend Wade to identifications conducted before adversary proceedings began, so a lineup that precedes the formal start of the prosecution carries no Sixth Amendment right to counsel.24 The corporeal condition follows from what makes a lineup risky, since the accused is physically displayed to witnesses under the government's control and the witnesses' choice can be shaped by how the display is arranged. The paragraphs below take the rule through its source case, the reasons the Court gave for it, and the limited role it assigns to the lawyer.
The facts of Wade show the rule operating. A robber with a small piece of tape on each side of his face held up a bank, and two weeks later Wade was arrested and charged with the robbery.25 After his indictment, he was placed in a court-ordered lineup with several other prisoners, each of whom had to wear strips of tape on each side of the face and say the words the robber had used, and his appointed lawyer received no notice and was not present.26 Two bank employees picked Wade out. The Supreme Court held that the lineup was a critical stage of the prosecution and that the absence of counsel violated his Sixth and Fourteenth Amendment rights.27 What the Court did with the later in-court identifications is a remedy question taken up in the last sub-section below.
The Court's reason for treating the lineup as critical has three strands, and counsel answers each one. The first is the grave potential for prejudice, intentional or not, in a pretrial lineup, since the way participants are chosen, dressed, and instructed can steer the witness.28 The second is that this prejudice may be impossible to reconstruct at trial, and the reason lies in who is positioned to see it. Lineup participants are often police officers or are never named at trial, neither the witnesses nor the participants are likely to be trained to detect suggestion, and the suspect, who may be staring into bright lights under emotional strain, is poorly placed to notice it.29 A suspect who did notice would still hesitate to testify about it, because taking the stand can open the door to prior convictions, and the suspect's account would probably lose to police testimony if the two conflicted.30 The third strand is that the presence of counsel can often avert the prejudice and assure a meaningful confrontation at trial.31 A trained observer sees what the accused cannot, and a lawyer who watched the lineup can cross-examine the identifying witness about it. That capacity matters more because a witness who has picked the accused at a lineup is unlikely to retreat from the choice later, so the question of identity may be settled there, before trial begins.32
The lawyer's role at the lineup is that of an observer. The reasoning implies that counsel may point out unfair features to the police and propose corrections, and that police may be less inclined to act suggestively with a lawyer in the room.33 The cases treat counsel as a watcher of the procedure rather than as a co-organizer of it, so the right does not extend to designing the lineup, selecting its participants, or demanding changes. That limit fits the purpose of the right, which is to preserve the accused's later ability to confront the identifying witness, and the purpose is served once the lawyer can see, object, and bring suggestive features out on cross-examination.34 The Court also answered the objection that counsel would delay or obstruct identifications. Counsel had already been appointed in the cases before it, no one showed that notice to counsel would have caused prejudicial delay, and a lawyer who protects a client is no menace to law enforcement, which gains from keeping taint out of its own identification evidence.35 The Court left open whether substitute counsel could attend where notifying and waiting for the accused's own lawyer would cause prejudicial delay.36
The right belongs to the accused, so officers who want to proceed without a lawyer need a valid waiver, which must be knowing, intelligent, and voluntary.37 The waiver must also address the lineup itself, since an earlier waiver of counsel given for police questioning does not carry over to a later identification procedure.38 The working rule for officers is therefore to arrange for counsel's presence or secure a valid waiver before any post-charge corporeal identification.39
Only the lineup's date relative to the start of the prosecution changed between the two versions, and that one fact moved the answer. The suspect in the Tuesday version is not left without protection, because due process still bars an identification procedure that is unnecessarily suggestive and conducive to mistaken identification.40 On an exam, students lose this issue when they apply Wade to a lineup held before any charge because the word lineup appears in the facts. The first question is whether the prosecution has formally begun, and only a yes sends the analysis on to whether counsel was present or the right was validly waived.
Showups and Courtroom Settings
The lineup rule of United States v. Wade describes a procedure in which a suspect stands among others while witnesses look on, and that description invites two arguments for escaping it: that a different kind of procedure falls outside the rule, and that a different location does. Moore v. Illinois rejects both. It holds that a suspect has a Sixth Amendment right to counsel at any post-charge lineup or showup (a showup being the presentation of the suspect alone to the witness), and it applies that right to an identification made in the middle of a judicial proceeding.42 Because the identification in Moore preceded any indictment, the analysis has three steps: whether the right had attached, whether a one-on-one procedure counts, and whether a courtroom setting changes the answer.
In Moore the victim of a home attack had seen her assailant's face for only ten to fifteen seconds.43 She later identified the petitioner at a preliminary hearing held after her complaint was filed in court, at which he had no lawyer, and the prosecution elicited that identification at trial.44 The Court of Appeals had read Kirby v. Illinois to require exclusion of an uncounseled identification only when the defendant had already been indicted, so it found that the Wade right had not yet attached at the hearing.45 Moore held that this reading cannot be squared with Kirby itself, which extends Wade to identifications conducted “at or after the initiation of adversary judicial criminal proceedings,” a phrase that reaches a formal charge or a preliminary hearing as well as an indictment.46
The line sits at the initiation of proceedings, and not at the indictment, because the Sixth Amendment's guarantees apply to criminal prosecutions, and the initiation of adversary proceedings marks the moment a prosecution has commenced.47 Moore applied that logic to its facts. Under Illinois law the prosecution began when the victim's complaint was filed. The hearing existed to decide whether probable cause justified sending the case to the grand jury and to set bail, the accused could move there to dismiss the charges and to suppress evidence, and he faced a prosecutor who elicited the identification, summarized the State's other evidence, and asked for more time to assemble it.48 A government that has committed itself to prosecute, and an accused who stands before its prosecutorial machinery, are present whether the first formal document is a complaint or an indictment. The State itself conceded that the hearing initiated adversary proceedings.49
The second argument turned on the name of the procedure, since the Court of Appeals remarked that the courtroom identification could hardly be considered a lineup.50 Moore answered that Wade contemplated counsel at any pretrial confrontation for identification, whether it takes the form of a lineup or a presentation of the suspect alone to the witness, because risks of suggestion attend either one.51 A one-on-one confrontation is also generally thought to carry a greater risk of mistaken identification than a lineup.52 The structure of the two procedures explains why. A lineup puts several faces before the witness and forces at least some comparison, while a showup reduces the task to a yes or no about the one person the police have already selected, and that selection itself tells the witness what answer is expected. Since the counsel requirement exists to guard against suggestion, a procedure that carries more suggestion cannot be less deserving of a lawyer.
The third argument was that counsel was unnecessary because the identification occurred during a judicial proceeding, and Moore rejected it because the reasons behind Wade apply with equal force in that setting.53 The facts show how much suggestion a hearing can contain. The victim, who had viewed her assailant for seconds, was told that she was about to see a suspect, heard his name called as he was led before the bench, and heard the prosecutor recite the evidence believed to implicate him, all before she was asked to identify him; the Court could imagine no more suggestive way to present a suspect for a first confrontation.54 Each of those cues pointed toward one answer, and a witness with so brief an original view had little independent memory to resist them. The judge presiding over the hearing has its business to conduct and no assignment to protect the accused against a primed witness. Counsel has that assignment, and some or all of the suggestiveness could have been avoided had the petitioner been represented.55 The courtroom therefore supplies cues of its own.
Kirby supplies the contrasting pole, and because the two cases share the one-on-one form, the initiation of proceedings is the fact that moves the answer. In Kirby the plurality held admissible a robbery victim's one-on-one stationhouse identification of an uncounseled suspect made shortly after arrest, because adversary judicial criminal proceedings had not yet begun, and in that situation the accused relies on due process to bar unreliable identifications obtained through unnecessarily suggestive procedures.56 The identification in Moore came after the complaint was filed, so the same one-on-one presentation required counsel.57
A first court appearance after arrest starts the Sixth Amendment right even when no formal charge has been filed, while a bare arrest does not.58 Once formal proceedings have begun, the accused is entitled to counsel at eyewitness lineups and showups.59 The error to avoid on an exam is excusing counsel because the identification happened in a courtroom or because only one person was displayed, since Moore rejected both reasons. Two questions decide these facts. The first is whether adversary judicial proceedings had begun, whether by formal charge, preliminary hearing, indictment, information, or arraignment.60 The second is whether the accused was physically presented to the witness for identification. If both answers are yes, counsel or a valid waiver is required, and the consequences for the evidence when neither was present are taken up next.
Exclusion Consequences
The finding that an identification was a critical stage matters because of what happens to the evidence when counsel was wrongfully absent. A right to counsel that police could ignore without losing the result would give officers every reason to skip the lawyer, so the remedy is suppression of what the procedure produced.62 The tainted evidence comes in two forms that the law treats differently. The first is testimony that describes the uncounseled identification itself, as when a witness tells the jury that the accused was picked out at the lineup or the hearing. The second is the in-court identification, in which the witness points to the accused at trial.
The first form is excluded from the prosecution's case-in-chief without any inquiry into independent sources. In United States v. Wade the Court said that testimony that the bank witnesses identified Wade at the uncounseled lineup must be excluded as the direct result of the illegal lineup.63 The reason lies in what the evidence is. It is a report of the very confrontation at which the right was violated, so it has no source apart from the violation, and a showing that the witness had some other basis for the identification cannot change where the testimony came from. The deterrent logic points the same way: if officers could proceed without counsel and still tell the jury what the witness said at the lineup, the right would cost them nothing.
Moore v. Illinois shows the rule at work. The victim had seen her assailant for only ten to fifteen seconds, and in the week after the attack she picked petitioner's photograph from arrays the police showed her.64 She later identified him at an uncounseled preliminary hearing, and the prosecution brought that identification out on direct examination at trial. The courts below let the testimony stand because her earlier photo selections gave it an independent source.65 Moore reversed, holding that testimony about the hearing identification had to be excluded whatever the photo arrays showed.66 The photo selections could not help because the question was not whether the victim might have picked petitioner some other way. The question was whether the prosecution could tell the jury about the uncounseled confrontation, and it could not. Students lose this point when they apply the independent-source inquiry to testimony about the uncounseled identification itself.
The in-court identification follows a different track, because it is a new act of testimony that may rest on the witness's memory of the crime rather than on the tainted procedure. Wade holds that such an identification need not be excluded if the prosecution establishes by clear and convincing evidence that it is based on observations of the accused other than the lineup identification.67 The factors include the witness's prior opportunity to observe the crime, any discrepancy between the pre-lineup description and the accused's actual appearance, any pre-lineup identification of another person, any pre-lineup photographic identification of the accused, any earlier failure to identify the accused, and the time that passed between the crime and the lineup.68 The standard balances two interests. Automatic exclusion would shut out reliable testimony that the police error did not produce, while a lenient standard would let the prosecution launder the lineup, since a witness who has already chosen the accused once is unlikely to retreat from that choice. Placing a demanding burden on the prosecution addresses the second risk, because only the witness's own mind can reveal where the courtroom identification comes from. The Wade record did not allow that determination, so the Court remanded for a hearing on the question.69
Both cases involve the same constitutional violation and still come out differently, and the difference lies in what the prosecution offers. Testimony that the witness identified the accused at the uncounseled confrontation is excluded, and an independent source cannot save it, as the Moore witness's photo selections could not. A fresh identification in the courtroom may be admitted, but only if the prosecution carries the clear-and-convincing burden of showing that it rests on an independent source. On an exam, the first step after finding a critical-stage violation is therefore to sort the challenged evidence into one of these two categories.