Concept
Photographic Identifications
Critical stages
Photographic Identifications
The lineup and showup rules taught above give the accused a lawyer whenever the government, after adversary proceedings have begun, presents him in person to a witness for identification. A photographic display raises a similar worry, because a witness shown pictures can be steered toward the person the police already suspect, but the accused is somewhere else while it happens. United States v. Ash decides whether that difference removes the right to counsel. It marks the outer edge of the identification cases because Ash had already crossed the attachment threshold, having been indicted and arraigned before the display took place.1 With that gate passed, the only question left for the Court was whether a stage that occurs after proceedings begin is, for that reason alone, a critical stage.
The facts show how ordinary the procedure was. Two masked men robbed the American Security and Trust Co. bank in Washington, D.C., in August 1965, and a government informer later told authorities that Ash had discussed the robbery with him.2 In February 1966 an FBI agent showed five black-and-white mug shots, one of them of Ash, to four witnesses who had been present during the robbery, and all four made uncertain identifications of his picture. An indictment followed in April 1966, but trial was not set until May 1968. While preparing for it, the prosecutor decided to learn whether his witnesses could make in-court identifications, and shortly before trial an FBI agent and the prosecutor showed five color photographs to the four witnesses who had earlier tentatively picked Ash's mug shot. Three selected Ash's picture and one made no selection.3 At trial the three witnesses who had been inside the bank identified Ash as the gunman but would not say they were positive, the fourth witness, who had waited in a car outside, positively identified him, and the jury convicted.4
The Court of Appeals for the District of Columbia Circuit regarded a photographic identification as just as crucial a stage as a lineup, and the Supreme Court reversed.5 Ash's argument rested on Kirby v. Illinois: because the display came after his indictment and arraignment, adversary proceedings had begun, and he claimed that every later pretrial event therefore required counsel.6 The Court rejected that inference. The right to counsel reaches those stages of a prosecution at which the absence of counsel might derogate from the accused's right to a fair trial, and the initiation of adversary proceedings does not by itself make each later event such a stage.7 That answer separates the two steps this chapter has been building. Attachment tells whether the Sixth Amendment is in play at all, and the critical-stage question then asks, event by event, whether counsel's absence would damage the fair trial. Students lose points here when they treat the start of proceedings as making every later identification procedure critical. The contrast with the earlier cases confirms the point, since a post-charge showup before a witness required counsel, while a post-indictment photo display did not. The fact that moved the answer was the accused's presence, because the Court stressed that Ash was absent, the witnesses were not asked to identify him in his presence, and the police had no occasion to influence them in front of him.8
Ash therefore reads the critical-stage idea narrowly, tying it to confrontations in which the accused himself is present. The dissent read it more broadly. It argued that an uncounseled photographic display is at least as hard to reconstruct at trial as an uncounseled lineup, because with the accused absent no one is there to verify the fairness of the session or to report irregularities, and it concluded that photographic and corporeal identifications create the same grave danger of a tainted identification that cannot be exposed at trial.9 The dissent did not carry the Court, but it identifies the pressure point of the majority's position. The next subsection sets out the holding and the reasoning behind it, and the one after it takes up what remains for an accused who loses the Sixth Amendment argument, since a photo display that is unnecessarily suggestive and conducive to irreparable misidentification can still be challenged under due process.10
No Counsel at Photo Displays
The holding in United States v. Ash fits in one sentence: the Sixth Amendment does not require counsel when the government shows photographs to witnesses so they can identify the accused, even when the accused has already been indicted and arraigned.11 The Court reached that result by asking what a lawyer would actually do at the display, and it concluded that the lawyer's usual functions have no work to do there. The reasoning is worth following one step at a time, because the dissent attacks the step on which the majority's position is most exposed.
Pretrial counsel rights exist because some pretrial events resemble the trial itself, and at those events the function of the lawyer remains essentially what it is at trial: to give the accused aid in coping with legal problems and assistance in meeting the adversary.12 A lineup fits that description. The accused stands in front of the witnesses, in the government's hands, and an unrepresented suspect can be misled or overpowered by the professional adversary running the procedure. A photographic display lacks every one of those features. The accused is not present, the witnesses are not asked to identify him in his presence, the police have no opportunity to influence the witnesses while he watches, and his lawyer is therefore not needed there to protect him.13 The accused also has no right to attend the display, so keeping counsel away interferes with no lawyer-client relationship, and there is no risk that he will be misled by unfamiliarity with the law.14 In the Court's phrase, unlike a lineup, a photo display is not a "trial-like confrontation" involving the presence of the accused.15
Three practical differences from a lineup or showup explain why the absence of counsel does little damage. Without a lawyer at the display, the authorities cannot trick or take advantage of an accused who is not there to be tricked. Cross-examination at trial is not seriously impaired, because a photographic identification is relatively easy to reconstruct. And no trained observer is needed to perform trial-like functions.16 The second difference does the most work. A photo display leaves a physical record that can be put in front of the jury, and in Ash the color photographs shown to the witnesses were admitted into evidence.17 Defense counsel at trial can therefore show the jury exactly what the witnesses were shown and question them about how the array was presented. The same logic reaches the prosecutor's trial-preparation sessions with witnesses, since defense counsel is equally free to seek out and interview those witnesses independently.18
Because the analysis turns on whether the accused is physically present, the date of the display does not change the answer. Ash had crossed the attachment threshold, and the Court still held that the initiation of adversary proceedings does not make every later stage critical.19 The no-counsel rule for photographic displays applies whether the display comes before arrest, after arrest, or after indictment.20 A student who sees the words after indictment and reflexively demands counsel has treated the attachment gate as the whole inquiry. The contrasting case is the showup in Moore v. Illinois, one of the corporeal identifications after formal proceedings begin for which officers must either arrange for counsel or obtain a valid waiver.21
The three dissenters in Ash treated the accused's absence as a reason for counsel, where the majority treated it as a reason against.22 Their argument ran in steps. At a lineup the accused can watch what happens, report it to his lawyer, and testify about it. When the accused is absent, no one is present to verify the fairness of the session or to report irregularities, and a prosecution tempted toward biased conduct is more likely to yield to the temptation when the accused cannot see it.23 On that view, reconstructing an uncounseled photographic display at trial is at least as hard as reconstructing an uncounseled lineup, and both create the danger that an innocent defendant will be convicted because he cannot expose a tainted identification.24 The dissenters also read the history differently, arguing that pretrial counsel rights attached to protect the fairness of the trial itself, and that the help a lawyer could give in the room at that moment was never the measure.25
The two sides accept the same formula, under which the right reaches stages where the absence of counsel might derogate from the accused's right to a fair trial.26 They disagree about how to apply it. The majority defines a critical stage by what a lawyer can do for an accused who is present, so no presence means no stage. The dissent defines it by whether the event can produce a taint that the accused will be unable to expose later, so absence makes the risk larger. Justice Stewart concurred on a narrower ground, reasoning that a lawyer's role as an observer need not extend to photo identifications, where there are few possibilities for unfair suggestiveness.27 The majority view is the law, and an exam answer applies it. The dissent still marks why a photo display can be a real source of unfairness, which leads to the due process protection taken up next.
The Due Process Backstop
The Sixth Amendment and due process ask different questions about an identification procedure, and Ash answered only the first. The Sixth Amendment question is whether the accused was entitled to a lawyer at the event, and for a photographic display the answer is no. The due process question is whether the procedure itself was so unfair that the identification it produced cannot be trusted, and that question can be raised whether or not a lawyer was required. An accused who loses on counsel therefore keeps a route to exclusion, because a photo display may still be challenged under due process if it was unnecessarily suggestive and conducive to irreparable misidentification.29 Ash itself rejected the idea that the mere possibility of an erroneous photographic identification shows a denial of due process from counsel's absence.30 That ruling settles who must be present at the display and leaves untouched the separate claim that the display itself was unfair, a claim that photo identifications frequently raise.31
The reason due process reaches these displays lies in how mistaken identifications arise. A major source of error is the suggestion inherent in how the prosecution presents a suspect to witnesses, and suggestion can be created intentionally or unintentionally in many subtle ways.32 Once a witness has picked out the accused, the witness is unlikely to go back on that choice, so the question of identity may in practice be settled at the pretrial event, before the trial begins.33 A lawyer's presence checks that danger at a lineup. At a photo display no lawyer is required, so the due process rule is the remaining check on suggestion.
The due process test has two parts, and the accused must establish both: the procedure was unnecessarily suggestive, and it created a substantial likelihood of irreparable misidentification.34 Each part has its own logic. Some suggestion comes with any procedure that places a suspect before a witness, so suggestiveness alone cannot be the line, and the necessity half keeps room for police to use an imperfect procedure when circumstances leave no better one. The likelihood half does different work. A suggestive procedure can still yield a correct identification, and excluding accurate testimony would cost the truth-seeking process something without protecting anyone, so exclusion is reserved for procedures that make a mistake substantially likely. The word irreparable matters here as well, because a mistake that the trial can expose through cross-examination is a lesser harm than one that hardens at the pretrial event and cannot be undone.
Two decided cases show the test passing, and they pass for different reasons. In Stovall v. Denno, officers brought the defendant, in handcuffs, to the hospital room of a woman who had been stabbed eleven times during a home invasion and was about to undergo surgery, and asked whether he was the man who attacked her.35 The showup was highly suggestive, but the Court held that it was not unnecessarily suggestive, because it was necessary given the victim's precarious situation, so due process was not violated.36 In Simmons v. United States, police showed six snapshots to the victim of a serious robbery while the perpetrators were still at large, to learn whether the investigation was on the right track, and the Court found no due process violation because the display was necessary and carried little danger of misidentification. Stovall therefore turned on the necessity half, since the suggestion was obvious and the emergency excused it, while Simmons turned on both halves, since the investigation needed the display and six photographs left little danger of a mistaken pick.
Because the two protections are independent, every identification procedure on an exam calls for both questions, asked in order. The steps are these:
The steps can come out differently on the same event. A post-charge showup held without counsel that was also unnecessarily suggestive can fail at the first step and at the last. A post-indictment photo display passes the first step, because the accused was absent, yet it can still fail at the last. Students lose points when they stop after the first step and treat the absence of a counsel right as the end of the analysis, because Ash closes the Sixth Amendment question without closing the due process one.39