# Kirby v. Illinois/Opinion of the Court

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* Concurring Opinions Burger Powell
* Dissenting Opinions Brennan White
[p683] MR. JUSTICE STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join.
In United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263, this Court held "that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel and calls into question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup." Gilbert v. California, supra, at 272. Those cases further held that no "in-court identifications" are admissible in evidence if their "source" is a lineup conducted in violation of this constitutional standard. "Only a per se exclusionary rule as to such testimony can be an effective sanction," the Court said, "to assure that law [p684] enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Id., at 273. In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.
On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler's checks and a Social Security Card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in Chicago. When asked for identification, the petitioner produced a wallet that contained three traveler's checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard's name on them were also found in Bean's possession. When asked to explain his possession of Shard's property, the petitioner first said that the traveler's checks were "play money," and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.
Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. A police car was then dispatched to Shard's place of employment, where it picked up Shard and brought him to the police station. Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had [p685] robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.
More than six weeks later, the petitioner and Bean were indicted for the robbery of Willie Shard. Upon arraignment, counsel was appointed to represent them, and they pleaded not guilty. A pretrial motion to suppress Shard's identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimony he described his identification of the two men at the police station on February 22, and identified them again in the courtroom as the men [p686] who had robbed him on February 20. He was cross-examined at length regarding the circumstances of his identification of the two defendants. Cf. Pointer v. Texas, 380 U.S. 400. The jury found both defendants guilty, and the petitioner's conviction was affirmed on appeal. People v. Kirby, 121 Ill. App. 2d 323, 257 N.E. 2d 589. The Illinois appellate court held that the admission of Shard's testimony was not error, relying upon an earlier decision of the Illinois Supreme Court, People v. Palmer, 41 Ill. 2d 571, 244 N.E. 2d 173, holding that the Wade-Gilbert per se exclusionary rule is not applicable to pre-indictment confrontations. [p687] We granted certiorari, limited to this question. 402 U.S. 995.

## I

We note at the outset that the constitutional privilege against compulsory self-incrimination is in no way implicated here. The Court emphatically rejected the claimed applicability of that constitutional guarantee in Wade itself:
   "Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege 'protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature....' Schmerber v. California, 384 U.S. 757, 761...." 388 U.S., at 221.
   "We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused [p688] to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have...." Id., at 222.
It follows that the doctrine of Miranda v. Arizona, 384 U.S. 436, has no applicability whatever to the issue before us; for the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that custodial interrogation is inherently coercive.
The Wade-Gilbert exclusionary rule, by contrast, stems from a quite different constitutional guarantee—the guarantee of the right to counsel contained in the Sixth and Fourteenth Amendments. Unless all semblance of principled constitutional adjudication is to be abandoned, therefore, it is to the decisions construing that guarantee that we must look in determining the present controversy.
In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458; Hamilton v. Alabama, 368 U.S. 52; Gideon v. Wainwright, 372 U.S. 335; White v. Maryland, 373 U.S. 59; Massiah v. United States, 377 U.S. 201; United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; Coleman v. Alabama, 399 U.S. 1.
This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment, and the Court [p689] has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
The only seeming deviation from this long line of constitutional decisions was Escobedo v. Illinois, 378 U.S. 478. But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the "prime purpose" of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, "to guarantee full effectuation of the privilege against self-incrimination...." Johnson v. New Jersey, 384 U.S. 719, 729. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, at 733-734, and those facts are not remotely akin to the facts of the case before us.
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. [p690] It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S., at 66-71; Massiah v. United States, 377 U.S. 201; Spano v. New York, 360 U.S. 315, 324 (DOUGLAS, J., concurring).
In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: "The rationale of those case was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage.'" (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382-383. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long after the commencement of any prosecution whatever.

## II

What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to "scrutinize any pretrial [p691] confrontation...." 388 U.S., at 227. The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293; Foster v. California, 394 U.S. 440. When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.
The judgment is affirmed.

## Notes

* ↑ The officers stopped the petitioner and his companion because they thought the petitioner was a man named Hampton, who was "wanted" in connection with an unrelated criminal offense. The legitimacy of this stop and the subsequent arrest is not before us.
* ↑ "Q. All right. Now, Willie, calling your attention to February 22, 1968, did you receive a call from the police asking you to come down to the station? "A. Yes, I did. ... "Q. Who took you to the police station? "A. The policeman picked me up. ... "MR. POMARO: Q: When you went to the police station did you see the two defendants? "A. Yes, I did. "Q. Do you see them in Court today? "A. Yes, sir. "Q. Point them out, please? "A. Yes, that one there and the other one. (Indicating.) "MR. POMARO: Indicating for the record the defendants Bean and Kirby. "Q. And you positively identified them at the police station, is that correct? "A. Yes. "Q. Did any police officer make any suggestion to you whatsoever? ... "THE WITNESS: No, they didn't."
* ↑ "Q. Willie, when you looked back, when you were walking down the street and first saw the defendants, when you looked back, did you see them then? "A. Yes, I seen them. "Q. Did you get a good look at them then? "A. Yes, I did. "Q. All right. Now, when they grabbed you and took your money, did you see them then? "A. Yes, I did. "Q. Did you get a good look at them then? "A. Yes. "Q. Both of them? "A. Correct. "Q. When they walked away did you see them then? "A. Yes. "Q. Did you look at them, Willie? "A. Yes. "Q. Did you get a good look at them? "A. Yes. "Q. Are those the same two fellows? Look at them, Willie. "A. Correct. "Q. Are those the same two that robbed you? "A. Yes. "Q. You are sure, Willie? "A. Yes."
* ↑ Bean's conviction was reversed. People v. Bean, 121 Ill. App. 2d 332, 257 N.E. 2d 562.
* ↑ The issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts. Compare State v. Fields, 104 Ariz. 486, 455 P. 2d 964; Perkins v. State, 228 So. 2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S.E. 2d 792; State v. Walters, 457 S.W. 2d 817 (Mo.), with United States v. Greene, 139 U.S. App. D.C. 9, 429 F. 2d 193; Rivers v. United States, 400 F. 2d 935 (CA5); United States v. Phillips, 427 F. 2d 1035 (CA9); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E. 2d 427; People v. Fowler, 1 Cal. 3d 335, 461 P. 2d 643; Palmer v. State, 5 Md. App. 691, 249 A. 2d 482; People v. Hutton, 21 Mich. App. 312, 175 N.W. 2d 860; Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738; In re Holley, 107 R.I. 615, 268 A. 2d 723; Hayes v. State, 46 Wis. 2d 93, 175 N.W. 2d 625.
* ↑ "[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." Powell v. Alabama, 287 U.S. 45, 57.
* ↑ "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." U.S. Const., Amdt. VI.
* ↑ In view of our limited grant of certiorari, we do not consider whether there might have been a deprivation of due process in the particularized circumstances of this case. That question remains open for inquiry in a federal habeas corpus proceeding.