Warren E. Burger: We'll hear arguments next in 71-1255, United States against Ash. Mr. Korman you may proceed whenever you are ready.
Edward R. Korman: Mr. Chief Justice and may it please the Court. This case is here on a writ of certiorari to the United States Court of Appeals for the District of Columbia to review a five to four en banc decision of that court which held that under the Sixth Amendment, a defendant in criminal case is entitled to the presence of counsel at a pretrial showing of photographs to witnesses to the crime of which he is accused of committing. This case arises out of an armed bank robbery of branch office of the American Security and Trust Company in the District of Columbia on the 25th day of August, 1965. A lone gunman entered the bank and he now put a stocking mask over a portion of his face, announced his intentions and told everyone not to move. Immediately thereafter, a second man entered the bank, ran behind the Teller’s cages, scooped up the money and run out of the bank followed by the gunman who had initially entered the bank. As the bandits ran from the bank they again removed the stocking masks which covered their faces up to the bottom of their noses and at this point they were both seen with their faces uncovered by a woman who was seated in a car outside of the bank. The two robbers, however, made good their escape and it was not until some five months after the robbery had occurred that a convicted felon concededly seeking consideration from the authorities told them that one Charles Ash had asked him, the informant, to participate in the bank robbery and had on the day following the robbery admitted his participation to the informant. On the basis of this information police gathered five photographs, one each of the defendant Ash, one of Bailey who is accomplice which the informant had told the authorities, Ash had implicated as the second man in the robbery and three other photographs. These are all black and white and they were shown to four witnesses to that robbery. Two of them were bank tellers and both of them selected photographs of Ash as the gunman. Neither was positive in their identification. The third witness who was shown these photographs was a customer at the bank who had seen the gunman enter the bank and put the mask on. He also selected the photograph of Ash, his identification was likewise inconclusive. The fourth witness was the woman who had seen the two running from the bank. She also picked out a photograph of Ash as being one of the two whom she had seen running from the bank. Her identification was likewise uncertain. The case for a number of reasons was not scheduled for trial until May 8, 1965 some two-and-half years after the showing of the initial photographs and some three years, almost three years after the date that the crime was committed. The Assistant United States Attorney in charge of the case, no doubt wondering whether any of the eyewitnesses would be able to make any kind of identification at this stage of the proceeding, had five color photographs displayed to each of the four witnesses. The five photographs included one each of Bailey, one of Ash and three others. The two defendants --
Warren E. Burger: The photographs were unconnected with the --
Edward R. Korman: Unconnected with the robbery. The two photographs of the perspective of the defendants who would go on trial the following day, what is known as I believe called “full length FBI case photographs” indicating their height and their build. The three other photographs were not full length, but were cut at some point above and below the chest. At this point the results of the photograph at display were again inconclusive. Three of the witnesses picked out Ash’s photograph and said that he looked like him or words to that effect, their identification was uncertain. A fourth witness the gentleman who was a customer at the bank could not pick out any photograph. Again, as in the first instance none of the witnesses were able to pick out the photograph of the codefendant Bailey. The District Court after a hearing, pretrial hearing, held that the initial photographic at display which took place five months after the robbery, was not impermissibly suggestive and that regardless of the propriety of the second showing of photographs, there was an independent basis for the uncertainty at that point eyewitness identifications. At the trial the government introduced the testimony of its informant who under oath testified that Ash had asked him to participate in the robbery and that the day following the robbery Ash had admitted his part of participation to him. The government also introduced the testimony of the four eyewitnesses. Three of them again made inconclusive identifications. They were not positive of their identification of Ash, nearly picking him out as looking like or words to that effect. The fourth woman who was seated on the car who had of all the witnesses perhaps of greatest opportunity to view the bandits unmasked picked out both Ash and Bailey positively.
William H. Rehnquist: Mr. Korman this trial took place in May of 1968?
Edward R. Korman: That’s correct. Again, none of the witnesses, none of the other three witnesses where able to select Bailey at all as even looking like the person that had -- the second person that had been involved in the robbery. The prosecution during its case did not elicit the fact that there had been any pretrial identification from photographs. Bailey’s counsel, however, was anxious to show that Mrs. Apple who had made a positive identification of Bailey in the courtroom had been on unable the day before the pick is photograph out of the five that we shown to her and so during the defense case, he called the FBI agent, then Mrs. Bailey to elicit the fact that one, she had indeed been shown photographs, she had picked out one person as being one of the two she had seen running from the bank, but was on able to pick out the photograph of Bailey and he then offered the photograph of Bailey into evidence. At this point the United States Attorney asked that Ash’s photograph be offered into evidence presumably lest the jury get the impression that the other person she has picked out was someone other than Ash. Ultimately all five photographs were admitted and the jury thus became aware that Mrs. Apple had made an uncertain identification of Ash’s photograph on the day before trial. The jury was unable to reach a verdict as to Bailey. As to him the only evidence was the positive identification of the witness in court. The jury was hung and after the trial, the judge directed a verdict of acquittal. The defendant Ash, however, was convicted of all counts of the indictment arising out of the armed bank robbery. On appeal, the Court of Appeals did not reach the issue of whether the second pretrial photographic display was improperly suggestive. The majority stated that certainly the elements of suggestiveness was strong enough so that it cannot be assumed there was no undue suggestiveness in the absence of explicit findings by the trial court. And of course the trial court had not reached this issue, but the majority in the Court of Appeals likewise stated that it was aware that there are indications of setting in part the inference of undue suggestiveness. Since these other indications were not conclusive and since that there were no explicit findings by the District Court on this issue, the majority held that remand would ordinarily be required, but for its conclusion that the defendant was entitled to counsel at the photographic display on the day before trial and that thus a reversible error was committed in the admission of the fact that Mrs.Apple had in fact made an identification albeit an uncertain one on the day prior to trial. We believe that this holding which is contrary to the holdings of nine other Circuit Courts of Appeals and the overwhelming majority of State Court is erroneous. Accordingly we ask that the judgment be reversed and that the case be remanded for the further proceedings, suggested in the opinion of the Court of Appeals. The Court of Appeals rested its decision on majority of the five principally on the holding of this Court in United States against Wade that a defendant was entitled to counsel at forced confrontations between himself and the witness or victim of the offense. In holding that an interview between a prosecutor and the witness at which the accused was not present, was like a lineup “at critical stage of the preceding,” the court, below we submit, ignored the critical and crucial distinctions between a lineup and photographic display. The basis of this Court’s holding as we read Wade was that lineups were susceptible to many forms of subtle suggestion which increased the possibility of erroneous identification and not only were they susceptible to this kind of subtle suggestion, but because of the nature of the proceedings, it was impossible for a defendant to reconstruct them at trial. The reasons for the inability to reconstruct these events was peculiar to the nature of the tense emotional atmosphere that is involved on a victim or a witness to a crime is confronted with the person who was accused or perpetrating the crime. The possibility of subtle suggestion is present simply in the fact that it’s a live lineup, the defendant is asked to walk in to move about, to don clothing, to utter words. They suggest that potential for suggestion has been suggested as present and everything from the clothing he wears to the matter in which the lights are focused on him. Under these circumstances, given the inability to reconstruct these subtle forms of suggestion, it was held that a lawyer was present to enable the defendant at trial to confront the witnesses against him and to elicit before the jury or for the benefit of the court those elements which were improper in the conduct of the lineup. Photographic, the difference between what Judge Wilkey in his dissenting opinion called this little drama of the live confrontation and the showing of five or six still photographs to a witness or a victim is apparent. Initially there are just these five photographs, there is no defendant present. He doesn’t move around. He’s not asked to anything, he’s not asked to don any clothing, no lights are shown upon him. In addition, the photographs are generally shown in a much less emotionally charged atmosphere. They are shown either in the office of the prosecutor or as in this case at the home or place of business of the witnesses to the crime. And then, while it’s true there is still a potential for suggestion, it is true that the photographs themselves may not be properly selected or in some other way, indicate to the witness who it is that the police think committed this offense. But that kind of suggestion is readily shown simply by looking at the photographs at a suppression hearing and indeed in this case the defendant argued and the Court of Appeals was able to give a minute description of the suggestive influences that is found present simply on the basis of viewing the photographs. Now, this is not the same as simply taking a picture of the lineup. A picture of the lineup would just show what happened during that one split second when the picture was taken. It would not show what happen the minute after or a minute before so that this is not as the defendant suggests in his brief, the equivalent of taken a picture of a lineup. It is also true that there is a potential for suggestion in the words that maybe spoken to the witness when the photographs are shown, but that kind of suggestion; number one, can be revealed by the witness. There is no reason in the world why he should not be able to testify truthfully as to what was said to him when photographs were shown. More significantly, there is no more potential for suggestion there than in an interview without any photographs at all. After all if the prosecutor was so inclined, you could simply tell the witness, “Well, remember you gave us a description, you said one of them you said the gunman in this case was 19 years old. He was black, light skinned. He was well dressed. He was wearing glasses. Well, you go into the courtroom and take a look and see if you see him at the defense table.” Now, that’s the most apparent kind of suggestion which can take place without any kind of photographs being present. Yet, it’s never been held nor as I understand has it ever been suggested that any time a prosecutor even talks with the witness to the crime that a lawyer is required to be present. And so for these substantial reasons we think that this proceeding of showing of still photographs is significantly different and that this is not a critical stage of proceeding. Also there is another significant fact that differentiates this case from the lineup case. This is what transpires when a prosecutor talks with the witness is simply a preparation by the prosecutor of the witness for trial. We know of no case, one that is ever held that a defendant is entitled to a lawyer at a proceeding which he himself is not present. Particularly this is so when the preceding is nothing more than an interview had between the witness and the prosecutor as part of his preparations for the trial of the case. And I think that it is significant not only the language of the opinion, the majority opinion in Wade which constantly stressed the forced confrontation between the accused and the witness to the offense, but also the concurring opinions of the justices who cast the deciding votes on the issue of whether a lineup was a critical stage of the proceeding. Mr. Justice Black in concurring in that portion of the opinion of which this Court said that a lineup is a critical stage of the proceeding said “I agree with the court that a lineup is a critical stage of the criminal preceding against accused -- against an accused because it is a stage of which the government makes use of his custody to obtain crucial evidence against him.” Mr. Justice Clark who cast the concurring vote in that case relied principally on Miranda versus Arizona as the basis for his concurrence. That case of course involved custodial interrogation of an accused who is in custody and so that that factor, the accused was present when this transpired and needed a lawyer to help him because of his very presence there, we regard to be one of the other crucial factors which distinguish this case from Wade.
Byron R. White: Was there testimony in this case about the pretrial identification?
Edward R. Korman: Yes there was.
Byron R. White: At the time?
Edward R. Korman: Only during the defendant’s case, yes.
Byron R. White: Only during the defendant's case?
Edward R. Korman: Right, the prosecutor did not offer any evidence during the course of the trial then.
Byron R. White: Do you think there is not Gilbert problem in this case?
Edward R. Korman: No, I do not – I don't follow you in what way?
Byron R. White: Well, let’s assume that Wade did apply the photographic identification.
Edward R. Korman: Yes.
Byron R. White: And the prosecutor in examining his witness brought out the fact of pretrial identification absent counsel, it wouldn’t help to show no taint then, would it, under Gilbert?
Edward R. Korman: No. As I understand --
Byron R. White: Is there any problem like that in this case or not?
Edward R. Korman: Well, there is -- we do not dispute the finding of the Court of Appeals that it was the government who asked that Ash’s photograph be introduced and that it was at the government’s behest that all five --
Byron R. White: Would you say then that if Wade were held to have applied in this case that this case would automatically be reversed?
Edward R. Korman: That’s correct and that’s precisely what the Court of Appeals did.
Byron R. White: But if -- so that the finding of no taint, there was a finding of no taint wasn’t there, here?
Edward R. Korman: By the District Court.
Byron R. White: Yes, but that wouldn’t overwrite a Gilbert violations?
Edward R. Korman: No, it would not. Given both the state of the law, the overwhelming majority of the cases which have decided this issue and it held that a lawyer is not present that it need not be present at the photographic display, the respondent has understandably relegated to second place in his brief the defense of the majority opinion of the Court of Appeals and instead he would have this Court decide this case on an issue which was not dealt with by the District Court, which the Court of Appeals felt was not properly presented, given this state of the record. That is that in effect the showing on the day before trial was so impermissibly suggestive as to constitute a violation of due process. As I’ve noted, the Court of Appeals and I think quite properly it was very careful in dealing with this issue and in stating that they could not and would not, absent specific findings by the District Court on this particular question rule on this issue. I think this careful disposition was correct for two reasons. Number one, the constitution of course provides that all criminal trials shall be by jury in Article III, Section 2. A finding that a particular photographic identification was so impermissibly suggestive as to constitute a violation of due process necessarily ousts from the jury its function of considering the reliability and credibility of this eyewitness identification, even whereas here all of the facts can be brought before the jury. So that before a court reaches such a conclusion, before a court determines to oust from the jury its crucial fact finding function under the constitution, should be very careful to do so on a record that is complete on findings that are made by District Court and should not reach out and decide it on an inadequate record. Second is worth noting that in this case are the factors which the Court of Appeals eluded to which indicated the possibility that there was no such undue suggestion that would lead to a due process violation. One, despite this alleged suggestion and we have to keep in mind that these photographs to the extent that they were suggestive were suggestive as to Bailey, as they were to Ash yet not a single witness was even able to pick out Bailey's photograph and even say so much that he looked like Bailey. In the second place despite the suggestion --
Potter Stewart: Bailey was acquitted by jury or as he was acquitted by the --?
Edward R. Korman: He was acquitted by the judge after the jury was unable to reach a verdict.
Potter Stewart: I see.
Edward R. Korman: In the second place even as to Ash, three of the witnesses on the day before trial were able to give only uncertain identifications and the fourth wasn’t even able to pick out his photograph. So that and in addition because of the way the proceedings were handled, the pretrial hearing, none of the witnesses, all but one I should say, only one of the witnesses was even asked questions about the effect which the viewing of the photographs had on her the day before trial. And the third reason that I think ought to be considered before the Court deals with this is that this is really a factual issue that hasn’t been resolved by the two courts below. And at this stage we think it would be improper for this Court to reach out to decide the issue before any consideration was given to it by the lower courts. And in this respect I would call the Court's attention to an analogous case of United States against Foster which this Court concluded by a five to four vote that in fact the identification was impermissibly suggestive, but declined to rule on harmless error argument that had been advanced for the first time in this Court saying that it wished the lower courts to resolve that issue first before it got involved in what was essentially a factual determination. And so for these reasons we would ask that the judgment of the Court of Appeals be reversed not at the judgment of conviction be reinstated, but that the case be remanded to the Court of Appeals for appropriate disposition in accordance with the suggestion in its opinion. Thank you.
Warren E. Burger: Thank you Mr. Korman. Mr. Cohn?
Sherman L. Cohn: Mr. Chief Justice may it please the Court. The government we submit is quite correct in Wade when it urged upon this Court that there is no meaningful difference as concerns the right to counsel between a pretrial identification from photographs and as similar pretrial identification made in the lineup. Indeed the trial judge in this case, himself testified or stated in May 1968 that there had been a recent increase in the use of photographic identification in the District of Columbia. This was nine months after the decision in Wade. I respectfully suggest that this case illustrates precisely that the government was correct in Wade, that Wade was a correct decision and still is and that drawing an artificial distinction between corporeal identification and procedures. And photographic identification procedures would not only be in the Solicitor General’s words “meaningless,” but would permit the continued easy use of this device to evade this Court’s clear holding in Wade. One needs only to examine the facts in this case to see how intentionally or unintentionally, the United States Attorney attempted to use what I respectfully suggest is impermissible suggestiveness. I invite each and every member of the Court to examine personally the colored photographs of the 1968 identification procedures which are in your file. I respectfully urge that they portray graphically what this case is all about. Witnesses to the crime who had little opportunity to see the robbers who made indefinite or no identifications at a photographic array some five months after the crime, who after the crime could describe the robbers only as to height about six foot to build, thin to slender, and color black or light complexion, were shown almost three years later and at that the day before the trial, five photographs. Three of these were sized 3x3 or 3x4. One of the defendant, Bailey, was 4x6 and that of the defendant Ash was 5x7. Only two are full length, only two with height markers to indicate six foot. Only two carried the police identification numbers. Only two were thin. In each and every case these two were the persons to be tried the next day. This, the government calls the preparation of a witness. The government urges that the fact that we know these facts demonstrates that the presence of counsel at the photographic ID could serve no purpose, but here we part ways with the government and for two reasons. First as Gilbert versus California makes clear, the requirement for the counsel at the critical stages of procedures is not only to permit the raising and the proper presentation of defenses, but also as the prophylactic to deter the constitutionally objectable, the practices. Although I find the curious and surprising to find and learned United State attorney engaging in such practices as I described, nine months after the Stowell and two months after the sentience. I would find it most difficult to conceive of a United States Attorney engaging in such tactics in the presence of a counsel for the defendant. He would stand there as a reminder, a graphical reminder that due process must be followed. Secondly although we know much of what happened at the photographic array, we cannot know all. We do not know. We cannot know the nuisances, the gestures, the intonations that might have been used. The government urges that these matters could be a developing cross examination. My learned colleague states that there’s no reason in the world why the witness cannot testify as to the words that were used. I suggest there is a reason and the reason is stated in Wade. The reason is that the unschooled layman who does not and cannot be expected to note those matters that are important, and besides if he does note them they won’t work.
Warren E. Burger: Mr. Cohn, suppose instead of having had the interviews in the context of this case, the police had the same five photographs of five different people all of whom where at least have thought to be suspect for one reason or another and took them around the neighborhood and exposed them to people and said, “Have you ever seen any of these men before” and then, if so where and narrowing it down to the day and the details would -- what could you say about that exposure of the photographs?
Sherman L. Cohn: Mr. Chief Justice I draw a line between identification procedures that are investigative. We are now in after Kirby so that we are dealing with a post indictment situation as distinguished from a pre-indictment. Where there is investigation going on, where there has not yet been a focusing, where there has not been an indictment, where no the criminal proceedings or prosecutions which ever word one wishes to use has begun, we have an entirely different story than we do after indictment. Here there has not only been a focusing but you have a man who is incarcerated several blocks away. The trial is about to begin and what we have is an identification which is then entered as positive evidence. Now, my colleague stated that this was during the defendant’s case and I just want to emphasis, it was by the codefendant, it's counsel that it was offered and that the picture of Mr. Ash was ultimately offered by the government. So that whatever tape there is from the fact that it was offered during the defendant’s case, it was not during this defendant’s case, and he did not offer it, then we’d have an entirely different proposition.
Potter Stewart: It is not your claim as I understand it that photographs cannot be used in a variety of different ways during the investigation of a criminal offense. For instance, if camera in the bank, one of these automatic cameras takes a picture of a holdup man there is nothing on earth, I suppose in your argument that would require the police to take a lawyer with them when they go around the a neighborhood asking people “Have you ever seen this man, does he live here?” Your argument is limited to the case of where this kind of evidence is used in the trial in order to convict somebody.
Sherman L. Cohn: That’s correct. What we have here and this is where we also put them on.
Potter Stewart: Through eyewitnesses?
Sherman L. Cohn: Yes.
Potter Stewart: Who testified?
Sherman L. Cohn: Here is where we part ground with the government. The government says “This is the same as all other preparation of witnesses,” I would hope not, but I suggest that what we have here is the production of positive evidence. Positive evidence of identification and this production whether it is through a lineup which is then used or is through pictures which are then used or as shown, or anything of the sort, once the criminal prosecution has started, once there is an indictment or information, or an arrest to use the words Kirby case, once that happens the right to counsel has attached.
William H. Rehnquist: Mr. Cohn you say that this is positive evidence and I take it that is that way you distinguish Mr. Korman’s example where the prosecuting attorney is simply horse shedding the witness without any photographs?
Sherman L. Cohn: In a horse shedding situation the statements of the witness are not admissible as positive evidence, perhaps for him piece -- for the purposes --
William H. Rehnquist: Well but a photograph isn’t admissible until a witness in court identifies it?
Sherman L. Cohn: No, Your Honor. Here we have the situation of a police officer saying that these are the photographs that were shown and Mrs. Apple said “This is the man.” The actual identification itself, I suggest is not here sir. It is a positive act in itself.
Warren E. Burger: Had she already identified the defendant at that time from the stand?
Sherman L. Cohn: At that time she had already been asked by Mr. Bailey’s counsel. I mean, had she already identified him in court?
Warren E. Burger: Yes.
Sherman L. Cohn: I am sorry, the answer is yes sir.
Warren E. Burger: Yes.
Sherman L. Cohn: Yes, she had.
Warren E. Burger: She’d already made an identification independent of any photograph, hadn’t she?
Sherman L. Cohn: In court.
Warren E. Burger: Yes.
Sherman L. Cohn: That is correct, but now are we to use her identification itself outside of court as positive evidence to buttress the identification in court? And after all we have a situation here where the first witness, the bank teller had to be asked four times “Is he here?” And three times she says “I’m not sure” and the fourth time well he look similar. The second bank teller says “I am not sure but I think.”
William H. Rehnquist: How do you contend that her testimony was used independently to buttress during the trial? What testimony is it of hers?
Sherman L. Cohn: Well, if we can refer to the appendix, Your Honor, I believe that would be at --
Warren E. Burger: Did this occur at the time of the government’s case in Chief?
Sherman L. Cohn: No Your Honor. This occurred at the time of Mr. Bailey’s case. We have –-
Byron R. White: Mr. Cohn --
Sherman L. Cohn: Yes sir?
Byron R. White: -- Isn't the standard rule as the federal court rule of evidence that pretrial identifications are admissible in evidence to corroborate in court identification?
Sherman L. Cohn: That’s my understanding.
Byron R. White: That's generally the rule?
Sherman L. Cohn: Yes.
Byron R. White: So that if government wants to do if may have the witness identify the witness in court and then say, did you identify it before, and the witness can answer it --
Sherman L. Cohn: That’s correct.
Byron R. White: -- or the government can simply offer the pretrial identification without even getting around to the identification in court?
Sherman L. Cohn: That’s my understanding.
Potter Stewart: Now, how does it do that? It does it through the – through the eyewitness who did make that pretrial identification, or does it do it through a third person?
Sherman L. Cohn: Either way. It can do it through the eyewitness, or to do it as I understand it through the policeman or in this case the United States Attorney --
Potter Stewart: A policeman can say this is the best identify this?
Sherman L. Cohn: Yes.
Potter Stewart: What was done here?
Sherman L. Cohn: What was done here was, well, first of all she was asked, on page — well, if I can start on page 104 of the appendix. Mr. Stanford is Bailey’s attorney and she asked this “I show you what has in marked defendant exhibit number five.” This is on middle of the page, “Mrs. Apple. Is this photograph of the man you identified as being involved in the robbery?” “Yes it is” “I see.” Now, there it is stops because at that point Mr. Stanford wanted to offer all the pictures and there was an objection made, the page 105 and there was a colloquy and they were withdrawing. Now, we go over toward the end where Mr. Stanford calls the police officer.
Potter Stewart: Where are we now?
Sherman L. Cohn: On page 123 is where Mr. Fallon, the police officer who accompanied –- this wasn't involved with the 66. Let me get this, 126. Mr. Berry who is the FBI officer who accompanied the Assistant United States Attorney. On page 127, we are talking in terms of Mrs. Apple now.
William H. Rehnquist: This is Mr. Bailey’s attorney?
Sherman L. Cohn: This is Mr. Bailey’s attorney, “Did you at anytime show her several of photographs in color?” “Yes, I did.” “Did she identify one of these as the man?” “Yes she selected one she thought he was the one.” All right, and then shows them exhibit the five is that one, that is correct. I show you defendant exhibit number four. “Did she make identification as to him?” “No, she did not”. Number four is Bailey. She then states that.
Potter Stewart: And the number five is Ash?
Sherman L. Cohn: Number five is Ash. So far the jury does not know that five is Ash, okay. But, they now know that four is Bailey and that she did not identify Bailey but she identified somebody else. Now, at this point the Assistant US Attorney at the bottom of the page says, “I believe that five photographs should go into evidence.” I am assuming where that means the five and I am not quite sure whether there is only Ash’s or all five that point. And Mr. Rosen who is Ash’s attorney says, “I will object to that Your Honor.” All right, then there is a colloquy that goes on, on page 128 or 129 in which Mr. Rosen is constantly objecting and there is a lot of discussion as to what should happen. All right, on page 130 --
Potter Stewart: So Mr. Stanford is Bailey’s attorney?
Sherman L. Cohn: That’s correct.
Potter Stewart: Mr. Pennet is the prosecutor.
Sherman L. Cohn: That’s correct.
Potter Stewart: And Mr. Rosen is Ash’s attorney, is that right?
Sherman L. Cohn: That is correct. All right, and then, on page 130 about the middle on page Mr. Rosen still says. “I will oppose that.” And then, the court down at a few lines “I would be to disposed to admit it regardless of who offers it.” And then, at the end of the paragraph “Should we introduce all five?” And Mr. Rosen says, “That might avoid prejudice against Ash.” At that point the court has already ruled that they are to be admitted. 131 they --
Thurgood Marshall: Mr. Rosen did agree?
Sherman L. Cohn: He agreed and I suggest that he agreed that once the court had ruled that Ash, his pictures could go in that what his statement is that the least amount of prejudice would be of all the five pictures go in, but the court has already ruled by this time on Mr. Stanford’s request.
Warren E. Burger: Well, as he ruled or has he indicated that he has a leaning, said “I would be disposed to admit it, that’s hardly a ruling at that stage.” It’s a suggestion of how he feels about it, but it doesn’t foreclose objection and argument, does it?
Sherman L. Cohn: I suggest Your Honor that we’ve had now pages of argument on the subject and that at the end of that paragraph the court himself suggests that should we introduce all five.
Warren E. Burger: Well, at least Mr. Rosen didn’t have to agree.
Sherman L. Cohn: I agree, Your Honor, if I were there and if I were second guessing him I would not agree to any form of, but he was the man under fire.
Potter Stewart: He wasn’t – he wasn't agreeing until -- I mean at the top of page 130, the same page he said, “It is not going into evidence,” he is --
Sherman L. Cohn: Oh, he is objecting all along.
Potter Stewart: I haven’t read this carefully. I can’t during the hearing, but it seems to me that the he finally when it became evident that at least one of the pictures was going to go into evidence that the court had so indicated, if not ruled he said, “Well, it is better to have all five of them than just one.”
Sherman L. Cohn: That’s the way the Court of Appeals apparently read it and I would certainly to say that a permissible reading.
Byron R. White: Mr. Cohn would you say that if it were held that Wade applies to photographic identifications of those involved in this case that based on what we’ve just been over here, there was a Gilbert error in the sense that the prosecution should be charged with having relied on pretrial identification, so that a finding of no taint would not suffice?
Sherman L. Cohn: That’s correct sir.
Byron R. White: You would think even though the government carefully avoided pretrial identifications on its side of the case, the defense and the defense brought it up?
Sherman L. Cohn: Yes.
Byron R. White: First presented it to the jury?
Sherman L. Cohn: Yes.
Byron R. White: That nevertheless a finding of no taint would not suffice then?
Sherman L. Cohn: Well, what we really have here is a blatant situation, like where we have the pictures instead of a confession being used and its' -- it's a problem of how you are going to -- we have two codefendants in the case and how do we handle this --
Byron R. White: Well how will the government avoid this sort of thing?
Sherman L. Cohn: By having a counsel at the photographic identification, I suppose is the easy answer, by seeing that a case such as this is tried separately, rather than together. And --
Warren E. Burger: Where there motions here to severe?
Sherman L. Cohn: I’m afraid not, Your Honor.
Warren E. Burger: Well, then you can’t --
Sherman L. Cohn: Well, the problem was I am not sure. Again, one might say that it would be a better at this point or earlier to have made a motion to severe.
Warren E. Burger: No.
Sherman L. Cohn: I was unable to find one on motion.
Warren E. Burger: The purpose, when a motion to severe is not made and then isn't it a reasonable inference that both of the defendants thought it was their advantage not to be severed.
Sherman L. Cohn: Well, unfortunately I cannot cross examine the mind of Rosen, the attorney here as to what he had here.
Warren E. Burger: Well I’m just talking about inferences from known facts.
Sherman L. Cohn: That is possible. I can only rely back on the fact that this certainly did to prejudice my client and if it was offered by Mr. Bailey, it from -- my client stand point it should not have been admitted into evidence because it violated the standards of Wade, as well as the standards of --
Warren E. Burger: Well, would you agree that what triggered the introduction of the five photographs was the proposal to introduce the Bailey photograph?
Sherman L. Cohn: I will. Yes Your Honor.
Warren E. Burger: So that this was not the government’s idea?
Sherman L. Cohn: It was the government’s idea then to go on and introduce the Ash photograph. That I will lay at the steps for the government. If everything would have stopped with the introduction of the Bailey photograph, we would have a different case.
Warren E. Burger: But once having avoided a motion to severe and elected to have a joint trial, this is the type of difficulty that is inherent in a joint trial, isn’t it?
Sherman L. Cohn: That’s correct Your Honor, and at the same time --
Warren E. Burger: Sometimes lawyers can foresee that and sometimes they can’t.
Sherman L. Cohn: But at that the same time it would be avoidable by the government -- counsel, by the court cautioning that all that we have to have in here is that there was a photograph of Mr. Ash shown to Mrs. Apple and she did not identify him. If everything would’ve stopped there, we wouldn’t have this case. It was the government going on to say that “We now want the Ash photograph in there.”
Byron R. White: Assuming there was not a -- assuming there was not a so called Gilbert violation here and then the finding of no taint would -- would avoid a reversal even if Wade applied the photographs. Wasn't there a finding of no taint here sufficient for that purpose?
Sherman L. Cohn: As far as the in-court identification is concerned, when you say no taint.
Byron R. White: Yes.
Sherman L. Cohn: The trial judge found that there was no taint on the in-court identification.
Byron R. White: It came from an independent basis?
Sherman L. Cohn: That it came from independent basis.
Byron R. White: Are you satisfied that would suffice even if Wade were applicable in this case?
Sherman L. Cohn: No, You Honor.
Byron R. White: Absent of Gilbert?
Sherman L. Cohn: Sorry, Your Honor, if we were at that point if that issue where here, I would argue that based upon this record that that was not the permissible finding.
Byron R. White: I see.
Sherman L. Cohn: But that issue was not brought here by the government.
Byron R. White: Accepting that finding though, the finding in form is sufficient in form?
Sherman L. Cohn: The Court of Appeals ruled that it was not sufficiently detailed, that it was much too general and I’ll stand on that if I may.
Warren E. Burger: I think Justice Powell had [laughter] Mr. Cohn.
Lewis F. Powell, Jr.: Mr. Cohn.
Sherman L. Cohn: Yes Mr. Justice?
Lewis F. Powell, Jr.: The first photographic identification in this case was on February 3, 1966.
Sherman L. Cohn: That’s correct sir.
Lewis F. Powell, Jr.: Let’s assume for the moment that Mr. Ash had been indicted at that time. Would your formulation have required the presence of counsel when the FBI agent presented those five photographs?
Sherman L. Cohn: That’s correct sir because under Kirby once you have the indictment or information, or arrest then I would assume the rest having to do with this matter.
Lewis F. Powell, Jr.: Suppose one of those witness is, let’s say the customer who was in the bank, had been in Seattle and the FBI had wanted to ascertain whether she could identify the indicted defendant. Your position as I understand it is that counsel would have to go and be present at that identification.
Sherman L. Cohn: That is my position, but I do not agree with all of the unstated implications that I hear because it would seem to me that notice to counsel would be adequate and then he could go or he could retain counsel out there to appear at the photographic identification. So that I do not think that’s any in solve it full or problem or even an practical.
Lewis F. Powell, Jr.: Your formulation doesn’t depend at all on whether or not the photographic showing is or is not suggestive, counsel must be present at any event?
Sherman L. Cohn: That’s correct and I don’t think that the way it is right. I mean it is a prophylactic against this sort of thing occurring and may I emphasis --
William J. Brennan, Jr.: May I ask you Mr. Cohn?
Sherman L. Cohn: Yes.
William J. Brennan, Jr.: Has there ever been the suggestion of harmless error in this case?
Sherman L. Cohn: No sir and the where you’ve had such indefinite identification as I suggest and here again I part ways with my brother here that once that the photographic identification could be read to have to contribute of whatever positive in this that was to the identification or at least we cannot say that the witnesses would not have been the less definite, but for the identification.
Warren E. Burger: Didn’t the government have a rather strong case when they had the would be accomplish testified that Ash had asked him to join in this enterprise and then told him the day afterward that he had carried it out and then you would have one witness at least who made a positive identification? Pretty strong case isn’t it?
Sherman L. Cohn: But whether it was strong enough Your Honor, for the jury without the photographic identification --
Warren E. Burger: Suppose the government had stopped right there, just put the would-be accomplice, and the lady who was positive about the identification, stopped there. You’d concede that there was a case for the jury would you not?
Sherman L. Cohn: Oh sure!
Warren E. Burger: And then if you had a conviction you wouldn’t be here?
Sherman L. Cohn: That’s correct, but what we do not know from our vantage point is whether the jury would have been conducted and that’s our problem.
Warren E. Burger: We never know that is a certainly in a harmless area case, do we? This is a judgmental factor.
Sherman L. Cohn: That’s a judgmental factor that’s correct. If I may comment on a point of few matters raised by the government in few minutes that I have here? The point is raised that we did not have here at the presence of the accused and therefore this is different than Wade. May I suggest that that has been answered in Gilbert. That in Gilbert when this Court examined whether the taking of the hand writing exemplars was a critical stage. The fact that the defendant was present was not at all dwelt upon. What was dwelt upon was whether there is a sufficient risk to the defendant at the time of trial that could not be remedied by the trial proceedings, so that the talisman that the government would now offers, though at the time of Wade they too didn’t see it, the presence of the defendant I suggest and nothing but a mystery. Now --
Potter Stewart: A few moments ago, Mr. Justice White asked you something about a Gilbert violation as contrasted with Wade violation. What did you understand by that?
Sherman L. Cohn: Well, I understood what he asked me.
Potter Stewart: Perhaps I’d better just ask Justice White some other time, but I did not understand you --[Laughter]
Sherman L. Cohn: I’m not retired to positive idea either. I heard him ask the question to each of us but I am not quite sure, but --
Byron R. White: I thought or either one to Gilbert whether there indicated I think the government in this case achieved, not only asked the witness to identify the government courtroom now, but referred to a pretrial identification to which is set that engaged naturally, and that the pretrial identification had been without counsel that then there was an automatic reversal and then a no taint finding would not suffice.
Sherman L. Cohn: That is correct but then the next question --
Potter Stewart: [Voice overlap]
William J. Brennan, Jr.: On automatic reversal only so we’re not harmless error?
Sherman L. Cohn: But when --
Byron R. White: In Wade if the government just has in-court identification and there has been a pretrial identification without counsel, if the government can demonstrate that the in-court identification is independently based and not tainted --
Warren E. Burger: That is right.
Byron R. White: -- it doesn’t be the absence of counsel won't result in a reversal?
Sherman L. Cohn: But, I thought you were also applying that to the Gilbert and the question being whether the in-court identification can come in at a new trial. Now, that is an issue that --
William J. Brennan, Jr.: I thought Mr. Cohn that your argument Mr. Ash was that there was a Gilbert violation because the way that the Ash photograph got into evidence, and if that were so and the principles of Wade and Gilbert applied to photographic identification and then I take it that Gilbert would require a reversal unless there were harmless error.
Sherman L. Cohn: And we would have a requirement of a new trial and then we’d have the question of whether the in-court identification itself is salvage.
William J. Brennan, Jr.: Yes, but recalling Gilbert we sent the case back for a new trail unless there were a determination of harmless error, no issue of taint then involved, if there --
Byron R. White: If the taint is irrelevant.
William J. Brennan, Jr.: That’s right.
Sherman L. Cohn: All right, okay. I am sorry then I misunderstood your question.
Potter Stewart: If you have evidence of the pretrial identification itself, which by hypothesis in Gilbert violated the constitution then even an untainted in-court identification doesn’t correct that constitutional error, I understand that.
Sherman L. Cohn: There would have to be then a new trial.
Potter Stewart: Yes and then you’d have a question to which you referred.
Sherman L. Cohn: Yes, then you'd have that question, that’s when it is.
Byron R. White: Because you -- unless there is a Gilbert violation here, the issue of the applicability in Wade to photographs isn’t here at all --
Sherman L. Cohn: Yes.
Byron R. White: -- if you accepted no taint.
Warren E. Burger: Thank you Mr. Cohn. Mr. Korman you have --
Edward R. Korman: Mr. Chief Justice, I would just want to allude to one or two points. The only real substantive policy reason which has been suggested for having counsel present by Mr. Cohn is that would act as a deterrent the very fact that counsel was present there would act as a deterrent against the use of suggestive procedures. I don’t think that that deterrent is necessary. It’s enough of the deterrent to the prosecutor that if he engages in a suggestive identification procedure, he is going totally endanger the in-court identification. That’s represented by the very facts in this case, but even if we are successful here we are hardly out of the woods in terms of sustaining the judgment of conviction in this case. So that by engaging in suggestive procedures, he is endangering the entire in-court identification, bringing upon himself the whole mess of problems before trial. In the second place by having a suggestive photographic procedure he also undermines to a substantial degree whatever corroborative basis the fact that an out of court identification was made. It’s not likely to have very much impact with the jury that before trial, a witness picked out a photograph in an array that was obviously suggestive. And of course finally that substantive policy reason for having a lawyer present was not even suggested as I understood or read the Court's opinion in Wade. Also there’s been some illusion both in the opinion of the Court of Appeals and by Mr. Cohn to the government’s brief in Wade where we’re quoted as saying that there’s no difference between a photo lineup and a photographic display. What the government said in Wade was that clearly no one has ever suggested that a lawyer was required when photographs were shown, and that we saw no difference as far as lineups go. This Court disagreed only to the extent that it did find the differences as far as lineups went but as a matter of fact, the opinion Mr. Justice Brennan pointed out that the prosecution could show in attempting to evade a taint finding that there had in fact been a prior identification by photographs. And these, unless there any questions, are the only two points that I want to make.
Warren E. Burger: Thank you Mr. Korman. Mr. Cohn you acted at the request in appointment of the Court in this case and on behalf of the Court I want to thank you for your assistance to the Court and of course your assistance to the client, you represented.
Sherman L. Cohn: Thank you, for the privilege.