406 U.S. 682 (1972), 70-5061, Kirby v. Illinois

Docket Nº:No. 70-5061
Citation:406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411
Party Name:Kirby v. Illinois
Case Date:June 07, 1972
Court:United States Supreme Court

Page 682

406 U.S. 682 (1972)

92 S.Ct. 1877, 32 L.Ed.2d 411




No. 70-5061

United States Supreme Court

June 7, 1972

Argued November 11, 1971

Reargued March 20-21, 1972




Petitioner and a companion were stopped for interrogation. When each produced, in the course of demonstrating identification, items bearing the name "Shard," they were arrested and taken to the police station. There, the arresting officers learned of a robbery of one "Shard" two days before. The officers sent for Shard, who immediately identified petitioner and his companion as the robbers. At the time of the confrontation, [92 S.Ct. 1879] petitioner and his companion were not advised of the right to counsel, nor did either ask for or receive legal assistance. Six weeks later, petitioner and his companion were indicted for the Shard robbery. At the trial, after a pretrial motion to suppress his testimony had been overruled, Shard testified as to his previous identification of petitioner and his companion, and again identified them as the robbers. The defendants were found guilty, and petitioner's conviction was upheld on appeal, the appellate court holding that the per se exclusionary rule of United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263, did not apply to pre-indictment confrontations.

Held: The judgment is affirmed. Pp. 687-691.

121 Ill.App.2d 323, 257 N.E.2d 589, affirmed.

MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST, concluded that a showup after arrest, but before the initiation of any adversary criminal proceeding (whether by way of formal charge, preliminary hearing, indictment, information, or arraignment), unlike the post-indictment confrontations involved in Gilbert and Wade, is not a criminal prosecution at which the accused, as a matter of absolute right, is entitled to counsel. Pp. 687-691.

MR. JUSTICE POWELL concurred in the result. P. 691.

STEWART, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring statement, post, p. 691. POWELL, J., filed a statement concurring in the result, post, p. 691. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and

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MARSHALL, JJ., joined, post, p. 691. WHITE, J., filed a dissenting statement, post, p. 705.

STEWART, J., lead opinion

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 in 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

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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.1 When asked for identification, the petitioner produced a wallet [92 S.Ct. 1880] 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

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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 22,2 and identified them again in the courtroom as the men

Page 686

who had robbed him on February 20.3 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 [92 S.Ct. 1881] petitioner's conviction was affirmed on appeal. People v. Kirby, 121 Ill.App.2d 323, 257 N.E.2d 589.4 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.

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We granted certiorari, limited to this question. 402 U.S. 995.5


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

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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; [92 S.Ct. 1882] 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,6 and the Court

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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...

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