413 U.S. 300 (1973), 71-1255, United States v. Ash

Docket Nº:No. 71-1255
Citation:413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619
Party Name:United States v. Ash
Case Date:June 21, 1973
Court:United States Supreme Court

Page 300

413 U.S. 300 (1973)

93 S.Ct. 2568, 37 L.Ed.2d 619

United States



No. 71-1255

United States Supreme Court

June 21, 1973

Argued January 10, 1973




The Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a "critical stage" when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary. United States v. Wade, 388 U.S. 218, distinguished. Pp. 306-321.

149 U.S.App.D.C. 1, 461 F.2d 92, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 321. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 326.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

In this case, the Court is called upon to decide whether

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the Sixth Amendment1 grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U.S.App.D.C. 1, 461 F.2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.2 We granted certiorari

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to resolve the conflict and to decide this important constitutional question. 407 U.S. 909 (1972). We reverse and remand.


On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D.C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later, a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.

A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February, 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time, Ash was not in custody, and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this

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bank robbery, in violation of D.C.Code Ann. § 22901 and 18 U.S.C. § 2113(a).

Trial was finally set for May, 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment3 identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a "critical stage" of the prosecution.

[93 S.Ct. 2571] No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.4 The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by "clear and convincing" evidence that in-court identifications would be "based on observation of

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the suspect other than the intervening observation." App. 664.

At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point, the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel.5

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McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.

The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.

The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May, 1968, before the trial. The majority relied on this Court's lineup cases, United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), and on Stovall v. Denno, 388 U.S. 293 (1967).

The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand [93 S.Ct. 2572] for additional findings by the District Court. 149 U.S.App.D.C. at 7, 461 F.2d at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id. at 14-15 and nn. 20, 21, 461 F.2d at 105 106 and nn. 20, 21, but expressed doubt that the identifications at the trial had independent origins.

Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage" requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id. at 14-43, 461 F.2d at 106-134.

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The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We reexamine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In Powell v. Alabama, 287 U.S. 45, 666 (1932), the Court discussed the English common law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes, and noted that,

in at least twelve of the thirteen colonies, the rule of the English common law, in the respect now under consideration, had been definitely rejected, and the right to counsel fully recognized in all criminal prosecutions save that, in one or two instances, the right was limited to capital offenses or to the more serious crimes.

Id. at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but

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the accused felon, in theory at least,6 could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U.S. at 60. English writers were appropriately critical of this inconsistency. See, for...

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