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United States v. Wade:

US Supreme Court, 1967 (Brennan)

Author: P.V. Neff

 

  1. F: ∆ was arrested in connection with a bank robbery. The robber had worn two strips of tape on his face and had told the cashier to “give me the money.” After being appointed counsel an F.B.I. agent put him in a lineup with several prisoners, had them  all put tape on their faces, and had them say “give me the money.” Both employees of the bank identified ∆ as the robber. At trial they pointed him out in the courtroom.

 

  1. I: Will in court W identification be inadmissible where the police showed the suspect to the W before trial in a lineup without notice to and in absence of counsel?

 

  1. H:
    1. The accused is guaranteed (by the 6th Amendment) that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.
    2. A lineup is different than the mere gathering of evidence (e.g., fingerprints, blood sample, etc). They are scientific procedures the accuracy of which is well known, and can be attacked at trial—i.e., there is no prejudice to the defendant of not having his L present. A lineup is much more riddled with vagaries and variables which might crucially derogate from a fair trial.
    3. Both ∆ and his counsel should have been notified of the lineup, and counsel should have been there absent an intelligent waiver.
    4. Either legislatures or police departments can set up policies that would take lineups out of the “critical stage” category, in which case the 6th would not be violated if counsel were not informed.
    5. But a per se rule of exclusion of courtroom identification is unjustified. The govt. should have the opportunity to prove w/clear and convincing evidence that the in-court i.d.s were based on observations of the suspect other than lineup identification.

                                                               i.      But, a rule that solely excluded the lineup evidence would render the 6th Amendment right an empty one.

    1. The Wong Sun attenuation of the taint test should be used (was there exploitation of the primary illegality or by means purged of the taint?).