Caseflicks

Supreme Court of the United States • 1967

United States v. Wade

388 U.S. 218 | 87 S. Ct. 1926 | 18 L. Ed. 2d 1149 | 1967 U.S. LEXIS 1085

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Takeaway

In short, United States v. Wade held that a post-indictment lineup is a Sixth Amendment critical stage requiring counsel, but a later courtroom identification remains admissible if the government proves it rests on an independent source rather than the uncounseled lineup.

Background

After a federally insured bank in Eustace, Texas, was robbed, Wade was indicted, arrested, and appointed counsel. Fifteen days after counsel’s appointment, FBI agents arranged a lineup without notifying counsel. Wade stood with five or six other prisoners, wore facial tape similar to that reportedly worn by the robber, and repeated words allegedly used during the robbery. Two bank employees identified him.

At trial, both employees identified Wade in the courtroom. On cross-examination, defense counsel elicited their prior lineup identifications and moved to exclude the courtroom identifications, arguing that the uncounseled lineup violated the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The trial court denied the motion and Wade was convicted. The Fifth Circuit reversed and ordered a new trial excluding the in-court identifications. The Supreme Court vacated that judgment and remanded for a hearing under a different remedy framework.

Issues

Issue #1

Whether compelling an accused to appear in a lineup, wear distinctive facial tape, and repeat words allegedly used by the perpetrator violates the Fifth Amendment privilege against self-incrimination.

Holding

No. These compelled acts supplied physical identification evidence, not testimonial or communicative evidence protected by the Fifth Amendment.

Reasoning

The privilege against self-incrimination protects an accused from being compelled to communicate testimony or knowledge, but it does not exclude the accused’s body or physical characteristics as evidence. Under Schmerber and Holt, the government may require a suspect to provide physical evidence, such as a blood sample or an exhibition of physical appearance.

Wade’s appearance in the lineup was therefore non-testimonial. Requiring him to wear tape on his face merely allowed witnesses to observe physical characteristics associated with the robber’s appearance.

Likewise, requiring Wade to speak used his voice as an identifying physical characteristic. He was not compelled to admit guilt or reveal knowledge; he was required only to provide a voice exemplar. The government also did not introduce Wade’s actual words or conduct at the lineup as substantive evidence at trial.

Issue #2

Whether a post-indictment lineup conducted for identification purposes is a critical stage of the prosecution at which the Sixth Amendment requires notice to and the presence of counsel.

Holding

Yes. A post-indictment lineup is a critical stage, and absent an intelligent waiver, the accused and counsel must receive notice and counsel must be allowed to attend.

Reasoning

The Sixth Amendment protects more than the defendant’s formal appearance at trial. It guarantees counsel at any formal or informal stage where the absence of counsel may undermine the accused’s ability to receive a fair trial and meaningfully confront the prosecution’s evidence.

A lineup differs from routine scientific testing, such as fingerprint, blood, or clothing analysis. Those forms of evidence can ordinarily be tested at trial through expert testimony and cross-examination. By contrast, the conditions of an identification confrontation are often difficult to reconstruct after the fact.

Eyewitness identification presents distinctive risks. Witnesses may be influenced intentionally or unintentionally by the composition of the lineup, comments or signals from officers, the suspect’s distinctive appearance or clothing, or exposure to the suspect before the lineup begins. Once a witness identifies a suspect, that identification may harden into certainty and shape the later courtroom identification.

Without counsel at the lineup, defense counsel may be unable to discover or prove suggestive procedures at trial. The accused may not notice the relevant details, may be unable to describe them persuasively, and may hesitate to testify because of prior convictions. Counsel’s presence can deter unfairness, observe the procedure, and provide a foundation for effective cross-examination.

No adequate countervailing law-enforcement interest justified denying counsel here. Wade already had appointed counsel, and the Court left open whether substitute counsel could be used if waiting for retained or appointed counsel would cause prejudicial delay. The Court also observed that sufficiently reliable legislative or police procedures could reduce the dangers that make a lineup critical.

Issue #3

Whether an in-court identification following an unconstitutional uncounseled lineup must automatically be excluded.

Holding

No. The government may establish by clear and convincing evidence that the courtroom identification had an independent source apart from the illegal lineup; if it cannot, the court must also determine whether admission was harmless error.

Reasoning

A rule excluding only testimony about the lineup identification would not adequately protect the right to counsel. A lineup can crystallize a witness’s identification, allowing the prosecution to rely on an apparently certain courtroom identification while leaving defense counsel unable to expose the lineup’s possible suggestiveness.

At the same time, automatic exclusion of every subsequent courtroom identification would be unwarranted. A witness may have an independent basis for identifying the accused, such as a substantial opportunity to observe the perpetrator during the crime.

The governing inquiry is whether the courtroom identification resulted from exploitation of the uncounseled lineup or instead came from a source sufficiently independent to purge the taint. Relevant factors include the witness’s prior opportunity to observe the crime, discrepancies between prior descriptions and the defendant’s appearance, prior identifications or failures to identify, any photographic identification, the time between the crime and lineup, and known facts about the lineup’s conduct.

Because the trial court had not decided whether the bank employees’ courtroom identifications rested on an independent source, the Court vacated the conviction and remanded. The District Court was directed to determine whether the identifications were independently based or whether any error was harmless, then either reinstate the conviction or order a new trial.

Concurrences

Justice Clark

Reasoning

Justice Clark agreed that the lineup did not violate the Fifth Amendment under Schmerber. He also agreed that the lineup was plainly a critical stage because identification is indispensable to proving guilt and, under the Court’s existing right-to-counsel precedents, counsel must be present unless the accused waives that right. Although he had dissented in Miranda, he regarded it as binding precedent and joined the Court’s opinion.

Justice Fortas

Reasoning

Justice Fortas, joined in this respect by Chief Justice Warren and Justice Douglas, agreed that merely exhibiting an arrested person for observation in a lineup does not itself violate the Fifth Amendment. He also agreed that a lineup is a critical stage at which the accused must have the opportunity for counsel.

He disagreed with the majority’s treatment of compelled speech. In his view, requiring Wade to repeat the robber’s words forced an affirmative and volitional act rather than passive exhibition of a physical characteristic. The Fifth Amendment preserves an accused’s right to stand mute, and the government could not compel such speech in court or, in Fortas’s view, outside court at a lineup.

Fortas would therefore treat the compelled utterance as an additional Fifth Amendment violation. He agreed with remanding for an independent-source determination, but he would require that inquiry to account for both the denial of counsel and the unconstitutional compelled speech.

Dissents

Justice Black

Reasoning

Justice Black agreed that the uncounseled lineup denied Wade the Sixth Amendment right to counsel, but he disagreed with the majority’s Fifth Amendment analysis. Consistent with his dissent in Schmerber, he believed the privilege bars the government from forcing a person to provide evidence of his own guilt. In his view, compelling Wade to wear the robber’s facial tape and repeat the robber’s words forced him to help supply proof against himself.

Black also rejected the majority’s remedy. Because the prosecution did not introduce the lineup identification in its case and the defense itself elicited the lineup on cross-examination, he would not suppress the witnesses’ courtroom identifications or order an independent-source hearing.

He regarded the majority’s fruit-of-the-poisonous-tree inquiry as practically unworkable because courts cannot reliably separate a witness’s memory of the crime from the influence of a later lineup. More fundamentally, he found no constitutional authority for imposing this broad exclusionary rule on federal and state evidentiary proceedings. He would affirm Wade’s conviction.

Justice White

Reasoning

Justice White, joined by Justices Harlan and Stewart, agreed that Wade’s Fifth Amendment privilege was not violated and that ordinary scientific testing is not a critical stage. But he rejected the Court’s conclusion that counsel is constitutionally required at identification confrontations and dissented from the judgment.

He thought the Court rested its rule on unsupported assumptions that police suggestion is widespread, that it commonly produces erroneous identifications, and that defense counsel cannot later uncover the relevant facts through ordinary investigation and cross-examination. In his view, the cases before the Court showed that allegedly improper lineup circumstances could in fact be brought out at trial.

White also warned that an absolute counsel requirement could delay prompt identifications, burden witnesses, impede investigations, and make early identification procedures less practical. Prompt identification can serve both the state and an innocent suspect by quickly confirming or dispelling suspicion.

Finally, he doubted that adding defense counsel to police investigation would improve truth-finding. Defense counsel’s proper adversarial role is to challenge the prosecution’s proof, not to assist neutral fact investigation; White feared that counsel’s participation could obstruct reliable identification rather than strengthen it. He would leave the states free to regulate pretrial identifications without this constitutional rule.