Caseflicks

Supreme Court of the United States • 1972

Kirby v. Illinois

406 U.S. 682 | 92 S. Ct. 1877 | 32 L. Ed. 2d 411 | 1972 U.S. LEXIS 49

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Takeaway

In short, Kirby holds that the Sixth Amendment right to counsel at identification procedures begins only after formal adversary proceedings start; before then, suggestive showups are governed by due process rather than the Wade-Gilbert automatic exclusion rule.

Background

Willie Shard reported that two men robbed him on a Chicago street, taking his wallet, traveler's checks, and Social Security card. The next day, police stopped Kirby and Ralph Bean because they believed Kirby was wanted in an unrelated matter. Kirby possessed Shard's traveler's checks and Social Security card, and Bean had other papers bearing Shard's name. After arresting the pair and taking them to the station, officers learned of Shard's robbery.

Police brought Shard to the station, where he immediately identified Kirby and Bean as the robbers while they sat at a table in a room with police officers. No lawyer was present, and neither suspect had been advised of a right to counsel. More than six weeks later, Kirby and Bean were indicted. At Kirby's trial, Shard testified both about the station-house identification and his identification of Kirby in court.

Kirby's motion to suppress the identification evidence was denied. An Illinois appellate court affirmed his conviction, holding that the Wade-Gilbert rule requiring counsel at identification lineups did not apply to a confrontation held before indictment. The Supreme Court granted review on that question.

Issues

Issue #1

Whether the Sixth Amendment right to counsel required exclusion of identification testimony derived from a police station showup conducted after arrest but before indictment or any other formal charge.

Holding

No. The Sixth Amendment right to counsel had not attached because adversary judicial criminal proceedings had not yet begun, so the Wade-Gilbert per se exclusionary rule did not apply.

Reasoning

United States v. Wade and Gilbert v. California treated a post-indictment lineup as a critical stage of a criminal prosecution. The right protected in those cases is the Sixth Amendment right to counsel, not a freestanding rule governing every police identification procedure.

The Court read its right-to-counsel precedents as establishing that the Sixth Amendment attaches only when adversary judicial proceedings begin, such as through a formal charge, preliminary hearing, indictment, information, or arraignment. Before that point, the government has not formally committed itself to prosecute and the suspect has not yet become an accused in a criminal prosecution within the Sixth Amendment's meaning.

The start of formal proceedings is not merely technical. It marks the point at which the government and defendant assume fixed adversary positions and the defendant confronts the prosecutorial power of the State and the complexities of criminal procedure. The Court declined to extend an absolute, counsel-based exclusion rule into ordinary pre-charge police investigation.

Kirby had been arrested, but neither an indictment nor another formal charging event had occurred when Shard identified him. Thus, the station-house showup occurred before the Sixth Amendment right to counsel attached, and Shard's identification testimony was not subject to automatic exclusion under Wade and Gilbert.

Issue #2

Whether the Fifth Amendment privilege against self-incrimination, including Miranda v. Arizona, independently required counsel or exclusion at the pre-charge showup.

Holding

No. A compelled identification display does not itself elicit testimonial or communicative evidence, and Miranda therefore did not govern the showup.

Reasoning

Wade had already rejected the argument that requiring a suspect to appear in an identification procedure violates the privilege against self-incrimination. The privilege protects against compelled testimonial or communicative evidence, not against being required to display physical characteristics for observation.

Because Kirby's claim concerned a visual identification rather than custodial interrogation or compelled testimony, Miranda's Fifth Amendment safeguards did not apply. The relevant constitutional question was solely whether the Sixth Amendment right to counsel had attached.

Issue #3

Whether pre-charge identification procedures are entirely beyond constitutional review.

Holding

No. Even before formal charges, the Due Process Clause prohibits identification procedures that are unnecessarily suggestive and conducive to irreparable mistaken identification.

Reasoning

The Court emphasized that its refusal to apply the Sixth Amendment's per se Wade-Gilbert rule did not authorize abusive police identification practices. Courts must still scrutinize pretrial confrontations for due-process violations.

Under Stovall v. Denno and Foster v. California, due process forbids a lineup or showup that is unnecessarily suggestive and likely to produce an irreparable misidentification. The Court regarded that standard as the appropriate balance between protecting an uncharged suspect and permitting prompt investigation of unsolved crimes.

Because certiorari was limited to the pre-indictment right-to-counsel question, the Court did not decide whether the particular circumstances of Kirby's showup independently violated due process.

Concurrences

Chief Justice Burger

Reasoning

Chief Justice Burger joined the plurality's opinion and judgment. He agreed that the right to counsel attaches when criminal charges are formally made and the accused becomes the subject of a criminal prosecution.

Justice Powell

Reasoning

Justice Powell concurred only in the result. He stated that he would not extend the Wade-Gilbert per se exclusionary rule, but he did not expressly adopt the plurality's broader account of when the Sixth Amendment right to counsel attaches.

Dissents

Justice Brennan

Reasoning

Justice Brennan, joined by Justices Douglas and Marshall, viewed Wade and Gilbert as protecting the accused's ability to receive a fair trial and meaningfully challenge eyewitness identification. In his view, counsel is required at a pretrial identification confrontation when counsel's absence creates a serious risk that the defendant cannot later expose unfairness through cross-examination.

A post-arrest showup presents the same dangers of suggestion, misidentification, and inability to reconstruct what occurred as a post-indictment lineup. The crucial question should therefore be whether the confrontation is a critical stage because it threatens the fairness of the eventual trial, not whether prosecutors have completed the formal act of filing charges.

The station-house showup here was especially suggestive: Shard was brought into a police room and shown only Kirby and Bean, both already under arrest and surrounded by officers. Because the State's case depended on Shard's identification, the lack of counsel at that confrontation was consequential. Brennan would apply Gilbert's per se exclusionary rule and reverse.

Brennan also rejected the plurality's reliance on formal charging as a principled constitutional line. He argued that Wade's reasoning, as well as prior cases involving identifications, focused on the inherent hazards of eyewitness confrontations rather than on the date an indictment or information happened to be filed.

Justice White

Reasoning

Justice White dissented separately and stated that Wade and Gilbert controlled the case. He would have reversed the Illinois judgment because Kirby was denied counsel at the identification confrontation.