U.S. Supreme Court United States v. Ash, 413
U.S. 300 (1973) United States v. Ash No. 71-1255 Argued January 10,
1973 Decided June 21, 1973 413
U.S. 300 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus 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. 413 U. S.
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. 413 U. S. 321 .
BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and
MARSHALL, JJ., joined, post, p. 413 U. S.
326 .

															MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															In this case, the Court is called upon to decide whether Page 413 U. S. 301 the Sixth Amendment [ Footnote
1 ] 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. [ Footnote 2 ] We granted certiorari Page 413 U. S. 302 to resolve the conflict and to decide this important
constitutional question. 407 U.S. 909 (1972). We reverse and
remand. I 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 Page 413 U. S. 303 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-indictment [ Footnote 3 ] identification provides the basis for
respondent Ash's claim that he was denied the right to counsel at a
"critical stage" of the prosecution.

															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. [ Footnote 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 Page 413 U. S. 304 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. [ Footnote
5 ] Page 413 U. S. 305 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 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. Page 413 U. S. 306 II 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 287 U. S. 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 Page 413 U. S. 307 the accused felon, in theory at least, [ Footnote 6 ] could consult counsel only on legal
questions that the accused proposed to the court. See Powell v.
Alabama, 287 U.S. at 287 U. S. 60 .
English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.

															A concern of more lasting importance was the recognition and
awareness that an unaided layman had little skill in arguing the
law or in coping with an intricate procedural system. The function
of counsel as a guide through complex legal technicalities long has
been recognized by this Court. Mr. Justice Sutherland's well known
observations in Powell bear repeating here:

															"Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he
is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial
without a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his
defense, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his
innocence."

															287 U.S. at 287 U. S. 69 .
The Court frequently has interpreted the Sixth Amendment Page 413 U. S. 308 to assure that the "guiding hand of counsel" is available to
those in need of its assistance. See, for example, Gideon v.
Wainwright, 372 U. S. 335 , 372 U. S.
344 -345 (1963), and Argersinger v. Hamlin, 407 U. S. 25 , 407 U. S. 31 (1972).

															Another factor contributing to the colonial recognition of the
accused's right to counsel was the adoption of the institution of
the public prosecutor from the Continental inquisitorial system.
One commentator has explained the effect of this development:

															"[E]arly in the eighteenth century, the American system of
judicial administration adopted an institution which was (and to
some extent still is) unknown in England: while rejecting the
fundamental juristic concepts upon which continental Europe's
inquisitorial system of criminal procedure is predicated, the
colonies borrowed one of its institutions, the public prosecutor,
and grafted it upon the body of English (accusatorial) procedure
embodied in the common law. Presumably, this innovation was brought
about by the lack of lawyers, particularly in the newly settled
regions, and by the increasing distances between the colonial
capitals on the eastern seaboard and the ever-receding western
frontier. Its result was that, at a time when virtually all but
treason trials in England were still in the nature of suits between
private parties, the accused in the colonies faced a government
official whose specific function it was to prosecute, and who was
incomparably more familiar than the accused with the problems of
procedure, the idiosyncrasies of juries, and, last but not least,
the personnel of the court."

															F. Heller, The Sixth Amendment 2021 (1951) (footnote
omitted). Page 413 U. S. 309 Thus, an additional motivation for the American rule was a
desire to minimize the imbalance in the adversary system that
otherwise resulted with the creation of a professional prosecuting
official. Mr. Justice Black, writing for the Court in Johnson
v. Zerbst, 304 U. S. 458 , 304 U. S.
462 -463 (138), spoke of this equalizing effect of the
Sixth Amendment's counsel guarantee:

															"It embodies a realistic recognition of the obvious truth that
the average defendant does not have the professional legal skill to
protect himself when brought before a tribunal with power to take
his life or liberty, wherein the prosecution is presented by
experienced and learned counsel."

															This historical background suggests that the core purpose of the
counsel guarantee was to assure "Assistance" at trial, when the
accused was confronted with both the intricacies of the law and the
advocacy of the public prosecutor. [ Footnote 7 ] Later developments have led this Court Page 413 U. S. 310 to recognize that "Assistance" would be less than meaningful if
it were limited to the formal trial itself.

															This extension of the right to counsel to events before trial
has resulted from changing patterns of criminal procedure and
investigation that have tended to generate pretrial events that
might appropriately be considered to be parts of the trial itself.
At these newly emerging and significant events, the accused was
confronted, just as at trial, by the procedural system, or by his
expert adversary, or by both. In Wade, the Court explained
the process of expanding the counsel guarantee to these
confrontations:

															"When the Bill of Rights was adopted, there were no organized
police forces as we know them today. The accused confronted the
prosecutor and the witnesses against him, and the evidence was
marshalled, largely at the trial itself. In contrast, today's law
enforcement machinery involves critical confrontations of the
accused by the prosecution at pretrial proceedings where the
results might well settle the accused's fate and reduce the trial
itself to a mere formality. In recognition of these realities of
modern criminal prosecution, our cases have construed the Sixth
Amendment guarantee to apply to 'critical' Page 413 U. S. 311 stages of the proceedings."

															388 U.S. at 388 U. S. 224 (footnote omitted).

															The Court consistently has applied a historical interpretation
of the guarantee, and has expanded the constitutional right to
counsel only when new contexts appear presenting the same dangers
that gave birth initially to the right itself.

															Recent cases demonstrate the historical method of this
expansion. In Hamilton v. Alabama, 368 U. S.
52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and
was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U.
S. 201 (1964), the accused was confronted by prosecuting
authorities who obtained, by ruse and in the absence of defense
counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970),
the accused was confronted by his adversary at a "critical stage"
preliminary hearing at which the uncounseled accused could not hope
to obtain so much benefit as could his skilled adversary.

															The analogy between the unrepresented accused at the pretrial
confrontation and the unrepresented defendant at trial, implicit in
the cases mentioned above, was explicitly drawn in Wade: "The trial which might determine the accused's fate may well not
be that in the courtroom but that, at the pretrial confrontation,
with the State aligned against the accused, the witness the sole
jury, and the accused unprotected against the overreaching,
intentional or unintentional, and with little or no effective
appeal from the judgment there rendered by the witness -- 'that's
the man.'"

															388 U.S. at 388 U. S.
235 -236. Page 413 U. S. 312 Throughout this expansion of the counsel guarantee to trial-like
confrontations, the function of the lawyer has remained essentially
the same as his function at trial. In all cases considered by the
Court, counsel has continued to act as a spokesman for, or advisor
to, the accused. The accused's right to the "Assistance of Counsel"
has meant just that, namely, the right of the accused to have
counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as
advising the accused on available defenses in order to allow him to
plead intelligently. 368 U.S. at 368 U. S. 54 -55;
373 U.S. at 373 U. S. 60 . In Massiah, counsel could have advised his client on the
benefits of the Fifth Amendment and could have sheltered him from
the overreaching of the prosecution. 377 U.S. at 377 U. S. 205 . Cf. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 466 (1966). In Coleman, the skill of the lawyer in examining
witnesses, probing for evidence, and making legal arguments was
relied upon by the Court to demonstrate that, in the light of the
purpose of the preliminary hearing under Alabama law, the accused
required "assistance" at that hearing. 399 U.S. at 399 U. S. 9 .

															The function of counsel in rendering "assistance" continued at
the lineup under consideration in Wade and its companion
cases. Although the accused was not confronted there with legal
questions, the lineup offered opportunities for prosecuting
authorities to take advantage of the accused. Counsel was seen by
the Court as being more sensitive to, and aware of, suggestive
influences than the accused himself, and as better able to
reconstruct the events at trial. Counsel present at lineup would be
able to remove disabilities of the accused in precisely the same
fashion that counsel compensated for the disabilities of the layman
at trial. Thus, the Court mentioned that the accused's memory might
be dimmed by "emotional tension," that the accused's credibility
at Page 413 U. S. 313 trial would be diminished by his status as defendant, and that
the accused might be unable to present his version effectively
without giving up his privilege against compulsory
self-incrimination. United States v. Wade, 388 U.S. at 388 U. S.
230 -231. It was in order to compensate for these
deficiencies that the Court found the need for the assistance of
counsel.

															This review of the history and expansion of the Sixth Amendment
counsel guarantee demonstrates that the test utilized by the Court
has called for examination of the event in order to determine
whether the accused required aid in coping with legal problems or
assistance in meeting his adversary. Against the background of this
traditional test, we now consider the opinion of the Court of
Appeals. III Although the Court of Appeals' majority recognized the argument
that

															"a major purpose behind the right to counsel is to protect the
defendant from errors that he himself might make if he appeared in
court alone,"

															the court concluded that "other forms of prejudice," mentioned
and recognized in Wade, could also give rise to a right to
counsel. 149 U.S.App.D.C. at 10, 461 F.2d at 101. These forms of
prejudice were felt by the court to flow from the possibilities for
mistaken identification inherent in the photographic display.
[ Footnote 8 ] Page 413 U. S. 314 We conclude that the dangers of mistaken identification,
mentioned in Wade, were removed from context by the Court
of Appeals and were incorrectly utilized as a sufficient basis for
requiring counsel. Although Wade did discuss possibilities
for suggestion and the difficulty for reconstructing suggestivity,
this discussion occurred only after the Court had concluded that
the lineup constituted a trial-like confrontation, requiring the
"Assistance of Counsel" to preserve the adversary process by
compensating for advantages of the prosecuting authorities.

															The above discussion of Wade has shown that the
traditional Sixth Amendment test easily allowed extension of
counsel to a lineup. The similarity to trial was apparent, and
counsel was needed to render "assistance" in counterbalancing any
"overreaching" by the prosecution.

															After the Court in Wade held that a lineup constituted
a trial-like confrontation requiring counsel, a more difficult
issue remained in the case for consideration. The same changes in
law enforcement that led to lineups and pretrial hearings also
generated other events at which the accused was confronted by the
prosecution. The Government had argued in Wade that, if
counsel was required at a lineup, the same forceful considerations
would mandate counsel at other preparatory steps in the "gathering
of the prosecution's evidence," such as, for Page 413 U. S. 315 particular example, the taking of fingerprints or blood samples.
388 U.S. at 388 U. S.
227 .

															The Court concluded that there were differences. Rather than
distinguishing these situations from the lineup in terms of the
need for counsel to assure an equal confrontation at the time, the
Court recognized that there were times when the subsequent trial
would cure a one-sided confrontation between prosecuting
authorities and the uncounseled defendant. In other words, such
stages were not "critical." Referring to fingerprints, hair,
clothing, and other blood samples, the Court explained:

															"Knowledge of the techniques of science and technology is
sufficiently available, and the variables in techniques few enough,
that the accused has the opportunity for a meaningful confrontation
of the Government's case at trial through the ordinary processes of
cross-examination of the Government's expert witnesses and the
presentation of the evidence of his own experts."

															388 U.S. at 388 U. S.
227 -228.

															The structure of Wade, viewed in light of the careful limitation
of the Court's language to "confrontations," [ Footnote 9 ] Page 413 U. S. 316 makes it clear that lack of scientific precision and inability
to reconstruct an event are not the tests for requiring counsel in
the first instance. These are, instead, the tests to determine
whether confrontation with counsel at trial can serve as a
substitute for counsel at the pretrial confrontation. If accurate
reconstruction is possible, the risks inherent in any confrontation
still remain, but the opportunity to cure defects at trial causes
the confrontation to cease to be "critical." The opinion of the
Court even indicated that changes in procedure might cause a lineup
to cease to be a "critical" confrontation:

															"Legislative or other regulations, such as those of local police
departments, which eliminate the risks of abuse and unintentional
suggestion at lineup proceedings and the impediments to meaningful
confrontation at trial may also remove the basis for regarding the
stage as 'critical.'"

															388 U.S. at 388 U. S. 239 (footnote omitted). See, however, id. at 388 U. S. 262 n. (opinion of Fortas, J.).

															The Court of Appeals considered its analysis complete after it
decided that a photographic display lacks scientific precision and
ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one
must establish that the trial itself can provide no substitute for
counsel if a pretrial confrontation is conducted in the absence of
counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F.2d 888 (1969), recognized
that the "criticality" test of Wade, if applied outside
the confrontation context, would result in drastic expansion of the
right to counsel:

															"None of the classical analyses of the assistance to be given by
counsel, Justice Sutherland's in Powell v. Alabama . . .
and Justice Black's in Johnson v. Page 413 U. S. 317 Zerbst . . . and Gideon v. Wainwright . . .
suggests that counsel must be present when the prosecution is
interrogating witnesses in the defendant's absence, even when, as
here, the defendant is under arrest; counsel is, rather, to be
provided to prevent the defendant himself from falling into traps
devised by a lawyer on the other side, and to see to it that all
available defenses are proffered. Many other aspects of the
prosecution's interviews with a victim or a witness to a crime
afford just as much opportunity for undue suggestion as the display
of photographs; so, too, do the defense's interviews, notably with
alibi witnesses." Id. at 899-900. We now undertake the threshold analysis
that must be addressed. IV A substantial departure from the historical test would be
necessary if the Sixth Amendment were interpreted to give Ash a
right to counsel at the photographic identification in this case.
Since the accused himself is not present at the time of the
photographic display, and asserts no right to be present, Brief for
Respondent 40, no possibility arises that the accused might be
misled by his lack of familiarity with the law or overpowered by
his professional adversary. Similarly, the counsel guarantee would
not be used to produce equality in a trial-like adversary
confrontation. Rather, the guarantee was used by the Court of
Appeals to produce confrontation at an event that previously was
not analogous to an adversary trial.

															Even if we were willing to view the counsel guarantee in broad
terms as a generalized protection of the adversary process, we
would be unwilling to go so far as to extend the right to a portion
of the prosecutor's trial preparation interviews with witnesses.
Although photography Page 413 U. S. 318 is relatively new, the interviewing of witnesses before trial is
a procedure that predates the Sixth Amendment. In England in the
16th and 17th centuries, counsel regularly interviewed witnesses
before trial. 9 W. Holdsworth, History of English Law 226-228
(1926). The traditional counterbalance in the American adversary
system for these interviews arises from the equal ability of
defense counsel to seek and interview witnesses himself.

															That adversary mechanism remains as effective for a photographic
display as for other parts of pretrial interviews. [ Footnote 10 ] No greater limitations are
placed on defense counsel in constructing displays, seeking
witnesses, and conducting photographic identifications than those
applicable to the prosecution. [ Footnote 11 ] Selection of the picture of a person other
than the accused, or the inability of a witness to make any
selection, will be useful to the defense in precisely the same
manner that the selection of Page 413 U. S. 319 a picture of the defendant would be useful to the prosecution.
[ Footnote 12 ] In this very
case, for example, the initial tender of the photographic display
was by Bailey's counsel, who sought to demonstrate that the witness
had failed to make a photographic identification. Although we do
not suggest that equality of access to photographs removes all
potential for abuse, [ Footnote
13 ] it does remove any inequality in the adversary process
itself, and thereby fully satisfies the historical spirit of the
Sixth Amendment's counsel guarantee.

															The argument has been advanced that requiring counsel might
compel the police to observe more scientific procedures or might
encourage them to utilize corporeal, rather than photographic,
displays. [ Footnote 14 ] This
Court has Page 413 U. S. 320 recognized that improved procedures can minimize the dangers of
suggestion. Simmons v. United States, 390 U.
S. 377 , 390 U. S. 386 n. 6 (1968). Commentators have also proposed more accurate
techniques. [ Footnote
15 ]

															Pretrial photographic identifications, however, are hardly
unique in offering possibilities for the actions of the prosecutor
unfairly to prejudice the accused. Evidence favorable to the
accused may be withheld; testimony of witnesses may be manipulated;
the results of laboratory tests may be contrived. In many ways, the
prosecutor, by accident or by design, may improperly subvert the
trial. The primary safeguard against abuses of this kind is the
ethical responsibility of the prosecutor, [ Footnote 16 ] who, as so often has been said, may
"strike hard blows," but not "foul ones." Berger v. United
States, 295 U. S. 78 , 295 U. S. 88 (1935); Brady v. Maryland, 373 U. S.
83 , 373 U. S. 87 -88
(1963). If that safeguard fails, review remains available under due
process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U.
S. 103 , 294 U. S. 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguard apply to misuse of photographs. See Simmons v. United States, 390 U.S. at 390 U. S.
384 . Page 413 U. S. 321 We are not persuaded that the risks inherent in the use of
photographic displays are so pernicious that an extraordinary
system of safeguards is required.

															We hold, then, that the Sixth Amendment does not grant the right
to counsel at photographic displays conducted by the Government for
the purpose of allowing a witness to attempt an identification of
the offender. This holding requires reversal of the judgment of the
Court of Appeals. Although respondent Ash has urged us to examine
this photographic display under the due process standard enunciated
in Simmons v. United States, 390 U.S. at 390 U. S. 384 ,
the Court of Appeals, expressing the view that additional findings
would be necessary, refused to decide the issue. 149 U.S.App.D.C.
at 7, 461 F.2d at 98. We decline to consider this question on this
record in the first instance. It remains open, of course, on the
Court of Appeals' remand to the District Court. Reversed and remanded. [ Footnote 1 ]

															"In all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence."

															[ Footnote 2 ] United States v. Bennett, 409 F.2d 888, 898-900 (CA2), cert. denied sub nom. Haywood v. United States, 396 U.S.
852 (1969); United States ex rel. Reed v. Anderson, 461
F.2d 739 (CA3 1972) (en banc); United States v. Collins, 416 F.2d 696 (CA4 1969), cert. denied, 396 U.S. 1025
(1970); United States v. Balard, 423 F.2d 127 (CA5 1970); United States v. Serio, 440 F.2d 827, 829-830 (CA6 1971); United States v. Robinson, 406 F.2d 64, 67 (CA7), cert. denied, 395 U.S. 926 (1969); United States v.
Long, 449 F.2d 288, 301302 (CA8 1971), cert.denied, 405 U.S. 974 (1972); Allen v. Rhay, 431 F.2d 1160,
1166-1167 (CA9 1970); McGee v. United States, 402 F.2d
434, 436 (CA10 1968), cert. denied, 394 U.S. 908 (1969).
The en banc decision of the Third Circuit in Anderson overruled in part a panel decision in United States v.
Zeiler, 427 F.2d 1305 (CA3 1970).

															The question has also produced conflicting decisions in state
courts. The majority view, as in the courts of appeals, rejects the
claimed right to counsel. See, e.g., McGhee v. State, 48
Ala.App. 330, 264 So. 2d 560 (Ala.Crim.App. 1972); State v. Yehling, 108 Ariz. 323, 498 P.2d 145 (1972); People v. Lawrence, 4 Cal. 3d
273 , 481 P.2d 212 (1971), cert. denied, 407 U.S. 909
(1972); Reed v. State, ___ Del. ___, 281 A.2d
142 (1971); People v. Holiday, 47 Ill. 2d
300 , 265 N.E.2d
634 (1970); Baldwin v. State, 5 Md.App. 22, 245 A.2d 98 (1968) (dicta); Commonwealth v. Ross, ___
Mass. ___, 282
N.E.2d 70 (1972), vacated on other grounds and
remanded, 410 U.S. 901 (1973); Stevenson v.
State, 244 So. 2d
30 (Miss.1971); State v. Brookins, 468 S.W.2d 42 (Mo.1971) (dicta); People v. Coles, 34 App.Div.2d 1051,
312 N.Y.S.2d 621 (1970) (dicta); State v. Moss, 187 Neb.
391, 191 N.W.2d
543 (1971); Drewry v. Commonwealth, 213 Va. 186, 191
S.E.2d 178 (1972); State v. Nettles, 81 Wash. 2d
205 , 500 P.2d
752 (1972); Kain v. State, 48 Wis.2d 212, 179 N.W.2d
777 (1970). Cf. State v. Accor, 277 N.C. 65, 175 S.E.2d
583 (1970). Several state courts, however, have granted a right
to counsel at photographic identifications. See, e.g., Cox v.
State, 219 So. 2d 762 (Fla.App. 1969) (video tapes); People v. Anderson, 389 Mich. 155, 205
N.W.2d 461 (1973); Thompson v. State, 85 Nev. 134, 451 P.2d 704 , cert. denied, 396 U.S. 893 (1969); Commonwealth v.
Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400
U.S. 919 (1970).

															[ Footnote 3 ]

															Respondent Ash does not assert a right to counsel at the
black-and-white photographic display in February, 1966, because he
recognizes that Kirby v. Illinois, 406 U.
S. 682 (1972), forecloses application of the Sixth
Amendment to events before the initiation of adversary criminal
proceedings. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n.
21.

															[ Footnote 4 ]

															At this hearing, both the black-and-white and color photographs
were introduced as exhibits. App. 44. The FBI agents who conducted
the pretrial displays were called as witnesses and were
cross-examined fully. App. 10, 28. Two of the four witnesses who
were expected to make in-court identifications also testified, and
were cross-examined concerning the photographic identifications.
App. 55, 65.

															[ Footnote 5 ]

															The majority of the Court of Appeals concluded that Ash's
counsel properly had preserved his objection to introduction of the
photographs. 149 U.S.App.D.C. at 6 n. 6, 461 F.2d at 97 n. 6.
Although the contrary view of the dissenting judges has been noted
here by the Government, the majority's ruling on this issue is not
asserted by the Government as a basis for reversal. Pet. for Cert.
4 n. 5; Brief for United States 6 n. 6. Under these circumstances,
we are not inclined to disturb the ruling of the Court of Appeals
on this close procedural question. App. 104, 126-131.

															[ Footnote 6 ]

															Although the English limitation was not expressly rejected until
1836, the rule appears to have been relaxed in practice. 9 W.
Holdsworth, History of English Law 235 (1926); 4 W. Blackstone,
Commentaries *355-356.

															[ Footnote 7 ]

															Similar concerns eventually led to abandonment of the common law
rule in England. That rule originated at a time when counsel was
said to be "hardly necessary," because expert knowledge of the law
was not required at trial and systematic examination of witnesses
had not yet developed. T. Plucknett, A Concise History of the
Common Law 410 (4th ed.1948).

															Confrontation with legal technicalities became common at English
trials when complex rules developed for attacking the indictment. Ibid. The English response was not an unlimited right to
counsel, however, but was rather a right for counsel to argue only
legal questions. See Powell v. Alabama, 287 U. S.
45 , 287 U. S. 60 (1932). A plea in abatement directed at insufficiency of the
indictment, for example, allowed a prisoner to "pray counsel to be
assigned to him to manage his exceptions and take more." 2 M. Hale,
Pleas of the Crown 236 (1736).

															Confrontation with a professional prosecutor arose in English
treason trials before it appeared in ordinary criminal trials. See 1 J. Stephen, History of the Criminal Law of England
348-350 (1883). In 1695, this imbalance in the adversary process
was corrected by a statute granting prisoners the right to counsel
at treason trials. 7 Wm. 3, c. 3 (1695). Hawkins explained that the
professional ability of king's counsel motivated this reform,
because it had

															"been found by experience that prisoners have been often under
great disadvantages from the want of counsel, in prosecutions of
high treason against the king's person, which are generally managed
for the crown with greater skill and zeal than ordinary
prosecutions. . . ."

															2 W. Hawkins, Pleas of the Crown 566 (Leach ed. 1787). The 1695
statute weakened the English rule and, after a century of narrowing
practical application, see n 6, supra, the rule was finally abrogated by
statute in 1836. The Trials for Felony Act, 6 & 7 Wm. 4, c. 114
(1836).

															[ Footnote 8 ]

															"[T]he dangers of mistaken identification from uncounseled
lineup identifications set forth in Wade are applicable in
large measure to photographic, as well as corporeal,
identifications. These include, notably, the possibilities of
suggestive influence or mistake -- particularly where witnesses had
little or no opportunity for detailed observation during the crime;
the difficulty of reconstructing suggestivity -- even greater when
the defendant is not even present; the tendency of a witness's
identification, once given under these circumstances, to be frozen.
While these difficulties may be somewhat mitigated by preserving
the photograph shown, it may also be said that a photograph can
preserve the record of a lineup; yet this does not justify a lineup
without counsel. The same may be aid of the opportunity to examine
the participants a to what went on in the course of the
identification, whether at lineup or on photograph. Sometimes this
may suffice to bring out all pertinent fact, even at a lineup, but
this would not suffice under Wade to offset the
constitutional infringement wrought by proceeding without counsel.
The presence of counsel avoid possibilities of suggestiveness in
the manner of presentation that are otherwise ineradicable."

															149 U.S.App.D.C. at 9-10, 461 F.2d at 100 101.

															[ Footnote 9 ]

															The Court rather narrowly defined the issues under
consideration:

															"The pretrial confrontation for purpose of
identification may take the form of a lineup, also known as an
'identification parade' or 'showup,' as in the present case, or
presentation of the suspect alone to the witness, as in Stovall
v. Denno, supra. It is obvious that risks of suggestion attend
either form of confrontation. . . . But as is the case
with secret interrogations, there is serious difficulty in
depicting what transpires at lineups and other forms of
identification confrontations. " United States v. Wade, 388 U.
S. 218 , 388 U. S.
229 -230 (1967) (emphasis added). The photographic
identification could hardly have been overlooked by inadvertence,
since the Government stressed the similarity between lineups and
photographic identifications. Brief for United States in Wade, No. 334, O.T. 1966, pp. 7, 14, 19, 24.

															[ Footnote 10 ]

															Duplication by defense counsel is a safeguard that normally is
not available when a formal confrontation occurs. Defense counsel
has no statutory authority to conduct a preliminary hearing, for
example, and defense counsel will generally be prevented by
practical considerations from conducting his own lineup. Even in
some confrontations, however, the possibility of duplication may be
important. The Court noted this in holding that the taking of
handwriting exemplars did not constitute a "critical stage":

															"If, for some reason, an unrepresentative exemplar is taken,
this can be brought out and corrected through the adversary process
at trial, since the accused can make an unlimited number of
additional exemplars for analysis and comparison by government and
defense handwriting experts." Gilbert v. California, 388 U.
S. 263 , 388 U. S. 267 (1967).

															[ Footnote 11 ]

															We do not suggest, of course, that defense counsel has any
greater freedom than the prosecution to abuse the photographic
identification. Evidence of photographic identifications conducted
by the defense may be excluded as unreliable under the same
standards that would be applied to unreliable identifications
conducted by the Government.

															[ Footnote 12 ]

															The Court of Appeals deemed it significant that a photographic
identification is admissible as substantive evidence, whereas other
parts of interviews may be introduced only for impeachment. 149
U.S.App. D. a., at 10, 461 F.2d at 101. In this case, defense
counsel for Bailey introduced the inability to identify, and that
was received into evidence. Thus, defense counsel still received
benefits equivalent to those available to the prosecution. Although
defense counsel may be concerned that repeated photographic
displays containing the accused's picture as the only common
characteristic will tend to promote identification of the accused,
the defense has other balancing devices available to it, such as
the use of a sufficiently large number of photographs to counteract
this possibility.

															[ Footnote 13 ]

															Although the reliability of in-court identifications and the
effectiveness of impeachment may be improved by equality of access,
we do not suggest that the prosecution's photographic
identification would be more easily reconstructed at trial simply
because defense counsel could conduct his own photographic display.
But, as we have explained supra at 413 U. S.
315 -316, the possibility of perfect reconstruction is
relevant to the evaluation of substitutes for counsel, not to the
initial designation of an event as a "critical stage."

															[ Footnote 14 ]

															Sobel, Assailing the Impermissible Suggestion: Evolving
Limitations on the Abuse of Pre-Trial Criminal Identification
Methods, 38 Brooklyn L.Rev. 261, 299 (1971); Comment, 43
N.Y.U.L.Rev. 1019, 1022 (1968); Note, 2 Rutgers Camden L.J. 347,
359 (1970); Note, 21 Syracuse L.Rev. 1235, 1241-1242 (1970). A
variant of this argument is that photographic identifications may
be used to circumvent the need for counsel at lineups. Brief for
Respondent 11 15.

															[ Footnote 15 ] E.g., Wall, Eye-Witness Identification in Criminal
Cases 775 (1965); Sobel, supra, n 14, at 309-310; Comment, 56 Iowa L.Rev. 408, 420-421
(1970).

															[ Footnote 16 ]

															Throughout a criminal prosecution, the prosecutor's ethical
responsibility extends, of course, to supervision of any continuing
investigation of the case. By prescribing procedures to be used by
his agents and by screening the evidence before trial with a view
to eliminating unreliable identifications, the prosecutor is able
to minimize abuse in photographic displays even if they are
conducted in his absence.

															MR. JUSTICE STEWART, concurring in the judgment.

															The issue in the present case is whether, under the Sixth
Amendment, a person who has been indicted is entitled to have a
lawyer present when prosecution witnesses are shown the person's
photograph and asked if they can identify him.

															The Sixth Amendment guarantees that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." This Court's decisions make
it clear that a defendant is entitled to the assistance of counsel
not only at the trial itself, but at all "critical stages" of his
"prosecution." See Coleman v. Alabama, 399 U. S.
1 ; United States v. Wade, 388 U.
S. 218 ; Gilbert v. California, 388 U.
S. 263 ; Hamilton v. Alabama, 368 U. S.
52 . The requirement Page 413 U. S. 322 that there be a "prosecution" means that this constitutional
"right to counsel attaches only at or after the time that adversary
judicial proceedings have been initiated against [an accused]. . .
."

															"It is this point . . . that marks the commencement of the
'criminal prosecutions' to which alone the explicit guarantees of
the Sixth Amendment are applicable." Kirby v. Illinois, 406 U. S. 682 , 406 U. S. 688 , 406 U. S. 690 (plurality opinion). Since the photographic identification in the
present case occurred after the accused had been indicted, and thus
clearly after adversary judicial proceedings had been initiated,
the only question is whether that procedure was such a "critical
stage" that the Constitution required the presence of counsel.

															In United States v. Wade, supra, the Court determined
that a pretrial proceeding is a "critical stage" if

															"the presence of . . . counsel is necessary to preserve the
defendant's . . . right meaningfully to cross-examine the witnesses
against him and to have effective assistance of counsel at the
trial itself."

															388 U.S. at 388 U. S. 227 .
Pretrial proceedings are "critical," then, if the presence of
counsel is essential "to protect the fairness of the trial itself." Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 239 ; cf. Coleman v. Alabama, 399 U. S. 1 , 399 U. S. 27 -28
(STEWART, J., dissenting).

															The Court held in Wade that a post-indictment, pretrial
lineup at which the accused was exhibited to identifying witnesses
was such a critical stage, because of the substantial possibility
that the accused's right to a fair trial would otherwise be
irretrievably lost. The hazard of unfair suggestive influence at a
lineup, which, because of the nature of the proceeding, could
seldom be reconstructed at trial, left little doubt, the Court
thought,

															"that for Wade, the post-indictment lineup was a critical stage
of the prosecution at which he was 'as much entitled to such aid
[of counsel] . . . as at the trial itself.'"

															388 U.S. at 388 U. S.
237 . Page 413 U. S. 323 The Court stressed in Wade that the danger of mistaken
identification at trial was appreciably heightened by the "degree
of suggestion inherent in the manner in which the prosecution
presents the suspect to witnesses for pretrial identification." Id. at 388 U. S. 228 .
There are numerous and subtle possibilities for such improper
suggestion in the dynamic context of a lineup. Judge Wilkey,
dissenting in the present case, accurately described a lineup
as:

															"a little drama, stretching over an appreciable span of time.
The accused is there in the flesh, three-dimensional, and always
full-length. Further, he isn't merely there, he acts. He walks on
stage, he blinks in the glare of lights, he turns and twists, often
muttering asides to those sharing the spotlight. He can be required
to utter significant words, to turn a profile or back, to walk back
and forth, to doff one costume and don another. All the while, the
potentially identifying witness is watching, a prosecuting attorney
and a police detective at his elbow, ready to record the witness'
every word and reaction."

															149 U.S.App.D.C. 1, 17, 461 F.2d 92, 108.

															With no attorney for the accused present at this "little drama,"
defense counsel at trial could seldom convincingly discredit a
witness' courtroom identification by showing it to be based on an
impermissibly suggestive lineup. In addition to the problems posed
by the fluid nature of a lineup, the Court in Wade pointed
out that neither the witnesses nor the lineup participants were
likely to be alert for suggestive influences or schooled in their
detection.

															"In short, the accused's inability effectively to reconstruct at
trial any unfairness that occurred at the lineup may deprive him of
his only opportunity meaningfully to attack the credibility of the
witness' courtroom identification."

															388 U.S. at 388 U. S.
231 -232. Page 413 U. S. 324 The Court held, therefore, that counsel was required at a
lineup, primarily as an observer, to ensure that defense counsel
could effectively confront the prosecution's evidence at trial.
Attuned to the possibilities of suggestive influences, a lawyer
could see any unfairness at a lineup, question the witnesses about
it at trial, and effectively reconstruct what had gone on for the
benefit of the jury or trial judge. * A photographic identification is quite different from a lineup,
for there are substantially fewer possibilities of impermissible
suggestion when photographs are used, and those unfair influences
can be readily reconstructed at trial. It is true that the
defendant's photograph may be markedly different from the other
displayed, but this unfairness can be demonstrated at trial from an
actual comparison of the photographs used or from the witness'
description of the display. Similarly, it is possible that the
photographs could be arranged in a suggestive manner, or that, by
comment or gesture, the prosecuting authorities might single out
the defendant's picture. But these are the kinds of overt influence
that a witness can easily recount, and that would serve to impeach
the identification testimony. In short, there are few possibilities
for unfair suggestiveness -- and those rather blatant and easily
reconstructed. Accordingly, an accused would not be foreclosed from
an effective cross-examination of an identification witness simply
because his counsel was Page 413 U. S. 325 not present at the photographic display. For this reason, a
photographic display cannot fairly be considered a "critical stage"
of the prosecution. As the Court of Appeals for the Third Circuit
aptly concluded:

															"If . . . the identification is not in a live lineup at which
defendant may be forced to act, speak or dress in a suggestive way,
where the possibilities for suggestion are multiplied, where the
ability to reconstruct the events is minimized, and where the
effect of a positive identification is likely to be permanent, but
at a viewing of immobile photographs easily reconstructible, far
less subject to subtle suggestion, and far less indelible in its
effect when the witness is later brought face to face with the
accused, there is even less reason to denominate the procedure a
critical stage at which counsel must be present." United States ex rel. Reed v. Anderson, 461 F.2d 739,
745.

															Preparing witnesses for trial by checking their identification
testimony against a photographic display is little different, in my
view, from the prosecutor's other interviews with the victim or
other witnesses before trial. See United States v.
Bennett, 409 F.2d 888, 900. While these procedures can be
improperly conducted, the possibility of irretrievable prejudice is
remote, since any unfairness that does occur can usually be flushed
out at trial through cross-examination of the prosecution
witnesses. The presence of defense counsel at such pretrial
preparatory sessions is neither appropriate nor necessary, under
our adversary system of justice,

															"to preserve the defendant's basic right to a fair trial as
affected by his right meaningfully to cross-examine the witnesses
against him and to have effective assistance of counsel at the
trial itself." United States v. Wade, supra, at 388 U. S.
227 . Page 413 U. S. 326 * I do not read Wade as requiring counsel because a
lineup is a "trial-type" situation, nor do I understand that the
Court required the presence of an attorney because of the advice or
assistance he could give to his client at the lineup itself.
Rather, I had thought the reasoning of Wade was that the
right to counsel is essentially a protection for the defendant at
trial, and that counsel is necessary at a lineup in order to ensure
a meaningful confrontation and the effective assistance of counsel
at trial.

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.

															The Court holds today that a pretrial display of photographs to
the witnesses of a crime for the purpose of identifying the
accused, unlike a lineup, does not constitute a "critical stage" of
the prosecution at which the accused is constitutionally entitled
to the presence of counsel. In my view, today's decision is wholly
unsupportable in terms of such considerations as logic,
consistency, and, indeed, fairness. As a result, I must reluctantly
conclude that today's decision marks simply another [ Footnote 2/1 ] step towards the complete
evisceration of the fundamental constitutional principles
established by this Court, only six years ago, in United States
v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U.
S. 293 (1967). I dissent. I On the morning of August 26, 1965, two men wearing stocking
masks robbed the American Security and Trust Co. in Washington,
D.C. The robbery lasted only about three or four minutes, and, on
the day of the crime, none of the four witnesses was able to give
the police a description of the robbers' facial characteristics.
Some five months later, on February 3, 1966, an FBI agent showed
each of the four witnesses a group of black and white mug shots of
the faces of five black males, including respondent, all of
generally the same age, height, and weight. Respondent's photograph
was included because of information received from a Government
informant charged with other crimes. [ Footnote 2/2 ] None of the witnesses Page 413 U. S. 327 was able to make a "positive" identification of respondent.
[ Footnote 2/3 ]

															On April 1, 1966, an indictment was returned charging respondent
and a codefendant in five counts relating to the robbery of the
American Security and Trust Co. Trial was finally set for May 8,
1968, almost three years after the crime and more than two years
after the return of the indictment. During the entire two-year
period between indictment and trial, although one of the witnesses
expressly sought an opportunity to see respondent in person, the
Government never attempted to arrange a corporeal lineup for the
purposes of identification. Rather, less than 24 hours before
trial, the FBI agent, accompanied by the prosecutor, showed
five color photographs to the witnesses, three of whom identified
the picture of respondent.

															At trial, all four witnesses made in-court identifications of
respondent, but only one of these witnesses was "positive" of her
identification. The fact that three of the witnesses had previously
identified respondent from the color photographs, and the
photographs themselves, were also admitted into evidence. The only
other evidence Page 413 U. S. 328 implicating respondent in the crime was the testimony of the
Government informant. [ Footnote
2/4 ] On the basis of this evidence, respondent was convicted on
all counts of the indictment.

															On appeal, the United States Court of Appeals for the District
of Columbia Circuit, sitting en banc, reversed respondent's
conviction. 149 U.S.App.D.C. 1, 461 F.2d 92 (1972). Noting that

															"the dangers of mistaken identification from uncounseled lineup
identifications . . . are applicable in large measure to
photographic, as well as corporeal, identifications, [ Footnote 2/5 ]"

															the Court of Appeals reasoned that this Court's decisions in Wade, Gilbert, and Stovall compelled the
conclusion that a pretrial photographic identification, like a
lineup, is a "critical" stage of the prosecution at which the
accused is constitutionally entitled to the attendance of counsel.
Accordingly, the Court of Appeals held that respondent was denied
his Sixth Amendment right to "the Assistance of Counsel for his
defence" when his attorney was not given an opportunity to attend
the display of the color photographs on the very eve of trial.
[ Footnote 2/6 ] In my view, both the
reasoning and conclusion of the Court of Appeals were unimpeachably
correct, and I would therefore affirm.

															II

															In June, 1967, this Court decided a trilogy of "lineup" cases
which brought into sharp focus the problems of Page 413 U. S. 329 pretrial identification. See United States v. Wade, supra;
Gilbert v. California, supra; Stovall v. Denno, supra. In
essence, those decisions held (1) that a pretrial lineup is a
"critical stage" in the criminal process at which the accused is
constitutionally entitled to the presence of counsel; (2) that
evidence of an identification of the accused at such an uncounseled
lineup is per se inadmissible; and (3) that evidence of a
subsequent in-court identification of the accused is likewise
inadmissible unless the Government can demonstrate by clear and
convincing evidence that the in-court identification was based upon
observations of the accused independent of the prior uncounseled
lineup identification. The considerations relied upon by the Court
in reaching these conclusions are clearly applicable to
photographic, as well as corporeal, identifications. Those
considerations bear repeating here in some detail, for they touch
upon the very heart of our criminal justice system -- the right of
an accused to a fair trial, including the effective "Assistance of
Counsel for his defence."

															At the outset, the Court noted that

															"identification evidence is peculiarly riddled with innumerable
dangers and variable factors which might seriously, even crucially,
derogate from a fair trial." United States v. Wade, supra, at 388 U. S. 228 .
Indeed,

															"[t]he vagaries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of mistaken
identification." Ibid. Apart from "the dangers inherent in eyewitness
identification," id. at 388 U. S. 235 ,
such as unreliable memory or perception, the Court pointed out
that

															"[a] major factor contributing to the high incidence of
miscarriage of justice from mistaken identification has been the
degree of suggestion inherent in the manner in which the
prosecution presents the suspect to witnesses for pretrial
identification." Id. at 388 U. S. 228 .
The Court recognized that the dangers of suggestion are not
necessarily due to "police Page 413 U. S. 330 procedures intentionally designed to prejudice an accused." Id. at 388 U. S. 235 .
On the contrary, "[s]uggestion can be created intentionally or
unintentionally in many subtle ways." Id. at 388 U. S. 229 .
And the

															"'fact that the police themselves have, in a given case, little
or no doubt that the man put up for identification has committed
the offense . . . involves a danger that this persuasion may
communicate itself even in a doubtful case to the witness in some
way. . . .'" Id. at 388 U. S. 235 ,
quoting Williams & Hammelmann, Identification Parades-I, [1963]
Crim.L.Rev. 479, 483.

															The Court also expressed concern over the possibility that a
mistaken identification at a pretrial lineup might itself be
conclusive on the question of identity, thereby resulting in the
conviction of an innocent man. The Court observed that,

															"'once a witness has picked out the accused at the line-up, he
is not likely to go back on his word later on, so that in practice
the issue of identity may (in the absence of other relevant
evidence) for all practical purposes be determined there and then,
before the trial.'" United States v. Wade, supra, at 388 U. S. 229 ,
quoting Williams & Hammelmann, supra, at 482.

															Moreover, "the defense can seldom reconstruct the manner and
mode of lineup identification for judge or jury at trial." United States v. Wade, supra, at 388 U. S. 230 .
For "as is the case with secret interrogations, there is serious
difficulty in depicting what transpires at lineups. . . ." Ibid. Although the accused is present at such corporeal
identifications, he is hardly in a position to detect many of the
more subtle "improper influences" that might infect the
identification. [ Footnote 2/7 ] In
addition, the Court emphasized Page 413 U. S. 331 that

															"neither witnesses nor lineup participants are apt to be alert
for conditions prejudicial to the suspect. And, if they were, it
would likely be of scant benefit to the suspect since neither
witnesses nor lineup participants are likely to be schooled in the
detection of suggestive influences." Ibid. As a result,

															"even though cross-examination is a precious safeguard to a fair
trial, it cannot [in this context] be viewed as an absolute
assurance of accuracy and reliability." Id. at 388 U. S.
235 .

															With these considerations in mind, the Court reasoned that

															"the accused's inability effectively to reconstruct at trial any
unfairness that occurred at the lineup may deprive him of his only
opportunity meaningfully to attack the credibility of the witness'
courtroom identification." Id. at 388 U. S.
231 -232. And

															"[i]nsofar as the accused's conviction may rest on a courtroom
identification in fact, the fruit of a suspect pretrial
identification which the accused is helpless to subject to
effective scrutiny at trial, the accused is deprived of that right
of cross-examination which is an essential safeguard to his right
to confront the witnesses against him." Id. at 388 U. S. 235 .
Thus, noting that "presence of counsel [at the lineup] can often
avert prejudice and assure a meaningful confrontation at trial,"
the Court concluded that a pretrial corporeal identification is "a
critical stage of the prosecution at which [the accused is] as
much entitled to such aid [of counsel] . . . as at the trial
itself.'" Id. at 388 U. S. 236 , 388 U. S. 237 ,
quoting Powell v. Alabama, 287 U. S.
45 , 287 U. S. 57 (1932). Page 413 U. S. 332 III As the Court of Appeals recognized,

															"the dangers of mistaken identification . . . set forth in Wade are applicable in large measure to photographic, as
well as corporeal, identifications."

															149 U.S.App.D.C. at 9, 461 F.2d at 100. To the extent that
misidentification may be attributable to a witness' faulty memory
or perception, or inadequate opportunity for detailed observation
during the crime, the risks are obviously as great at a
photographic display as at a lineup. [ Footnote 2/8 ] But

															"[b]ecause of the inherent limitations of photography, which
presents its subject in two dimensions, rather than the three
dimensions of reality, . . . a photographic identification, even
when properly obtained, is clearly inferior to a properly obtained
corporeal identification."

															P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965).
Indeed, noting "the hazards of initial identification by
photograph," we have expressly recognized that "a corporeal
identification . . . is normally more accurate" than a photographic
identification. Simmons v. United States, 390 U.
S. 377 , 390 U. S. 384 , 390 U. S. 386 n. 6 (1968). [ Footnote 2/9 ] Thus,
in this sense, at Page 413 U. S. 333 least, the dangers of misidentification are even greater at a
photographic display than at a lineup.

															Moreover, as in the lineup situation, the possibilities for
impermissible suggestion in the context of a photographic display
are manifold. See id. at 390 U. S. 383 .
Such suggestion, intentional or unintentional, may derive from
three possible sources. First, the photographs themselves might
tend to suggest which of the pictures is that of the suspect. For
example, differences in age, pose, or other physical
characteristics of the persons represented, and variations in the
mounting, background, lighting, or markings of the photograph all
might have the effect of singling out the accused. [ Footnote 2/10 ]

															Second, impermissible suggestion may inhere in the manner in
which the photographs are displayed to the witness. The danger of
misidentification is, of course,

															"increased if the police display to the witness . . . the
pictures of several persons among which the photograph of a single
such individual recurs or is in some way emphasized." Ibid. And, if the photographs are arranged in an
asymmetrical pattern, or if they are displayed in a time sequence
that tends to emphasize a particular photograph,

															"any identification of the photograph which stands out from the
rest is no more reliable than an identification of a single
photograph, exhibited alone."

															P. Wall, supra, at 81.

															Third, gestures or comments of the prosecutor at the time of the
display may lead an otherwise uncertain Page 413 U. S. 334 witness to select the "correct" photograph. For example, the
prosecutor might "indicate to the witness that [he has] other
evidence that one of the persons pictured committed the crime,"
[ Footnote 2/11 ] and might even
point to a particular photograph and ask whether the person
pictured "looks familiar." More subtly, the prosecutor's
inflection, facial expressions, physical motions, and myriad other
almost imperceptible means of communication might tend,
intentionally or unintentionally, to compromise the witness'
objectivity. Thus, as is the case with lineups,

															"[i]mproper photographic identification procedures, . . . by
exerting a suggestive influence upon the witnesses, can often lead
to an erroneous identification. . . ."

															P. Wall, supra, at 89. [ Footnote 2/12 ] And

															"[r]egardless of how the initial misidentification comes about,
the witness Page 413 U. S. 335 thereafter is apt to retain in his memory the image of the
photograph, rather than of the person actually seen. . . ." Simmons v. United States, supra, at 390 U. S.
383 -384. [ Footnote
2/13 ] As a result, " the issue of identity may (in the
absence of other relevant evidence), for all practical purposes, be
determined there and then, before the trial.'" United States v.
Wade, supra, at 388 U. S. 229 ,
quoting Williams & Hammelmann, supra, at 482. Moreover, as with lineups, the defense can "seldom reconstruct"
at trial the mode and manner of photographic identification. It is
true, of course, that the photographs used at the pretrial display
might be preserved for examination at trial. But "it may also be
said that a photograph can preserve the record of a lineup; yet
this does not justify a lineup without counsel." 149 U.S.App.D.C.
at 9-10, 461 F.2d at 100-101. Cf. United States v. Wade,
supra, at 388 U. S. 239 and n. 30. Indeed, in reality, preservation of the photographs
affords little protection to the unrepresented accused. For,
although retention of the photographs may mitigate the dangers of
misidentification due to the suggestiveness of the photographs
themselves, it cannot in any sense reveal to defense counsel the
more subtle, and therefore more dangerous, suggestiveness that
might derive from the manner in which the photographs were
displayed or any accompanying comments or gestures. Moreover, the
accused cannot rely upon the witnesses themselves to expose these
latter sources of suggestion, for the witnesses are not "apt to be
alert for conditions prejudicial to the suspect. And if they were,
it would likely be of scant benefit to the suspect," since the
witnesses are hardly "likely to be schooled in the detection of
suggestive influences." Id. at 388 U. S.
230 . Page 413 U. S. 336 Finally, and unlike the lineup situation, the accused himself is
not even present at the photographic identification, thereby
reducing the likelihood that irregularities in the procedures will
ever come to light. Indeed, in Wade, the Government itself
observed: [ Footnote 2/14 ]

															"When the defendant is present -- as he is during a lineup -- he
may personally observe the circumstances, report them to his
attorney, and (if he chooses to take the stand) testify about them
at trial. . . . [I]n the absence of an accused, on the other hand,
there is no one present to verify the fairness of the interview or
to report any irregularities. If the prosecution were tempted to
engage in 'sloppy or biased or fraudulent' conduct . . . , it would
be far more likely to do so when the accused is absent than when he
himself is being 'used.'"

															Thus, the difficulties of reconstructing at trial an uncounseled
photographic display are at least equal to, and possibly greater
than, those involved in reconstructing an uncounseled lineup.
[ Footnote 2/15 ] And, as the
Government argued Page 413 U. S. 337 in Wade, in terms of the need for counsel,

															"[t]here is no meaningful difference between a witness' pretrial
identification from photographs and a similar identification made
at a lineup. [ Footnote 2/16 ]"

															For, in both situations

															"the accused's inability effectively to reconstruct at trial any
unfairness that occurred at the [pretrial identification] may
deprive him of his only opportunity meaningfully to attack the
credibility of the witness' courtroom identification." United States v. Wade, supra, at 388 U. S.
231 -232. As Page 413 U. S. 338 a result, both photographic and corporeal identifications create
grave dangers that an innocent defendant might be convicted simply
because of his inability to expose a tainted identification. This
being so, considerations of logic, consistency, and, indeed,
fairness compel the conclusion that a pretrial photographic
identification, like a pretrial corporeal identification, is a
"critical stage of the prosecution at which [the accused is] as
much entitled to such aid [of counsel] . . . as at the trial
itself.'" Id. at 388 U. S. 237 ,
quoting Powell v. Alabama, 287 U.S. at 287 U. S.
57 . IV Ironically, the Court does not seriously challenge the
proposition that presence of counsel at a pretrial photographic
display is essential to preserve the accused's right to a fair
trial on the issue of identification. Rather, in what I can only
characterize a triumph of form over substance, the Court seeks to
justify its result by engrafting a wholly unprecedented -- and
wholly unsupportable -- limitation on the Sixth Amendment right of
"the accused . . . to have the Assistance of Counsel for his
defense." Although apparently conceding that the right to counsel
attaches not only at the trial itself, but at all "critical stages"
of the prosecution, see ante at 413 U. S.
309 -311, the Court holds today that, in order to be
deemed "critical," the particular "stage of the prosecution" under
consideration must, at the very least, involve the physical
"presence of the accused," at a "trial-like confrontation" with the
Government, at which the accused requires the "guiding hand of
counsel." According to the Court a pretrial photographic
identification does not, of course, meet these criteria.

															In support of this rather crabbed view of the Sixth Amendment,
the Court cites our decisions in Coleman v. Alabama, 399 U. S. 1 (1970), Massiah v. United States, 377 U.
S. 201 (1964), White v. Maryland, 373 U. S.
59 Page 413 U. S. 339 (1963), and Hamilton v. Alabama, 368 U. S.
52 (1961). Admittedly, each of these decisions
guaranteed the assistance of counsel in pretrial proceedings at
least arguably involving the physical "presence of the accused," at
a "trial-like confrontation" with the Government, at which the
accused required the "guiding hand of counsel." [ Footnote 2/17 ] Moreover, as the Court points out,
these decisions are consistent with the view that the Sixth
Amendment "embodies a realistic recognition of the obvious truth
that the average defendant does not have the professional legal
skill to protect himself when brought before a tribunal with power
to take his life or liberty, wherein the prosecution is presented
by experienced and learned counsel." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S.
462 -463 (1938). But, contrary to the Court's assumption,
this is merely one facet of the Sixth Amendment guarantee, and the
decisions relied upon by the Court represent not the boundaries of
the right to counsel, but mere applications of a far broader and
more reasoned understanding of the Sixth Amendment than that
espoused today.

															The fundamental premise underlying all of this Court's decisions
holding the right to counsel applicable at "critical" pretrial
proceedings, is that a "stage" of the prosecution must be deemed
"critical" for the purposes of the Sixth Amendment if it is one at
which the presence of counsel is necessary "to protect the fairness
of the trial itself. " Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 239 (1973) (emphasis added). Thus, in Hamilton v. Alabama, Page 413 U. S. 340 supra, for example, we made clear that an arraignment
under Alabama law is a "critical stage" of the prosecution not only
because the accused a such an arraignment requires "the guiding
hand of counsel," but, more broadly, because "[w]hat happens there
may affect the whole trial." Id. at 368 U. S. 54 .
Indeed, to exclude counsel from a pretrial proceeding at which his
presence might be necessary to assure the fairness of the
subsequent trial would, in practical effect, render the Sixth
Amendment guarantee virtually meaningless, for it would "deny a
defendant effective representation by counsel at the only stage
when legal aid and advice would help him.'" Massiah v. United
States, supra, at 377 U. S. 204 ,
quoting Spano v. New York, 360 U.
S. 315 , 360 U. S. 326 (1959) (DOUGLAS, J., concurring); see Escobedo v.
Illinois, 378 U. S. 478 , 378 U. S.
484 -485 (1964). This established conception of the Sixth
Amendment guarantee is, of course, in no sense dependent upon the
physical "presence of the accused," at a "trial-like confrontation"
with the Government, at which the accused requires the "guiding
hand of counsel." On the contrary, in Powell v. Alabama, 287 U. S. 45 (1932), the seminal decision in this area, we explicitly held the
right to counsel applicable at a stage of the pretrial proceedings
involving none of the three criteria set forth by the Court today.
In Powell, the defendants in a state felony prosecution
were not appointed counsel until the very eve of trial. This Court
held, in no uncertain terms, that such an appointment could not
satisfy the demands of the Sixth Amendment, for "`[i]t is vain . .
. to guarantee [the accused] counsel without giving the latter any
opportunity to acquaint himself with the facts or law of the
case.'" Id. at 287 U. S. 59 . In
other words, Powell made clear that, in order to preserve
the accused's right to a fair trial and to "effective and
substantial" [ Footnote 2/18 ]
assistance Page 413 U. S. 341 of counsel at that trial, the Sixth Amendment guarantee
necessarily encompasses a reasonable period of time before trial
during which counsel might prepare the defense. Yet it can hardly
be said that this preparatory period of research and investigation
involves the physical "presence of the accused," at a "trial-like
confrontation" with the Government, at which the accused requires
the "guiding hand of counsel."

															Moreover, despite the Court's efforts to rewrite Wade so as to suggest a precedential basis for its own analysis,
[ Footnote 2/19 ] the rationale of Wade lends no support whatever to today's decision. In Wade, after concluding that compelled participation in a
lineup does not violate the accused's right against
self-incrimination, [ Footnote
2/20 ] the Court addressed the argument

															"that the assistance of counsel at the lineup was indispensable
to protect Wade's most basic right as a criminal defendant -- his
right to a fair trial at which the witnesses against him might be
meaningfully cross-examined."

															388 U.S. at 388 U. S.
223 -224. The Court then surveyed the history of the
Sixth Amendment, and specifically concluded that that Amendment
guarantees "counsel's assistance whenever necessary to
assure a meaningful defence.'" Id. at 388 U. S. 225 (emphasis added). Page 413 U. S. 342 Then, after examining this Court's prior decisions concerning
the applicability of the counsel guarantee, [ Footnote 2/21 ] the Court stressed once again that a
pretrial proceeding is a "critical stage" of the prosecution if

															"the presence of his counsel is necessary to preserve the
defendant's basic right to a fair trial as affected by his right
meaningfully to cross-examine the witnesses against him and to have
effective assistance of counsel at the trial itself." Id. at 388 U. S.
227 .

															The Court next addressed the Government's contention that a
lineup is "a mere preparatory step in the gathering of the
prosecution's evidence, not different -- for Sixth Amendment
purposes -- from various other preparatory steps, such as
systematized or scientific analyzing of the accused's fingerprints,
blood sample, clothing, hair, and the like." Id. at 388 U. S. 227 .
If the Court in Wade had even the remotest intention of
embracing the wooden interpretation of the Sixth Amendment ascribed
to it today, it could have rejected the Government's contention
simply by pointing out the obvious fact that such "systematized or
scientific analyzing" does not in any sense involve the physical
"presence of the accused," at a "trial-like confrontation" with the
Government, at which the accused requires the "guiding hand of
counsel." But the Court offered not even the slightest hint of
such Page 413 U. S. 343 an approach. Instead, the Court reasoned that, in light of the
scientific nature of such analyses,

															"the accused has the opportunity for a meaningful confrontation
of the Government's case at trial through the ordinary processes of
cross-examination of the Government's expert witnesses and the
presentation of the evidence of his own experts. The denial of a
right to have his counsel present at such analyses does not,
therefore, violate the Sixth Amendment; they are not critical
stages, since there is minimal risk that his counsel's absence at
such stages might derogate from his right to a fair
trial. " Id. at 388 U. S.
227 -228 (emphasis added).

															Finally, after discussing the dangers of misidentification
arising out of lineup procedures and the difficulty of
reconstructing the lineup at trial, the Court noted that,

															"[i]nsofar as the accused's conviction may rest on a courtroom
identification in fact, the fruit of a suspect pretrial
identification which the accused is helpless to subject to
effective scrutiny at trial, the accused is deprived of that right
of cross-examination which is an essential safeguard to his right
to confront the witnesses against him." Id. at 388 U. S. 235 .
The Court therefore concluded that

															"[s]ince it appears that there is grave potential for prejudice,
intentional or not, in the pretrial lineup, which may not be
capable of reconstruction at trial, and since presence of counsel
itself can often avert prejudice and assure a meaningful
confrontation at trial, there can be little doubt that, for Wade,
the post-indictment lineup was a critical stage of the prosecution
at which he was 'as much entitled to such aid [of counsel] . . . as
at the trial itself.'" Id. at 388 U. S.
236 -237.

															Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a "critical stage" of the
prosecution did not in any sense turn on Page 413 U. S. 344 the fact that a lineup involves the physical "presence of the
accused" at a "trial-like confrontation" with the Government. And
that conclusion most certainly did not turn on the notion that
presence of counsel was necessary so that counsel could offer legal
advice or "guidance" to the accused at the lineup. On the contrary, Wade envisioned counsel's function at the lineup to be
primarily that of a trained observer, able to detect the existence
of any suggestive influences and capable of understanding the legal
implications of the events that transpire. Having witnessed the
proceedings, counsel would then be in a position effectively to
reconstruct at trial any unfairness that occurred at the lineup,
thereby preserving the accused's fundamental right to a fair trial
on the issue of identification.

															There is something ironic about the Court's conclusion today
that a pretrial lineup identification is a "critical stage" of the
prosecution because counsel's presence can help to compensate for
the accused's deficiencies as an observer, but that a pretrial
photographic identification is not a "critical stage" of the
prosecution because the accused is not able to observe at all. In
my view, there simply is no meaningful difference, in terms of the
need for attendance of counsel, between corporeal and photographic
identifications. And applying established and well-reasoned Sixth
Amendment principles, I can only conclude that a pretrial
photographic display, like a pretrial lineup, is a "critical stage"
of the prosecution at which the accused is constitutionally
entitled to the presence of counsel.

															[ Footnote 2/1 ] See Kirby v. Illinois, 406 U.
S. 682 (1972).

															[ Footnote 2/2 ]

															At the time of respondent's trial, the informant, one Clarence
McFarland, was serving a sentence for bank robbery. According to
the Court of Appeals,

															"McFarland had been before the grand jury with regard to five
separate offenses, in addition to his bank robbery, and had not
been indicted on any of them, including one in which he had
confessed guilt. The Assistant United States Attorney had arranged
to have McFarland transferred from the D.C. Jail to a local jail in
Rockville, Maryland, and in addition had helped McFarland's wife
move from Southeast Washington to an apartment near the parochial
school that McFarland's children were due to attend. 149
U.S.App.D.C. 1, 6 n. 7, 461 F.2d 92, 97 n. 7 (1972). The Assistant
United States Attorney also testified that he 'had indicated he
would testify before the parole board in McFarland's behalf.' Id. at 6, 461 F.2d at 97."

															[ Footnote 2/3 ]

															Respondent does not contend that he was denied his Sixth
Amendment right to counsel at the pre-indictment display of the
black and white photographs. Tr. of Oral Arg. 21-22; Brief for
Respondent 32 n. 21.

															[ Footnote 2/4 ]

															As the Court of Appeals noted, this testimony was of at least
questionable credibility. See 413
U.S. 300 fn2/2|>n. 2, supra. [ Footnote 2/5 ]

															149 U.S.App.D.C. at 9, 461 F.2d at 100.

															[ Footnote 2/6 ]

															The Court of Appeals also noted "that there are at the very
least strong elements of suggestiveness in this color photo
confrontation," and that

															"it is hard to see how the Government can be held to have shown,
by clear and convincing evidence, that these color photographs did
not affect the in-court identification made one day later." Id. at 7, 14 n. 20, 461 F.2d at 98, 105 n. 20.

															[ Footnote 2/7 ]

															The Court pointed out that

															"[i]mproper influences may go undetected by a suspect, guilty or
not, who experiences the emotional tension which we might expect in
one being confronted with potential accusers. Even when he does
observe abuse, if he has a criminal record he may be reluctant to
take the stand and open up the admission of prior convictions.
Moreover, any protestations by the suspect of the fairness of the
lineup made at trial are likely to be in vain; the jury's choice is
between the accused's unsupported version and that of the police
officers present." United States v. Wade, 388 U.
S. 218 , 388 U. S.
230 -231 (1967).

															[ Footnote 2/8 ]

															Thus,

															"[a] witness may have obtained only a brief glimpse of a
criminal, or may have seen him under poor conditions. Even if the
police subsequently follow the most correct photographic
identification procedures . . . , there is some danger that the
witness may make an incorrect identification." Simmons v. United States, 390 U.
S. 377 , 390 U. S. 383 (1968).

															[ Footnote 2/9 ] See also Sobel, Assailing the Impermissible Suggestion:
Evolving Limitations on the Abuse of Pre-Trial Criminal
Identification Methods, 38 Brooklyn L.Rev. 261, 264, 296 (1971);
Williams, Identification Parades, [1955] Crim.L.Rev. 525, 531;
Comment, Photographic Identification: The Hidden Persuader, 56 Iowa
L.Rev. 408, 419 (1970); Note, Pretrial Photographic Identification
-- A "Critical Stage" of Criminal Proceedings?, 21 Syracuse L.Rev.
1235, 1241 (1970). Indeed, recognizing the superiority of corporeal
to photographic identifications, English courts have long held
that, once the accused is in custody, pre-lineup photographic
identification is "indefensible" and grounds for quashing the
conviction. Rex v. Haslam, 19 Crim.App. Rep. 59, 60
(1925); Rex v. Goss, 17 Crim.App. Rep. 196, 197 (1923). See also P. Wall, Eye-Witness Identification in Criminal
Cases 71 (1965).

															[ Footnote 2/10 ] See, e.g., Comment, supra, 413
U.S. 300 fn2/9|>n. 9, at 410-411; Note, Criminal Procedure --
Photo-Identification -- Stovall Prospectivity Rule Invoked
to Avoid Extension of Right to Counsel, 43 N.Y.U.L.Rev. 1019, 1021
(1968).

															[ Footnote 2/11 ] Simmons v. United States, supra, at 390 U. S.
383 .

															[ Footnote 2/12 ]

															The Court maintains that "the ethical responsibility of the
prosecutor" is, in itself, a sufficient "safeguard" against
impermissible suggestion at a photographic display. See
ante at 413 U. S. 320 .
The same argument might, of course, be made with respect to
lineups. Moreover, it is clear that the "prosecutor" is not always
present at such pretrial displays. Indeed, in this very case, one
of the four eyewitnesses was shown the color photographs on the
morning of trial by an agent of the FBI, not in the presence of the
"prosecutor." See 149 U.S.App.D.C. at 5, 461 F.2d at 96.
And even though "the ethical responsibility of the prosecutor"
might be an adequate "safeguard" against intentional suggestion, it can hardly be doubted that a "prosecutor" is, after
all, only human. His behavior may be fraught with wholly unintentional and indeed unconscious nuances that might
effectively suggest the "proper" response. See P. Wall, supra, 413
U.S. 300 fn2/9|>n. 9, at 2645; Napley, Problems of Effecting
the Presentation of the Case for a Defendant, 66 Col.L.Rev. 94, 999
(1966); Williams & Hammelmann, Identification Parades -- I,
[1963] Crim.L.Rev. 479, 483. See also United States v. Wade,
supra, at 388 U. S. 229 , 388 U. S. 235 , 288 U. S. 236 .
And, of course, as Wade itself makes clear, unlike other
forms of unintentional prosecutorial "manipulation," even
unintentional suggestiveness at an identification procedure
involves serious risks of "freezing" the witness' mistaken
identification, and creates almost insurmountable obstacles to
reconstruction at trial.

															[ Footnote 2/13 ] See also P. Wall, supra, 413
U.S. 300 fn2/9|>n. 9, at 68; Napley, supra, 413
U.S. 300 fn2/12|>n. 12, at 999; Williams & Hammelmann, supra, 413
U.S. 300 fn2/12|>n. 12, at 484; Comment, supra, 413
U.S. 300 fn2/9|>n 9, at 411-413; Note, supra, 413
U.S. 300 fn2/10|>n. 10, at 1023.

															[ Footnote 2/14 ]

															Brief for United States 24-25 in United States v. Wade, No. 334, O.T. 1966.

															[ Footnote 2/15 ]

															The Court's assertion, ante at 413 U. S.
317 -319 and n. 10, that these difficulties of
reconstruction are somehow minimized because the defense can
"duplicate" a photographic identification reflects a complete
misunderstanding of the issues in this case. Aside from the fact
that lineups can also be "duplicated," the Court's assertion is
wholly inconsistent with the underlying premises of both Wade and Gilbert. For, unlike the Court today,
the Court in both of those decisions recognized a critical
difference between "systematized or scientific analyzing of the
accused's fingerprints, blood sample, clothing, hair, and the
like," on the one hand, and eyewitness identification, on the
other. United States v. Wade, supra, at 388 U. S. 227 ; Gilbert v. California, 388 U. S. 263 , 388 U. S. 267 (1967). In essence, the Court noted in Wade and Gilbert that, in the former situations, the accused can
preserve his right to a fair trial simply by "duplicating" the
tests of the Government, thereby enabling him to expose any errors
in the Government's analysis. Such "duplication" is possible,
however, only because the accused's tests can be made independently
of those of the Government -- that is, any errors in the
Government's analyses cannot affect the reliability of the
accused's tests. That simply is not the case, however, with respect
to eyewitness identifications, whether corporeal or photographic.
Due to the "freezing effect" recognized in Wade, once
suggestion has tainted the identification, its mark is virtually
indelible. For once a witness has made a mistaken identification,
" he is not likely to go back on his word later on.'" United
States v. Wade, supra, at 388 U. S. 229 .
As a result, any effort of the accused to "duplicate" the initial
photographic display will almost necessarily lead to a
reaffirmation of the initial misidentification. The Court's related assertion, that "equality of access" to the
results of a Government-conducted photographic display "remove[s]
any inequality in the adversary process," ante at 413 U. S. 319 ,
is similarly flawed. For due to the possibilities for suggestion,
intentional or unintentional, the so-called "equality of access"
is, in reality, skewed sharply in favor of the prosecution.

															[ Footnote 2/16 ]

															Brief for United States 7, in United States v. Wade,
supra. The Court seems to suggest that, under no
circumstances, would it be willing "to go so far as to extend the
right [to counsel] to a portion of the prosecutor's trial
preparation interviews with witnesses." Ante at 413 U. S. 317 .
This suggestion illustrates once again the Court's readiness in
this area to ignore "real world" considerations for the sake of
"mere formalism." Kirby v. Illinois, 406 U.S. at 406 U. S. 699 (BRENNAN, J., dissenting). Moreover, this suggestion demonstrates
the Court's failure to appreciate the essential differences,
outlined persuasively by the Court of Appeals, between "the
prosecutor's trial preparation interviews with witnesses" and
pretrial identification procedures. See 149 U.S.App.D.C.
at 10, 461 F.2d at 101.

															[ Footnote 2/17 ] Coleman, White, and Hamilton, guaranteed the
assistance of counsel at preliminary hearings and arraignments. Massiah held that incriminating statements of a defendant
should have been excluded from evidence when it appeared that they
were overheard by federal agents who, without notice to the
defendant's lawyer, arranged a meeting between the defendant and an
accomplice turned informant. Thus, it is at least questionable
whether Massiah involved a "trial-like confrontation" with
the Government.

															[ Footnote 2/18 ]

															287 U.S. at 287 U. S.
53 .

															[ Footnote 2/19 ] See ante at 413 U. S.
313 -316. In an effort to justify its contention that Wade itself in some way supports the Court's wooden
analysis of the counsel guarantee, the Court points to the
so-called "careful limitation of the Court's language [in Wade] to confrontations.'" Ante at 413 U. S. 315 .
But Wade involved a lineup which is, of course, a
"confrontation." Thus, it is neither surprising nor significant
that the Court interchangeably used such terms as "lineup,"
"confrontation" and "pretrial identification" as descriptive of the
facts. Indeed, the Wade dissenters recognized that Wade logically applies not only to lineups, but "to any
other techniques employed to produce an identification. . . ." United States v. Wade, supra, at 388 U. S. 251 (WHITE, J., concurring and dissenting). [ Footnote 2/20 ] See United States v. Wade, supra, at 388 U. S.
221 -223.

															[ Footnote 2/21 ] See id. at 388 U. S.
225 -227. The Court's quotation of Escobedo v.
Illinois, 378 U. S. 478 (1964), is particularly instructive:

															""The rule sought by the State here, however, would make the
trial no more than an appeal from the interrogation; and the right to use counsel at the formal trial [would be] a very
hollow thing [if], for all practical purposes, the conviction is
already assured by pretrial examination.' . . . `One can imagine a
cynical prosecutor saying: "Let them have the most illustrious
counsel, now. They can't escape the noose. There is nothing that
counsel can do for them at the trial."'"" United States v. Wade, supra, at 388 U. S. 226 ,
quoting Escobedo v. Illinois, supra, at 378 U. S.
487 -488.