U.S. Supreme Court United States v. Wade, 388
U.S. 218 (1967) United States v. Wade No. 334 Argued February 16,
1967 Decided June 12, 1967 388
U.S. 218 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus Several weeks after respondent's indictment for robbery of a
federally insured bank and for conspiracy, respondent, without
notice to his appointed counsel, was placed in a lineup in which
each person wore strips of tape on his face, as the robber
allegedly had done, and, on direction, repeated words like those
the robber allegedly had used. Two bank employees identified
respondent as the robber. At the trial, when asked if the robber
was in the courtroom, they identified respondent. The prior lineup
identifications were elicited on cross-examination. Urging that the
conduct of the lineup violated his Fifth Amendment privilege
against self-incrimination and his Sixth Amendment right to
counsel, respondent filed a motion for judgment of acquittal or,
alternatively, to strike the courtroom identifications. The trial
court denied the motions, and respondent was convicted. The Court
of Appeals reversed, holding that, though there was no Fifth
Amendment deprivation, the absence of counsel at the lineup denied
respondent his right to counsel under the Sixth Amendment and
required the grant of a new trial at which the in-court
identifications of those who had made lineup identifications would
be excluded. Held: 1. Neither the lineup itself nor anything required therein
violated respondent's Fifth Amendment privilege against
self-incrimination, since merely exhibiting his person for
observation by witnesses and using his voice as an identifying
physical characteristic involved no compulsion of the accused to
give evidence of a testimonial nature against himself which is
prohibited by that Amendment. Pp. 388 U. S.
221 -223.

															2. The Sixth Amendment guarantees an accused the right to
counsel not only at his trial but at any critical confrontation by
the prosecution at pretrial proceedings where the results might
well determine his fate and where the absence of counsel might
derogate from his right to a fair trial. Pp. 388 U. S.
223 -227.

															3. The post-indictment lineup (unlike such preparatory steps as
analyzing fingerprints and blood samples) was a critical
prosecutive stage at which respondent was entitled to the aid of
counsel. Pp. 388 U. S.
227 -239. Page 388 U. S. 219 (a) There is a great possibility of unfairness to the accused at
that point, (1) because of the manner in which confrontations for
identification are frequently conducted, (2) because of dangers
inherent in eyewitness identification and suggestibility' inherent
in the context of the confrontations, and (3) because of the
likelihood that the accused will often be precluded from
reconstructing what occurred, and thereby obtaining a full hearing
on the identification issue at trial. Pp. 388 U. S.
229 -235.

															(b) This case illustrates the potential for improper influence
on witnesses through the lineup procedure, since the bank employees
were allowed to see respondent in the custody of FBI agents before
the lineup began. Pp. 388 U. S.
233 -234.

															(c) The presence of counsel at the lineup will significantly
promote fairness at the confrontation and a full hearing at trial
on the issue of identification. Pp. 388 U. S.
236 -238.

															4. In-court identification by a witness to whom the accused was
exhibited before trial in the absence of counsel must be excluded
unless it can be established that such evidence had an independent
origin or that error in its admission was harmless. Since it is not
clear that the Court of Appeals applied the prescribed rule of
exclusion, and since the nature of the in-court identifications
here was not an issue in the trial and cannot be determined on the
record, the case must be remanded to the District Court for
resolution of these issues. Pp. 388 U. S.
239 -243.

															358 F.2d 557, vacated and remanded.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															The question here is whether courtroom identifications of an
accused at trial are to be excluded from evidence because the
accused was exhibited to the witnesses before trial at a
post-indictment lineup conducted for Page 388 U. S. 220 identification purposes without notice to, and in the absence
of, the accused's appointed counsel.

															The federally insured bank in Eustace, Texas, was robbed on
September 21, 1964. A man with a small strip of tape on each side
of his face entered the bank, pointed a pistol at the female
cashier and the vice-president, the only persons in the bank at the
time, and forced them to fill a pillowcase with the bank's money.
The man then drove away with an accomplice who had been waiting in
a stolen car outside the bank. On March 23, 1965, an indictment was
returned against respondent, Wade, and two others for conspiring to
rob the bank, and against Wade and the accomplice for the robbery
itself. Wade was arrested on April 2, and counsel was appointed to
represent him on April 26. Fifteen days later, an FBI agent,
without notice to Wade's lawyer, arranged to have the two bank
employees observe a lineup made up of Wade and five or six other
prisoners and conducted in a courtroom of the local county
courthouse. Each person in the line wore strips of tape such as
allegedly worn by the robber, and, upon direction, each said
something like "put the money in the bag," the words allegedly
uttered by the robber. Both bank employees identified Wade in the
lineup as the bank robber.

															At trial, the two employees, when asked on direct examination if
the robber was in the courtroom, pointed to Wade. The prior lineup
identification was then elicited from both employees on
cross-examination. At the close of testimony, Wade's counsel moved
for a judgment of acquittal or, alternatively, to strike the bank
officials' courtroom identifications on the ground that conduct of
the lineup, without notice to and in the absence of his appointed
counsel, violated his Fifth Amendment privilege against
self-incrimination and his Sixth Amendment right to the assistance
of counsel. The motion was denied, and Wade was convicted. The Page 388 U. S. 221 Court of Appeals for the Fifth Circuit reversed the conviction
and ordered a new trial at which the in-court identification
evidence was to be excluded, holding that, though the lineup did
not violate Wade's Fifth Amendment rights, "the lineup, held as it
was, in the absence of counsel already chosen to represent
appellant, was a violation of his Sixth Amendment rights. . . ."
358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, and set the
case for oral argument with No. 223, Gilbert v. California,
post, p. 388 U. S. 263 , and
No. 254, Stovall v. Denno, post, p. 388 U. S. 293 ,
which present similar questions. We reverse the judgment of the
Court of Appeals and remand to that court with direction to enter a
new judgment vacating the conviction and remanding the case to the
District Court for further proceedings consistent with this
opinion. I Neither the lineup itself nor anything shown by this record that
Wade was required to do in the lineup violated his privilege
against self-incrimination. We have only recently reaffirmed that
the privilege

															"protects an accused only from being compelled to testify
against himself, or otherwise provide the State with evidence of a
testimonial or communicative nature. . . ." Schmerber v. California, 384 U.
S. 757 , 384 U. S. 761 .
We there held that compelling a suspect to submit to a withdrawal
of a sample of his blood for analysis for alcohol content and the
admission in evidence of the analysis report were not compulsion to
those ends. That holding was supported by the opinion in Holt
v. United States, 218 U. S. 245 , in
which case a question arose as to whether a blouse belonged to the
defendant. A witness testified at trial that the defendant put on
the blouse, and it had fit him. The defendant argued that the
admission of the testimony was error because compelling him to put
on the blouse was a violation of his privilege. The Court Page 388 U. S. 222 rejected the claim as "an extravagant extension of the Fifth
Amendment," Mr. Justice Holmes saying for the Court:

															"[T]he prohibition of compelling a man in a criminal court to be
witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material."

															218 U.S. at 218 U. S.
252 -253. The Court in Holt, however, put aside
any constitutional questions which might be involved in compelling
an accused, as here, to exhibit himself before victims of or
witnesses to an alleged crime; the Court stated, "we need not
consider how far a court would go in compelling a man to exhibit
himself." Id. at 218 U. S. 253 .
[ Footnote 1 ]

															We have no doubt that compelling the accused merely to exhibit
his person for observation by a prosecution witness prior to trial
involves no compulsion of the accused to give evidence having
testimonial significance. It is compulsion of the accused to
exhibit his physical characteristics, not compulsion to disclose
any knowledge he might have. It is no different from compelling
Schmerber to provide a blood sample or Holt to wear the blouse,
and, as in those instances, is not within the cover of the
privilege. Similarly, compelling Wade to speak within hearing
distance of the witnesses, even to utter words purportedly uttered
by the robber, was not compulsion to utter statements of a
"testimonial" nature; he was required to use his voice as an
identifying Page 388 U. S. 223 physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 384 U. S. 761 ,
that the distinction to be drawn under the Fifth Amendment
privilege against self-incrimination is one between an accused's
"communications," in whatever form, vocal or physical, and
"compulsion which makes a suspect or accused the source of real
or physical evidence,'" Schmerber, supra, at 384 U. S. 764 .
We recognized that "both federal and state courts have usually held that . . . [the
privilege] offers no protection against compulsion to submit to
fingerprinting, photography, or measurements, to write or speak for
identification, to appear in court, to stand, to assume a stance,
to walk, or to make a particular gesture." Id. at 384 U. S. 764 .
None of these activities becomes testimonial within the scope of
the privilege because required of the accused in a pretrial
lineup.

															Moreover, it deserves emphasis that this case presents no
question of the admissibility in evidence of anything Wade said or
did at the lineup which implicates his privilege. The Government
offered no such evidence as part of its case, and what came out
about the lineup proceedings on Wade's cross-examination of the
bank employees involved no violation of Wade's privilege. II The fact that the lineup involved no violation of Wade's
privilege against self-incrimination does not, however, dispose of
his contention that the courtroom identifications should have been
excluded because the lineup was conducted without notice to, and in
the absence of, his counsel. Our rejection of the right to counsel
claim in Schmerber rested on our conclusion in that case
that "[n]o issue of counsel's ability to assist petitioner in
respect of any rights he did possess is presented." 384 U.S. at 384 U. S. 766 .
In contrast, in this case, it is urged that the assistance of
counsel at the lineup was indispensable Page 388 U. S. 224 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.

															The Framers of the Bill of Rights envisaged a broader role for
counsel than under the practice then prevailing in England of
merely advising his client in "matters of law," and eschewing any
responsibility for "matters of fact." [ Footnote 2 ] The constitutions in at least 11 of the 13
States expressly or impliedly abolished this distinction. Powell v. Alabama, 287 U. S. 45 , 287 U. S. 60 -65;
Note, 73 Yale L.J. 1000, 1030-1033 (1964).

															"Though the colonial provisions about counsel were in accord on
few things, they agreed on the necessity of abolishing the
facts-law distinction; the colonists appreciated that, if a
defendant were forced to stand alone against the state, his case
was foredoomed."

															73 Yale L.J., supra, at 1033-1034. This background is
reflected in the scope given by our decisions to the Sixth
Amendment's guarantee to an accused of the assistance of counsel
for his defense. When the Bill of Rights was adopted, there were no
organized police forces as we know them today. [ Footnote 3 ] 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" stages of the proceedings. The guarantee
reads:

															"In all criminal Page 388 U. S. 225 prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence. "

															(Emphasis supplied.) The plain wording of this guarantee thus
encompasses counsel's assistance whenever necessary to assure a
meaningful "defence."

															As early as Powell v. Alabama, supra, we recognized
that the period from arraignment to trial was "perhaps the most
critical period of the proceedings . . . ," id. at 287 U. S. 57 ,
during which the accused "requires the guiding hand of counsel . .
. ," id. at 287 U. S. 69 , if
the guarantee is not to prove an empty right. That principle has
since been applied to require the assistance of counsel at the type
of arraignment -- for example, that provided by Alabama -- where
certain rights might be sacrificed or lost: "What happens there may
affect the whole trial. Available defenses may be irretrievably
lost, if not then and there asserted. . . ." Hamilton v.
Alabama, 368 U. S. 52 , 368 U. S. 54 . See White v. Maryland, 373 U. S. 59 . The
principle was also applied in Massiah v. United States, 377 U. S. 201 ,
where we held that incriminating statements of the 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. We said, quoting a concurring opinion in Spano v. New York, 360 U. S. 315 , 360 U. S. 326 ,
that

															"[a]nything less . . . might deny a defendant 'effective
representation by counsel at the only stage when legal aid and
advice would help him.'"

															377 U.S. at 377 U. S.
204 .

															In Escobedo v. Illinois, 378 U.
S. 478 , we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was
guaranteed at the point where the accused, prior to arraignment,
was subjected to secret interrogation despite repeated requests to
see his lawyer. We again noted the necessity of counsel's
presence Page 388 U. S. 226 if the accused was to have a fair opportunity to present a
defense at the trial itself:

															"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.'"" 378 U.S. at 378 U. S.
487 -488. Finally, in Miranda v. Arizona, 384 U. S. 436 , the
rules established for custodial interrogation included the right to
the presence of counsel. The result was rested on our finding that
this and the other rules were necessary to safeguard the privilege
against self-incrimination from being jeopardized by such
interrogation.

															Of course, nothing decided or said in the opinions in the cited
cases links the right to counsel only to protection of Fifth
Amendment rights. Rather, those decisions "no more than reflect a
constitutional principle established as long ago as Powell v.
Alabama. . . ." Massiah v. United States, supra, at 377 U. S. 205 .
It is central to that principle that, in addition to counsel's
presence at trial, [ Footnote 4 ]
the accused is guaranteed that he need not stand alone against the
State at any stage of the prosecution, formal or informal, in court
or out, where counsel's absence might derogate from the accused's
right to a fair trial. [ Footnote
5 ] The security of that right is as much the aim of the right
to counsel as it is of the other guarantees of the Page 388 U. S. 227 Sixth Amendment -- the right of the accused to a speedy and
public trial by an impartial jury, his right to be informed of the
nature and cause of the accusation, and his right to be confronted
with the witnesses against him and to have compulsory process for
obtaining witnesses in his favor. The presence of counsel at such
critical confrontations, as at the trial itself, operates to assure
that the accused's interests will be protected consistently with
our adversary theory of criminal prosecution. Cf. Pointer v.
Texas, 380 U. S. 400 .

															In sum, the principle of Powell v. Alabama and
succeeding cases requires that we scrutinize any pretrial
confrontation of the accused to determine whether 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. It calls upon us to analyze whether
potential substantial prejudice to defendant's rights inheres in
the particular confrontation and the ability of counsel to help
avoid that prejudice. III The Government characterizes the lineup as 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.
We think there are differences which preclude such stages' being
characterized as critical stages at which the accused has the right
to the presence of his counsel. 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 Page 388 U. S. 228 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. IV But the confrontation compelled by the State between the accused
and the victim or witnesses to a crime to elicit identification
evidence is peculiarly riddled with innumerable dangers and
variable factors which might seriously, even crucially, derogate
from a fair trial. The vagaries of eyewitness identification are
well known; the annals of criminal law are rife with instances of
mistaken identification. [ Footnote
6 ] Mr. Justice Frankfurter once said:

															"What is the worth of identification testimony even when
uncontradicted? The identification of strangers is proverbially
untrustworthy. The hazards of such testimony are established by a
formidable number of instances in the records of English and
American trials. These instances are recent -- not due to the
brutalities of ancient criminal procedure."

															The Case of Sacco and Vanzetti 30 (1927). 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. A commentator Page 388 U. S. 229 has observed that

															"[t]he influence of improper suggestion upon identifying
witnesses probably accounts for more miscarriages of justice than
any other single factor -- perhaps it is responsible for more such
errors than all other factors combined."

															Wall, Eye-Witness Identification in Criminal Cases 26.
Suggestion can be created intentionally or unintentionally in many
subtle ways. [ Footnote 7 ] And
the dangers for the suspect are particularly grave when the
witness' opportunity for observation was insubstantial, and thus
his susceptibility to suggestion the greatest.

															Moreover,

															"[i]t is a matter of common experience 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. [ Footnote 8 ]"

															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, and increase the dangers inhering in eyewitness
identification. [ Footnote 9 ]
But, Page 388 U. S. 230 as is the case with secret interrogations, there is serious
difficulty in depicting what transpires at lineups and other forms
of identification confrontations. "Privacy results in secrecy, and
this, in turn, results in a gap in our knowledge as to what, in
fact, goes on. . . ." Miranda v. Arizona, supra, at 384 U. S. 448 .
For the same reasons, the defense can seldom reconstruct the manner
and mode of lineup identification for judge or jury at trial. Those
participating in a lineup with the accused may often be police
officers; [ Footnote 10 ] in
any event, the participants' names are rarely recorded or divulged
at trial. [ Footnote 11 ] The
impediments to an objective observation are increased when the
victim is the witness. Lineups are prevalent in rape and robbery
prosecutions, and present a particular hazard that a victim's
understandable outrage may excite vengeful or spiteful motives.
[ Footnote 12 ] In any event,
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. [ Footnote 13 ] Improper influences Page 388 U. S. 231 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. [ Footnote 14 ] 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; [ Footnote 15 ]
the jury's choice is between the accused's unsupported version and
that of the police officers present. [ Footnote 16 ] In short, the accused's Page 388 U. S. 232 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.

															What facts have been disclosed in specific cases about the
conduct of pretrial confrontations for identification illustrate
both the potential for substantial prejudice to the accused at that
stage and the need for its revelation at trial. A commentator
provides some striking examples:

															"In a Canadian case . . . the defendant had been picked out of a
line-up of six men, of which he was the only Oriental. In other
cases, a black-haired suspect was placed among a group of
light-haired persons, tall suspects have been made to stand with
short non-suspects, and, in a case where the perpetrator of the
crime was known to be a youth, a suspect under twenty was placed in
a line-up with five other persons, all of whom were forty or over.
[ Footnote 17 ]"

															Similarly state reports, in the course of describing prior
identifications admitted as evidence of guilt, reveal Page 388 U. S. 233 numerous instances of suggestive procedures, for example, that
all in the lineup but the suspect were known to the identifying
witness, [ Footnote 18 ] that
the other participants in a lineup were grossly dissimilar in
appearance to the suspect, [ Footnote 19 ] that only the suspect was required to wear
distinctive clothing which the culprit allegedly wore, [ Footnote 20 ] that the witness is
told by the police that they have caught the culprit after which
the defendant is brought before the witness alone or is viewed in
jail, [ Footnote 21 ] that the
suspect is pointed out before or during a lineup, [ Footnote 22 ] and that the participants in
the lineup are asked to try on an article of clothing which fits
only the suspect. [ Footnote
23 ]

															The potential for improper influence is illustrated by the
circumstances, insofar as they appear, surrounding the prior
identifications in the three cases we decide today. In the present
case, the testimony of the identifying Page 388 U. S. 234 witnesses elicited on cross-examination revealed that those
witnesses were taken to the courthouse and seated in the courtroom
to await assembly of the lineup. The courtroom faced on a hallway
observable to the witnesses through an open door. The cashier
testified that she saw Wade "standing in the hall" within sight of
an FBI agent. Five or six other prisoners later appeared in the
hall. The vice-president testified that he saw a person in the hall
in the custody of the agent who "resembled the person that we
identified as the one that had entered the bank." [ Footnote 24 ]

															The lineup in Gilbert, supra, was conducted in an
auditorium in which some 100 witnesses to several alleged state and
federal robberies charged to Gilbert made wholesale identifications
of Gilbert as the robber in each other's presence, a procedure said
to be fraught with dangers of suggestion. [ Footnote 25 ] And the vice of suggestion created
by the identification in Stovall, supra, was the
presentation to the witness of the suspect alone handcuffed to
police officers. It is hard to imagine a situation more clearly
conveying the suggestion to the witness that the one presented is
believed guilty by the police. See Frankfurter, The Case
of Sacco and Vanzetti 31-32.

															The few cases that have surfaced therefore reveal the existence
of a process attended with hazards of serious unfairness to the
criminal accused, and strongly suggest the plight of the more
numerous defendants who are unable to ferret out suggestive
influences in the Page 388 U. S. 235 secrecy of the confrontation. We do not assume that these risks
are the result of police procedures intentionally designed to
prejudice an accused. Rather, we assume they derive from the
dangers inherent in eyewitness identification and the
suggestibility inherent in the context of the pretrial
identification. Williams & Hammelmann, in one of the most
comprehensive studies of such forms of identification, said,

															"[T]he 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, and that their chief preoccupation is with
the problem of getting sufficient proof because he has not''come
clean,' involves a danger that this persuasion may communicate
itself even in a doubtful case to the witness in some way. . .
."

															Identification Parades, Part I, [1963] Crim.L.Rev. 479, 483.

															Insofar 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. Pointer v. Texas, 380 U. S. 400 . And
even though cross-examination is a precious safeguard to a fair
trial, it cannot be viewed as an absolute assurance of accuracy and
reliability. Thus, in the present context, where so many variables
and pitfalls exist, the first line of defense must be the
prevention of unfairness and the lessening of the hazards of
eyewitness identification at the lineup itself. 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 Page 388 U. S. 236 effective appeal from the judgment there rendered by the witness
-- "that's the man."

															Since 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, [ Footnote 26 ] there can be Page 388 U. S. 237 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." Powell
v. Alabama, 287 U. S. 45 , 287 U. S. 57 .
Thus, both Wade and his counsel should have been notified of the
impending lineup, and counsel's presence should have been a
requisite to conduct of the lineup, absent an "intelligent waiver." See Carnley v. Cochran, 369 U. S. 506 . No
substantial countervailing policy considerations have been advanced
against the requirement of the presence of counsel. Concern is
expressed that the requirement will forestall prompt
identifications and result in obstruction of the confrontations. As
for the first, we note that, in the two cases in which the right to
counsel is today held to apply, counsel had already been appointed,
and no argument is made in either case that notice to counsel would
have prejudicially delayed the confrontations. Moreover, we leave
open the question whether the presence of substitute counsel might
not suffice where notification and presence of the suspect's own
counsel would result in prejudicial delay. [ Footnote 27 ] And to refuse to recognize the
right to counsel for fear that counsel will obstruct the course of
justice is contrary to the Page 388 U. S. 238 basic assumptions upon which this Court has operated in Sixth
Amendment cases. We rejected similar logic in Miranda v.
Arizona concerning presence of counsel during custodial
interrogation, 384 U.S. at 384 U. S. 480 -481:

															"[A]n attorney is merely exercising the good professional
judgment he has been taught. This is not cause for considering the
attorney a menace to law enforcement. He is merely carrying out
what he is sworn to do under his oath -- to protect to the extent
of his ability the rights of his client. In fulfilling this
responsibility, the attorney plays a vital role in the
administration of criminal justice under our Constitution."

															In our view, counsel can hardly impede legitimate law
enforcement; on the contrary, for the reasons expressed, law
enforcement may be assisted by preventing the infiltration of taint
in the prosecution's identification evidence. [ Footnote 28 ] That result cannot help the guilty
avoid conviction, but can only help assure that the right man has
been brought to justice. [ Footnote 29 ] Page 388 U. S. 239 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." [ Footnote
30 ] But neither Congress nor the federal authorities have seen
fit to provide a solution. What we hold today "in no way creates a
constitutional straitjacket which will handicap sound efforts at
reform, nor is it intended to have this effect." Miranda v.
Arizona, supra, at 384 U. S.
467 . V We come now to the question whether the denial of Wade's motion
to strike the courtroom identification by the bank witnesses at
trial because of the absence of his counsel at the lineup required,
as the Court of Appeals held, the grant of a new trial at which
such evidence is Page 388 U. S. 240 to be excluded. We do not think this disposition can be
justified without first giving the Government the opportunity to
establish by clear and convincing evidence that the in-court
identifications were based upon observations of the suspect other
than the lineup identification. See Murphy v. Waterfront
Commission, 378 U. S. 52 , 378 U. S. 79 , n.
18. [ Footnote 31 ] Where, as
here, the admissibility of evidence of the lineup identification
itself is not involved, a per se rule of exclusion of
courtroom identification would be unjustified. [ Footnote 32 ] See Nardone v. United
States, 308 U. S. 338 , 308 U. S. 341 .
A rule limited solely to the exclusion of testimony concerning
identification at the lineup itself, without regard to
admissibility of the courtroom identification, would render the
right to counsel an empty one. The lineup is most often used, as in
the present case, to crystallize the witnesses' identification of
the defendant for future reference. We have already noted that the
lineup identification will have that effect. The State may then
rest upon the witnesses' unequivocal courtroom identification, and
not mention the pretrial identification as part of the State's case
at trial. Counsel is then in the predicament in which Wade's
counsel found himself -- realizing that possible unfairness at the
lineup may be the sole means of attack upon the unequivocal
courtroom identification, and having to probe in the dark Page 388 U. S. 241 in an attempt to discover and reveal unfairness, while
bolstering the government witness' courtroom identification by
bringing out and dwelling upon his prior identification. Since
counsel's presence at the lineup would equip him to attack not only
the lineup identification, but the courtroom identification as
well, limiting the impact of violation of the right to counsel to
exclusion of evidence only of identification at the lineup itself
disregards a critical element of that right.

															We think it follows that the proper test to be applied in these
situations is that quoted in Wong Sun v. United States, 371 U. S. 471 , 371 U. S.
488 ,

															"'[W]hether, granting establishment of the primary illegality,
the evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.' Maguire,
Evidence of Guilt 221 (1959)." See also Hoffa v. United States, 385 U.
S. 293 , 385 U. S. 309 .
Application of this test in the present context requires
consideration of various factors; for example, the prior
opportunity to observe the alleged criminal act, the existence of
any discrepancy between any pre-lineup description and the
defendant's actual description, any identification prior to lineup
of another person, the identification by picture of the defendant
prior to the lineup, failure to identify the defendant on a prior
occasion, and the lapse of time between the alleged act and the
lineup identification. It is also relevant to consider those facts
which, despite the absence of counsel, are disclosed concerning the
conduct of the lineup. [ Footnote
33 ] Page 388 U. S. 242 We doubt that the Court of Appeals applied the proper test for
exclusion of the in-court identification of the two witnesses. The
court stated that

															"it cannot be said with any certainty that they would have
recognized appellant at the time of trial if this intervening
lineup had not occurred,"

															and that the testimony of the two witnesses "may well have been
colored by the illegal procedure, [and] was prejudicial." 358 F.2d
at 560. Moreover, the court was persuaded, in part, by the
"compulsory verbal responses made by Wade at the instance of the
Special Agent." Ibid. This implies the erroneous holding
that Wade's privilege against self-incrimination was violated, so
that the denial of counsel required exclusion.

															On the record now before us, we cannot make the determination
whether the in-court identifications had an independent origin.
This was not an issue at trial, although there is some evidence
relevant to a determination. That inquiry is most properly made in
the District Court. We therefore think the appropriate procedure to
be followed is to vacate the conviction pending a hearing to
determine whether the in-court identifications had an independent
source or whether, in any event, the introduction of the evidence
was harmless error, Chapman v. California, 386 U. S.
18 , and for the District Court to reinstate the
conviction or order a new trial, as may be proper. See United
States v. Shotwell Mfg. Co., 355 U. S. 233 , 355 U. S.
245 -246. Page 388 U. S. 243 The judgment of the Court of Appeals is vacated, and the case is
remanded to that court with direction to enter a new judgment
vacating the conviction and remanding the case to the District
Court for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE joins the opinion of the Court except for 388 U. S. from
which he dissents for the reasons expressed in the opinion of MR.
JUSTICE FORTAS.

															MR. JUSTICE DOUGLAS joins the opinion of the Court except for 388 U. S. On
that phase of the case, he adheres to the dissenting views in Schmerber v. California, 384 U. S. 757 , 384 U. S.
772 -779, since he believes that compulsory lineup
violates the privilege against self-incrimination contained in the
Fifth Amendment.

															[ Footnote 1 ] Holt was decided before Weeks v. United
States, 232 U. S. 383 ,
fashioned the rule excluding illegally obtained evidence in a
federal prosecution. The Court therefore followed Adams v. New
York, 192 U. S. 585 , in
holding that, in any event, "when he is exhibited, whether
voluntarily or by order, and even if the order goes too far, the
evidence, if material, is competent." 218 U.S. at 218 U. S.
253 .

															[ Footnote 2 ] See Powell v. Alabama, 287 U. S.
45 , 287 U. S. 60 -65;
Beaney, Right to Counsel in American Courts 8-26.

															[ Footnote 3 ] See Note, 73 Yale L.J. 1000, 1040-1042 (1964); Comment,
53 Calif.L.Rev. 337, 347-348 (1965).

															[ Footnote 4 ] See, e.g., Powell v. Alabama, 287 U. S.
45 ; Hamilton v. Alabama, 368 U. S.
52 ; White v. Maryland, 373 U. S.
59 ; Escobedo v. Illinois, 378 U.
S. 478 ; Massiah v. United States, 377 U.
S. 201 .

															[ Footnote 5 ] See cases cited n 4, supra; Avery v. Alabama, 308 U.
S. 444 , 308 U. S.
446 .

															[ Footnote 6 ]

															Borchard, Convicting the Innocent; Frank & Frank, Not
Guilty; Wall, Eye-Witness Identification in Criminal Cases; 3
Wigmore, Evidence § 786a (3d ed.1940); Rolph, Personal Identity;
Gross, Criminal Investigation 47-54 (Jackson ed.1962); Williams,
Proof of Guilt 83-98 (1955); Williams, Circumstantial Evidence
192-205 (7th ed. 1937); Wigmore, The Science of Judicial Proof §§
250-253 (3d ed 1937).

															[ Footnote 7 ] See Wall, supra, n 6, at 26-65; Murray, The Criminal Lineup at Home and
Abroad, 1966 Utah L.Rev. 610; Napley, Problems of Effecting the
Presentation of the Case for a Defendant, 66 Col.L.Rev. 94, 98-99
(1966); Williams, Identification Parades, [1955] Crim.L.Rev. (Eng.)
525; Paul, Identification of Accused Persons, 12 Austl.L.J. 42
(1938); Houts, From Evidence to Proof 25; Williams Hammelmann,
Identification Parades, Parts I & II, [1963] Crim.L.Rev.
479-490, 545-555; Corphe, Showing Prisoners to Witnesses for
Identification, 1 Am.J.Police Sci. 79 (1930); Wigmore, The Science
of Judicial Proof, supra, n 6, at § 253; Devlin, The Criminal Prosecution in England
70; Williams, Proof of Guilt 95-97.

															[ Footnote 8 ]

															Williams Hammelmann, Identification Parades, Part I, [1963]
Crim.L.Rev. 479, 482.

															[ Footnote 9 ]

															Williams Hammelmann, Identification Parades, Part I, supra, n 7.

															[ Footnote 10 ] See Wall, supra, n 6, at 57-59; see, e.g., People v.
Boney, 28 Ill. 2d
505 , 192 N.E.2d
920 (1963); People v. James, 218 Cal. App.
2d 166 , 32 Cal. Rptr. 283 (1963).

															[ Footnote 11 ] See Rolph, Personal Identity 50:

															"The bright burden of identity, at these parades, is lifted from
the innocent participants to hover about the suspect, leaving the
rest featureless and unknown and without interest."

															[ Footnote 12 ] See Williams & Hammelmann, Identification Parades,
Part II, [1963] Crim.L.Rev. 545, 546; Borchard, Convicting the
Innocent 367.

															[ Footnote 13 ]

															An additional impediment to the detection of such influences by
participants, including the suspect, is the physical conditions
often surrounding the conduct of the lineup. In many, lights shine
on the stage in such a way that the suspect cannot see the witness. See Gilbert v. United States, 366 F.2d 923 (C.A. 9th
Cir.1966). In some, a one-way mirror is used and what is said on
the witness' side cannot be heard. See Rigney v. Hendrick, 355 F.2d 710, 711, n. 2 (C.A.3d Cir.1965); Aaron v. State, 273 Ala. 337, 139 So. 2d
309 (1961).

															[ Footnote 14 ]

															Williams & Hammelmann, Part I, supra, n 7, at 489; Napley, supra, n 7, at 99.

															[ Footnote 15 ] See In re Groban, 352 U. S. 330 , 352 U. S. 340 (BLACK, J., dissenting). The difficult position of defendants in
attempting to protest the manner of pretrial identification is
illustrated by the many state court cases in which contentions of
blatant abuse rested on their unsupportable allegations, usually
controverted by the police officers present. See, e.g., People
v. Shields, 70 Cal. App. 2d
628 , 634-635, 161 P.2d 475, 478-479 (1945); People v.
Hicks, 22 Ill. 2d
364 , 176 N.E.2d
810 (1961); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); Redmon v. Commonwealth, 321
S.W.2d 397 (Ky.Ct.App. 1959); Lubinski v. State, 180
Md. 1, 8, 22 A.2d 455, 459 (1941). For a striking case in which
hardly anyone agreed upon what occurred at the lineup, including
who identified whom, see Johnson v. State, 237 Md. 283,
206 A.2d 138 (1965).

															[ Footnote 16 ]

															An instructive example of the defendant's predicament may be
found in Proctor v. State, 223 Md. 394, 164 A.2d 708
(1960). A prior identification is admissible in Maryland only under
the salutary rule that it cannot have been made "under conditions
of unfairness or unreliability." Id. at 401, 164 A.2d at
712. Against the defendant's contention that these conditions had
not been met, the Court stated:

															"In the instant case, there are no such facts as, in our
judgment, would call for a finding that the identification . . .
was made under conditions of unfairness or unreliability. The
relatively large number of persons put into the room together for
[the victim] to look at is one circumstance indicating fairness,
and the fact that the police officer was unable to remember the
appearances of the others and could not recall if they had physical
characteristics similar to [the defendant's] or not is at least
suggestive that they were not of any one type or that they all
differed markedly in looks from the defendant. There is no evidence
that the Police Sergeant gave the complaining witness any
indication as to which of the thirteen men was the defendant; the
Sergeant's testimony is simply that he asked [the victim] if he
could identify [the defendant] after having put the thirteen men in
the courtroom."

															[ Footnote 17 ]

															Wall, Eye-Witness Identification in Criminal Cases 53. For other
such examples see Houts, From Evidence to Proof 25;
Frankfurter, The Case of Sacco and Vanzetti 12-14, 30-32; 3
Wigmore, Evidence § 786a, at 164, n. 2 (3d ed.1940); Paul,
Identification of Accused Persons, 12 Austl.L.J. 42, 44 (1938);
Rolph, Personal Identity 34-43.

															[ Footnote 18 ] See People v. James, 218 Cal. App.
2d 166 , 170-171, 32 Cal. Rptr. 283, 286 (1963); People v.
Boney, 28 Ill. 2d
505 , 192 N.E.2d
920 (1963).

															[ Footnote 19 ] See Fredericksen v. United States, 105 U.S.App.D.C.
262, 266 F.2d 463 (1959); People v. Adell, 75 Ill.App.2d
385, 221 N.E.2d 72 (1966); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964), People v. Seppi, 221 N.Y. 62, 116 N.E. 793 (1917); State v. Dan, 215 Ore. 151, 162, 333 P.2d
907 , 912 (1958).

															[ Footnote 20 ] See People v. Crenshaw, 15 Ill. 2d
458 , 460, 155 N.E.2d
599 , 602 (1959); Presley v. State, 224 Md. 550, 168
A.2d 510 (1961); State v. Ramirez, 76 N.M. 72, 412 P.2d 246 (1966); State v. Bazemore, 193 N.C. 336, 137 S.E. 172
(1927); Barrett v. State, 190 Tenn. 366, 229
S.W.2d 516 (1950).

															[ Footnote 21 ] See Aaron v. State, 273 Ala. 337, 139 So. 2d
309 (1961); Bishop v. State, 236 Ark. 12, 364 S.W.2d 676 (1963); People v. Thompson, 406 Ill.
555 , 94 N.E.2d 349 (1950); People v. Berne, 384 Ill. 334, 51 N.E.2d 578
(1943); People v. Martin, 304 Ill. 494, 136 N.E. 711
(1922); Barrett v. State, 190 Tenn. 366, 229
S.W.2d 516 (1950).

															[ Footnote 22 ] See People v. Clark, 28 Ill. 2d
423 , 192 N.E.2d
851 (1963); Gillespie v. State, 355
P.2d 451 , 454 (Okla.Cr.1960).

															[ Footnote 23 ] See People v. Parham, 60 Cal. 2d
378 , 384 P.2d 1001 (1963).

															[ Footnote 24 ] See Wall, supra, n 6, at 48; Napley, supra, n 7, at 99:

															"[W]hile many identification parades are conducted by the police
with scrupulous regard for fairness, it is not unknown for the
identifying witness to be placed in a position where he can see the
suspect before the parade forms. . . ."

															[ Footnote 25 ]

															Williams & Hammelmann, Part I, supra, n 7, at 486; Burtt, Applied Psychology
254-255.

															[ Footnote 26 ]

															One commentator proposes a model statute providing not only for
counsel, but other safeguards as well:

															"Most, if not all, of the attacks on the lineup process could be
averted by a uniform statute modeled upon the best features of the
civilian codes. Any proposed statute should provide for the right
to counsel during any lineup or during any confrontation. Provision
should be made that any person, whether a victim or a witness, must
give a description of the suspect before he views any arrested
person. A written record of this description should be required,
and the witness should be made to sign it. This written record
would be available for inspection by defense counsel for copying
before the trial and for use at the trial in testing the accuracy
of the identification made during the lineup and during the
trial."

															"This ideal statute would require at least six persons in
addition to the accused in a lineup, and these persons would have
to be of approximately the same height, weight, coloration of hair
and skin, and bodily types as the suspect. In addition, all of
these men should, as nearly as possible, be dressed alike. If
distinctive garb was used during the crime, the suspect should not
be forced to wear similar clothing in the lineup unless all of the
other persons are similarly garbed. A complete written report of
the names, addresses, descriptive details of the other persons in
the lineup, and of everything which transpired during the
identification, would be mandatory. This report would include
everything stated by the identifying witness during this step,
including any reasons given by him as to what features, etc., have
sparked his recognition."

															"This statute should permit voice identification tests by having
each person in the lineup repeat identical innocuous phrases, and
it would be impermissible to force the use of words allegedly used
during a criminal act."

															"The statute would enjoin the police from suggesting to any
viewer that one or more persons in the lineup had been arrested as
a suspect. If more than one witness is to make an identification,
each witness should be required to do so separately and should be
forbidden to speak to another witness until all of them have
completed the process."

															"The statute could require the use of movie cameras and tape
recorders to record the lineup process in those states which are
financially able to afford these devices. Finally, the statute
should provide that any evidence obtained as the result of a
violation of this statute would be inadmissible."

															Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev.
610, 627-628.

															[ Footnote 27 ]

															Although the right to counsel usually means a right to the
suspect's own counsel, provision for substitute counsel may be
justified on the ground that the substitute counsel's presence may
eliminate the hazards which render the lineup a critical stage for
the presence of the suspect's own counsel.

															[ Footnote 28 ]

															Concern is also expressed that the presence of counsel will
force divulgence of the identity of government witnesses whose
identity the Government may want to conceal. To the extent that
this is a valid or significant state interest, there are police
practices commonly used to effect concealment, for example, masking
the face.

															[ Footnote 29 ]

															Many other nations surround the lineup with safeguards against
prejudice to the suspect. In England, the suspect must be allowed
the presence of his solicitor or a friend, Napley, supra, n 7, at 999; Germany requires
the presence of retained counsel; France forbids the confrontation
of the suspect in the absence of his counsel; Spain, Mexico, and
Italy provide detailed procedures prescribing the conditions under
which confrontation must occur under the supervision of a judicial
officer who sees to it that the proceedings are officially recorded
to assure adequate scrutiny at trial. Murray, The Criminal Lineup
at Home and Abroad, 1966 Utah L.Rev. 610, 621-627.

															[ Footnote 30 ]

															Thirty years ago, Wigmore suggested a "scientific method" of
pretrial identification "to reduce the risk of error hitherto
inherent in such proceedings." Wigmore, The Science of Judicial
Proof 541 (3d ed.1937). Under this approach, at least 100 talking
films would be prepared of men from various occupations, races,
etc. Each would be photographed in a number of stock movements,
with and without hat and coat, and would read aloud a standard
passage. The suspect would be filmed in the same manner. Some 25 of
the films would be shown in succession in a special projection room
in which each witness would be provided an electric button which
would activate a board backstage when pressed to indicate that the
witness had identified a given person. Provision would be made for
the degree of hesitancy in the identification to be indicated by
the number of presses. Id. at 540-541. Of course, the more
systematic and scientific a process or proceeding, including one
for purposes of identification, the less the impediment to
reconstruction of the conditions bearing upon the reliability of
that process or proceeding at trial. See discussion of
fingerprint and like tests, 388 U. S. supra, and of handwriting exemplars in Gilbert v.
California, supra. [ Footnote 31 ] See Goldstein v. United States, 316 U.
S. 114 , 316 U. S. 124 ,
n. 1 (Murphy, J., dissenting).

															"[A]fter an accused sustains the initial burden, imposed by Nardone v. United States, 308 U. S.
338 , of proving to the satisfaction of the trial judge
in the preliminary hearing that wiretapping was unlawfully
employed, as petitioners did here, it is only fair that the burden
should then shift to the Government to convince the trial judge
that its proof had an independent origin."

															[ Footnote 32 ]

															We reach a contrary conclusion in Gilbert v. California,
supra, as to the admissibility of the witness' testimony that
he also identified the accused at the lineup.

															[ Footnote 33 ]

															Thus, it is not the case that

															"[i]t matters not how well the witness knows the suspect,
whether the witness is the suspect's mother, brother, or long-time
associate, and no matter how long or well the witness observed the
perpetrator at the scene of the crime."

															Such factors will have an important bearing upon the true basis
of the witness' in-court identification. Moreover, the State's
inability to bolster the witness' courtroom identification by
introduction of the lineup identification itself, see Gilbert
v. California, supra, will become less significant the more
the evidence of other opportunities of the witness to observe the
defendant. Thus, where the witness is a "kidnap victim who has
lived for days with his abductor," the value to the State of
admission of the lineup identification is indeed marginal, and such
identification would be a mere formality.

															MR. JUSTICE CLARK, concurring.

															With reference to the lineup point involved in this case, I
cannot, for the life of me, see why a lineup is not a critical
stage of the prosecution. Identification of the suspect -- a
prerequisite to establishment of guilt -- occurs at this stage, and
with Miranda v. Arizona, 384 U. S. 436 (1966), on the books, the requirement of the presence of counsel
arises, unless waived by the suspect. I dissented in Miranda, but I am bound by it now, as we all are. Schmerber v. California, 384 U. S. 757 (1966), precludes petitioner's claim of self-incrimination. I
therefore join the opinion of the Court.

															MR. JUSTICE BLACK, dissenting in part and concurring in
part.

															On March 23, 1965, respondent Wade was indicted for robbing a
bank; on April 2, he was arrested, and on April 26, the court
appointed a lawyer to represent him. Page 388 U. S. 244 Fifteen days later, while Wade was still in custody, an FBI
agent took him and several other prisoners into a room at the
courthouse, directed each to participate in a lineup wearing strips
of tape on his face and to speak the words used by the robber at
the bank. This was all done in order to let the bank employee
witnesses look at Wade for identification purposes. Wade's lawyer
was not notified of or present at the lineup to protect his
client's interests. At Wade's trial, two bank employees identified
him in the courtroom. Wade objected to this testimony when, on
cross-examination, his counsel elicited from these witnesses the
fact that they had seen Wade in the lineup. He contended that, by
forcing him to participate in the lineup, wear strips of tape on
his face, and repeat the words used by the robber, all without
counsel, the Government had (1) compelled him to be a witness
against himself in violation of the Fifth Amendment, and (2)
deprived him of the assistance of counsel for his defense in
violation of the Sixth Amendment.

															The Court in Part I of its opinion rejects Wade's Fifth
Amendment contention. From that, I dissent. In Parts II-IV of its
opinion, the Court sustains Wade's claim of denial of right to
counsel in the out-of-court lineup, and in that I concur. In Part
V, the Court remands the case to the District Court to consider
whether the courtroom identification of Wade was the fruit of the
illegal lineup, and, if it was, to grant him a new trial unless the
court concludes that the courtroom identification was harmless
error. I would reverse the Court of Appeals' reversal of Wade's
conviction, but I would not remand for further proceedings. Since
the prosecution did not use the out-of-court lineup identification
against Wade at his trial, I believe the conviction should be
affirmed. Page 388 U. S. 245 I In rejecting Wade's claim that his privilege against
self-incrimination was violated by compelling him to appear in the
lineup wearing the tape and uttering the words given him by the
police, the Court relies on the recent holding in Schmerber v.
California, 384 U. S. 757 . In
that case, the Court held that taking blood from a man's body
against his will in order to convict him of a crime did not compel
him to be a witness against himself. I dissented from that holding,
384 U.S. at 384 U. S. 773 ,
and still dissent. The Court's reason for its holding was that the
sample of Schmerber's blood taken in order to convict him of crime
was neither "testimonial" nor "communicative" evidence. I think it
was both. It seems quite plain to me that the Fifth Amendment's
Self-incrimination Clause was designed to bar the Government from
forcing any person to supply proof of his own crime, precisely what
Schmerber was forced to do when he was forced to supply his blood.
The Government simply took his blood against his will and over his
counsel's protest for the purpose of convicting him of crime. So
here, having Wade in its custody awaiting trial to see if he could
or would be convicted of crime, the Government forced him to stand
in a lineup, wear strips on his face, and speak certain words, in
order to make it possible for government witnesses to identify him
as a criminal. Had Wade been compelled to utter these or any other
words in open court, it is plain that he would have been entitled
to a new trial because of having been compelled to be a witness
against himself. Being forced by the Government to help convict
himself and to supply evidence against himself by talking outside
the courtroom is equally violative of his constitutional right not
to be compelled to be a witness against himself. Consequently,
because of this violation of the Fifth Amendment, Page 388 U. S. 246 and not because of my own personal view that the Government's
conduct was "unfair," "prejudicial," or "improper," I would
prohibit the prosecution's use of lineup identification at
trial. II I agree with the Court, in large part because of the reasons it
gives, that failure to notify Wade's counsel that Wade was to be
put in a lineup by government officers and to be forced to talk and
wear tape on his face denied Wade the right to counsel in violation
of the Sixth Amendment. Once again, my reason for this conclusion
is solely the Sixth Amendment's guarantee that "the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defence." As this Court's opinion points out, "[t]he plain wording
of this guarantee thus encompasses counsel's assistance whenever
necessary to assure a meaningful defence.'" And I agree with
the Court that a lineup is a "critical stage" of the criminal
proceedings against an accused, because it is a stage at which the
Government makes use of his custody to obtain crucial evidence
against him. Besides counsel's presence at the lineup being
necessary to protect the defendant's specific constitutional rights
to confrontation and the assistance of counsel at the trial itself,
the assistance of counsel at the lineup is also necessary to
protect the defendant's in-custody assertion of his privilege
against self-incrimination, Miranda v. Arizona, 384 U. S. 436 ,
for, contrary to the Court, I believe that counsel may advise the
defendant not to participate in the lineup or to participate only
under certain conditions. I agree with the Court that counsel's presence at the lineup is
necessary to protect the accused's right to a "fair trial," only if
by "fair trial" the Court means a trial in accordance with the "Law
of the Land" as specifically set out in the Constitution. But there
are Page 388 U. S. 247 implications in the Court's opinion that, by a "fair trial," the
Court means a trial which a majority of this Court deems to be
"fair," and that a lineup is a "critical stage" only because the
Court, now assessing the "innumerable dangers" which inhere in it,
thinks it is such. That these implications are justified is
evidenced by the Court's suggestion that

															"[l]egislative or other regulations . . . which eliminate the
risks of abuse . . . at lineup proceedings . . . may also remove
the basis for regarding the stage as 'critical.'"

															And it is clear from the Court's opinion in Gilbert v.
California, post, p. 388 U. S. 263 ,
that it is willing to make the Sixth Amendment's guarantee of right
to counsel dependent on the Court's own view of whether a
particular stage of the proceedings -- though "critical" in the
sense of the prosecution's gathering of evidence -- is "critical"
to the Court's own view of a "fair trial." I am wholly unwilling to
make the specific constitutional right of counsel dependent on
judges' vague and transitory notions of fairness and their equally
transitory, though thought to be empirical, assessment of the "risk
that . . . counsel's absence . . . might derogate from . . . [a
defendant's] right to a fair trial." Ante at 388 U. S. 228 . See Pointer v. Texas, 380 U. S. 400 , 380 U. S. 412 (concurring opinion of Goldberg, J.). III I would reverse Wade's conviction without further ado had the
prosecution at trial made use of his lineup identification either
in place of courtroom identification or to bolster in a harmful
manner crucial courtroom identification. But the prosecution here
did neither of these things. After prosecution witnesses under oath
identified Wade in the courtroom, it was the defense, and not the
prosecution, which brought out the prior lineup identification.
While stating that "a per se rule of exclusion of
courtroom identification would be unjustified," the Court,
nevertheless, remands this case for "a Page 388 U. S. 248 hearing to determine whether the in-court identifications had an
independent source," or were the tainted fruits of the invalidly
conducted lineup. From this holding I dissent.

															In the first place, even if this Court has power to establish
such a rule of evidence, I think the rule fashioned by the Court is
unsound. The "tainted fruit" determination required by the Court
involves more than considerable difficulty. I think it is
practically impossible. How is a witness capable of probing the
recesses of his mind to draw a sharp line between a courtroom
identification due exclusively to an earlier lineup and a courtroom
identification due to memory not based on the lineup? What kind of
"clear and convincing evidence" can the prosecution offer to prove
upon what particular events memories resulting in an in-court
identification rest? How long will trials be delayed while judges
turn psychologists to probe the subconscious minds of witnesses?
All these questions are posed but not answered by the Court's
opinion. In my view, the Fifth and Sixth Amendments are satisfied
if the prosecution is precluded from using lineup identification as
either an alternative to or corroboration of courtroom
identification. If the prosecution does neither, and its witnesses
under oath identify the defendant in the courtroom, then I can find
no justification for stopping the trial in midstream to hold a
lengthy "tainted fruit" hearing. The fact of and circumstances
surrounding a prior lineup identification might be used by the
defense to impeach the credibility of the in-court identifications,
but not to exclude them completely.

															But, more important, there is no constitutional provision upon
which I can rely that directly or by implication gives this Court
power to establish what amounts to a constitutional rule of
evidence to govern not only the Federal Government, but the States
in their trial of state Page 388 U. S. 249 crimes under state laws in state courts. See Gilbert v.
California, supra. The Constitution deliberately reposed in
the States very broad power to create and to try crimes according
to their own rules and policies. Spencer v. Texas, 385 U. S. 554 .
Before being deprived of this power, the least that they can ask is
that we should be able to point to a federal constitutional
provision that, either by express language or by necessary
implication, grants us the power to fashion this novel rule of
evidence to govern their criminal trials. Cf. Berger v. New
York, ante, p. 388 U. S. 70 (BLACK, J., dissenting). Neither Nardone v. United States, 308 U. S. 338 , nor Wong Sun v. United States, 371 U.
S. 471 , both federal cases and both decided "in other
contexts," supports what the Court demands of the States today.

															Perhaps the Court presumes to write this constitutional rule of
evidence on the basis of the Fourteenth Amendment's Due Process
Clause. This is not the time or place to consider that claim.
Suffice it for me to say briefly that I find no such authority in
the Due Process Clause. It undoubtedly provides that a person must
be tried in accordance with the "Law of the Land." Consequently, it
violates due process to try a person in a way prohibited by the
Fourth, Fifth, or Sixth Amendments of our written Constitution. But
I have never been able to subscribe to the dogma that the Due
Process Clause empowers this Court to declare any law, including a
rule of evidence, unconstitutional which it believes is contrary to
tradition, decency, fundamental justice, or any of the other
wide-meaning words used by judges to claim power under the Due
Process Clause. See, e.g., Rochin v. California, 342 U. S. 165 . I
have an abiding idea that, if the Framers had wanted to let judges
write the Constitution on any such day-to-day beliefs of theirs,
they would have said so instead of so carefully defining their
grants and prohibitions in a written constitution. Page 388 U. S. 250 With no more authority than the Due Process Clause, I am wholly
unwilling to tell the state or federal courts that the United
States Constitution forbids them to allow courtroom identification
without the prosecution's first proving that the identification
does not rest in whole or in part on an illegal lineup. Should I do
so, I would feel that we are deciding what the Constitution is not
from what it says, but from what we think it would have been wise
for the Framers to put in it. That to me would be "judicial
activism" at its worst. I would leave the States and Federal
Government free to decide their own rules of evidence. That, I
believe, is their constitutional prerogative.

															I would affirm Wade's conviction.

															MR JUSTICE WHITE, whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join, dissenting in part and concurring in part.

															The Court has again propounded a broad constitutional rule
barring use of a wide spectrum of relevant and probative evidence,
solely because a step in its ascertainment or discovery occurs
outside the presence of defense counsel. This was the approach of
the Court in Miranda v. Arizona, 384 U.
S. 436 . I objected then to what I thought was an
uncritical and doctrinaire approach without satisfactory factual
foundation. I have much the same view of the present ruling, and
therefore dissent from the judgment and from Parts 388 U.
S. 388 U. S. and 388 U. S. The Court's opinion is far-reaching. It proceeds first by
creating a new per se rule of constitutional law: a
criminal suspect cannot be subjected to a pretrial identification
process in the absence of his counsel without violating the Sixth
Amendment. If he is, the State may not buttress a later courtroom
identification of the witness by any reference to the previous
identification. Furthermore, the courtroom identification is not
admissible Page 388 U. S. 251 at all unless the State can establish by clear and convincing
proof that the testimony is not the fruit of the earlier
identification made in the absence' of defendant's counsel --
admittedly a heavy burden for the State, and probably an impossible
one. To all intents and purposes, courtroom identifications are
barred if pretrial identifications have occurred without counsel's
being present.

															The rule applies to any lineup, to any other techniques employed
to produce an identification, and a fortiori to a
face-to-face encounter between the witness and the suspect alone,
regardless of when the identification occurs in time or place and
whether before or after indictment or information. It matters not
how well the witness knows the suspect, whether the witness is the
suspect's mother, brother, or long-time associate, and no matter
how long or well the witness observed the perpetrator at the scene
of the crime. The kidnap victim who has lived for days with his
abductor is in the same category as the witness who has had only a
fleeting glimpse of the criminal. Neither may identify the suspect
without defendant's counsel's being present. The same strictures
apply regardless of the number of other witnesses who positively
identify the defendant, and regardless of the corroborative
evidence showing that it was the defendant who had committed the
crime.

															The premise for the Court's rule is not the general
unreliability of eyewitness identifications, nor the difficulties
inherent in observation, recall, and recognition. The Court assumes
a narrower evil as the basis for its rule -- improper police
suggestion which contributes to erroneous identifications. The
Court apparently believes that improper police procedures are so
widespread that a broad prophylactic rule must be laid down,
requiring the presence of counsel at all pretrial identifications,
in Page 388 U. S. 252 order to detect recurring instances of police misconduct.
[ Footnote 2/1 ] I do not share this
pervasive distrust of all official investigations. One of the
materials the Court relies upon supports it. [ Footnote 2/2 ] Certainly, I would bow to solid fact, but
the Court quite obviously does not have before it any reliable,
comprehensive survey of current police practices on which to base
its new rule. Until it does, the Court should avoid excluding
relevant evidence from state criminal trials. Cf. Washington v.
Texas, ante, p. 388 U. S. 14 .

															The Court goes beyond assuming that a great majority of the
country's police departments are following improper practices at
pretrial identifications. To find the lineup a "critical" stage of
the proceeding and to exclude identifications made in the absence
of counsel, the Court must also assume that police "suggestion," if
it occurs at all, leads to erroneous, rather than accurate,
identifications, and that reprehensible police conduct will have an
unavoidable and largely undiscoverable impact on the trial. This,
in turn, assumes that there is now no adequate source from which
defense counsel can learn about the circumstances of the pretrial
identification in order to place before the jury all of the
considerations which should enter into an appraisal of courtroom
identification Page 388 U. S. 253 evidence. But these are treacherous and unsupported assumptions,
[ Footnote 2/3 ] resting as they do
on the notion that the defendant will not be aware, that the police
and the witnesses will forget or prevaricate, that defense counsel
will be unable to bring out the truth, and that neither jury,
judge, nor appellate court is a sufficient safeguard against
unacceptable police conduct occurring at a pretrial identification
procedure. I am unable to share the Court's view of the willingness
of the police and the ordinary citizen-witness to dissemble, either
with respect to the identification of the defendant or with respect
to the circumstances surrounding a pretrial identification.

															There are several striking aspects to the Court's holding.
First, the rule does not bar courtroom identifications where there
have been no previous identifications in the presence of the
police, although, when identified in the courtroom, the defendant
is known to be in custody and charged with the commission of a
crime. Second, the Court seems to say that, if suitable legislative
standards were adopted for the conduct of pretrial identifications,
thereby lessening the hazards in such confrontations, Page 388 U. S. 254 it would not insist on the presence of counsel. But if this is
true, why does not the Court simply fashion what it deems to be
constitutionally acceptable procedures for the authorities to
follow? Certainly the Court is correct in suggesting that the new
rule will be wholly inapplicable where police departments
themselves have established suitable safeguards.

															Third, courtroom identification may be barred, absent counsel at
a prior identification, regardless of the extent of counsel's
information concerning the circumstances of the previous
confrontation between witness and defendant -- apparently even if
there were recordings or sound movies of the events as they
occurred. But if the rule is premised on the defendant's right to
have his counsel know, there seems little basis for not accepting
other means to inform. A disinterested observer, recordings,
photographs -- any one of them would seem adequate to furnish the
basis for a meaningful cross-examination of the eyewitness who
identifies the defendant in the courtroom.

															I share the Court's view that the criminal trial, at the very
least, should aim at truthful factfinding, including accurate
eyewitness identifications. I doubt, however, on the basis of our
present information, that the tragic mistakes which have occurred
in criminal trials are as much the product of improper police
conduct as they are the consequence of the difficulties inherent in
eyewitness testimony and in resolving evidentiary conflicts by
court or jury. I doubt that the Court's new rule will obviate these
difficulties, or that the situation will be measurably improved by
inserting defense counsel into the investigative processes of
police departments everywhere.

															But, it may be asked, what possible state interest militates
against requiring the presence of defense counsel at lineups? After
all, the argument goes, he may do some good, he may upgrade the
quality of identification evidence in state courts, and he can
scarcely do any Page 388 U. S. 255 harm. Even if true, this is a feeble foundation for fastening an
iron-clad constitutional rule upon state criminal procedures.
Absent some reliably established constitutional violation, the
processes by which the States enforce their criminal laws are their
own prerogative. The States do have an interest in
conducting their own affairs, an interest which cannot be displaced
simply by saying that there are no valid arguments with respect to
the merits of a federal rule emanating from this Court.

															Beyond this, however, requiring counsel at pretrial
identifications as an invariable rule trenches on other valid state
interests. One of them is its concern with the prompt and efficient
enforcement of its criminal laws. Identifications frequently take
place after arrest, but before an indictment is returned or an
information is filed. The police may have arrested a suspect on
probable cause, but may still have the wrong man. Both the suspect
and the State have every interest in a prompt identification at
that stage, the suspect in order to secure his immediate release
and the State because prompt and early identification enhances
accurate identification, and because it must know whether it is on
the right investigative track. Unavoidably, however, the absolute
rule requiring the presence of counsel will cause significant
delay, and it may very well result in no pretrial identification at
all. Counsel must be appointed, and a time arranged convenient for
him and the witnesses. Meanwhile, it may be necessary to file
charges against the suspect, who may then be released on bail, in
the federal system very often on his own recognizance, with neither
the State nor the defendant having the benefit of a properly
conducted identification procedure.

															Nor do I think the witnesses themselves can be ignored. They
will now be required to be present at the convenience of counsel,
rather than their own. Many may be much less willing to participate
if the identification Page 388 U. S. 256 stage is transformed into an adversary proceeding not under the
control of a judge. Others may fear for their own safety if their
identity is known at an early date, especially when there is no way
of knowing until the lineup occurs whether or not the police really
have the right man. [ Footnote
2/4 ]

															Finally, I think the Court's new rule is vulnerable in terms of
its own unimpeachable purpose of increasing the reliability of
identification testimony.

															Law enforcement officers have the obligation to convict the
guilty and to make sure they do not convict the innocent. They must
be dedicated to making the criminal trial a procedure for the
ascertainment of the true facts surrounding the commission of the
crime. [ Footnote 2/5 ] To this
extent, our so-called adversary system is not adversary at all; nor
should it be. But defense counsel has no comparable obligation to
ascertain or present the truth. Our system assigns him a different
mission. He must Page 388 U. S. 257 be and is interested in preventing the conviction of the
innocent, but, absent a voluntary plea of guilty, we also insist
that he defend his client whether he is innocent or guilty. The
State has the obligation to present the evidence. Defense counsel
need present nothing, even if he knows what the truth is. He need
not furnish any witnesses to the police, or reveal any confidences
of his client, or furnish any other information to help the
prosecution's case. If he can confuse a witness, even a truthful
one, or make him appear at a disadvantage, unsure or indecisive,
that will be his normal course. [ Footnote 2/6 ] Our interest in not convicting Page 388 U. S. 258 the innocent permits counsel to put the State to its proof, to
put the State's case in the worst possible light, regardless of
what he thinks or knows to be the truth. Undoubtedly there are some
limits which defense counsel must observe, [ Footnote 2/7 ] but, more often than not, defense counsel
will cross-examine a prosecution witness, and impeach him if he
can, even if he thinks the witness is telling the truth, just as he
will attempt to destroy a witness who he thinks is lying. In this
respect, as part of our modified adversary system and as part of
the duty imposed on the most honorable defense counsel, we
countenance or require conduct which, in many instances, has
little, if any, relation to the search for truth.

															I would not extend this system, at least as it presently
operates, to police investigations, and would not require counsel's
presence at pretrial identification procedures. Counsel's interest
is in not having his client placed at the scene of the crime,
regardless of his whereabouts. Some counsel may advise their
clients to refuse to make any Page 388 U. S. 259 movements or to speak any words in a lineup, or even to appear
in one. To that extent, the impact on truthful factfinding is quite
obvious. Others will.not only observe what occurs and develop
possibilities for later cross-examination, but will hover over
witnesses and begin their cross-examination then, menacing truthful
factfinding as thoroughly as the Court fears the police now do.
Certainly there is an implicit invitation to counsel to suggest
rules for the lineup and to manage and produce it as best he can. I
therefore doubt that the Court's new rule, at least absent some
clearly defined limits on counsel's role, will measurably
contribute to more reliable pretrial identifications. My fears are
that it will have precisely the opposite result. It may well
produce fewer convictions, but that is hardly a proper measure of
its long-run acceptability. In my view, the State is entitled to
investigate and develop its case outside the presence of defense
counsel. This includes the right to have private conversations with
identification witnesses, just as defense counsel may have his own
consultations with these and other witnesses without having the
prosecutor present.

															Whether today's judgment would be an acceptable exercise of
supervisory power over federal courts is another question. But, as
a constitutional matter, the judgment in this case is erroneous,
and, although I concur in Parts I and III of the Court's opinion, I
respectfully register this dissent.

															[ Footnote 2/1 ]

															Yet, in Stovall v. Denno, post, p. 388 U. S. 293 , the
Court recognizes that improper police conduct in the identification
process has not been so widespread as to justify full retroactivity
for its new rule.

															[ Footnote 2/2 ]

															In Miranda v. Arizona, 384 U.
S. 436 , 384 U. S. 449 ,
the Court noted that O'Hara, Fundamentals of Criminal Investigation
(1956), is a text that has enjoyed extensive use among law
enforcement agencies and among students of police science. The
quality of the work was said to rest on the author's long service
as observer, lecturer in police science, and work as a federal
crime investigator. O'Hara does not suggest that the police should
or do use identification machinery improperly; instead, he argues
for techniques that would increase the reliability of eyewitness
identifications, and there is no reason to suggest that O'Hara's
views are not shared and practiced by the majority of police
departments throughout the land.

															[ Footnote 2/3 ]

															The instant case and its companions, Gilbert v. California,
post, p. 388 U. S. 263 , and Stovall v. Denno, post, p. 388 U. S. 293 ,
certainly lend no support to the Court's assumptions. The police
conduct deemed improper by the Court in the three cases seems to
have come to light at trial in the ordinary course of events. One
can ask what more counsel would have learned at the pretrial
identifications that would have been relevant for truth
determination at trial. When the Court premises its constitutional
rule on police conduct so subtle as to defy description and
subsequent disclosure, it deals in pure speculation. If police
conduct is intentionally veiled, the police will know about it, and
I am unwilling to speculate that defense counsel at trial will be
unable to reconstruct the known circumstances of the pretrial
identification. And if the "unknown" influence on identifications
is "innocent," the Court's general premise evaporates, and the
problem is simply that of the inherent shortcomings of eyewitness
testimony.

															[ Footnote 2/4 ]

															I would not have thought that the State's interest regarding its
sources of identification is any less than its interest in
protecting informants, especially those who may aid in
identification but who will not be used as witnesses. See
McCray v. Illinois, 386 U. S. 300 .

															[ Footnote 2/5 ]

															"The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all, and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall
be done. As such, he is, in a peculiar and very definite sense, the
servant of the law, the two-fold aim of which is that guilt shall
not escape, or innocence suffer. He may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one." Berger v. United States, 295 U. S.
78 , 295 U. S. 88 . See also Mooney v. Holohan, 294 U.
S. 103 ; Pyle v. Kansas, 317 U.
S. 213 ; Alcorta v. Texas, 355 U. S.
28 ; Napue v. Illinois, 360 U.
S. 264 ; Brady v. Maryland, 373 U. S.
83 ; Giles v. Maryland, 386 U. S.
66 ; Miller v. Pate, 386 U. S.
1 .

															[ Footnote 2/6 ]

															One point of view about the role of the courtroom lawyer appears
in Frank, Courts on Trial 82-83.

															"What is the role of the lawyers in bringing the evidence before
the trial court? As you may learn by reading any one of a dozen or
more handbooks on how to try a law-suit, an experienced lawyer uses
all sorts of stratagems to minimize the effect on the judge or jury
of testimony disadvantageous to his client, even when the lawyer
has no doubt of the accuracy and honesty of that testimony. . . .
If such a witness happens to be timid, frightened by the
unfamiliarity of courtroom ways, the lawyer, in his
cross-examination, plays on that weakness, in order to confuse the
witness and make it appear that he is concealing significant facts.
Longenecker, in his book Hints On The Trial of a Law Suit (a book
endorsed by the great Wigmore), in writing of the 'truthful,
honest, over-cautious' witness, tells how 'a skillful advocate, by
a rapid cross-examination, may ruin the testimony of such a
witness.' The author does not even hint any disapproval of that
accomplishment. Longenecker's and other similar books recommend
that a lawyer try to prod an irritable but honest 'adverse' witness
into displaying his undesirable characteristics in their most
unpleasant form in order to discredit him with the judge or jury.
'You may,' writes Harris,"

															"sometimes destroy the effect of an adverse witness by making
him appear more hostile than he really is. You may make him
exaggerate or unsay something and say it again."

															"Taft says that a clever cross-examiner, dealing with an honest
but egotistic witness, will "deftly tempt the witness to indulge in
his propensity for exaggeration, so as to make him hang
himself.'" "And thus," adds Taft," "it may happen that not only is the value of his testimony lost,
but the side which produces him suffers for seeking aid from such a
source"

															"-- although, I would add, that may be the only source of
evidence of a fact on which the decision will turn. 'An
intimidating manner in putting questions,' writes Wigmore,"

															"may so coerce or disconcert the witness that his answers do not
represent his actual knowledge on the subject. So also, questions
which in form or subject cause embarrassment, shame or anger in the
witness may unfairly lead him to such demeanor or utterances that
the impression produced by his statements does not do justice to
its real testimonial value."

															[ Footnote 2/7 ] See the materials collected in c. 3 of Countryman &
Finman, The Lawyer in Modern Society; Joint Committee on Continuing
Legal Education of American Law Institute and the American Bar
Association, The Problem of a Criminal Defense 1-46 (1961);
Stovall, Aspects of the Advocate's Dual Responsibility, 22 The
Alabama Lawyer 66; Gold, Split Loyalty: An Ethical Problem for the
Criminal Defense Lawyer, 14 Clev.-Mar.L.Rev. 65; Symposium on
Professional Ethics, 64 Mich.L.Rev. 1469-1498.

															MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, concurring in part and dissenting in part.

															1. I agree with the Court that the exhibition of the person of
the accused at a lineup is not itself a violation of the privilege
against self-incrimination. In itself, it is no more subject to
constitutional objection Page 388 U. S. 260 than the exhibition of the person of the accused in the
courtroom for identification purposes. It is an incident of the
State's power to arrest, and a reasonable and justifiable aspect of
the State's custody resulting from arrest. It does not require that
the accused take affirmative, volitional action, but only that,
having been duly arrested he may be seen for identification
purposes. It is, however, a "critical stage" in the prosecution,
and I agree with the Court that the opportunity to have counsel
present must be made available.

															2. In my view, however, the accused may not be compelled in a
lineup to speak the words uttered by the person who committed the
crime. I am confident that it could not be compelled in court. It
cannot be compelled in a lineup. It is more than passive, mute
assistance to the eyes of the victim or of witnesses. It is the
kind of volitional act -- the kind of forced cooperation by the
accused -- which is within the historical perimeter of the
privilege against compelled self-incrimination.

															Our history and tradition teach and command that an accused may
stand mute. The privilege means just that; not less than that.
According to the Court, an accused may be jailed -- indefinitely --
until he is willing to say, for an identifying audience, whatever
was said in the course of the commission of the crime. Presumably,
this would include, "Your money or your life" -- or perhaps, words
of assault in a rape case. This is intolerable under our
constitutional system.

															I completely agree that the accused must be advised of and given
the right to counsel before a lineup -- and I join in that part of
the Court's opinion; but this is an empty right unless we mean to
insist upon the accused's fundamental constitutional immunities.
One of these is that the accused may not be compelled to speak. To
compel him to speak would violate the privilege Page 388 U. S. 261 against self-incrimination, which is incorporated in the Fifth
Amendment.

															This great privilege is not merely a shield for the accused. It
is also a prescription of technique designed to guide the State's
investigation. History teaches us that self-accusation is an
unreliable instrument of detection, apt to inculpate the
innocent-but-weak and to enable the guilty to escape. But this is
not the end of the story. The privilege historically goes to the
roots of democratic and religious principle. It prevents the
debasement of the citizen which would result from compelling him to
"accuse" himself before the power of the state. The roots of the
privilege are deeper than the rack and the screw used to extort
confessions. They go to the nature of a free man and to his
relationship to the state.

															An accused cannot be compelled to utter the words spoken by the
criminal in the course of the crime. I thoroughly disagree with the
Court's statement that such compulsion does not violate the Fifth
Amendment. The Court relies upon Schmerber v. California, 384 U. S. 757 (1966), to support this. I dissented in Schmerber, but, if
it were controlling here, I should, of course, acknowledge its
binding effect unless we were prepared to overrule it. But Schmerber, which authorized the forced extraction of blood
from the veins of an unwilling human being, did not compel the
person actively to cooperate -- to accuse himself by a volitional
act which differs only in degree from compelling him to act out the
crime, which, I assume, would be rebuffed by the Court. It is the
latter feature which places the compelled utterance by the accused
squarely within the history and noble purpose of the Fifth
Amendment's commandment.

															To permit Schmerber to apply in any respect beyond its
holding is, in my opinion, indefensible. To permit Page 388 U. S. 262 its insidious doctrine to extend beyond the invasion of the
body, which it permits, to compulsion of the will of a man, is to
deny and defy a precious part of our historical faith, and to
discard one of the most profoundly cherished instruments by which
we have established the freedom and dignity of the individual. We
should not so alter the balance between the rights of the
individual and of the state, achieved over centuries of
conflict.

															3. While the Court holds that the accused must be advised of and
given the right to counsel at the lineup, it makes the privilege
meaningless in this important respect. Unless counsel has been
waived, or, being present, has not objected to the accused's
utterance of words used in the course of committing the crime, to
compel such an utterance is constitutional error. * Accordingly, while I join the Court in requiring vacating of the
judgment below for a determination as to whether the identification
of respondent was based upon factors independent of the lineup, I
would do so not only because of the failure to offer counsel before
the lineup, but also because of the violation of respondent's Fifth
Amendment rights.

															* While it is conceivable that legislation might provide a
meticulous lineup procedure which would satisfy constitutional
requirements, I do not agree with the Court that this would "remove
the basis for regarding the [lineup] stage as critical."'