U.S. Supreme Court Massiah v. United States, 377
U.S. 201 (1964) Massiah v. United
States No. 199 Argued March 3, 1964 Decided May 18, 1964 377
U.S. 201 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus Government agents, while continuing to investigate narcotics
activities including those of petitioner, who had retained a lawyer
and was free on bail after indictment, without petitioner's
knowledge, secured an alleged confederate's consent to install a
radio transmitter in the latter's automobile. An agent was thereby
enabled to overhear petitioner's damaging statements which, despite
his objection, were used in the trial which resulted in his
conviction. Held: Incriminating statements thus deliberately
elicited by federal agents from the petitioner, in the absence of
his attorney, deprived the petitioner of his right to counsel under
the Sixth Amendment; therefore such statements could not
constitutionally be used as evidence against him in his trial. Pp.
201-207.

															307 F.2d 62, reversed.

															MR. JUSTICE STEWART delivered the opinion of the Court.

															The petitioner was indicted for violating the federal narcotics
laws. He retained a lawyer, pleaded not guilty, and was released on
bail. While he was free on bail, a federal agent succeeded by
surreptitious means in listening to incriminating statements made
by him. Evidence of these statements was introduced against the
petitioner at his trial over his objection. He was convicted, and
the Court of Appeals affirmed.{1} We granted certiorari to Page 377 U. S. 202 consider whether, under the circumstances here presented, the
prosecution's use at the trial of evidence of the petitioner's own
incriminating statements deprived him of any right secured to him
under the Federal Constitution. 374 U.S. 805.

															The petitioner, a merchant seaman, was in 1958 a member of the
crew of the S.S. Santa Maria. In April of that year,
federal customs officials in New York received information that he
was going to transport a quantity of narcotics aboard that ship
from South America to the United States. As a result of this and
other information, the agents searched the Santa Maria upon its arrival in New York and found in the afterpeak of the
vessel five packages containing about three and a half pounds of
cocaine. They also learned of circumstances, not here relevant,
tending to connect the petitioner with the cocaine. He was
arrested, promptly arraigned, and subsequently indicted for
possession of narcotics aboard a United States vessel.{2} In July,
a superseding indictment was returned, charging the petitioner and
a man named Colson with the same substantive offense, and in
separate counts charging the petitioner, Colson, and others with
having conspired to possess narcotics aboard a United States
vessel, and to import, conceal, and facilitate the sale of
narcotics.{3} The petitioner, who had retained a lawyer, pleaded
not guilty and was released on bail, along with Colson.

															A few days later, and quite without the petitioner's knowledge,
Colson decided to cooperate with the government agents in their
continuing investigation of the narcotics activities in which the
petitioner, Colson, and others had allegedly been engaged. Colson
permitted an agent named Murphy to install a Schmidt radio
transmitter Page 377 U. S. 203 under the front seat of Colson's automobile, by means of which
Murphy, equipped with an appropriate receiving device, could
overhear from some distance away conversations carried on in
Colson's car.

															On the evening of November 19, 1959, Colson and the petitioner
held a lengthy conversation while sitting in Colson's automobile,
parked on a New York street. By prearrangement with Colson, and
totally unbeknown to the petitioner, the agent Murphy sat in a car
parked out of sight down the street and listened over the radio to
the entire conversation. The petitioner made several incriminating
statements during the course of this conversation. At the
petitioner's trial, these incriminating statements were brought
before the jury through Murphy's testimony, despite the insistent
objection of defense counsel. The jury convicted the petitioner of
several related narcotics offenses, and the convictions were
affirmed by the Court of Appeals.{4}

															The petitioner argues that it was an error of constitutional
dimensions to permit the agent Murphy at the trial to testify to
the petitioner's incriminating statements which Murphy had
overheard under the circumstances disclosed by this record. This
argument is based upon two distinct and independent grounds. First,
we are told that Murphy's use of the radio equipment violated the
petitioner's rights under the Fourth Amendment, and, consequently,
that all evidence which Murphy thereby obtained was, under the rule
of Weeks v. United States, 232 U.
S. 383 , inadmissible against the petitioner at the
trial. Secondly, it is said that the petitioner's Page 377 U. S. 204 Fifth and Sixth Amendment rights were violated by the use in
evidence against him of incriminating statements which government
agents had deliberately elicited from him after he had been
indicted and in the absence of his retained counsel. Because of the
way we dispose of the case, we do not reach the Fourth Amendment
issue.

															In Spano v. New York, 360 U. S. 315 ,
this Court reversed a state criminal conviction because a
confession had been wrongly admitted into evidence against the
defendant at his trial. In that case, the defendant had already
been indicted for first-degree murder at the time he confessed. The
Court held that the defendant's conviction could not stand under
the Fourteenth Amendment. While the Court's opinion relied upon the
totality of the circumstances under which the confession had been
obtained, four concurring Justices pointed out that the
Constitution required reversal of the conviction upon the sole and
specific ground that the confession had been deliberately elicited
by the police after the defendant had been indicted, and therefore
at a time when he was clearly entitled to a lawyer's help. It was
pointed out that, under our system of justice, the most elemental
concepts of due process of law contemplate that an indictment be
followed by a trial, "in an orderly courtroom, presided over by a
judge, open to the public, and protected by all the procedural
safeguards of the law." 360 U.S. at 360 U. S. 327 (STEWART, J., concurring). It was said that a Constitution which
guarantees a defendant the aid of counsel at such a trial could
surely vouchsafe no less to an indicted defendant under
interrogation by the police in a completely extrajudicial
proceeding. Anything less, it was said, might deny a defendant
"effective representation by counsel at the only stage when legal
aid and advice would help him." 360 U.S. at 360 U. S. 326 (DOUGLAS, J., concurring).

															Ever since this Court's decision in the Spano case, the
New York courts have unequivocally followed this constitutional Page 377 U. S. 205 rule.

															"Any secret interrogation of the defendant, from and after the
finding of the indictment, without the protection afforded by the
presence of counsel, contravenes the basic dictates of fairness in
the conduct of criminal causes and the fundamental rights of
persons charged with crime." People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70,
75, 175 N.E.2d 445, 448.{5}

															This view no more than reflects a constitutional principle
established as long ago as Powell v. Alabama, 287 U. S.
45 , where the Court noted that,

															". . . during perhaps the most critical period of the
proceedings . . . , that is to say, from the time of their
arraignment until the beginning of their trial, when consultation,
thoroughgoing investigation and preparation [are] vitally
important, the defendants . . . [are] as much entitled to such aid
[of counsel] during that period as at the trial itself." Id. at 287 U. S. 57 .
And, since the Spano decision, the same basic
constitutional principle has been broadly reaffirmed by this Court. Hamilton v. Alabama, 368 U. S. 52 ; White v. Maryland, 373 U. S. 59 . See Gideon v. Wainwright, 372 U.
S. 335 .

															Here we deal not with a state court conviction, but with a
federal case, where the specific guarantee of the Sixth Amendment
directly applies.{6} Johnson v.
Zerbst , 304 Page 377 U. S. 206 U.S. 458. We hold that the petitioner was denied the basic
protections of that guarantee when there was used against him at
his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been
indicted and in the absence of his counsel. It is true that, in the Spano case, the defendant was interrogated in a police
station, while here the damaging testimony was elicited from the
defendant without his knowledge while he was free on bail. But, as
Judge Hays pointed out in his dissent in the Court of Appeals,

															"if such a rule is to have any efficacy, it must apply to
indirect and surreptitious interrogations as well as those
conducted in the jailhouse. In this case, Massiah was more
seriously imposed upon . . . because he did not even know that he
was under interrogation by a government agent."

															307 F.2d at 72-73.

															The Solicitor General, in his brief and oral argument, has
strenuously contended that the federal law enforcement agents had
the right, if not indeed the duty, to continue their investigation
of the petitioner and his alleged criminal associates even though
the petitioner had been indicted. He points out that the Government
was continuing its investigation in order to uncover not only the
source of narcotics found on the S.S. Santa Maria, but
also their intended buyer. He says that the quantity of narcotics
involved was such as to suggest that the petitioner was part of a
large and well-organized ring, and indeed that the continuing
investigation confirmed this suspicion, since it resulted in
criminal charges against many defendants. Under these
circumstances, the Solicitor General concludes that the Government
agents were completely "justified in making use of Colson's
cooperation by having Colson continue his normal associations and
by surveilling them."

															We may accept, and, at least for present purposes, completely
approve all that this argument implies, Fourth Page 377 U. S. 207 Amendment problems to one side. We do not question that, in this
case, as in many cases, it was entirely proper to continue an
investigation of the suspected criminal activities of the defendant
and his alleged confederates, even though the defendant had already
been indicted. All that we hold is that the defendant's own
incriminating statements, obtained by federal agents under the
circumstances here disclosed, could not constitutionally be used by
the prosecution as evidence against him at his trial. Reversed. 307 F.2d 62.

															21 U.S.C. § 184a.

															21 U.S.C. §§ 173, 174.

															The petitioner's trial was upon a second superseding indictment
which had been returned on March 3, 1961, and which included
additional counts against him and other defendants. The Court of
Appeals reversed his conviction upon a conspiracy count, one judge
dissenting, but affirmed his convictions upon three substantive
counts, one judge dissenting. 307 F.2d 62. See also People v. Davis, 13 N.Y.2d 690, 241 N.Y.S.2d
172, 191 N.E.2d 674 (1963); People v. Rodriguez, 11 N.Y.2d
279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962); People v.
Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962); People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166
N.E.2d 825 (1960); People v. Swanson, 18 A.D.2d 832, 237
N.Y.S.2d 400 (2d Dept. 1963); People v. Price, 18 A.D.2d
739, 235 N.Y.S.2d 390 (3d Dept. 1962); People v. Wallace, 17 A.D.2d 981, 234 N.Y.S.2d 579 (2d Dept. 1962); People v.
Karmel, 17 A.D.2d 659, 230 N.Y.S.2d 413 (2d Dept. 1962); People v. Robinson, 16 A.D.2d 184, 224 N.Y.S.2d 705 (4th
Dept. 1962).

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

															MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR. JUSTICE
HARLAN join, dissenting.

															The current incidence of serious violations of the law
represents not only an appalling waste of the potentially happy and
useful lives of those who engage in such conduct, but also an
overhanging, dangerous threat to those unidentified and innocent
people who will be the victims of crime today and tomorrow. This is
a festering problem for which no adequate cures have yet been
devised. At the very least, there is much room for discontent with
remedial measures so far undertaken. And admittedly there remains
much to be settled concerning the disposition to be made of those
who violate the law.

															But dissatisfaction with preventive programs aimed at
eliminating crime and profound dispute about whether we should
punish, deter, rehabilitate or cure cannot excuse concealing one of
our most menacing problems until the millennium has arrived. In my
view, a civilized society must maintain its capacity to discover
transgressions of the law and to identify those who flout it. This
much is necessary even to know the scope of the problem, much less
to formulate intelligent countermeasures. It will just not do to
sweep these disagreeable matters under the rug or to pretend they
are not there at all. Page 377 U. S. 208 It is therefore a rather portentous occasion when a
constitutional rule is established barring the use of evidence
which is relevant, reliable and highly probative of the issue which
the trial court has before it -- whether the accused committed the
act with which he is charged. Without the evidence, the quest for
truth may be seriously impeded, and, in many cases, the trial
court, although aware of proof showing defendant's guilt, must
nevertheless release him because the crucial evidence is deemed
inadmissible. This result is entirely justified in some
circumstances because exclusion serves other policies of overriding
importance, as where evidence seized in an illegal search is
excluded not because of the quality of the proof, but to secure
meaningful enforcement of the Fourth Amendment. Weeks v. United
States, 232 U. S. 383 ; Mapp v. Ohio, 367 U. S. 643 . But
this only emphasizes that the soundest of reasons is necessary to
warrant the exclusion of evidence otherwise admissible and the
creation of another area of privileged testimony. With all due
deference, I am not at all convinced that the additional barriers
to the pursuit of truth which the Court today erects rest on
anything like the solid foundations which decisions of this gravity
should require.

															The importance of the matter should not be underestimated, for
today's rule promises to have wide application well beyond the
facts of this case. The reason given for the result here -- the
admissions were obtained in the absence of counsel -- would seem
equally pertinent to statements obtained at any time after the
right to counsel attaches, whether there has been an indictment or
not; to admissions made prior to arraignment, at least where the
defendant has counsel or asks for it; to the fruits of admissions
improperly obtained under the new rule; to criminal proceedings in
state courts; and to defendants long since convicted upon
evidence Page 377 U. S. 209 including such admissions. The new rule will immediately do
service in a great many cases.

															Whatever the content or scope of the rule may prove to be, I am
unable to see how this case presents an unconstitutional
interference with Massiah's right to counsel. Massiah was not
prevented from consulting with counsel as often as he wished. No
meetings with counsel were disturbed or spied upon. Preparation for
trial was in no way obstructed. It is only a sterile syllogism --
an unsound one, besides -- to say that because Massiah had a right
to counsel's aid before and during the trial, his out-of-court
conversations and admissions must be excluded if obtained without
counsel's consent or presence. The right to counsel has never meant
as much before, Cicenia v. LaGay, 357 U.
S. 504 ; Crooker v. California, 357 U.
S. 433 , and its extension in this case requires some
further explanation, so far unarticulated by the Court.

															Since the new rule would exclude all admissions made to the
police, no matter how voluntary and reliable, the requirement of
counsel's presence or approval would seem to rest upon the
probability that counsel would foreclose any admissions at all.
This is nothing more than a thinly disguised constitutional policy
of minimizing or entirely prohibiting the use in evidence of
voluntary out-of-court admissions and confessions made by the
accused. Carried as far as blind logic may compel some to go, the
notion that statements from the mouth of the defendant should not
be used in evidence would have a severe and unfortunate impact upon
the great bulk of criminal cases.

															Viewed in this light, the Court's newly fashioned exclusionary
principle goes far beyond the constitutional privilege against
self-incrimination, which neither requires nor suggests the barring
of voluntary pretrial admissions. The Fifth Amendment states that
no person "shall be compelled in any criminal case to be a witness
against Page 377 U. S. 210 himself. . . ." The defendant may thus not be compelled to
testify at his trial, but he may if he wishes. Likewise, he may not
be compelled or coerced into saying anything before trial; but,
until today, he could if he wished to, and, if he did, it could be
used against him. Whether as a matter of self-incrimination or of
due process, the proscription is against compulsion -- coerced
incrimination. Under the prior law, announced in countless cases in
this Court, the defendant's pretrial statements were admissible
evidence if voluntarily made, inadmissible if not the product of
his free will. Hardly any constitutional area has been more
carefully patrolled by this Court, and, until now, the Court has
expressly rejected the argument that admissions are to be deemed
involuntary if made outside the presence of counsel. Cicenia v.
LaGay, supra; Crooker v. California, supra. * The Court presents no facts, no objective evidence, no reasons
to warrant scrapping the voluntary-involuntary test for
admissibility in this area. Without such evidence, I would retain
it in its present form.

															This case cannot be analogized to the American Bar Association's
rule forbidding an attorney to talk to the opposing party litigant
outside the presence of his counsel. Aside from the fact that the
Association's canons are not of constitutional dimensions, the
specific canon argued is inapposite because it deals with the
conduct Page 377 U. S. 211 of lawyers and not with the conduct of investigators. Lawyers
are forbidden to interview the opposing party because of the
supposed imbalance of legal skill and acumen between the lawyer and
the party litigant; the reason for the rule does not apply to
nonlawyers, and certainly not to Colson, Massiah's codefendant.

															Applying the new exclusionary rule is peculiarly inappropriate
in this case. At the time of the conversation in question,
petitioner was not in custody, but free on bail. He was not
questioned in what anyone could call an atmosphere of official
coercion. What he said was said to his partner in crime, who had
also been indicted. There was no suggestion, or any possibility, of
coercion. What petitioner did not know was that Colson had decided
to report the conversation to the police. Had there been no prior
arrangements between Colson and the police, had Colson simply gone
to the police after the conversation had occurred, his testimony
relating Massiah's statements would be readily admissible at the
trial, as would a recording which he might have made of the
conversation. In such event, it would simply be said that Massiah
risked talking to a friend who decided to disclose what he knew of
Massiah's criminal activities. But if, as occurred here, Colson had
been cooperating with the police prior to his meeting with Massiah,
both his evidence and the recorded conversation are somehow
transformed into inadmissible evidence despite the fact that the
hazard to Massiah remains precisely the same -- the defection of a
confederate in crime.

															Reporting criminal behavior is expected, or even demanded, of
the ordinary citizen. Friends may be subpoenaed to testify about
friends, relatives about relatives and partners about partners. I
therefore question the soundness of insulating Massiah from the
apostasy of his partner in crime, and of furnishing constitutional
sanction for the strict secrecy and discipline of criminal
organizations. Page 377 U. S. 212 Neither the ordinary citizen nor the confessed criminal should
be discouraged from reporting what he knows to the authorities and
from lending his aid to secure evidence of crime. Certainly, after
this case, the Colsons will be few and far between, and the
Massiahs can breathe much more easily, secure in the knowledge that
the Constitution furnishes an important measure of protection
against faithless compatriots and guarantees sporting treatment for
sporting peddlers of narcotics.

															Meanwhile, of course, the public will again be the loser, and
law enforcement will be presented with another serious dilemma. The
general issue lurking in the background of the Court's opinion is
the legitimacy of penetrating or obtaining confederates in criminal
organizations. For the law enforcement agency, the answer for the
time being can only be in the form of a prediction about the future
application of today's new constitutional doctrine. More narrowly,
and posed by the precise situation involved here, the question is
this: when the police have arrested and released on bail one member
of a criminal ring and another member, a confederate, is
cooperating with the police, can the confederate be allowed to
continue his association with the ring, or must he somehow be
withdrawn to avoid challenge to trial evidence on the ground that
it was acquired after, rather than before, the arrest, after,
rather than before, the indictment?

															Defendants who are out on bail have been known to continue their
illicit operations. See Rogers v. United States, 325 F.2d
485 (C.A.10th Cir.). That an attorney is advising them should not
constitutionally immunize their statements made in furtherance of
these operations and relevant to the question of their guilt at the
pending prosecution. In this very case, there is evidence that,
after indictment, defendant Aiken tried to Page 377 U. S. 213 persuade Agent Murphy to go into the narcotics business with
him. Under today's decision, Murphy may neither testify as to the
content of this conversation nor seize for introduction in evidence
any narcotics whose location Aiken may have made known.

															Undoubtedly, the evidence excluded in this case would not have
been available but for the conduct of Colson in cooperation with
Agent Murphy, but is it this kind of conduct which should be
forbidden to those charged with law enforcement? It is one thing to
establish safeguards against procedures fraught with the
potentiality of coercion and to outlaw "easy but self-defeating
ways in which brutality is substituted for brains as an instrument
of crime detection." McNabb v. United States, 318 U.
S. 332 , 318 U. S. 344 .
But here there was no substitution of brutality for brains, no
inherent danger of police coercion justifying the prophylatic
effect of another exclusionary rule. Massiah was not being
interrogated in a police station, was not surrounded by numerous
officers or questioned in relays, and was not forbidden access to
others. Law enforcement may have the elements of a contest about
it, but it is not a game. McGuire v. United States, 273 U. S. 95 , 273 U. S. 99 .
Massiah and those like him receive ample protection from the long
line of precedents in this Court holding that confessions may not
be introduced unless they are voluntary. In making these
determinations, the courts must consider the absence of counsel as
one of several factors by which voluntariness is to be judged. See House v. Mayo, 324 U. S. 42 , 324 U. S. 45 -46; Payne v. Arkansas, 356 U. S. 560 , 356 U. S. 567 ; Cicenia v. LaGay, supra, at 357 U. S. 509 .
This is a wiser rule than the automatic rule announced by the
Court, which requires courts and juries to disregard voluntary
admissions which they might well find to be the best possible
evidence in discharging their responsibility for ascertaining
truth.

															* Today's rule picks up where the Fifth Amendment ends, and bars
wholly voluntary admissions. I would assume, although one cannot be
sure, that the new rule would not have a similar supplemental role
in connection with the Fourth Amendment. While the Fifth Amendment
bars only compelled incrimination, the Fourth Amendment bars only
unreasonable searches. It could be argued, fruitlessly I would
hope, that, if the police must stay away from the defendant, they
must also stay away from his house once the right to counsel has
attached, and that a court must exclude the products of a
reasonable search made pursuant to a properly issued warrant but
without the consent or presence of the accused's counsel.

Summary:
Here is a summary of the case:

The Supreme Court ruled that the government violated Massiah's Sixth Amendment right to counsel by deliberately eliciting incriminating statements from him without his attorney present, and these statements could not be used as evidence against him at trial. Massiah was indicted for violating federal narcotics laws, and while he was free on bail, a federal agent secretly listened to his incriminating statements, which were later used as evidence against him at trial. The Court held that the use of these statements deprived Massiah of his constitutional right to counsel and reversed his conviction.

The case sets an important precedent regarding the protection of an individual's right to counsel during the investigation and trial stages, highlighting the importance of ensuring that any incriminating statements made by a defendant are voluntary and made with the presence and guidance of their attorney.


U.S. Supreme Court Kirby v. Illinois, 406
U.S. 682 (1972) Kirby v. Illinois No. 70-5061 Argued November 11,
1971 Reargued March 20-21,
1972 Decided June 7, 1972 406
U.S. 682 CERTIORARI TO THE APPELLATE COURT
OF ILLINOIS, FIRST DISTRICT Syllabus Petitioner and a companion were stopped for interrogation. When
each produced, in the course of demonstrating identification, items
bearing the name "Shard," they were arrested and taken to the
police station. There, the arresting officers learned of a robbery
of one "Shard" two days before. The officers sent for Shard, who
immediately identified petitioner and his companion as the robbers.
At the time of the confrontation, petitioner and his companion were
not advised of the right to counsel, nor did either ask for or
receive legal assistance. Six weeks later, petitioner and his
companion were indicted for the Shard robbery. At the trial, after
a pretrial motion to suppress his testimony had been overruled,
Shard testified as to his previous identification of petitioner and
his companion, and again identified them as the robbers. The
defendants were found guilty, and petitioner's conviction was
upheld on appeal, the appellate court holding that the per
se exclusionary rule of United States v. Wade, 388 U. S. 218 , and Gilbert v. California, 388 U. S. 263 , did
not apply to pre-indictment confrontations. Held: The judgment is affirmed. Pp. 406 U. S.
687 -691.

															121 Ill.App.2d 323, 257 N.E.2d 589, affirmed.

															MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE REHNQUIST, concluded that a showup after
arrest, but before the initiation of any adversary criminal
proceeding (whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment), unlike the
post-indictment confrontations involved in Gilbert and Wade, is not a criminal prosecution at which the accused,
as a matter of absolute right, is entitled to counsel. Pp. 406 U. S.
687 -691.

															MR. JUSTICE POWELL concurred in the result. P. 406 U. S.
691 .

															STEWART, J., announced the Court's judgment and delivered an
opinion in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ.,
joined. BURGER, C.J., filed a concurring statement, post, p. 406 U. S. 691 .
POWELL, J., filed a statement concurring in the result, post, p. 406 U. S. 691 .
BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and Page 406 U. S. 683 MARSHALL, JJ., joined, post, p. 406 U. S. 691 .
WHITE, J., filed a dissenting statement, post, p. 406 U. S.
705 .

															MR. JUSTICE STEWART announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR.
JUSTICE REHNQUIST join.

															In United States v. Wade, 388 U.
S. 218 , and Gilbert v. California, 388 U.
S. 263 , this Court held

															"that a post-indictment pretrial lineup at which the accused is
exhibited to identifying witnesses is a critical stage of the
criminal prosecution; that police conduct of such a lineup without
notice to and in the absence of his counsel denies the accused his
Sixth [and Fourteenth] Amendment right to counsel and calls in
question the admissibility at trial of the in-court identifications
of the accused by witnesses who attended the lineup." Gilbert v. California, supra, at 388 U. S. 272 .
Those cases further held that no "in-court identifications" are
admissible in evidence if their "source" is a lineup conducted in
violation of this constitutional standard. "Only a per se exclusionary rule as to such testimony can be an effective
sanction," the Court said, "to assure that law Page 406 U. S. 684 enforcement authorities will respect the accused's
constitutional right to the presence of his counsel at the critical
lineup." Id. at 388 U. S. 273 .
In the present case, we are asked to extend the Wade-Gilbert
per se exclusionary rule to identification testimony based
upon a police station showup that took place before the defendant
had been indicted or otherwise formally charged with any criminal
offense.

															On February 21, 1968, a man named Willie Shard reported to the
Chicago police that the previous day two men had robbed him on a
Chicago street of a wallet containing, among other things,
traveler's checks and a Social Security card. On February 22, two
police officers stopped the petitioner and a companion, Ralph Bean,
on West Madison Street in Chicago. [ Footnote 1 ] When asked for identification, the petitioner
produced a wallet that contained three traveler's checks and a
Social Security card, all bearing the name of Willie Shard. Papers
with Shard's name on them were also found in Bean's possession.
When asked to explain his possession of Shard's property, the
petitioner first said that the traveler's checks were "play money,"
and then told the officers that he had won them in a crap game. The
officers then arrested the petitioner and Bean and took them to a
police station.

															Only after arriving at the police station, and checking the
records there did the arresting officers learn of the Shard
robbery. A police car was then dispatched to Shard's place of
employment, where it picked up Shard and brought him to the police
station. Immediately upon entering the room in the police station
where the petitioner and Bean were seated at a table, Shard
positively identified them as the men who had Page 406 U. S. 685 robbed him two days earlier. No lawyer was present in the room,
and neither the petitioner nor Bean had asked for legal assistance,
or been advised of any right to the presence of counsel.

															More than six weeks later, the petitioner and Bean were indicted
for the robbery of Willie Shard. Upon arraignment, counsel was
appointed to represent them, and they pleaded not guilty. A
pretrial motion to suppress Shard's identification testimony was
denied, and, at the trial, Shard testified as a witness for the
prosecution. In his testimony, he described his identification of
the two men at the police station on February 22, [ Footnote 2 ] and identified them again in the
courtroom as the men Page 406 U. S. 686 who had robbed him on February 20. [ Footnote 3 ] He was cross-examined at length regarding the
circumstances of his identification of the two defendants. Cf.
Pointer v. Texas, 380 U. S. 400 . The
jury found both defendants guilty, and the petitioner's conviction
was affirmed on appeal. People v. Kirby, 121 Ill.App.2d
323, 257 N.E.2d 589. [ Footnote
4 ] The Illinois appellate court held that the admission of
Shard's testimony was not error, relying upon an earlier decision
of the Illinois Supreme Court, People v.
Palmer, 41 Ill. 2d
571 , 244 N.E.2d
173 , holding that the Wade-Gilbert per se exclusionary
rule is not applicable to pre-indictment confrontations. Page 406 U. S. 687 We granted certiorari, limited to this question. 402 U.S. 995.
[ Footnote 5 ] I We note at the outset that the constitutional privilege against
compulsory self-incrimination is in no way implicated here. The
Court emphatically rejected the claimed applicability of that
constitutional guarantee in Wade itself:

															"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 . . . ."

															388 U.S. at 388 U. S.
221 .

															" * * * *" "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 Page 406 U. S. 688 to exhibit his physical characteristics, not compulsion to
disclose any knowledge he might have. . . ." Id. at 388 U. S.
222 .

															It follows that the doctrine of Miranda v. Arizona, 384 U. S. 436 , has
no applicability whatever to the issue before us; for the Miranda decision was based exclusively upon the Fifth and
Fourteenth Amendment privilege against compulsory
self-incrimination, upon the theory that custodial interrogation is
inherently coercive.

															The Wade-Gilbert exclusionary rule, by contrast, stems
from a quite different constitutional guarantee -- the guarantee of
the right to counsel contained in the Sixth and Fourteenth
Amendments. Unless all semblance of principled constitutional
adjudication is to be abandoned, therefore, it is to the decisions
construing that guarantee that we must look in determining the
present controversy.

															In a line of constitutional cases in this Court stemming back to
the Court's landmark opinion in Powell v. Alabama, 287 U. S. 45 , it
has been firmly established that a person's Sixth and Fourteenth
Amendment right to counsel attaches only at or after the time that
adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458 ; Hamilton v. Alabama, 368 U. S. 52 ; Gideon v. Wainwright, 372 U. S. 335 ; White v. Maryland, 373 U. S. 59 ; Massiah v. United States, 377 U.
S. 201 ; United States v. Wade, 388 U.
S. 218 ; Gilbert v. California, 388 U.
S. 263 ; Coleman v. Alabama, 399 U. S.
1 .

															This is not to say that a defendant in a criminal case has a
constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the
time of arraignment, [ Footnote
6 ] and the Court Page 406 U. S. 689 has recently held that it exists also at the time of a
preliminary hearing. Coleman v. Alabama, supra. But the
point is that, while members of the Court have differed as to
existence of the right to counsel in the contexts of some of the
above cases, all of those cases have involved points of time at or
after the initiation of adversary judicial criminal proceedings --
whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.

															The only seeming deviation from this long line of constitutional
decisions was Escobedo v. Illinois, 378 U.
S. 478 . But Escobedo is not apposite here, for
two distinct reasons. First, the Court. in retrospect. perceived
that the "prime purpose" of Escobedo was not to vindicate
the constitutional right to counsel as such, but, like Miranda, "to guarantee full effectuation of the privilege
against self-incrimination. . . ." Johnson v. New Jersey, 384 U. S. 719 , 384 U. S. 729 .
Secondly, and perhaps even more important for purely practical
purposes, the Court has limited the holding of Escobedo to
its own facts, Johnson v. New Jersey, supra, at 384 U. S.
733 -734, and those facts are not remotely akin to the
facts of the case before us.

															The initiation of judicial criminal proceedings is far from a
mere formalism. It is the starting point of our whole system of
adversary criminal justice. For it is only then that the government
has committed itself to prosecute, and only then that the adverse
positions of government and defendant have solidified. It is then
that a defendant finds himself faced with the prosecutorial forces
of organized society, and immersed in the intricacies of
substantive and procedural criminal law. Page 406 U. S. 690 It is this point, therefore, that marks the commencement of the
"criminal prosecutions" to which alone the explicit guarantees of
the Sixth Amendment are applicable. [ Footnote 7 ] See Powell v. Alabama, 287 U.S. at 287 U. S. 66 -71; Massiah v. United States, 377 U.
S. 201 ; Spano v. New York, 360 U.
S. 315 , 360 U. S. 324 (DOUGLAS, J., concurring).

															In this case, we are asked to import into a routine police
investigation an absolute constitutional guarantee historically and
rationally applicable only after the onset of formal prosecutorial
proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court
explained the rule of those decisions as follows:

															"The rationale of those cases was that an accused is entitled to
counsel at any 'critical stage of the prosecution, ' and
that a post-indictment lineup is such a 'critical stage.'"

															(Emphasis supplied.) Simmons v. United States, 390 U. S. 377 , 390 U. S.
382 -383. We decline to depart from that rationale today
by imposing a per se exclusionary rule upon testimony
concerning an identification that took place long before the
commencement of any prosecution whatever. II What has been said is not to suggest that there may not be
occasions during the course of a criminal investigation when the
police do abuse identification procedures. Such abuses are not
beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to "scrutinize any
pretrial confrontation. . . ." Page 406 U. S. 691 388 U.S. at 388 U. S. 227 .
The Due Process Clause of the Fifth and Fourteenth Amendments
forbids a lineup that is unnecessarily suggestive and conducive to
irreparable mistaken identification. Stovall v. Denno, 388 U. S. 293 ; Foster v. California, 394 U. S. 440 .
[ Footnote 8 ] When a person has
not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of
a suspect to be protected from prejudicial procedures and the
interest of society in the prompt and purposeful investigation of
an unsolved crime.

															The judgment is affirmed.

															[ Footnote 1 ]

															The officers stopped the petitioner and his companion because
they thought the petitioner was a man named Hampton, who was
"wanted" in connection with an unrelated criminal offense. The
legitimacy of this stop and the subsequent arrest is not before
us.

															[ Footnote 2 ]

															"Q. All right. Now, Willie, calling your attention to February
22, 1968, did you receive a call from the police asking you to come
down to the station?"

															"A. Yes, I did."

															"Q. When you went down there, what, if anything, happened,
Willie?"

															"A. Well, I seen the two men was down there who robbed me."

															"Q. Who took you to the police station?"

															"A. The policeman picked me up."

															"MR. POMARO: Q. When you went to the police station, did you see
the two defendants?"

															"A. Yes, I did."

															"Q. Do you see them in Court today?"

															"A. Yes, sir."

															"Q. Point them out, please?"

															"A. Yes, that one there and the other one. (Indicating.)"

															"MR. POMARO: Indicating for the record the defendants Bean and
Kirby."

															"Q. And you positively identified them at the police station, is
that correct?"

															"A. Yes."

															"Q. Did any police officer make any suggestion to you
whatsoever?"

															"THE WITNESS: No, they didn't."

															[ Footnote 3 ]

															"Q. Willie, when you looked back, when you were walking down the
street and first saw the defendants, when you looked back, did you
see them then?"

															"A. Yes, I seen them."

															"Q. Did you get a good look at them then?"

															"A. Yes, I did."

															"Q. All right. Now, when they grabbed you and took your money,
did you see them then?"

															"A. Yes, I did."

															"Q. Did you get a good look at them then?"

															"A. Yes."

															"Q. Both of them?"

															"A. Correct."

															"Q. When they walked away did you see them then?"

															"A. Yes."

															"Q. Did you look at them, Willie?"

															"A. Yes."

															"Q. Did you get a good look at them?"

															"A. Yes."

															"Q. Are those the same two fellows? Look at them, Willie."

															"A. Correct."

															"Q. Are those the same two that robbed you?"

															"A. Yes."

															"Q. You are sure, Willie?"

															"A. Yes."

															[ Footnote 4 ]

															Bean's conviction was reversed. People v. Bean, 121
Ill.App.2d 332, 257 N.E.2d 562.

															[ Footnote 5 ]

															The issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely
divided the courts. Compare State v. Fields, 104 Ariz.
486, 455 P.2d 964 ; Perkins v. State, 228 So. 2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S.E.2d
792; State v. Walters, 457 S.W.2d
817 (Mo.), with United States v. Greene, 139
U.S.App.D.C. 9, 429 F.2d 193; Rivers v. United States, 400
F.2d 935 (CA5); United States v. Phillips, 427 F.2d 1035
(CA9); Commonwealth v. Guillory, 356 Mass. 591, 254
N.E.2d 427 ; People v. Fowler, 1 Cal. 3d 335 ,
461 P.2d 643; Palmer v. State, 5 Md.App. 691, 249
A.2d 482 ; People v. Hutton, 21 Mich.App. 312, 175
N.W.2d 860; Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d
738; In re Holley, 107 R.I. 615, 268
A.2d 723 ; Hayes v. State, 46 Wis.2d 93, 175
N.W.2d 625 .

															[ Footnote 6 ]

															"[D]uring perhaps the most critical period of the proceedings
against these defendants, that is to say, from the time of their
arraignment until the beginning of their trial, when consultation,
thoroughgoing investigation and preparation were vitally important,
the defendants did not have the aid of counsel in any real sense,
although they were as much entitled to such aid during that period
as at the trial itself." Powell v. Alabama, 287 U. S. 45 , 287 U. S.
57 .

															[ Footnote 7 ]

															"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."

															U.S.Const., Amdt. VI.

															[ Footnote 8 ]

															In view of our limited grant of certiorari, we do not consider
whether there might have been a deprivation of due process in the
particularized circumstances of this case. That question remains
open for inquiry in a federal habeas corpus proceeding.

															MR. CHIEF JUSTICE BURGER, concurring.

															I agree that the right to counsel attaches as soon as criminal
charges are formally made against an accused and he becomes the
subject of a "criminal prosecution." Therefore, I join in the
plurality opinion and in the judgment. Cf. Coleman v.
Alabama, 399 U. S. 1 , 399 U. S. 21 (dissenting opinion).

															MR. JUSTICE POWELL, concurring in the result.

															As I would not extend the Wade-Gilbert per se exclusionary rule, I concur in the result reached by the Court.

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

															After petitioner and Ralph Bean were arrested, police officers
brought Willie Shard, the robbery victim, to a room in a police
station where petitioner and Bean were seated at a table with two
other police officers. Shard testified at trial that the officers
who brought him to the Page 406 U. S. 692 room asked him if petitioner and Bean were the robbers, and that
he indicated they were. The prosecutor asked him, "And you
positively identified them at the police station, is that correct?"
Shard answered, "Yes." Consequently, the question in this case is
whether, under Gilbert v. California, 388 U.
S. 263 (1967), it was constitutional error to admit
Shard's testimony that he identified petitioner at the pretrial
station house showup when that showup was conducted by the police
without advising petitioner that he might have counsel present. Gilbert held, in the context of a post-indictment lineup,
that

															"[o]nly a per se exclusionary rule as to such testimony
can be an effective sanction to assure that law enforcement
authorities will respect the accused's constitutional right to the
presence of his counsel at the critical lineup." Id. at 388 U. S. 273 .
I would apply Gilbert and the principles of its companion
case, United States v. Wade, 388 U.
S. 218 (1967), and reverse. [ Footnote 2/1 ]

															In Wade, after concluding that the lineup conducted in
that case did not violate the accused's right against
self-incrimination, id. at 388 U. S.
221 -223, [ Footnote 2/2 ]
the Court addressed Page 406 U. S. 693 the argument

															"that the assistance of counsel at the lineup was indispensable
to protect Wade's most basic right as a criminal defendant -- his
right to a fair trial at which the witnesses against him might be
meaningfully cross-examined," id. at 388 U. S.
223 -224. The Court began by emphasizing that the Sixth
Amendment guarantee "encompasses counsel's assistance whenever
necessary to assure a meaningful defence.'" Id. at 388 U. S. 225 .
After reviewing Powell v. Alabama, 287 U. S.
45 (1932); Hamilton v. Alabama, 368 U. S.
52 (1961); and Massiah v. United States, 377 U. S. 201 (1964), the Court, 388 U.S. at 388 U. S. 225 ,
focused upon two cases that involved the right against
self-incrimination: "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
if the accused was to have a fair opportunity to present a defense
at the trial itself. . . ." United States v. Wade, 388 U.S. at 388 U. S.
225 -226. [ Footnote
2/3 ]

															" * * * * Page 406 U. S.
694 " "[I]n 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." Id. at 388 U. S. 226 .
The Court then pointed out that

															"nothing decided or said in the opinions in [ Escobedo and Miranda ] links the right to counsel only to protection
of Fifth Amendment rights." Ibid. To the contrary, the Court said, those decisions
simply reflected the constitutional

															"principle that in addition to counsel's presence at trial, 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. The security of that right is as much the
aim of the right to counsel as it is of the other guarantees of the
Sixth Amendment. . . ." Id. at 388 U. S.
226 -227. This analysis led to the Court's formulation of
the controlling principle for pretrial confrontations:

															"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." Id. at 388 U. S. 227 (emphasis in original). Page 406 U. S. 695 It was that constitutional principle that the Court applied in Wade to pretrial confrontations for identification
purposes. The Court first met the government's contention that a
confrontation for identification is "a mere preparatory step in the
gathering of the prosecution's evidence," much like the scientific
examination of fingerprints and blood samples. The Court responded
that, in the latter instances,

															"the accused has the opportunity for a meaningful confrontation
of the Government's case at trial through the ordinary processes of
cross-examination of the Government's expert witnesses and the
presentation of the evidence of his own experts."

															The accused thus has no right to have counsel present at such
examinations:

															"they are not critical stages, since there is minimal risk that
his counsel's absence at such stages might derogate from his right
to a fair trial." Id. at 388 U. S.
227 -228.

															In contrast, the Court said,

															"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." Id. at 388 U. S. 228 .
Most importantly,

															"the accused's inability effectively to reconstruct at trial any
unfairness that occurred at the lineup may deprive him of his only
opportunity meaningfully to attack the credibility of the witness'
courtroom identification." Id. at 388 U. S.
231 -232. The Court's analysis of pretrial confrontations
for identification purposes produced the following conclusion:

															"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 Page 406 U. S. 696 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 effective appeal from the
judgment there rendered by the witness -- 'that's the man.'" Id. at 388 U. S.
235 -236. The Court then applied that conclusion to the
specific facts of the case.

															"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, there can be little doubt that for Wade the post-indictment lineup was a critical stage of
the prosecution at which he was 'as much entitled to such aid [of
counsel] . . . as at the trial itself.'" Id. at 388 U. S.
236 -237.

															While it should go without saying, it appears necessary, in view
of the plurality opinion today, to reemphasize that Wade did not require the presence of counsel at pretrial confrontations
for identification purposes simply on the basis of an abstract
consideration of the words "criminal prosecutions" in the Sixth
Amendment. Counsel is required at those confrontations because

															"the Page 406 U. S. 697 dangers inherent in eyewitness identification and the
suggestibility inherent in the context of the pretrial
identification," id. at 388 U. S. 235 ,
[ Footnote 2/4 ] mean that protection
must be afforded to the

															"most basic right [of] a criminal defendant -- his right to a
fair trial at which the witnesses against him might be meaningfully
cross-examined," id. at 388 U. S. 224 .
Indeed, the Court expressly stated that

															"[l]egislative 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.'" Id. at 388 U. S. 239 ; see id. at 388 U. S. 239 n. 30; Gilbert v. California, 388 U.S. at 388 U. S. 273 .
Hence, "the initiation of adversary judicial criminal proceedings," ante at 406 U. S. 689 ,
is completely irrelevant to whether counsel is necessary at a
pretrial confrontation for identification in order to safeguard the
accused's constitutional rights to confrontation and the effective
assistance of counsel at his trial.

															In view of Wade, it is plain, and the plurality today
does not attempt to dispute it, that there inhere in a
confrontation Page 406 U. S. 698 for identification conducted after arrest [ Footnote 2/5 ] the identical hazards to a fair trial that
inhere in such a confrontation conducted "after the onset of formal
prosecutorial proceedings." Id. at 406 U. S. 690 .
The plurality apparently considers an arrest, which for present
purposes we must assume to be based upon probable cause, to be
nothing more than part of "a routine police investigation," ibid., and thus not "the starting point of our whole
system of adversary criminal justice," id. at 406 U. S. 689 .
[ Footnote 2/6 ] An arrest, according
to the plurality, does not face the accused "with the prosecutorial
forces of organized society," nor immerse him "in the intricacies
of substantive and procedural criminal law." Those consequences
ensue, says the plurality, only with "[t]he initiation of judicial
criminal proceedings,"

															"[f]or it is only then that the government has committed itself
to prosecute, and only then that the adverse positions of
government and defendant have solidified." Ibid. [ Footnote 2/7 ] If
these propositions do not amount to Page 406 U. S. 699 "mere formalism," ibid., it is difficult to know how to
characterize them. [ Footnote 2/8 ]
An arrest evidences the belief of the police that the perpetrator
of a crime has been caught. A post-arrest confrontation for
identification is not "a mere preparatory step in the gathering of
the prosecution's evidence." Wade, supra, at 388 U. S. 227 .
A primary, and frequently sole, purpose of the confrontation for
identification at that stage is to accumulate proof to buttress the
conclusion of the police that they have the offender in hand. The
plurality offers no reason, and I can think of none, for concluding
that a post-arrest confrontation for identification, unlike a
post-charge confrontation, is not among those

															"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." Id. at 388 U. S.
224 .

															The highly suggestive form of confrontation employed in this
case underscores the point. This showup was particularly fraught
with the peril of mistaken Page 406 U. S. 700 identification. In the setting of a police station squad room,
where all present except petitioner and Bean were police officers,
the danger was quite real that Shard's understandable resentment
might lead him too readily to agree with the police that the pair
under arrest, and the only persons exhibited to him, were indeed
the robbers.

															"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." Id. at 388 U. S. 234 .
The State had no case without Shard's identification testimony,
[ Footnote 2/9 ] and safeguards
against that consequence were therefore of critical importance.
Shard's testimony itself demonstrates the necessity for such
safeguards. On direct examination, Shard identified petitioner and
Bean not as the alleged robbers on trial in the courtroom, but as
the pair he saw at the police station. His testimony thus lends
strong support to the observation, quoted by the Court in Wade, 388 U.S. at 388 U. S. 229 , that

															"[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."

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

															The plurality today "decline[s] to depart from [the] rationale"
of Wade and Gilbert. Ante at 406 U. S. 690 .
The plurality discovers that "rationale" not by consulting those
decisions themselves, which would seem to be the appropriate
course, but by reading one sentence in Simmons v. United
States, 390 U. S. 377 , 390 U. S.
382 -383 (1968), where no right to counsel claim was
either asserted or considered. The "rationale" the plurality
discovers is, apparently, Page 406 U. S. 701 that a post-indictment confrontation for identification is part
of the prosecution. The plurality might have discovered a different
"rationale" by reading one sentence in Foster v.
California, 394 U. S. 440 , 394 U. S. 442 (1969), a case decided after Simmons, where the Court
explained that, in Wade and Gilbert, "this Court held that, because of the possibility of unfairness
to the accused in the way a lineup is conducted, a lineup is a
'critical stage' in the prosecution, at which the accused must be
given the opportunity to be represented by counsel."

															In Foster, moreover, although the Court mentioned that
the lineups took place after the accused's arrest, it did not say
whether they were also after the information was filed against him.
[ Footnote 2/10 ] Instead, the
Court simply pointed out that, under Stovall v. Denno, 388 U. S. 293 (1967), Wade and Gilbert were "applicable only to
lineups conducted after those cases were decided." 394 U.S. at 394 U. S. 442 .
Similarly, in Coleman v. Alabama, 399 U. S.
1 (1970), another case involving a pre- Wade lineup, no member of the Court saw any significance in whether the
accused had been formally charged with a crime before the lineup
was held. [ Footnote 2/11 ] Page 406 U. S. 702 The plurality might also have discovered a different "rationale"
for Wade and Gilbert had it examined Stovall
v. Denno, supra, decided the same day. In Stovall, the confrontation for identification took place one day after the
accused's arrest. Although the accused was first brought to an
arraignment, it "was postponed until [he] could retain counsel."
388 U.S. at 388 U. S. 295 .
Hence, in the plurality's terms today, the confrontation was held
"before the commencement of any prosecution." Ante at 406 U. S. 690 .
[ Footnote 2/12 ] Yet, in that
circumstance, the Court in Stovall Page 406 U. S. 703 stated that the accused raised "the same alleged constitutional
errors in the admission of allegedly tainted identification
evidence that were before us" in Wade and Gilbert. The Court therefore found that the case

															"provide[d] a vehicle for deciding the extent to which the rules
announced in Wade and Gilbert -- requiring the
exclusion of identification evidence which is tainted by exhibiting
the accused to identifying witnesses before trial in the absence of
his counsel -- are to be applied retroactively."

															388 U.S. at 388 U. S. 294 .
Indeed, the Court's explicit holding was

															"that Wade and Gilbert affect only those cases
and all future cases which involve confrontations for
identification purposes conducted in the absence of counsel after
this date. The rulings of Wade and Gilbert are
therefore inapplicable in the present case." Id. at 388 U. S. 296 .
Hence, the accused in Stovall did not receive the benefit
of the new exclusionary rules, because they were not applied
retroactively; he was not denied their benefit because his
confrontation took place before he had "been formally charged with
a criminal offense." Ante at 406 U. S. 691 .
Moreover, in the course of its retroactivity discussion, 388 U.S.
at 388 U. S.
296 -301, the Court repeated the phrase "pretrial
confrontations for identification" or its equivalent no less than
10 times. Not once did the Court so much as hint that Wade and Gilbert applied only to confrontations after the
accused "had been indicted or otherwise formally charged with [a]
criminal offense." Ante at 406 U. S. 684 .
In fact, at one point, the Court summarized Wade as
holding "that the confrontation [for identification] is a critical stage,' and that counsel Page 406 U. S.
704 is required at all confrontations." 388 U.S. at 388 U. S. 298 (emphasis added). Wade and Gilbert, of course, happened to
involve post-indictment confrontations. Yet even a cursory perusal
of the opinions in those cases reveals that nothing at all turned
upon that particular circumstance. [ Footnote 2/13 ] In short, it is fair to conclude that,
rather than "declin[ing] to depart from [the] rationale" of Wade and Gilbert, ante at 406 U. S. 690 ,
the plurality today, albeit purporting to be engaged in "principled
constitutional adjudication," id. at 406 U. S. 688 ,
refuses even to recognize that "rationale." For my part, I do not
agree that we "extend" Wade and Gilbert, id. at 406 U. S. 684 ,
by holding that the principles of those cases apply to
confrontations for identification conducted after arrest. [ Footnote 2/14 ] Because Shard testified at
trial Page 406 U. S. 705 about his identification of petitioner at the police station
showup, the exclusionary rule of Gilbert, 388 U.S. at 388 U. S.
272 -274, requires reversal.

															[ Footnote 2/1 ]

															There is no room here for the application of the harmless error
doctrine. Because the admission of Shard's testimony about his
showup identification thus requires reversal, there is no need for
me to consider whether a remand would otherwise be necessary to
afford the State an opportunity to demonstrate that Shard's
in-court identification of petitioner, if that is what it was, see ante at 406 U. S. 686 n. 3, had an independent source. See United States v.
Wade, 388 U. S. 218 , 388 U. S.
239 -242 (1967); Gilbert v. California, 388 U. S. 263 , 388 U. S. 272 (1967).

															[ Footnote 2/2 ]

															The plurality asserts that, in view of that holding in Wade, "the doctrine of Miranda v. Arizona, 384 U. S. 436 , has
no applicability whatever to the issue before us." Ante at 406 U. S. 688 .
That assertion is necessary for the plurality because Miranda requires the presence of counsel before "the time
that. adversary judicial proceedings have been initiated against"
the accused. Ibid. The assertion is nonetheless erroneous,
for Wade specifically relied upon Miranda in
establishing the constitutional principle that controls the
applicability of the Sixth Amendment guarantee of the right to
counsel at pretrial confrontations. See 388 U.S. at 388 U. S.
226 -227.

															[ Footnote 2/3 ]

															The plurality asserts that " Escobedo is not apposite
here." Ante at 406 U. S. 689 .
It was, of course, "apposite" in Wade. Hence, to say that Johnson v. New Jersey, 384 U. S. 719 , 384 U. S.
733 -34 (1966), a case decided before Wade, "limited the holding of Escobedo to its own facts," ante at 406 U. S. 689 ,
even if true, is to say nothing at all that is relevant to the
present case. The plurality also utilizes Johnson for the
proposition

															"that the 'prime purpose' of Escobedo was not to
vindicate the constitutional right to counsel as such, but, like Miranda, 'to guarantee full effectuation of the privilege
against self-incrimination. . . .'" Ibid. In view of Wade's specific reliance upon Escobedo and Miranda, that, obviously, is no
distinction either. Moreover, it implies that the purpose of Wade was "to vindicate the constitutional right to counsel
as such." That was not the purpose of Wade, as my extended
summary of the opinion demonstrates.

															[ Footnote 2/4 ]

															The plurality refers to "occasions during the course of a
criminal investigation when the police do abuse identification
procedures" and asserts that "[s]uch abuses are not beyond the
reach of the Constitution." Ante at 406 U. S. 690 .
The constitutional principles established in Wade, however, are not addressed solely to police "abuses," as Wade explicitly pointed out:

															"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 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."

															388 U.S. at 388 U. S.
234 -235.

															[ Footnote 2/5 ]

															This case does not require me to consider confrontations that
take place before custody, see, e.g., Bratten v.
Delaware, 307 F.
Supp. 643 (Del.1969); People v. Cesarz, 44 Ill. 2d
180 , 255 N.E.2d 1 (1969); State v. Moore, 111 N.J.Super. 528, 269 A.2d 534 (1970), nor accidental confrontations not arranged
by the police, see, e.g., United States v. Pollack, 427
F.2d 1168 (CA5 1970); State v. Bibbs, 461 S.W.2d
755 (Mo.1970), nor on-the-scene encounters shortly after the
crime, see, e.g., Russell v. United States, 133
U.S.App.D.C. 77, 408 F.2d 1280 (1969); United States v.
Davis, 399 F.2d 948 (CA2 1968).

															[ Footnote 2/6 ] Cf. Miranda v. Arizona, 384 U.
S. 436 , 384 U. S. 477 (1966) (emphasis added):

															"The principles announced today deal with the protection which
must be given to the privilege against self-incrimination when the
individual is first subjected to police interrogation while in
custody at the station or otherwise deprived of his freedom of
action in any significant way. It is at this point that our
adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system
recognized in some countries."

															[ Footnote 2/7 ]

															The plurality concludes that

															"[i]t is this point, therefore, that marks the commencement of
the 'criminal prosecutions' to which alone the explicit guarantees
of the Sixth Amendment are applicable." Ante at 406 U. S. 690 .
This Court has taken the contrary position with respect to the
speedy trial guarantee of the Sixth Amendment:

															"Invocation of the speedy trial provision thus need not await
indictment, information, or other formal charge. But we decline to
extend the reach of the amendment to the period prior to arrest. .
. . In the case before us, neither appellee was arrested, charged,
or otherwise subjected to formal restraint prior to indictment. It
was this event, therefore, which transformed the appellees into
'accused' defendants who are subject to the speedy trial
protections of the Sixth Amendment." United States v. Marion, 404 U.
S. 307 , 404 U. S. 321 , 404 U. S. 325 (1971).

															[ Footnote 2/8 ]

															As the California Supreme Court pointed out, with an eye toward
the real world,

															"the establishment of the date of formal accusation as the time
wherein the right to counsel at lineup attaches could only lead to
a situation wherein substantially all lineup would be conducted
prior to indictment or information." People v. Fowler, 1 Cal. 3d 335 ,
344, 461 P.2d 643, 650 (1969).

															[ Footnote 2/9 ]

															Bean took the stand and testified that he and petitioner found
Shard's traveler's checks and Social Security card two hours before
their arrest strewn upon the ground in an alley.

															[ Footnote 2/10 ]

															In fact, the lineups in Foster took place before the
information was filed. The crime occurred on January 25, 1966.
After the accused was arrested, he was exhibited to the witness in
two lineups, both conducted within two weeks of January 25. The
information was not filed until March 17. Foster v.
California, No. 47, O.T. 1968, Brief for Respondent 3-8.

															[ Footnote 2/11 ]

															In fact, the lineup in Coleman took place before the
accused were formally charged. The crime occurred on July 24, 1966.
The accused were arrested on September 29, and the lineup was held
on October 1. The preliminary hearing was not until October 14, and
the indictments were not returned until November 11. Coleman v.
Alabama, No. 72, O.T. 1969, Brief for Petitioners 5-7; App.
84; see 399 U.S. at 399 U. S. 26 (STEWART, J., joined by BURGER, C.J., dissenting).

															On those facts, the plurality opinion adverted to the timing of
the lineup only to the extent of pointing out that it was held
"about two months after the assault and seven months before
petitioners' trial." Id. at 399 U. S. 3 (BRENNAN, J., joined by DOUGLAS, WHITE, and MARSHALL, JJ.). The
plurality opinion then simply noted that

															"[p]etitioners concede that, since the lineup occurred before
[ Wade and Gilbert ] were decided . . . , they
cannot invoke the holding of those cases requiring the exclusion of
in-court identification evidence which is tainted by exhibiting the
accused to identifying witnesses before trial in the absence of
counsel." Id. at 399 U. S. 3 -4.

															Mr. Justice Black, in his concurring opinion, took no notice at
all of when the lineup was conducted. Instead, reiterating his view
that Wade "should be held fully retroactive," he insisted
"that petitioners in this pre- Wade case were entitled to
court-appointed counsel at the time of the lineup in which they
participated and that Alabama's failure to provide such counsel
violated petitioners' rights under the Sixth and Fourteenth
Amendments." Id. at 399 U. S. 13 . Nor
did Mr. Justice Harlan refer to the timing of the lineup in
expressing his

															"dissent from the refusal to accord petitioners the benefit of
the Wade holding, neither petitioner having been afforded
counsel at the police 'lineup' identification."

															Mr. Justice Harlan's summary of Wade, like that of the
prevailing opinion, did not limit its "rationale" to post-charge
confrontations:

															"The Wade rule requires the exclusion of any in-court
identification preceded by a pretrial Lineup where the accused was
not represented by counsel, unless the in-court identification is
found to be derived from a source 'independent' of the tainted
pretrial viewing." Id. at 399 U. S. 21 .

															[ Footnote 2/12 ]

															The chain of events in Stovall was as follows: the
crime occurred on the night of August 23, 1961. The accused was
arrested on the afternoon of August 24, and appeared for
arraignment on the morning of August 25. The arraignment was
postponed until August 31 so that he could retain counsel. The
confrontation with the witness took place about noon on August 25.
At the arraignment on August 31, the committing magistrate
appointed counsel for the accused and set the felony examination
for September 1. That examination was never held, for, on August
31, the indictment was returned. Stovall v. Denno, No.
254, O.T. 1966, Brief for Respondent 34.

															[ Footnote 2/13 ]

															The Wade dissenters found no such limitation:

															"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." United States v. Wade, 388 U.S. at 388 U. S. 251 (WHITE, J., joined by Harlan and STEWART, JJ., dissenting in part
and concurring in part).

															[ Footnote 2/14 ]

															The plurality rather surprisingly asserts that "[t]he issue of
the applicability of Wade and Gilbert to
pre-indictment confrontation has severely divided the
courts." Ante at 406 U. S. 687 n. 5 (emphasis added). As the plurality's citations reveal, there
are decisions from five States, including Illinois, that have
refused to apply Wade and Gilbert to
pre-indictment confrontations for identification. Ranged against
those five, however, are decisions from at least 13 States. See
People v. Fowler, 1 Cal. 3d 335 ,
461 P.2d 643 (1969); State v. Singleton, 253 La. 18, 215 So. 2d
838 (1968); Commonwealth v. Guillory, 356 Mass. 591, 254
N.E.2d 427 (1970); Palmer v. State, 5 Md.App. 691, 249 A.2d 482 (1969); People v. Hutton, 21 Mich.App.
312, 175 N.W.2d 860 (1970); Thompson v. State, 85 Nev.
134, 451 P.2d 704 (1969); State v. Wright, 274 N.C. 84, 161 S.E.2d
581 (1968); State v. Isaacs, 24 Ohio App.2d 115, 265
N.E.2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205,
266 A.2d 738 (1970); In re Holley, 107 R.I. 615, 268
A.2d 723 (1970); Martinez v. State, 437
S.W.2d 842 (Tex.Ct.Crim.App. 1969); State v.
Hicks, 76 Wash. 2d
80 , 455 P.2d
943 (1969); Hayes v. State, 46 Wis.2d 93, 175
N.W.2d 625 (1970).

															In addition, every United States Court of Appeals that has
confronted the question has applied Wade and Gilbert to pre-indictment confrontations. See United
States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193 (1970); Cooper v. Picard, 428 F.2d 1351 (CA1 1970); United
States v. Ayers, 426 F.2d 524 (CA2 1970); Government of
Virgin Islands v. Callwood, 440 F.2d 1206 (CA3 1971); Rivers v. United States, 400 F.2d 935 (CA5 1968); United States v. Broadhead, 413 F.2d 1351 (CA7 1969); United States v. Phillips, 427 F.2d 1035 (CA9 1970); Wilson v. Gaffney, 454 F.2d 142 (CA10 1972). As Chief
Judge Lewis, speaking for the Court of Appeals for the Tenth
Circuit, put it in the last-cited case:

															"In both Wade and Gilbert, the lineups were
conducted after indictments had been returned; in the case at bar,
the lineup occurred before petitioner had been formally charged.
But surely the assistance of counsel, now established as an
absolute post-indictment right, does not arise or attach because of
the return of an indictment. The confrontation of a lineup . . .
cannot have a constitutional distinction based upon the lodging of
a formal charge. Every reason set forth by the Supreme Court in Wade . . . for the assistance of counsel post-indictment
has equal or more impact when projected against a pre-indictment
atmosphere. We hold that petitioner had a right to counsel at the
lineup here considered." Id. at 144.

															MR. JUSTICE WHITE, dissenting. United States v. Wade, 388 U.
S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), govern this case and compel reversal of the judgment
below.

Summary: The Supreme Court ruled that a person does not have an absolute right to counsel during a pre-indictment confrontation for identification purposes, affirming the lower court's decision.