KIRBY V. ILLINOIS, 406 U.S. 682 (1972)

A suspect’s right to counsel’s presence during an eyewitness identification procedure was established in United States v. Wade in 1967 to avert suggestive procedures and prevent convicting the innocent. Wade and Gilbert v. California involved lineups conducted after the suspects were indicted. But in Kirby, the identification procedure took place just after arrest and before formally charging. Police often seek an identification to confirm police suspicions before formally charging. Kirby argued the suggestive influences at issue in Wade-Gilbert were equally likely in this time setting; indeed, the witness identified him in a highly suggestive one-on-one show-up confrontation. However, the Court majority refused Kirby’s request to extend the Wade-Gilbert right to counsel to preformal-charging eyewitness identification procedures, although the Court had provided a right to counsel to persons during preformal-charging interrogation procedures in Escobedo v. Illinois and Miranda v. Arizona. The Sixth Amendment right to counsel applies ‘‘in all criminal prosecutions,’’ and the Court majority finds the criminal prosecution begins only at or after the initiation of adversary criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Once a formal charge occurs, an identification procedure will constitute a critical stage in the criminal prosecution such that the right to counsel applies. Kirby’s definition of the onset of the criminal prosecution in the Sixth Amendment forced a recharacterization of the Miranda right to counsel as a judicially created Fifth Amendment right to counsel and limited the availability of counsel in other settings. United States v. Ash later limits Wade-Gilbert-Kirby.

MARGERY M. KOOSED

References and Further Reading

• American Law Institute. A Model Code of Pre-Arraignment Procedure, Proposed Official Draft and Commentary. (1975): 419–458.
• Grano, Joseph D., et al., Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, Michigan Law Review 72 (1985): 717–798.
• Levine, Felice J., and June L. Tapp, The Psychology of Criminal Identifications: The Gap from Wade to Kirby, University of Pennsylvania Law Review 121 (1973): 1079–1131.
• Panel Discussion, The Role of the Defense Lawyer at a Lineup in Light of the Wade, Gilbert, and Stovall Decisions, Criminal Law Bulletin 4 (1968): 273–296.

Cases and Statutes Cited

• Escobedo v. Illinois, 378 U.S. 478 (1964)
• Gilbert v. California, 388 U.S. 263 (1967)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• Moore v. Illinois, 434 U.S. 220 (1977)
• United States v. Ash, 413 U.S. 300 (1973)
• United States v. Wade, 388 U.S. 218 (1967)

See also Eyewitness Identification; Line-ups