United States v. Ash, 413 U.S. 300 (1973)

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A right to counsel’s presence during an eyewitness identification procedure exists to avert suggestive procedures and prevent convicting the innocent (United States v. Wade). In United States v. Ash, the Court decided this right would not generally extend to photographic identification procedures. Wade was already indicted when he was presented in person in a lineup with other individuals, and the eyewitness then chose him. Ash, too, had been indicted and had counsel appointed when his photo was included in an array of five photos displayed to eyewitnesses in pretrial interviews with the prosecutor. Ash argued his counsel should have been notified and allowed to attend these interviews to avert suggestiveness. Although these post-indictment non-corporeal identification procedures occurred in the course of the Sixth Amendment’s criminal prosecution, see Kirby v. Illinois, the majority held there was no right to counsel so long as the photographs were preserved for examination at trial. This was not a critical stage in the criminal prosecution necessitating the presence of counsel, because it could be accurately reconstructed by retention of the photos, the defendant’s absence distinguished this from trial-like confrontations where counsel was required, and the prosecutor should be allowed to interview its witnesses before trial without defense counsel’s presence. Dissenters urged suggestive influences may be subtly brought to bear by the method of presentation of the photos and that preserving the photos would not detect or avert such prejudice. Due process arguments may still be made regarding photographic identification procedures.


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., Kirby, Biggers, and Ash, 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.
  • Moore v. Illinois, 434 U.S. 220 (1977).
  • 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

  • United States v. Wade, 388 U.S. 218 (1967)
  • Gilbert v. California, 388 U.S. 263 (1967)
  • Kirby v. Illinois, 406 U.S. 682 (1972)
  • Manson v. Brathwaite, 430 U.S. 98 (1977)

See also Eyewitness Identification; Due Process; Lineups; Right to Counsel