United States v. Wade, 388 U.S. 218 (1967)

Because eyewitness identification is rife with risk of error, the Court in United States v. Wade and the companion case of Gilbert v. California held that charged persons were entitled to have counsel present when appearing in a lineup. The Court majority found suggestive influences were brought to bear on the witnesses making identifications in both cases, immediately before, and during the lineups conducted. Once subjected to such influences, eyewitnesses may mistakenly identify the wrong individual and their incourt identification at trial may well be a fruit of this pretrial identification that the accused is helpless to subject to effective scrutiny at trial, as the suggestive influences may go undetected by the suspect, or if noted, the suspect’s unsupported version of what happened may be disregarded in favor of the police’s version. With counsel present at the lineup, such influences could be averted or at least detected, and a meaningful confrontation and cross-examination of the witness at trial could be ensured. Providing counsel at this critical stage in the criminal prosecution would thus avert mistaken convictions. The majority holds testimony about an out-of-court lineup must be excluded if counsel was not provided or effectively waived, and an in-court identification could be made only if the prosecution first proved by clear and convincing evidence that the witness’ identification at trial flowed from a source independent of the tainted lineup. Kirby v. Illinois and United States v. Ash narrow this right to counsel. For additional due process controls, see Manson v. Brathwaite.

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., 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.
• 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

• Gilbert v. California, 388 U.S. 263 (1967)
• Kirby v. Illinois, 406 U.S. 682 (1972)
• Manson v. Brathwaite, 432 U.S. 98 (1977)
• United States v. Ash, 413 U.S. 300 (1973)

See also Eyewitness Identification; Line-Ups; Right to Counsel