Home › Case briefs › Criminal Procedure

Gilbert v. California

Supreme Court of the United States · 1967 · Criminal Procedure

Criminal ProcedureSixth AmendmentLineups and IdentificationsFifth AmendmentHandwriting ExemplarsHarmless Errorcritical stageright to counsel

Facts

Gilbert was convicted of armed robbery and murder. After indictment and appointment of counsel, police conducted a lineup without notice to or presence of his counsel, and several witnesses later identified him in court; some also testified that they had identified him at the lineup. After his arrest, officers also obtained handwriting exemplars from him, which were introduced at trial. Gilbert further challenged admission of a co-defendant's statements and photographs seized from his apartment, but the Court found those issues did not warrant greater relief here.

Issue

Whether Gilbert's constitutional rights were violated by admission of in-court identifications and testimony about prior lineup identifications following a post-indictment lineup conducted without counsel, and whether admission of handwriting exemplars also violated the Fifth or Sixth Amendments. The Court also considered whether the other asserted errors required broader relief.

Rule

A post-indictment pretrial lineup is a critical stage of the prosecution at which the accused has a Sixth Amendment right to counsel. If such a lineup is conducted without notice to and in the absence of counsel, in-court identifications by witnesses who attended the lineup may be admitted only if the State shows they had an independent source or that the error was harmless, but testimony that the witness identified the accused at the illegal lineup is the direct product of the illegality and is excluded per se. A handwriting exemplar is an identifying physical characteristic, not testimonial communication protected by the Fifth Amendment, and taking exemplars is not a critical stage requiring counsel.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, a grand jury indicts Devin Marsh for armed robbery, and counsel is appointed the next day. Police then place Devin in a stationhouse lineup without notifying his lawyer, and two store clerks view the lineup.

If Devin argues the lineup itself violated his constitutional rights, which is the best answer?

Explanation. Under the majority rule, a post-indictment pretrial lineup is a critical stage of the prosecution. If police conduct it without notice to and in the absence of counsel, the accused's Sixth Amendment right to counsel is violated. The rule is specific to post-indictment lineup identifications, not based on the Fifth Amendment.