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Kirby v. Illinois

Supreme Court of the United States · 1972 · Criminal Procedure

Criminal ProcedureRight to CounselPretrial IdentificationSixth Amendmentright to counselpre-indictment showuppretrial identificationadversary judicial proceedings

Facts

Police stopped the petitioner and his companion and found property belonging to robbery victim Willie Shard in their possession. After taking them to the station and only then learning of the robbery report, police brought Shard to the station, where he immediately identified the petitioner and his companion as the robbers. No lawyer was present, and the petitioner had not yet been indicted or otherwise formally charged. More than six weeks later, the petitioner was indicted, and at trial Shard testified both about the station-house identification and identified the petitioner again in court.

Issue

Does the Sixth Amendment right to counsel, and the Wade-Gilbert per se exclusionary rule, apply to a police station showup conducted before the defendant has been indicted or otherwise formally charged?

Rule

The Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings, whether by formal charge, preliminary hearing, indictment, information, or arraignment. Therefore, the Wade-Gilbert per se exclusionary rule does not apply to pre-indictment identification confrontations. Before formal charge, identification procedures are instead governed by due process limits forbidding unnecessarily suggestive procedures conducive to irreparable mistaken identification.

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

In Phoenix, police arrested Omar Vega on suspicion of burglary after finding stolen tools in his truck. Before any complaint, information, indictment, arraignment, or preliminary hearing, officers brought the homeowner to the station, where she identified Omar in a one-person showup without any lawyer present.

If Omar moves to exclude the identification on the ground that counsel was absent, how should the court rule on the Sixth Amendment claim?

Explanation. Under the majority rule, the Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings, such as formal charge, preliminary hearing, indictment, information, or arraignment. A pre-charge station-house showup, even after arrest, occurs before attachment, so the Wade-Gilbert per se exclusionary rule does not apply. Any challenge would instead sound in due process, not in a Sixth Amendment right-to-counsel claim.