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United States v. Ash

Supreme Court of the United States · 1973 · Criminal Procedure

Criminal ProcedureSixth AmendmentRight to CounselIdentification ProceduresSixth Amendmentright to counselcritical stagepost-indictment

Facts

After a bank robbery, FBI agents first showed black-and-white mug shots to witnesses before Ash had been charged, and the witnesses made only uncertain identifications. After Ash was indicted and shortly before trial, the prosecutor and an FBI agent showed five color photographs, including Ash's, to the same witnesses to see whether they could make in-court identifications. Three witnesses selected Ash's photograph, one made no selection, and Ash's counsel was not present. Ash claimed that this post-indictment photographic display was a critical stage of the prosecution requiring counsel under the Sixth Amendment.

Issue

Does the Sixth Amendment give an indicted defendant the right to have counsel present whenever the government conducts a post-indictment photographic display containing the defendant's picture for witness identification purposes?

Rule

The Sixth Amendment right to counsel extends to pretrial events only when the accused requires aid in coping with legal problems or assistance in meeting his adversary at a trial-like confrontation. A post-indictment photographic display conducted in the accused's absence is not such a critical stage, so the Constitution does not require counsel's presence.

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

In Phoenix, a grand jury indicts Devon Pike for armed robbery. Two weeks later, while Devon remains in jail, the prosecutor shows six photographs, including Devon's, to a store clerk at the prosecutor's office; neither Devon nor his lawyer is present.

Does the Sixth Amendment require that Devon's lawyer be allowed to attend the photographic display?

Explanation. The majority held that the Sixth Amendment extends to pretrial events only when the accused needs aid in coping with legal problems or assistance in meeting his adversary at a trial-like confrontation. A photographic display conducted after indictment but in the accused's absence is not such a confrontation, so counsel is not constitutionally required.