Home › Case briefs › Criminal Procedure

United States v. Wade

Supreme Court of the United States · 1967 · Criminal Procedure

Criminal ProcedureSixth Amendmentright to counsellineuppost-indictmentSixth Amendmentright to counselcritical stage

Facts

After Wade was indicted for bank robbery and counsel was appointed, an FBI agent arranged a lineup without notifying Wade's lawyer. Wade stood with five or six other prisoners, all wearing tape on their faces like the robber allegedly had worn, and each participant was directed to say words like those allegedly spoken by the robber. Two bank employees identified Wade at the lineup and then identified him again in court at trial. Wade moved to strike the courtroom identifications on Fifth and Sixth Amendment grounds, but the motion was denied.

Issue

Whether a post-indictment lineup conducted for identification purposes without notice to and in the absence of appointed counsel violates the Sixth Amendment, and if so, whether subsequent in-court identifications must be excluded.

Rule

Compelling an accused to appear in a lineup, exhibit physical characteristics, or speak for identification does not violate the Fifth Amendment privilege against self-incrimination because such acts are not testimonial. But a post-indictment lineup is a critical stage of the prosecution, so the accused is entitled to notice and the presence of counsel unless there is an intelligent waiver. If that right is denied, the government may still use an in-court identification only by establishing by clear and convincing evidence that the identification was based on observations other than the lineup, considering factors such as prior opportunity to observe, description discrepancies, prior misidentifications, photo identifications, prior failures to identify, time lapse, and any disclosed facts about lineup conduct.

🔒

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.

A grand jury in Ohio indicts Devon Price for an armed pharmacy robbery in Cleveland, and the court appoints counsel for him that afternoon. Three days later, detectives arrange for two eyewitnesses to view Devon in a lineup at the county jail without notifying his lawyer. At trial, each witness identifies Devon in court.

Devon moves to exclude the in-court identifications on Sixth Amendment grounds. What is the strongest argument for exclusion?

Explanation. The majority held that a post-indictment lineup for identification is a critical stage of the prosecution because of the grave risk of suggestion and the difficulty of reconstructing what happened later at trial. Once formal prosecution has begun, the accused is entitled to notice to and presence of counsel at such a lineup absent an intelligent waiver. The Court rejected both the Fifth Amendment theory and a per se rule automatically excluding all later in-court identifications.