Lineup

• Author: Barbara Allen Babcock
• Pages: 1627-1628

Page 1627

In opinions whose subtext is unease about eyewitness identification procedures and testimony, the Supreme Court ruled in 1967 that a suspect is entitled to the presence of counsel at a lineup in order to preserve a FAIR TRIAL at which the witnesses can be meaningfully cross-examined. The opinions were delivered in the cases of UNITED STATES V. WADE and Gilbert v. California.

If a lineup is conducted without counsel, testimony about the lineup identification is automatically excluded. The question then becomes whether the witness who attended the illegally conducted lineup should be allowed to identify the witness at trial. This question centers on whether the witness could have made the in-court identification without having attended the lineup at which counsel was not present: whether, in other words, the witness had an independent source for the identification.

The lineup cases have generated much litigation and writing, both of a practical and a scholarly sort, about the role of counsel. The Court seemed to envision the attorney as a passive observer who would use what he saw to reconstruct for the fact-finder any unfairness in the lineup procedure. But a lawyer's skills are not necessary for observing, and reconstruction on cross-examination creates the risk that through the knowledge he displays in asking questions a lawyer may become a witness in his own case. Perhaps recognizing that having counsel at lineups was an interim measure and perceiving the analytical difficulties, the Court suggested that other techniques, such as photographing or videotaping lineups, could obviate the need for counsel.

The RIGHT TO COUNSEL at lineups was greatly undercut in Kirby v. Illinois (1972), in which the Court held that the right begins only "at or after the initiation of adversary criminal proceedings?whether by way of formal charge, preliminary hearing, INDICTMENT, INFORMATION, or arraignment." Because most lineups are part of the investigative stage of a case and occur before any of the indices of a formal charge, Kirby necessarily implied that a lawyer or some other observer was not, in fact, generally required.

Untouched by Kirby, however, is the argument, made in Stovall v. Denno (1967), that identification procedures may be so...