Section 10.5 Generally

• Library: Criminal Practice 2012 Supp

a. (§10.5) Generally

Because knowledge of the historical development of a right will often help counsel understand that right, the following discussion traces the development of the Sixth Amendment right to counsel to the present state of the law.

To guarantee that identification procedures are fair and devoid of suggestion, the Supreme Court has ruled that:

· a post-indictment, out-of-court identification of the accused was a critical stage of a criminal prosecution;

· the Sixth Amendment requires the right to the assistance of counsel for the accused; and

· the exclusionary rule would be applied to evidence obtained in violation of that right.

United States v. Wade, 388 U.S. 218 (1967); Gilbert v. Cal., 388 U.S. 263 (1967). The rulings in Wade and Gilbert, requiring counsel at the out-of-court identification stage, were not retroactive and were applicable only to confrontation conducted in the absence of counsel after June 12, 1967. See Stovall v. Denno, 388 U.S. 293 (1967).

When there was a denial of the defendant’s Sixth (and Fourteenth) Amendment right to counsel under Gilbert, a per se exclusionary rule was applied to testimony concerning the out-of-court identification. In addition, the in-court identification would be excluded if it was evidence derived from a lineup conducted in violation of the accused’s constitutional right to the presence of counsel at the critical lineup. Gilbert, 388 U.S. at 273. In Gilbert the prosecution presented evidence in its case-in-chief concerning the lineup identification. The Court refused to permit the state to show that the testimony had an independent source, and the per se exclusionary rule was the only effective sanction. Id.

In Wade, 388 U.S. 218, however, the Court recognized that there could be an independent source for the in-court identification (other than the lineup) that would not necessitate the application of the per se exclusionary...