kirby illinois argued november decided june petitioner companion stopped interrogation produced course demonstrating identification items bearing name shard arrested taken police station arresting officers learned robbery one shard two days officers sent shard immediately identified petitioner companion robbers time confrontation petitioner companion advised right counsel either ask receive legal assistance six weeks later petitioner companion indicted shard robbery trial pretrial motion suppress testimony overruled shard testified previous identification petitioner companion identified robbers defendants found guilty petitioner conviction upheld appeal appellate holding per se exclusionary rule wade gilbert california apply confrontations held judgment affirmed pp app affirmed justice stewart joined chief justice justice blackmun justice rehnquist concluded showup arrest initiation adversary criminal proceeding whether way formal charge preliminary hearing indictment information arraignment unlike confrontations involved gilbert wade criminal prosecution accused matter absolute right entitled counsel pp justice powell concurred result jerold solovy argued cause petitioner reargument michael seng argued cause original argument solovy seng briefs petitioner james zagel assistant attorney general illinois reargued cause respondent brief william scott attorney general joel flaum first assistant attorney general james gildea assistant attorney general ronald george deputy attorney general argued cause reargument state california amicus curiae urging affirmance brief evelle younger attorney general william james assistant attorney general justice stewart announced judgment opinion chief justice justice blackmun justice rehnquist join wade gilbert california held pretrial lineup accused exhibited identifying witnesses critical stage criminal prosecution police conduct lineup without notice absence counsel denies accused sixth fourteenth amendment right counsel calls question admissibility trial identifications accused witnesses attended lineup gilbert california supra cases held identifications admissible evidence source lineup conducted violation constitutional standard per se exclusionary rule testimony effective sanction said assure law enforcement authorities respect accused constitutional right presence counsel critical lineup present case asked extend per se exclusionary rule identification testimony based upon police station showup took place defendant indicted otherwise formally charged criminal offense february man named willie shard reported chicago police previous day two men robbed chicago street wallet containing among things traveler checks social security card february two police officers stopped petitioner companion ralph bean west madison street chicago asked identification petitioner produced wallet contained three traveler checks social security card bearing name willie shard papers shard name also found bean possession asked explain possession shard property petitioner first said traveler checks play money told officers crap game officers arrested petitioner bean took police station arriving police station checking records arresting officers learn shard robbery police car dispatched shard place employment picked shard brought police station immediately upon entering room police station petitioner bean seated table shard positively identified men robbed two days earlier lawyer present room neither petitioner bean asked legal assistance advised right presence counsel six weeks later petitioner bean indicted robbery willie shard upon arraignment counsel appointed represent pleaded guilty pretrial motion suppress shard identification testimony denied trial shard testified witness prosecution testimony described identification two men police station february identified courtroom men robbed february length regarding circumstances identification two defendants cf pointer texas jury found defendants guilty petitioner conviction affirmed appeal people kirby app illinois appellate held admission shard testimony error relying upon earlier decision illinois people palmer holding per se exclusionary rule applicable confrontations granted certiorari limited question note outset constitutional privilege compulsory way implicated emphatically rejected claimed applicability constitutional guarantee wade neither lineup anything shown record wade required lineup violated privilege recently reaffirmed privilege protects accused compelled testify otherwise provide state evidence testimonial communicative nature schmerber california doubt compelling accused merely exhibit person observation prosecution witness prior trial involves compulsion accused give evidence testimonial significance compulsion accused exhibit physical characteristics compulsion disclose knowledge might exclusionary rule contrast stems quite different constitutional guarantee guarantee right counsel contained sixth fourteenth amendments unless semblance principled constitutional adjudication abandoned therefore decisions construing guarantee must look determining present controversy line constitutional cases stemming back landmark opinion powell alabama firmly established person sixth fourteenth amendment right counsel attaches time adversary judicial proceedings initiated see powell alabama supra johnson zerbst hamilton alabama gideon wainwright white maryland massiah wade gilbert california coleman alabama say defendant criminal case constitutional right counsel trial powell case makes clear right attaches time arraignment recently held exists also time preliminary hearing coleman alabama supra point members differed existence right counsel contexts cases cases involved points time initiation adversary judicial criminal proceedings whether way formal charge preliminary hearing indictment information arraignment seeming deviation long line constitutional decisions escobedo illinois escobedo apposite two distinct reasons first retrospect perceived prime purpose escobedo vindicate constitutional right counsel like miranda guarantee full effectuation privilege johnson new jersey secondly perhaps even important purely practical purposes limited holding escobedo facts johnson new jersey supra facts remotely akin facts case us initiation judicial criminal proceedings far mere formalism starting point whole system adversary criminal justice government committed prosecute adverse positions government defendant solidified defendant finds faced prosecutorial forces organized society immersed intricacies substantive procedural criminal law point therefore marks commencement criminal prosecutions alone explicit guarantees sixth amendment applicable see powell alabama massiah spano new york douglas concurring case asked import routine police investigation absolute constitutional guarantee historically rationally applicable onset formal prosecutorial proceedings decline less year wade gilbert decided explained rule decisions follows rationale cases accused entitled counsel critical stage prosecution lineup critical stage emphasis supplied simmons decline depart rationale today imposing per se exclusionary rule upon testimony concerning identification took place long commencement prosecution whatever ii said suggest may occasions course criminal investigation police abuse identification procedures abuses beyond reach constitution pointed wade always necessary scrutinize pretrial confrontation due process clause fifth fourteenth amendments forbids lineup unnecessarily suggestive conducive irreparable mistaken identification stovall denno foster california person formally charged criminal offense stovall strikes appropriate constitutional balance right suspect protected prejudicial procedures interest society prompt purposeful investigation unsolved crime judgment affirmed footnotes right willie calling attention february receive call police asking come station yes went anything happened willie well seen two men robbed took police station policeman picked pomaro went police station see two defendants yes see today yes sir point please yes one one indicating pomaro indicating record defendants bean kirby positively identified police station correct yes police officer make suggestion whatsoever witness willie looked back walking street first saw defendants looked back see yes seen get good look yes right grabbed took money see yes get good look yes correct walked away see yes look willie yes get good look yes two fellows look willie correct two robbed yes sure willie yes bean conviction reversed people bean app issue applicability wade gilbert confrontation severely divided courts compare state fields perkins state buchanan commonwealth state walters mo greene app rivers phillips commonwealth guillory mass people fowler cal palmer state md app people hutton app commonwealth whiting holley hayes state uring perhaps critical period proceedings defendants say time arraignment beginning trial consultation thoroughgoing investigation preparation vitally important defendants aid counsel real sense although much entitled aid period trial powell alabama criminal prosecutions accused shall enjoy right speedy public trial impartial jury state district wherein crime shall committed district shall previously ascertained law informed nature cause accusation confronted witnesses compulsory process obtaining witnesses favor assistance counsel defense amdt vi view limited grant certiorari consider whether might deprivation due process particularized circumstances case question remains open inquiry federal habeas corpus proceeding chief justice burger concurring agree right counsel attaches soon criminal charges formally made accused becomes subject criminal prosecution therefore join plurality opinion judgment cf coleman alabama dissenting opinion justice powell concurring result extend per se exclusionary rule concur result reached justice brennan justice douglas justice marshall join dissenting petitioner ralph bean arrested police officers brought willie shard robbery victim room police station petitioner bean seated table two police officers shard testified trial officers brought room asked petitioner bean robbers indicated prosecutor asked positively identified police station correct shard answered yes consequently question case whether gilbert california constitutional error admit shard testimony identified petitioner pretrial showup showup conducted police without advising petitioner might counsel present gilbert held context lineup nly per se exclusionary rule testimony effective sanction assure law enforcement authorities respect accused constitutional right presence counsel critical lineup apply gilbert principles companion case wade reverse wade concluding lineup conducted case violate accused right addressed argument assistance counsel lineup indispensable protect wade basic right criminal defendant right fair trial witnesses might meaningfully began emphasizing sixth amendment guarantee encompasses counsel assistance whenever necessary assure meaningful defence reviewing powell alabama hamilton alabama massiah focused upon two cases involved right escobedo illinois drew upon rationale hamilton massiah holding right counsel guaranteed point accused prior arraignment subjected secret interrogation despite repeated requests see lawyer noted necessity counsel presence accused fair opportunity present defense trial wade miranda arizona rules established custodial interrogation included right presence counsel result rested finding rules necessary safeguard privilege jeopardized interrogation principle addition counsel presence trial accused guaranteed need stand alone state stage prosecution formal informal counsel absence might derogate accused right fair trial security right much aim right counsel guarantees sixth amendment sum principle powell alabama succeeding cases requires scrutinize pretrial confrontation accused determine whether presence counsel necessary preserve defendant basic right fair trial affected right meaningfully witnesses effective assistance counsel trial calls upon us analyze whether potential substantial prejudice defendant rights inheres particular confrontation ability counsel help avoid prejudice emphasis original contrast said confrontation compelled state accused victim witnesses crime elicit identification evidence peculiarly riddled innumerable dangers variable factors might seriously even crucially derogate fair trial importantly accused inability effectively reconstruct trial unfairness occurred lineup may deprive opportunity meaningfully attack credibility witness courtroom identification analysis pretrial confrontations identification purposes produced following conclusion insofar accused conviction may rest courtroom identification fact fruit suspect pretrial identification accused helpless subject effective scrutiny trial accused deprived right essential safeguard right confront witnesses pointer texas even though precious safeguard fair trial viewed absolute assurance accuracy reliability thus present context many variables pitfalls exist first line defense must prevention unfairness lessening hazards identification lineup trial might determine accused fate may well courtroom pretrial confrontation state aligned accused witness sole jury accused unprotected overreaching intentional unintentional little effective appeal judgment rendered witness man go without saying appears necessary view plurality opinion today wade require presence counsel pretrial confrontations identification purposes simply basis abstract consideration words criminal prosecutions sixth amendment counsel required confrontations dangers inherent eyewitness identification suggestibility inherent context pretrial identification mean protection must afforded basic right criminal defendant right fair trial witnesses might meaningfully indeed expressly stated egislative regulations local police departments eliminate risks abuse unintentional suggestion lineup proceedings impediments meaningful confrontation trial may also remove basis regarding stage critical see gilbert california hence initiation adversary judicial criminal proceedings ante completely irrelevant whether counsel necessary pretrial confrontation identification order safeguard accused constitutional rights confrontation effective assistance counsel trial view wade plain plurality today attempt dispute inhere confrontation identification conducted arrest identical hazards fair trial inhere confrontation conducted onset formal prosecutorial proceedings plurality apparently considers arrest present purposes must assume based upon probable cause nothing part routine police investigation thus starting point whole system adversary criminal justice arrest according plurality face accused prosecutorial forces organized society immerse intricacies substantive procedural criminal law consequences ensue says plurality initiation judicial criminal proceedings government committed prosecute adverse positions government defendant solidified ibid propositions amount mere formalism difficult know characterize arrest evidences belief police perpetrator crime caught confrontation identification mere preparatory step gathering prosecution evidence wade supra primary frequently sole purpose confrontation identification stage accumulate proof buttress conclusion police offender hand plurality offers reason think none concluding confrontation identification unlike confrontation among critical confrontations accused prosecution pretrial proceedings results might well settle accused fate reduce trial mere formality highly suggestive form confrontation employed case underscores point showup particularly fraught peril mistaken identification setting police station squad room present except petitioner bean police officers danger quite real shard understandable resentment might lead readily agree police pair arrest persons exhibited indeed robbers hard imagine situation clearly conveying suggestion witness one presented believed guilty police state case without shard identification testimony safeguards consequence therefore critical importance shard testimony demonstrates necessity safeguards direct examination shard identified petitioner bean alleged robbers trial courtroom pair saw police station testimony thus lends strong support observation quoted wade matter common experience witness picked accused likely go back word later practice issue identity may absence relevant evidence practical purposes determined trial williams hammelmann identification parades part crim rev plurality today decline depart rationale wade gilbert ante plurality discovers rationale consulting decisions seem appropriate course reading one sentence simmons claim either asserted considered rationale plurality discovers apparently confrontation identification part prosecution plurality might discovered different rationale reading one sentence foster california case decided simmons explained wade gilbert held possibility unfairness accused way lineup conducted lineup critical stage prosecution accused must given opportunity represented counsel foster moreover although mentioned lineups took place accused arrest say whether also information filed instead simply pointed stovall denno wade gilbert applicable lineups conducted cases decided similarly coleman alabama another case involving lineup member saw significance whether accused formally charged crime lineup held plurality might also discovered different rationale wade gilbert examined stovall denno supra decided day stovall confrontation identification took place one day accused arrest although accused first brought arraignment postponed retain counsel hence plurality terms today confrontation held commencement prosecution ante yet circumstance stovall stated accused raised alleged constitutional errors admission allegedly tainted identification evidence us wade gilbert therefore found case provide vehicle deciding extent rules announced wade gilbert requiring exclusion identification evidence tainted exhibiting accused identifying witnesses trial absence counsel applied retroactively indeed explicit holding wade gilbert affect cases future cases involve confrontations identification purposes conducted absence counsel date rulings wade gilbert therefore inapplicable present case hence accused stovall receive benefit new exclusionary rules applied retroactively denied benefit confrontation took place formally charged criminal offense ante moreover course retroactivity discussion repeated phrase pretrial confrontations identification equivalent less times much hint wade gilbert applied confrontations accused indicted otherwise formally charged criminal offense ante fact one point summarized wade holding confrontation identification critical stage counsel required confrontations emphasis added wade gilbert course happened involve confrontations yet even cursory perusal opinions cases reveals nothing turned upon particular circumstance short fair conclude rather declin ing depart rationale wade gilbert ante plurality today albeit purporting engaged principled constitutional adjudication refuses even recognize rationale part agree extend wade gilbert holding principles cases apply confrontations identification conducted arrest shard testified trial identification petitioner police station showup exclusionary rule gilbert requires reversal room application doctrine admission shard testimony showup identification thus requires reversal need consider whether remand otherwise necessary afford state opportunity demonstrate shard identification petitioner see ante independent source see wade gilbert california plurality asserts view holding wade doctrine miranda arizona applicability whatever issue us ante assertion necessary plurality miranda requires presence counsel time adversary judicial proceedings initiated accused ibid assertion nonetheless erroneous wade specifically relied upon miranda establishing constitutional principle controls applicability sixth amendment guarantee right counsel pretrial confrontations see plurality asserts escobedo apposite ante course apposite wade hence say johnson new jersey case decided wade limited holding escobedo facts ante even true say nothing relevant present case plurality also utilizes johnson proposition prime purpose escobedo vindicate constitutional right counsel like miranda guarantee full effectuation privilege ibid view wade specific reliance upon escobedo miranda obviously distinction either moreover implies purpose wade vindicate constitutional right counsel purpose wade extended summary opinion demonstrates plurality refers occasions course criminal investigation police abuse identification procedures asserts uch abuses beyond reach constitution ante constitutional principles established wade however addressed solely police abuses wade explicitly pointed cases surfaced therefore reveal existence process attended hazards serious unfairness criminal accused strongly suggest plight numerous defendants unable ferret suggestive influences secrecy confrontation assume risks result police procedures intentionally designed prejudice accused rather assume derive dangers inherent eyewitness identification suggestibility inherent context pretrial identification case require consider confrontations take place custody see bratten delaware supp del people cesarz state moore super accidental confrontations arranged police see pollack state bibbs mo encounters shortly crime see russell app davis cf miranda arizona emphasis added principles announced today deal protection must given privilege individual first subjected police interrogation custody station otherwise deprived freedom action significant way point adversary system criminal proceedings commences distinguishing outset inquisitorial system recognized countries plurality concludes point therefore marks commencement criminal prosecutions alone explicit guarantees sixth amendment applicable ante taken contrary position respect guarantee sixth amendment invocation speedy trial provision thus need await indictment information formal charge decline extend reach amendment period prior arrest case us neither appellee arrested charged otherwise subjected formal restraint prior indictment event therefore transformed appellees accused defendants subject speedy trial protections sixth amendment marion california pointed eye toward real world establishment date formal accusation time wherein right counsel lineup attaches lead situation wherein substantially lineups conducted prior indictment information people fowler cal bean took stand testified petitioner found shard traveler checks social security card two hours arrest strewn upon ground alley fact lineups foster took place information filed crime occurred january accused arrested exhibited witness two lineups conducted within two weeks january information filed march foster california brief respondent fact lineup coleman took place accused formally charged crime occurred july accused arrested september lineup held october preliminary hearing october indictments returned november coleman alabama brief petitioners app see stewart joined burger dissenting facts plurality opinion adverted timing lineup extent pointing held two months assault seven months petitioners trial brennan joined douglas white marshall plurality opinion simply noted etitioners concede since lineup occurred wade gilbert decided invoke holding cases requiring exclusion identification evidence tainted exhibiting accused identifying witnesses trial absence counsel justice black concurring opinion took notice lineup conducted instead reiterating view wade held fully retroactive insisted petitioners case entitled counsel time lineup participated alabama failure provide counsel violated petitioners rights sixth fourteenth amendments justice harlan refer timing lineup expressing dissent refusal accord petitioners benefit wade holding neither petitioner afforded counsel police lineup identification justice harlan summary wade like prevailing opinion limit rationale confrontations wade rule requires exclusion identification preceded pretrial lineup accused represented counsel unless identification found derived source independent tainted pretrial viewing chain events stovall follows crime occurred night august accused arrested afternoon august appeared arraignment morning august arraignment postponed august retain counsel confrontation witness took place noon august arraignment august committing magistrate appointed counsel accused set felony examination september examination never held august indictment returned stovall denno brief respondent wade dissenters found limitation rule applies lineup techniques employed produce identification fortiori encounter witness suspect alone regardless identification occurs time place whether indictment information wade white joined harlan stewart dissenting part concurring part plurality rather surprisingly asserts issue applicability wade gilbert confrontation severely divided courts ante emphasis added plurality citations reveal decisions five including illinois refused apply wade gilbert confrontations identification ranged five however decisions least see people fowler cal state singleton la commonwealth guillory mass palmer state md app people hutton app thompson state state wright state isaacs ohio app commonwealth whiting holley martinez state tex crim app state hicks hayes state addition every appeals confronted question applied wade gilbert confrontations see greene app cooper picard ayers government virgin islands callwood rivers broadhead phillips wilson gaffney chief judge lewis speaking appeals tenth circuit put case wade gilbert lineups conducted indictments returned case bar lineup occurred petitioner formally charged surely assistance counsel established absolute right arise attach return indictment confrontation lineup constitutional distinction based upon lodging formal charge every reason set forth wade assistance counsel equal impact projected atmosphere hold petitioner right counsel lineup considered justice white dissenting wade gilbert california govern case compel reversal judgment