wade argued february decided june several weeks respondent indictment robbery federally insured bank conspiracy respondent without notice appointed counsel placed lineup person wore strips tape face robber allegedly done direction repeated words like robber allegedly used two bank employees identified respondent robber trial asked robber courtroom identified respondent prior lineup identifications elicited urging conduct lineup violated fifth amendment privilege sixth amendment right counsel respondent filed motion judgment acquittal alternatively strike courtroom identifications trial denied motions respondent convicted appeals reversed holding though fifth amendment deprivation absence counsel lineup denied respondent right counsel sixth amendment required grant new trial identifications made lineup identifications excluded held neither lineup anything required therein violated respondent fifth amendment privilege since merely exhibiting person observation witnesses using voice identifying physical characteristic involved compulsion accused give evidence testimonial nature prohibited amendment pp sixth amendment guarantees accused right counsel trial critical confrontation prosecution pretrial proceedings results might well determine fate absence counsel might derogate right fair trial pp lineup unlike preparatory steps analyzing fingerprints blood samples critical prosecutive stage respondent entitled aid counsel pp great possibility unfairness accused point manner confrontations identification frequently conducted dangers inherent eyewitness identification suggestibility inherent context confrontations likelihood accused often precluded reconstructing occurred thereby obtaining full hearing identification issue trial pp case illustrates potential improper influence witnesses lineup procedure since bank employees allowed see respondent custody fbi agents lineup began pp presence counsel lineup significantly promote fairness confrontation full hearing trial issue identification pp identification witness accused exhibited trial absence counsel must excluded unless established evidence independent origin error admission harmless since clear appeals applied prescribed rule exclusion since nature identifications issue trial determined record case must remanded district resolution issues pp beatrice rosenberg argued cause brief acting solicitor general spritzer assistant attorney general vinson nathan lewin ronald gainer weldon holcomb argued cause filed brief respondent justice brennan delivered opinion question whether courtroom identifications accused trial excluded evidence accused exhibited witnesses trial lineup conducted identification purposes without notice absence accused appointed counsel federally insured bank eustace texas robbed september man small strip tape side face entered bank pointed pistol female cashier vice president persons bank time forced fill pillowcase bank money man drove away accomplice waiting stolen car outside bank march indictment returned respondent wade two others conspiring rob bank wade accomplice robbery wade arrested april counsel appointed represent april fifteen days later fbi agent without notice wade lawyer arranged two bank employees observe lineup made wade five six prisoners conducted courtroom local county courthouse person line wore strips tape allegedly worn robber upon direction said something like put money bag words allegedly uttered robber bank employees identified wade lineup bank robber trial two employees asked direct examination robber courtroom pointed wade prior lineup identification elicited employees close testimony wade counsel moved judgment acquittal alternatively strike bank officials courtroom identifications ground conduct lineup without notice absence appointed counsel violated fifth amendment privilege sixth amendment right assistance counsel motion denied wade convicted appeals fifth circuit reversed conviction ordered new trial identification evidence excluded holding though lineup violate wade fifth amendment rights lineup held absence counsel already chosen represent appellant violation sixth amendment rights granted certiorari set case oral argument gilbert california post stovall denno post present similar questions reverse judgment appeals remand direction enter new judgment vacating conviction remanding case district proceedings consistent opinion prohibition compelling man criminal witness prohibition use physical moral compulsion extort communications exclusion body evidence may material 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 different compelling schmerber provide blood sample holt wear blouse instances within cover privilege similarly compelling wade speak within hearing distance witnesses even utter words purportedly uttered robber compulsion utter statements testimonial nature required use voice identifying physical characteristic speak guilt held schmerber supra distinction drawn fifth amendment privilege one accused communications whatever form vocal physical compulsion makes suspect accused source real physical evidence schmerber supra recognized federal state courts usually held privilege offers protection compulsion submit fingerprinting photography measurements write speak identification appear stand assume stance walk make particular gesture none activities becomes testimonial within scope privilege required accused pretrial lineup moreover deserves emphasis case presents question admissibility evidence anything wade said lineup implicates privilege government offered evidence part case came lineup proceedings wade bank employees involved violation wade privilege ii framers bill rights envisaged broader role counsel practice prevailing england merely advising client matters law eschewing responsibility matters fact constitutions least expressly impliedly abolished distinction powell alabama note yale though colonial provisions counsel accord things agreed necessity abolishing distinction colonists appreciated defendant forced stand alone state case foredoomed yale supra background reflected scope given decisions sixth amendment guarantee accused assistance counsel defense bill rights adopted organized police forces know today accused confronted prosecutor witnesses evidence marshalled largely trial contrast today law enforcement machinery involves critical confrontations accused prosecution pretrial proceedings results might well settle accused fate reduce trial mere formality recognition realities modern criminal prosecution cases construed sixth amendment guarantee apply critical stages proceedings guarantee reads criminal prosecutions accused shall enjoy right assistance counsel defence emphasis supplied plain wording guarantee thus encompasses counsel assistance whenever necessary assure meaningful defence early powell alabama supra recognized period arraignment trial perhaps critical period proceedings accused requires guiding hand counsel guarantee prove empty right principle since applied require assistance counsel type arraignment example provided alabama certain rights might sacrificed lost happens may affect whole trial available defenses may irretrievably lost asserted hamilton alabama see white maryland principle also applied massiah held incriminating statements defendant excluded evidence appeared overheard federal agents without notice defendant lawyer arranged meeting defendant accomplice turned informant said quoting concurring opinion spano new york nything less might deny defendant effective representation counsel stage legal aid advice help 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 rule sought state however make trial appeal interrogation right use counsel formal trial hollow thing practical purposes conviction already assured pretrial examination one imagine cynical prosecutor saying let illustrious counsel ca escape noose nothing counsel trial course nothing decided said opinions cited cases links right counsel protection fifth amendment rights rather decisions reflect constitutional principle established long ago powell alabama massiah supra central 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 right accused speedy public trial impartial jury right informed nature cause accusation right confronted witnesses compulsory process obtaining witnesses favor presence counsel critical confrontations trial operates assure accused interests protected consistently adversary theory criminal prosecution cf pointer texas 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 iii iv moreover matter common experience witness picked accused likely go back word later practice issue identity may absence relevant evidence practical purposes determined trial pretrial confrontation purpose identification may take form lineup also known identification parade showup present case presentation suspect alone witness stovall denno supra obvious risks suggestion attend either form confrontation increase dangers inhering eyewitness identification case secret interrogations serious difficulty depicting transpires lineups forms identification confrontations privacy results secrecy turn results gap knowledge fact goes miranda arizona supra reasons defense seldom reconstruct manner mode lineup identification judge jury trial participating lineup accused may often police officers event participants names rarely recorded divulged trial impediments objective observation increased victim witness lineups prevalent rape robbery prosecutions present particular hazard victim understandable outrage may excite vengeful spiteful motives event neither witnesses lineup participants apt alert conditions prejudicial suspect likely scant benefit suspect since neither witnesses lineup participants likely schooled detection suggestive influences improper influences may go undetected suspect guilty experiences emotional tension might expect one confronted potential accusers even observe abuse criminal record may reluctant take stand open admission prior convictions moreover protestations suspect fairness lineup made trial likely vain jury choice accused unsupported version police officers present short accused inability effectively reconstruct trial unfairness occurred lineup may deprive opportunity meaningfully attack credibility witness courtroom identification facts disclosed specific cases conduct pretrial confrontations identification illustrate potential substantial prejudice accused stage need revelation trial commentator provides striking examples canadian case defendant picked six men oriental cases suspect placed among group persons tall suspects made stand short case perpetrator crime known youth suspect twenty placed five persons forty potential improper influence illustrated circumstances insofar appear surrounding prior identifications three cases decide today present case testimony identifying witnesses elicited revealed witnesses taken courthouse seated courtroom await assembly lineup courtroom faced hallway observable witnesses open door cashier testified saw wade standing hall within sight fbi agent five six prisoners later appeared hall vice president testified saw person hall custody agent resembled person identified one entered bank lineup gilbert supra conducted auditorium witnesses several alleged state federal robberies charged gilbert made wholesale identifications gilbert robber presence procedure said fraught dangers suggestion vice suggestion created identification stovall supra presentation witness suspect alone handcuffed police officers hard imagine situation clearly conveying suggestion witness one presented believed guilty police see frankfurter case sacco vanzetti 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 williams hammelmann one comprehensive studies forms identification said fact police given case little doubt man put identification committed offense chief problem getting sufficient proof come clean involves danger persuasion may communicate even doubtful case witness way identification parades part crim rev 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 eyewitness 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 since appears grave potential prejudice intentional pretrial lineup may capable reconstruction trial since presence counsel often avert prejudice assure meaningful confrontation trial little doubt wade lineup critical stage prosecution much entitled aid counsel trial powell alabama thus wade counsel notified impending lineup counsel presence requisite conduct lineup absent intelligent waiver see carnley cochran substantial countervailing policy considerations advanced requirement presence counsel concern expressed requirement forestall prompt identifications result obstruction confrontations first note two cases right counsel today held apply counsel already appointed argument made either case notice counsel prejudicially delayed confrontations moreover leave open question whether presence substitute counsel might suffice notification presence suspect counsel result prejudicial delay refuse recognize right counsel fear counsel obstruct course justice contrary basic assumptions upon operated sixth amendment cases rejected similar logic miranda arizona concerning presence counsel custodial interrogation attorney merely exercising good professional judgment taught cause considering attorney menace law enforcement merely carrying sworn oath protect extent ability rights client fulfilling responsibility attorney plays vital role administration criminal justice constitution legislative regulations local police departments eliminate risks abuse unintentional suggestion lineup proceedings impediments meaningful confrontation trial may also remove basis regarding stage critical neither congress federal authorities seen fit provide solution hold today way creates constitutional handicap sound efforts reform intended effect miranda arizona supra think follows proper test applied situations quoted wong sun hether granting establishment primary illegality evidence instant objection made come exploitation illegality instead means sufficiently distinguishable purged primary taint maguire evidence guilt see also hoffa application test present context requires consideration various factors example prior opportunity observe alleged criminal act existence discrepancy description defendant actual description identification prior lineup another person identification picture defendant prior lineup failure identify defendant prior occasion lapse time alleged act lineup identification also relevant consider facts despite absence counsel disclosed concerning conduct lineup doubt appeals applied proper test exclusion identification two witnesses stated said certainty recognized appellant time trial intervening lineup occurred testimony two witnesses may well colored illegal procedure prejudicial moreover persuaded part compulsory verbal responses made wade instance special agent ibid implies erroneous holding wade privilege violated denial counsel required exclusion record us make determination whether identifications independent origin issue trial although evidence relevant determination inquiry properly made district therefore think appropriate procedure followed vacate conviction pending hearing determine whether identifications independent source whether event introduction evidence harmless error chapman california district reinstate conviction order new trial may proper see shotwell mfg judgment appeals vacated case remanded direction enter new judgment vacating conviction remanding case district proceedings consistent opinion ordered justice douglas joins opinion except part phase case adheres dissenting views schmerber california since believes compulsory lineup violates privilege contained fifth amendment footnotes see powell alabama beaney right counsel american courts see note yale comment rev see powell alabama hamilton alabama white maryland escobedo illinois massiah see cases cited supra avery alabama borchard convicting innocent frank frank guilty wall identification criminal cases wigmore evidence ed rolph personal identity gross criminal investigation jackson ed williams proof guilt wills circumstantial evidence ed wigmore science judicial proof ed see wall supra murray criminal lineup home abroad utah rev napley problems effecting presentation case defendant rev williams identification parades crim rev eng paul identification accused persons austl houts evidence proof williams hammelmann identification parades parts ii crim rev gorphe showing prisoners witnesses identification police sci wigmore science judicial proof supra devlin criminal prosecution england williams proof guilt williams hammelmann identification parades part crim rev williams hammelmann identification parades part supra see wall supra see people boney people james cal app cal rptr see rolph personal identity bright burden identity parades lifted innocent participants hover suspect leaving rest featureless unknown without interest see williams hammelmann identification parades part ii crim rev borchard convicting innocent additional impediment detection influences participants including suspect physical conditions often surrounding conduct lineup many lights shine stage way suspect see witness see gilbert cir mirror used said witness side heard see rigney hendrick cir aaron state williams hammelmann part supra napley supra see groban black dissenting difficult position defendants attempting protest manner pretrial identification illustrated many state cases contentions blatant abuse rested unsupportable allegations usually controverted police officers present see people shields cal app people hicks state hill redmon commonwealth app lubinski state md striking case hardly anyone agreed upon occurred lineup including identified see johnson state md instructive example defendant predicament may found proctor state md prior identification admissible maryland salutary rule made conditions unfairness unreliability defendant contention conditions met stated instant case facts judgment call finding identification made conditions unfairness unreliability relatively large number persons put room together victim look one circumstance indicating fairness fact police officer unable remember appearances others recall physical characteristics similar defendant least suggestive one type differed markedly looks defendant evidence police sergeant gave complaining witness indication thirteen men defendant sergeant testimony simply asked victim identify defendant put thirteen men courtroom wall identification criminal cases examples see houts evidence proof frankfurter case sacco vanzetti wigmore evidence ed paul identification accused persons austl rolph personal identity see people james cal app cal rptr people boney see fredericksen app people adell app state hill people seppi state duggan see people crenshaw presley state md state ramirez state bazemore barrett state see aaron state bishop state ark people thompson people berne people martin barrett state see people clark gillespie state cr see people parham cal see wall supra napley supra hile many identification parades conducted police scrupulous regard fairness unknown identifying witness placed position see suspect parade forms williams hammelmann part supra burtt applied psychology one commentator proposes model statute providing counsel safeguards well attacks lineup process averted uniform statute modeled upon best features civilian codes proposed statute provide right counsel lineup confrontation provision made person whether victim witness must give description suspect views arrested person written record description required witness made sign written record available inspection defense counsel copying trial use trial testing accuracy identification made lineup trial ideal statute require least six persons addition accused lineup persons approximately height weight coloration hair skin bodily types suspect addition men nearly possible dressed alike distinctive garb used crime suspect forced wear similar clothing lineup unless persons similarly garbed complete written report names addresses descriptive details persons lineup everything transpired identification mandatory report include everything stated identifying witness step including reasons given features sparked recognition statute permit voice identification tests person lineup repeat identical innocuous phrases impermissible force use words allegedly used criminal act statute enjoin police suggesting viewer one persons lineup arrested suspect one witness make identification witness required separately forbidden speak another witness completed process statute require use movie cameras tape recorders record lineup process financially able afford devices finally statute provide evidence obtained result violation statute inadmissible murray criminal lineup home abroad utah rev although right counsel usually means right suspect counsel provision substitute counsel may justified ground substitute counsel presence may eliminate hazards render lineup critical stage presence suspect counsel concern also expressed presence counsel force divulgence identity government witnesses whose identity government may want conceal extent valid significant state interest police practices commonly used effect concealment example masking face many nations surround lineup safeguards prejudice suspect england suspect must allowed presence solicitor friend napley supra germany requires presence retained counsel france forbids confrontation suspect absence counsel spain mexico italy provide detailed procedures prescribing conditions confrontation must occur supervision judicial officer sees proceedings officially recorded assure adequate scrutiny trial murray criminal lineup home abroad utah rev thirty years ago wigmore suggested scientific method pretrial identification reduce risk error hitherto inherent proceedings wigmore science judicial proof ed approach least talking films prepared men various occupations races etc photographed number stock movements without hat coat read aloud standard passage suspect filmed manner films shown succession special projection room witness provided electric button activate board backstage pressed indicate witness identified given person provision made degree hesitancy identification indicated number presses course systematic scientific process proceeding including one purposes identification less impediment reconstruction conditions bearing upon reliability process proceeding trial see discussion fingerprint like tests part iii supra handwriting exemplars gilbert california supra see goldstein murphy dissenting fter accused sustains initial burden imposed nardone proving satisfaction trial judge preliminary hearing unlawfully employed petitioners fair burden shift government convince trial judge proof independent origin reach contrary conclusion gilbert california supra admissibility witness testimony also identified accused lineup thus case matters well witness knows suspect whether witness suspect mother brother associate matter long well witness observed perpetrator scene crime factors important bearing upon true basis witness identification moreover state inability bolster witness courtroom identification introduction lineup identification see gilbert california supra become less significant evidence opportunities witness observe defendant thus witness kidnap victim lived days abductor value state admission lineup identification indeed marginal identification mere formality justice clark concurring reference lineup point involved case life see lineup critical stage prosecution identification suspect prerequisite establishment guilt occurs stage miranda arizona books requirement presence counsel arises unless waived suspect dissented miranda bound schmerber california precludes petitioner claim therefore join opinion justice black dissenting part concurring part march respondent wade indicted robbing bank april arrested april appointed lawyer represent fifteen days later wade still custody fbi agent took several prisoners room courthouse directed participate lineup wearing strips tape face speak words used robber bank done order let bank employee witnesses look wade identification purposes wade lawyer notified present lineup protect client interests wade trial two bank employees identified courtroom wade objected testimony counsel elicited witnesses fact seen wade lineup contended forcing participate lineup wear strips tape face repeat words used robber without counsel government compelled witness violation fifth amendment deprived assistance counsel defense violation sixth amendment part opinion rejects wade fifth amendment contention dissent parts opinion sustains wade claim denial right counsel lineup concur part remands case district consider whether courtroom identification wade fruit illegal lineup grant new trial unless concludes courtroom identification harmless error reverse appeals reversal wade conviction remand proceedings since prosecution use lineup identification wade trial believe conviction affirmed ii agree counsel presence lineup necessary protect accused right fair trial fair trial means trial accordance law land specifically set constitution implications opinion fair trial means trial majority deems fair lineup critical stage assessing innumerable dangers inhere thinks implications justified evidenced suggestion egislative regulations eliminate risks abuse lineup proceedings may also remove basis regarding stage critical clear opinion gilbert california post willing make sixth amendment guarantee right counsel dependent view whether particular stage proceedings though critical sense prosecution gathering evidence critical view fair trial wholly unwilling make specific constitutional right counsel dependent judges vague transitory notions fairness equally transitory though thought empirical assessment risk counsel absence might derogate defendant right fair trial ante see pointer texas concurring opinion goldberg iii first place even power establish rule evidence think rule fashioned unsound tainted fruit determination required involves considerable difficulty think practically impossible witness capable probing recesses mind draw sharp line courtroom identification due exclusively earlier lineup courtroom identification due memory based lineup kind clear convincing evidence prosecution offer prove upon particular events memories resulting identification rest long trials delayed judges turn psychologists probe subconscious minds witnesses questions posed answered opinion view fifth sixth amendments satisfied prosecution precluded using lineup identification either alternative corroboration courtroom identification prosecution neither witnesses oath identify defendant courtroom find justification stopping trial midstream hold lengthy tainted fruit hearing fact circumstances surrounding prior lineup identification might used defense impeach credibility identifications exclude completely important constitutional provision upon rely directly implication gives power establish amounts constitutional rule evidence govern federal government trial state crimes state laws state courts see gilbert california supra constitution deliberately reposed broad power create try crimes according rules policies spencer texas deprived power least ask able point federal constitutional provision either express language necessary implication grants us power fashion novel rule evidence govern criminal trials cf berger new york ante black dissenting neither nardone wong sun federal cases decided contexts supports demands today perhaps presumes write constitutional rule evidence basis fourteenth amendment due process clause time place consider claim suffice say briefly find authority due process clause undoubtedly provides person must tried accordance law land consequently violates due process try person way prohibited fourth fifth sixth amendments written constitution never able subscribe dogma due process clause empowers declare law including rule evidence unconstitutional believes contrary tradition decency fundamental justice words used judges claim power due process clause see rochin california abiding idea framers wanted let judges write constitution beliefs said instead carefully defining grants prohibitions written constitution authority due process clause wholly unwilling tell state federal courts constitution forbids allow courtroom identification without prosecution first proving identification rest whole part illegal lineup feel deciding constitution says think wise framers put judicial activism worst leave federal government free decide rules evidence believe constitutional prerogative affirm wade conviction justice white justice harlan justice stewart join dissenting part concurring part propounded broad constitutional rule barring use wide spectrum relevant probative evidence solely step ascertainment discovery occurs outside presence defense counsel approach miranda arizona objected thought uncritical doctrinaire approach without satisfactory factual foundation much view present ruling therefore dissent judgment parts ii iv opinion opinion proceeds first creating new per se rule constitutional law criminal suspect subjected pretrial identification process absence counsel without violating sixth amendment state may buttress later courtroom identification witness reference previous identification furthermore courtroom identification admissible unless state establish clear convincing proof testimony fruit earlier identification made absence defendant counsel admittedly heavy burden state probably impossible one intents purposes courtroom identifications barred pretrial identifications occurred without counsel present rule applies lineup techniques employed produce identification fortiori encounter witness suspect alone regardless identification occurs time place whether indictment information matters well witness knows suspect whether witness suspect mother brother associate matter long well witness observed perpetrator scene crime kidnap victim lived days abductor category witness fleeting glimpse criminal neither may identify suspect without defendant counsel present strictures apply regardless number witnesses positively identify defendant regardless corroborative evidence showing defendant committed crime premise rule general unreliability eyewitness identifications difficulties inherent observation recall recognition assumes narrower evil basis rule improper police suggestion contributes erroneous identifications apparently believes improper police procedures widespread broad prophylactic rule must laid requiring presence counsel pretrial identifications order detect recurring instances police misconduct share pervasive distrust official investigations none materials relies upon supports certainly bow solid fact quite obviously reliable comprehensive survey current police practices base new rule avoid excluding relevant evidence state criminal trials cf washington texas ante goes beyond assuming great majority country police departments following improper practices pretrial identifications find lineup critical stage proceeding exclude identifications made absence counsel must also assume police suggestion occurs leads erroneous rather accurate identifications reprehensible police conduct unavoidable largely undiscoverable impact trial turn assumes adequate source defense counsel learn circumstances pretrial identification order place jury considerations enter appraisal courtroom identification evidence treacherous unsupported assumptions resting notion defendant aware police witnesses forget prevaricate defense counsel unable bring truth neither jury judge appellate sufficient safeguard unacceptable police conduct occurring pretrial identification procedure unable share view willingness police ordinary dissemble either respect identification defendant respect circumstances surrounding pretrial identification several striking aspects holding first rule bar courtroom identifications previous identifications presence police although identified courtroom defendant known custody charged commission crime second seems say suitable legislative standards adopted conduct pretrial identifications thereby lessening hazards confrontations insist presence counsel true simply fashion deems constitutionally acceptable procedures authorities follow certainly correct suggesting new rule wholly inapplicable police departments established suitable safeguards third courtroom identification may barred absent counsel prior identification regardless extent counsel information concerning circumstances previous confrontation witness defendant apparently even recordings events occurred rule premised defendant right counsel know seems little basis accepting means inform disinterested observer recordings photographs one seem adequate furnish basis meaningful eyewitness identifies defendant courtroom share view criminal trial least aim truthful factfinding including accurate eyewitness identifications doubt however basis present information tragic mistakes occurred criminal trials much product improper police conduct consequence difficulties inherent eyewitness testimony resolving evidentiary conflicts jury doubt new rule obviate difficulties situation measurably improved inserting defense counsel investigative processes police departments everywhere may asked possible state interest militates requiring presence defense counsel lineups argument goes may good may upgrade quality identification evidence state courts scarcely harm even true feeble foundation fastening ironclad constitutional rule upon state criminal procedures absent reliably established constitutional violation processes enforce criminal laws prerogative interest conducting affairs interest displaced simply saying valid arguments respect merits federal rule emanating beyond however requiring counsel pretrial identifications invariable rule trenches valid state interests one concern prompt efficient enforcement criminal laws identifications frequently take place arrest indictment returned information filed police may arrested suspect probable cause may still wrong man suspect state every interest prompt identification stage suspect order secure immediate release state prompt early identification enhances accurate identification must know whether right investigative track unavoidably however absolute rule requiring presence counsel cause significant delay may well result pretrial identification counsel must appointed time arranged convenient witnesses meanwhile may necessary file charges suspect may released bail federal system often recognizance neither state defendant benefit properly conducted identification procedure think witnesses ignored required present convenience counsel rather many may much less willing participate identification stage transformed adversary proceeding control judge others may fear safety identity known early date especially way knowing lineup occurs whether police really right man finally think new rule vulnerable terms unimpeachable purpose increasing reliability identification testimony law enforcement officers obligation convict guilty make sure convict innocent must dedicated making criminal trial procedure ascertainment true facts surrounding commission crime extent adversary system adversary defense counsel comparable obligation ascertain present truth system assigns different mission must interested preventing conviction innocent absent voluntary plea guilty also insist defend client whether innocent guilty state obligation present evidence defense counsel need present nothing even knows truth need furnish witnesses police reveal confidences client furnish information help prosecution case confuse witness even truthful one make appear disadvantage unsure indecisive normal course interest convicting innocent permits counsel put state proof put state case worst possible light regardless thinks knows truth undoubtedly limits defense counsel must observe often defense counsel prosecution witness impeach even thinks witness telling truth attempt destroy witness thinks lying respect part modified adversary system part duty imposed honorable defense counsel countenance require conduct many instances little relation search truth extend system least presently operates police investigations require counsel presence pretrial identification procedures counsel interest client placed scene crime regardless whereabouts counsel may advise clients refuse make movements speak words lineup even appear one extent impact truthful factfinding quite obvious others observe occurs develop possibilities later hover witnesses begin menacing truthful factfinding thoroughly fears police certainly implicit invitation counsel suggest rules lineup manage produce best therefore doubt new rule least absent clearly defined limits counsel role measurably contribute reliable pretrial identifications fears precisely opposite result may well produce fewer convictions hardly proper measure acceptability view state entitled investigate develop case outside presence defense counsel includes right private conversations identification witnesses defense counsel may consultations witnesses without prosecutor present whether today judgment acceptable exercise supervisory power federal courts another question constitutional matter judgment case erroneous although concur parts iii opinion respectfully register dissent yet stovall denno post recognizes improper police conduct identification process widespread justify full retroactivity new rule miranda arizona noted fundamentals criminal investigation text enjoyed extensive use among law enforcement agencies among students police science quality work said rest author long service observer lecturer police science work federal crime investigator suggest police use identification machinery improperly instead argues techniques increase reliability eyewitness identifications reason suggest views shared practiced majority police departments throughout land instant case companions gilbert california post stovall denno post certainly lend support assumptions police conduct deemed improper three cases seems come light trial ordinary course events one ask counsel learned pretrial identifications relevant truth determination trial premises constitutional rule police conduct subtle defy description subsequent disclosure deals pure speculation police conduct intentionally veiled police know unwilling speculate defense counsel trial unable reconstruct known circumstances pretrial identification unknown influence identifications innocent general premise evaporates problem simply inherent shortcomings eyewitness testimony thought state interest regarding sources identification less interest protecting informants especially may aid identification used witnesses see mccray illinois attorney representative ordinary party controversy sovereignty whose obligation govern impartially compelling obligation govern whose interest therefore criminal prosecution shall win case justice shall done peculiar definite sense servant law twofold aim guilt shall escape innocence suffer may prosecute earnestness vigor indeed may strike hard blows liberty strike foul ones much duty refrain improper methods calculated produce wrongful conviction use every legitimate means bring one berger see also mooney holohan pyle kansas alcorta texas napue illinois brady maryland giles maryland miller pate one point view role courtroom lawyer appears frank courts trial role lawyers bringing evidence trial may learn reading one dozen handbooks try experienced lawyer uses sorts stratagems minimize effect judge jury testimony disadvantageous client even lawyer doubt accuracy honesty testimony witness happens timid frightened unfamiliarity ways lawyer plays weakness order confuse witness make appear concealing significant facts longenecker book hints trial law suit book endorsed great wigmore writing truthful honest witness tells skilful advocate rapid may ruin testimony witness author even hint disapproval accomplishment longenecker similar books recommend lawyer try prod irritable honest adverse witness displaying undesirable characteristics unpleasant form order discredit judge jury may writes harris sometimes destroy effect adverse witness making appear hostile really may make exaggerate unsay something say taft says clever dealing honest egotistic witness deftly tempt witness indulge propensity exaggeration make hang thus adds taft may happen value testimony lost side produces suffers seeking aid source although add may source evidence fact decision turn intimidating manner putting questions writes wigmore may coerce disconcert witness answers represent actual knowledge subject also questions form subject cause embarrassment shame anger witness may unfairly lead demeanor utterances impression produced statements justice real testimonial value see materials collected countryman finman lawyer modern society joint committee continuing legal education american law institute american bar association problem criminal defense stovall aspects advocate dual responsibility alabama lawyer gold split loyalty ethical problem criminal defense lawyer rev symposium professional ethics rev justice fortas chief justice justice douglas join concurring part dissenting part agree exhibition person accused lineup violation privilege subject constitutional objection exhibition person accused courtroom identification purposes incident state power arrest reasonable justifiable aspect state custody resulting arrest require accused take affirmative volitional action duly arrested may seen identification purposes however critical stage prosecution agree opportunity counsel present must made available view however accused may compelled lineup speak words uttered person committed crime confident compelled compelled lineup passive mute assistance eyes victim witnesses kind volitional act kind forced cooperation accused within historical perimeter privilege compelled history tradition teach command accused may stand mute privilege means less according accused may jailed indefinitely willing say identifying audience whatever said course commission crime presumably include money life perhaps words assault rape case intolerable constitutional system completely agree accused must advised given right counsel lineup join part opinion empty right unless mean insist upon accused fundamental constitutional immunities one accused may compelled speak compel speak violate privilege incorporated fifth amendment great privilege merely shield accused also prescription technique designed guide state investigation history teaches us unreliable instrument detection apt inculpate enable guilty escape end story privilege historically goes roots democratic religious principle prevents debasement citizen result compelling accuse power state roots privilege deeper rack screw used extort confessions go nature free man relationship state accused compelled utter words spoken criminal course crime thoroughly disagree statement compulsion violate fifth amendment relies upon schmerber california support dissented schmerber controlling course acknowledge binding effect unless prepared overrule schmerber authorized forced extraction blood veins unwilling human compel person actively cooperate accuse volitional act differs degree compelling act crime assume rebuffed latter feature places compelled utterance accused squarely within history noble purpose fifth amendment commandment permit schmerber apply respect beyond holding opinion indefensible permit insidious doctrine extend beyond invasion body permits compulsion man deny defy precious part historical faith discard one profoundly cherished instruments established freedom dignity individual alter balance rights individual state achieved centuries conflict holds accused must advised given right counsel lineup makes privilege meaningless important respect unless counsel waived present objected accused utterance words used course committing crime compel utterance constitutional error accordingly join requiring vacating judgment determination whether identification respondent based upon factors independent lineup failure offer counsel lineup also violation respondent fifth amendment rights conceivable legislation might provide meticulous lineup procedure satisfy constitutional requirements agree remove basis regarding lineup stage critical