moore illinois argued october decided december petitioner arrested rape related offenses identified complaining witness assailant ensuing preliminary hearing petitioner represented counsel offered appointed counsel victim asked make identification told going view suspect told name heard called led bench heard prosecutor recite evidence believed implicate petitioner subsequently petitioner indicted counsel appointed moved suppress victim identification petitioner illinois trial denied motion ground prosecution shown independent basis victim identification trial victim testified direct examination prosecution identified petitioner assailant preliminary hearing certain evidence linking petitioner crimes convicted illinois affirmed sought habeas corpus relief federal district ground admission identification testimony trial violated sixth fourteenth amendment rights denied relief ground prosecution shown independent basis identification appeals affirmed held petitioner sixth amendment right counsel violated corporeal identification conducted initiation adversary judicial criminal proceedings absence counsel wade gilbert california difficult imagine suggestive manner present suspect witness critical first confrontation employed case preliminary hearing petitioner represented counsel suggestiveness avoided prosecution properly buttress introducing evidence pretrial identification made violation petitioner sixth amendment rights even prove pretrial identification independent source pp case remanded however determination whether failure exclude evidence derived directly violation petitioner sixth amendment right counsel harmless constitutional error chapman california powell delivered opinion burger brennan stewart white marshall rehnquist joined rehnquist filed concurring opinion post blackmun filed opinion concurring result post stevens took part consideration decision case patrick hughes argued cause filed briefs petitioner charles levad assistant attorney general illinois argued cause respondent briefs william scott attorney general justice powell delivered opinion petitioner convicted rape related offenses trial complaining witness testified direct examination prosecution identified petitioner preliminary hearing represented counsel state affirmed petitioner convictions federal district appeals denied habeas corpus relief granted certiorari apparent conflict decisions holdings respect right counsel corporeal identifications wade gilbert california kirby illinois reverse victim offenses question lived apartment south side chicago shortly noon december awakened nap find man standing doorway bedroom holding knife man entered bedroom threw face bed choked quiet covering face bandana intruder partially undressed victim forced commit oral sodomy raped left taking guitar flute apartment police arrived victim gave description assailant although know seen face seconds attack thought man made offensive remarks neighborhood bar night also gave police notebook found next bed attack week followed police showed victim two groups photographs men first group picked resembled assailant height weight build second group picked two three one petitioner police also found letter notebook victim given investigation revealed written woman petitioner staying letter taken woman home absence petitioner appeared person access home evening december police arrested petitioner apartment held overnight pending preliminary hearing determine whether bound grand jury set bail next morning policeman accompanied victim circuit cook county first municipal district hearing policeman told going view suspect identify also sign complaint named petitioner assailant hearing petitioner name called led bench judge told petitioner charged rape deviate sexual behavior judge called victim courtroom waiting case called come bench state attorney stated police found evidence linking petitioner offenses charged asked victim whether saw assailant courtroom pointed petitioner state attorney requested continuance hearing time needed check fingerprints judge granted continuance fixed bail petitioner represented counsel hearing offer appoint counsel subsequent hearing petitioner bound grand jury indicted rape deviate sexual behavior burglary robbery counsel appointed moved suppress victim identification petitioner elicited preliminary hearing unnecessarily suggestive procedure petitioner represented counsel evidentiary hearing trial denied motion ground prosecution shown independent basis victim identification trial victim testified direct examination prosecution identified petitioner assailant preliminary hearing also testified defendant trial man raped prosecution evidence linking petitioner crimes letter found victim apartment defense counsel stipulated petitioner taken letter woman friend home presented evidence petitioner might lost notebook containing letter neighborhood bar night attack defense theory victim also bar night picked notebook mistake taken home defense also called witnesses testified petitioner college lunchroom another part chicago time attack committed jury found petitioner guilty four counts thus rejecting theory alibi trial sentenced years prison illinois affirmed people moore rejected petitioner argument victim identification testimony excluded ground prosecution shown independent basis identification denied certiorari petitioner sought writ habeas corpus federal district contended admission identification testimony trial violated sixth fourteenth amendment rights relying transcript state proceedings district denied writ unpublished opinion ground prosecution shown independent basis identification app appeals seventh circuit affirmed unpublished opinion ex rel moore illinois granted certiorari ii wade held pretrial corporeal identification conducted suspect indicated critical stage criminal prosecution sixth amendment entitles accused presence counsel emphasized dangers inherent pretrial identification conducted absence counsel persons conduct identification procedure may suggest intentionally unintentionally expect witness identify accused suggestion coming police officer prosecutor lead witness make mistaken identification witness predisposed adhere identification subsequent testimony trial accused counsel present pretrial identification serve client prosecution interests objecting suggestive features procedure influence witness identification view variables pitfalls exist uncounseled pretrial identification wade reasoned 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 gilbert differed wade one critical respect gilbert prosecution elicit testimony witnesses identified accused uncounselled pretrial lineup recognized testimony enhance impact witness identification jury seriously aggravate whatever derogation exists accused right fair trial hat testimony direct result illegal lineup come exploitation primary illegality wong sun prosecution entitled opportunity show testimony independent source see also wade supra announced exclusionary rule belief sanction necessary assure law enforcement authorities respect accused constitutional right presence counsel critical lineup gilbert supra therefore reversed conviction remanded state determination whether admission evidence harmless constitutional error chapman california kirby illinois plurality opinion made clear right counsel announced wade gilbert attaches corporeal identifications conducted initiation adversary judicial criminal proceedings whether way formal charge preliminary hearing indictment information arraignment initiation proceedings marks commencement criminal prosecutions alone explicit guarantees sixth amendment applicable thus kirby plurality held prosecution evidence robbery victim stationhouse identification uncounseled suspect shortly suspect arrest admissible adversary judicial criminal proceedings yet initiated cases however due process protects accused introduction evidence tainted unreliable pretrial identifications obtained unnecessarily suggestive procedures neil biggers stovall denno see generally manson brathwaite iii instant case petitioner argues preliminary hearing victim identified marked initiation adversary judicial criminal proceedings hence wade gilbert kirby entitled presence counsel confrontation moreover prosecution introduced evidence uncounseled corporeal identification trial petitioner contends gilbert evidence excluded without regard whether independent source appeals took different view case read kirby holding evidence corporeal identification conducted absence defense counsel must excluded identification made defendant indicted app reading squared kirby held accused rights wade gilbert attach identifications conducted initiation adversary judicial criminal proceedings including proceedings instituted way formal charge preliminary hearing prosecution case commenced illinois law victim complaint filed see rev ch purpose preliminary hearing determine whether probable cause bind petitioner grand jury set bail petitioner right oppose prosecution hearing moving dismiss charges suppress evidence faced counsel state elicited victim identification summarized state evidence petitioner urged state given time marshal evidence plain government ha committed prosecute petitioner found faced prosecutorial forces organized society immersed intricacies substantive procedural criminal law kirby supra state candidly concedes preliminary hearing marked initiation adversary judicial criminal proceedings petitioner brief respondent tr oral arg hardly contend otherwise appeals therefore erred holding petitioner rights wade gilbert yet attached time preliminary hearing appeals also suggested wade gilbert apply identification hardly considered app meaning statement entirely clear meant identification procedure distinguished lineup subject counsel requirement mistaken although wade gilbert involved lineups wade clearly contemplated counsel required situations pretrial confrontation purpose identification may take form lineup presentation suspect alone witness obvious risks suggestion attend either form confrontation see also white dissenting part concurring part cf stovall denno supra kirby illinois indeed confrontation generally thought present greater risks mistaken identification lineup wall identification criminal cases williams hammelmann identification parades crim rev reason hold identification procedure subject requirements lineup believed petitioner right counsel identification procedure conducted course judicial proceeding agree reasons supporting wade holding corporeal identification critical stage criminal prosecution sixth amendment purposes apply equal force identification difficult imagine suggestive manner present suspect witness critical first confrontation employed case victim seen assailant seconds asked make identification told going view suspect told name heard called led bench heard prosecutor recite evidence believed implicate petitioner petitioner represented counsel suggestiveness avoided sum unpersuaded reasons advanced appeals distinguishing identification procedure case considered wade gilbert cases petitioner sixth amendment rights violated corporeal identification conducted initiation adversary judicial criminal proceedings absence counsel courts thought victim testimony trial identified petitioner uncounseled pretrial confrontation admissible even petitioner rights violated independent source victim identification uncounseled confrontation app district appeals gilbert held prosecution buttress introducing evidence pretrial identification made violation accused sixth amendment rights even prove pretrial identification independent source testimony direct result illegal lineup come exploitation primary illegality gilbert prosecution therefore entitled opportunity show testimony independent source prosecution made use testimony case petitioner entitled benefit strict rule gilbert iv view violation petitioner sixth fourteenth amendment right counsel pretrial corporeal identification prosecution exploitation trial evidence derived directly violation reverse judgment appeals remand determination whether failure exclude evidence harmless constitutional error chapman california see gilbert supra also free remand issues presented petition upon pass reversed remanded footnotes among factors considered making determination 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 ash held sixth amendment require defense counsel present witness views police prosecution photographic arrays photographic showing unlike corporeal identification adversary confrontation accused agents government hence possibility arises accused might misled lack familiarity law overpowered professional adversary moreover even without attending prosecution photographic showing defense counsel equal chance prepare trial presenting photographic displays witnesses trial uplication defense counsel safeguard normally available formal confrontation occurs accused nevertheless entitled due process protection introduction evidence tainted unreliable identifications elicited unnecessarily suggestive photographic displays manson brathwaite simmons immediately state attorney asked victim identify petitioner stated allegation rape deviate sexual assault home invasion apartment hyde park victim raped forced commit oral copulation taken guitar instruments defendant arrested upon arrest warrant signed judge articles guitar instruments found apartment clothes described man attacked day app example counsel requested hearing postponed lineup arranged victim view petitioner less suggestive setting see ravich cert denied mason app short counsel asked victim excused courtroom charges read evidence petitioner recited petitioner seated people audience victim attempted identification see allen rhay cert denied counsel might sought victim test identification hardened cf haberstroh montanye ex rel riffert rundle cert denied sub nom riffert johnson prosecution interest well accused witnesses identifications remain untainted see wade assume requests vain requests ordinarily addressed sound discretion see ravich supra express opinion whether preliminary hearing required grant requests existence independent source thought demonstrated victim selection picture petitioner second photographic array courts parties certain many pictures victim actually selected array although ambiguity record compare trial transcript think fair reading indicates victim selected one photograph make positive identification petitioner resolution factual issue necessary decision case addition gilbert argument petitioner urges victim identification tainted prior uncounseled identification see wade identification unreliable product unnecessarily suggestive identification procedure excluded due process clause fourteenth amendment see manson brathwaite trial denial transcript preliminary hearing prejudicial constitutional error see roberts lavallee justice rehnquist concurring held certain limited circumstances statement given police persistent questioning suppressed trial suspect repeatedly requested denied opportunity consult attorney escobedo illinois time intimations ruling rested largely sixth amendment guarantee right counsel critical stages criminal proceeding shortly thereafter however perceived prime purpose escobedo vindicate constitutional right counsel like miranda guarantee full effectuation privilege johnson new jersey kirby illinois stewart cf darwin connecticut accordingly escobedo largely limited facts see johnson new jersey kirby illinois supra frazier cupp michigan tucker course left open possibility examining voluntariness confession appropriate standard totality circumstances cf clewis texas believe time come reconsider rule many reasons rule established ensure accuracy reliability pretrial identifications decide whether per se exclusionary rule still apply whether violations like questions involving reliability pretrial identification judged totality circumstances cf manson brathwaite cf kirby illinois supra simmons stovall denno however since state chosen press point believe opinion correct reading wade gilbert concur opinion judgment wade gilbert california justice blackmun concurring result concur result join remanding case determination whether adjudged error harmless record case conclusion harmless seems almost inevitable however courts decide first instance feel furthermore opinion made case facts warrant points ante state illinois conceded brief respondent tr oral arg preliminary hearing december victim testified initiation adversary judicial criminal proceedings petitioner trial victim testified hearing identified petitioner assailant ban gilbert california applies full force require remand orders state concession see need wrestle issue whether took place december marked initiation formal proceedings petitioner sense kirby illinois thereby possibly become entangled ghost unmentioned holding coleman alabama determined retroactive adams illinois one last word disassociate implication twice appearing opinion ante something insignificant unreliable rape victim observation crime facial features assailant observation lasts seconds time course always comparative matter fifteen seconds perhaps mean little identification scores separate individuals participating illegal riot seconds observation face rapist midday female victim commission crime means insufficient leave accurate indelible impression victim one need observe another person face seconds clock know resisting woman seconds seem endless female victim rape given period daylight observation ever believe otherwise therefore party degradation almost literal dismissal vital observation