stovall denno argued february decided june petitioner convicted sentenced death murdering one behrendt arrested day murder without afforded time retain counsel taken police officers one handcuffed viewed hospital behrendt seriously wounded husband assailant observing hearing speak directed officer behrendt identified petitioner murderer behrendt officers testified petitioner trial hospital identification also made identification petitioner following affirmance conviction highest state petitioner sought habeas corpus district claiming behrendt identification testimony violated fifth sixth fourteenth amendment rights district hearing argument unrelated claim dismissed petition appeals en banc vacated panel decision reversing dismissal petition constitutional grounds affirmed district held constitutional rule established today decisions wade gilbert california ante pp application cases involving confrontations identification purposes conducted absence counsel date cf linkletter walker tehan shott johnson new jersey pp though practice showing suspects singly purposes identification widely condemned violation due process law conduct confrontation depends totality surrounding circumstances due process denial confrontation since behrendt person exonerate suspect go police station usual lineup way knowing long live pp leon polsky argued cause filed briefs petitioner william cahn argued cause filed brief respondent richard uviller argued cause filed brief new york state district attorneys association amicus curiae urging affirmance louis lefkowitz attorney general pro se samuel hirshowitz first assistant attorney general barry mahoney assistant attorney general filed brief attorney general new york amicus curiae urging affirmance justice brennan delivered opinion federal habeas corpus proceeding attacks collaterally state criminal conviction alleged constitutional errors admission allegedly tainted identification evidence us direct review convictions involved wade ante gilbert california ante case therefore provides vehicle deciding extent rules announced wade gilbert requiring exclusion identification evidence tainted exhibiting accused identifying witnesses trial absence counsel applied retroactively see linkletter walker tehan shott johnson new jersey question whether event facts particular confrontation involved case petitioner denied due process law violation fourteenth amendment cf davis north carolina paul behrendt stabbed death kitchen home garden city long island midnight august behrendt wife also physician followed husband kitchen jumped assailant knocked floor stabbed times police found shirt kitchen floor keys pocket traced petitioner arrested afternoon august arraignment promptly held postponed petitioner retain counsel behrendt hospitalized major surgery save life police without affording petitioner time retain counsel arranged surgeon permit bring petitioner hospital room noon august day surgery petitioner handcuffed one five police officers two members staff district attorney brought hospital room petitioner negro room behrendt identified hospital bed asked officer whether man petitioner repeated direction officer words voice identification none witnesses recall words used behrendt officers testified trial identification petitioner hospital room also made identification petitioner courtroom petitioner convicted sentenced death new york appeals affirmed without opinion petitioner pro se sought federal habeas corpus district southern district new york claimed among constitutional rights allegedly denied trial admission behrendt identification testimony violated rights fifth sixth fourteenth amendments compelled submit hospital room confrontation without help counsel circumstances unfairly focused witness attention man believed police guilty person district dismissed petition hearing argument unrelated claim alleged invalid search seizure appeal appeals second circuit panel initially reversed dismissal reaching issue admissibility behrendt identification evidence holding inadmissible ground hospital room identification violated petitioner constitutional right assistance counsel appeals thereafter heard case en banc vacated panel decision affirmed district granted certiorari set case argument wade gilbert hold wade gilbert affect cases future cases involve confrontations identification purposes conducted absence counsel date rulings wade gilbert therefore inapplicable present case think also facts case petitioner deprived due process law violation fourteenth amendment judgment appeals therefore affirmed wade gilbert fashion exclusionary rules deter law enforcement authorities exhibiting accused witnesses trial identification purposes without notice absence counsel conviction rests mistaken identification gross miscarriage justice wade gilbert rules aimed minimizing possibility preventing unfairness pretrial confrontation experience proved occur assuring meaningful examination identification witness testimony trial follow rules applied retroactively think true right assistance counsel applied retroactively stages prosecution denial right must almost invariably deny fair trial example trial gideon wainwright forms arraignment hamilton alabama appeal douglas california basic purpose trial determination truth deny lawyer help technical intricacies criminal trial deny full opportunity appeal conviction accused poor impede purpose infect criminal proceeding clear danger convicting innocent tehan shott supra also retroactively applied rules criminal procedure fashioned correct serious flaws process trial see example jackson denno although wade gilbert rules also aimed avoiding unfairness trial enhancing reliability process area identification evidence question whether constitutional rule criminal procedure enhance reliability process trial necessarily matter degree johnson new jersey supra extent condemned practice infects integrity process trial question probabilities probabilities must turn weighed prior justified reliance upon old standard impact retroactivity upon administration justice outlined wade dangers unfairness inherent confrontations identification possibility unfairness point great manner confrontations frequently conducted likelihood accused often precluded reconstructing occurred thereby obtaining full hearing identification issue trial presence counsel significantly promote fairness confrontation full hearing trial issue identification therefore concluded confrontation critical stage counsel required confrontations must recognized however unlike cases counsel absent trial appeal may confidently assumed confrontations identification often conducted absence counsel scrupulous fairness without prejudice accused trial therefore feel exclusionary rules set forth wade gilbert justified need assure integrity reliability system justice undoubtedly affect cases unfairness present course also assume injustices past averted counsel present confrontation identification injustices counsel absent trial certainty frequency say confrontation cases injustice occurred differs greatly enough cases involving absence counsel trial appeal justify treating situations different kind purpose retroactive application especially light strong countervailing interests outlined remains open persons allege prove stovall attempts case confrontation resulted unfairness infringed right due process law see palmer peyton cir unusual force countervailing considerations strengthens conclusion favor prospective application law enforcement officials federal government heretofore proceeded premise constitution require presence counsel pretrial confrontations identification today rulings foreshadowed cases announced requirement wade decided appeals fifth circuit overwhelming majority american courts always treated evidence question one admissibility one credibility jury wall identification criminal cases law enforcement authorities fairly relied virtually unanimous weight authority longer valid conducting pretrial confrontations absence counsel therefore clear retroactive application wade gilbert seriously disrupt administration criminal laws johnson new jersey supra tehan shott supra thought persuasive retroactive application rule griffin california application serious impact six allowed comment accused failure take stand said require void conviction every person testify trial impact upon administration criminal law devastating need elaboration impact insignificant compared impact expected retroactivity wade gilbert rules least processing current criminal calendars disrupted hearings conducted determine taint identification evidence whether event admission evidence harmless error doubtless inquiry handicapped unavailability witnesses dim memories conclude therefore wade gilbert rules made retroactive also conclude purposes distinction justified convictions final instant case convictions various stages trial direct review regard factors reliance burden administration justice entitled overriding significance make distinction unsupportable recognize wade gilbert therefore victims pretrial confrontations absence counsel benefit rules established cases must given benefit however unavoidable consequence necessity constitutional adjudications stand mere dictum sound policies rooted command article iii constitution resolve issues solely concrete cases controversies possible effect upon incentive counsel advance contentions requiring change law militate denying wade gilbert benefit today decisions inequity arguably results according benefit new rule parties case announced litigants similarly situated trial appellate process raised issue regard fact parties involved chance beneficiaries insignificant cost adherence sound principles ii person world possibly exonerate stovall words words man resulted freedom stovall hospital far distant courthouse jail one knew long behrendt might live faced responsibility identifying attacker need immediate action knowledge behrendt visit jail police followed feasible procedure took stovall hospital room circumstances usual police station stovall argues question ordered justice fortas reverse remand new trial ground state reference trial improper hospital identification violated petitioner fourteenth amendment rights prejudicial reach question retroactivity wade gilbert footnotes schaefer control sunbursts techniques prospective overruling record note prospective overruling retroactive application federal courts yale see mishkin foreword term harv rev see mishkin supra bender retroactive effect overruling constitutional decision mapp ohio rev schwartz retroactivity reliability due process reply professor mishkin chi rev see wall identification criminal cases paul identification accused persons austl williams hammelmann identification parades part crim rev frankfurter case sacco vanzetti justice white justice harlan justice stewart join reasons stated separate opinion wade ante perceive constitutional error identification procedure petitioner subjected concur result portion opinion limits application new sixth amendment rule justice black dissenting wade ante gilbert california ante holds lineup identification testimony excluded obtained exhibiting accused identifying witnesses trial absence counsel concurred part holdings lineup identification ground right counsel guaranteed federal courts sixth amendment state courts sixth fourteenth amendments first question case whether defendants already prison unconstitutional evidence shall accorded benefit rule case holds petitioner convicted unconstitutional evidence must remain prison besides wade gilbert chance beneficiaries one invoke rule except defendants exhibited lineups future dissent holding keeps people serving sentences convicted use unconstitutional evidence sought justified ground retroactive application holding gilbert wade somehow work burden administration justice serve purpose deter law enforcement authorities seems deny petitioner others like benefit new rule deprives constitutional trial perpetrates rank discrimination determines constitution says believe power weighing countervailing interests legislate timetable constitution provisions shall become effective reasons stated dissent linkletter walker hold petitioner every person jail convictions based unconstitutional evidence given advantage today newly announced constitutional rules goes however hold even though new constitutional rule sixth amendment right counsel help petitioner nevertheless entitled consideration claim independent right counsel claim identification one victims robbery made circumstances unfair denied due process law guaranteed fourteenth amendment although finds petitioner claim without merit dissent holding general claim unfairness lineup open persons allege prove term due process law direct descendant magna charta promise trial according law land established lawmaking agency constitutional legislative one ever able point word constitutional history shows framers ever intended due process clause fifth fourteenth amendment designed mean defendants charged crimes entitled trial governed laws constitutional statutory existence time commission crime time trial concept due process purports decide question however looks totality circumstances particular case determine judgment whether comport notions decency fairness fundamental justice declares comport constitution declares forbidden constitution see rochin california constitutional formula substitutes judgment right constitution declares shall law land due process notion proceeds though written constitution designed grant limited powers government neutralized limitations using due process clause authorize override written limiting language substituting view powers framers granted government dissent view constitution accepted result make even due process clause possibly construed giving latitudinarian powers still think goes far holding courts look particular circumstances identification lineup determine large whether suggestive conducive irreparable mistaken identification constitutional result freeze constitutional unconstitutional circumstances case giving federal government permanent constitutional standards also transfers power determine constitution say instead performance undoubted constitutional power determine constitution say result particular case put constitutional mould rule evidence think plainly within constitutional powers creating enforcing criminal laws must say deference hold due process clause gives power bar state introduction lineup testimony notion fairness violates specific constitutional prohibition arbitrary wholly capricious action affirm case reverse remand consideration whether lineup identification petitioner chapman california harmless error petitioner entitled new trial denial right counsel guaranteed sixth amendment fourteenth amendment makes obligatory