Yes. It's against the rules. The court said there are two problems when a lineup is held without a lawyer. First, if a witness later points to the defendant in the courtroom, the judge has to make sure the witness remembers the defendant from the crime itself, not just from the unfair lineup. Second, and more importantly, the prosecutor is never allowed to tell the jury that the witness identified the defendant at the unfair lineup. That evidence gets kicked out automatically. The court also said forcing someone to provide a handwriting sample is okay because it's like a fingerprint, not like a confession.

Yes. He agreed that the lineup was unfair but thought the court didn't go far enough. He believed that forcing someone to give a handwriting sample was also unconstitutional and that the suspect should have had a lawyer for that, too. He thought any identification in the courtroom after an unfair lineup should also be thrown out.

Yes. He agreed about the unfair lineup but was also upset about a police search. The police had searched Gilbert's apartment without a warrant when they knew he wasn't there. He thought this was an illegal search and the evidence found should have been thrown out.

No. This justice disagreed with the main point. He didn't think the Constitution requires a lawyer to be at a police lineup. He would have let the conviction stand as it was.

Yes. He agreed that the lineup was illegal but also thought that forcing Gilbert to provide a handwriting sample without his lawyer present was a big deal. He argued that writing is an active process, not just a physical characteristic, so a lawyer should have been there to protect Gilbert's rights.

The police could take Gilbert's handwriting samples because that's not the same as making him say he did the crime. But they shouldn't have done the lineup without Gilbert's lawyer there. That was wrong, and normally, the court can't use what the witnesses said about recognizing Gilbert at the lineup. But if the witnesses can show they knew it was Gilbert without the lineup, then the court might let them say they recognized him.

Agrees with most of what the Court said, but disagrees about the lineup part. Thinks the Court should have let Gilbert's guilty verdict stand.

Agrees the case should go back to the lower court, but thinks the Court didn't go far enough. Believes Gilbert should have been told he had a right to a lawyer before giving the handwriting samples. Disagrees with the Court saying the handwriting samples were okay.

Disagrees with the Court's ruling on handwriting samples - thinks it goes against the rule that you can't be forced to give evidence against yourself. Also disagrees that Gilbert wasn't entitled to a lawyer when giving the samples. Agrees the case shouldn't be overturned because of the accomplice's statements. Would send the case back to see if using the handwriting samples and lineup identification was harmless or not.

Agrees with most of the Court's opinion, but would overturn Gilbert's conviction because the search of his apartment was unconstitutional. Thinks the police were just looking for evidence, not chasing a suspect, so the search was illegal.

—holding that "[t] he taking of [handwriting] exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination

Gilbert held that the taking of exemplars of handwriting was not a critical stage because "there is minimal risk that the absence of counsel might derogate from his right to a fair trial."

In-court identification testimony by a witness to an illegal lineup identification may be admitted if the in-court identification has an "independent source

The United States Supreme Court "[has]... been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective.

"Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup."

"A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [Fifth Amendment] protection."

The United States Supreme Court held that "[t] he taking of... exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of `an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to …

" `... The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial....'"

The state is therefore not entitled to an opportunity to show that that testimony had an independent source.

Therefore, this case is distinguishable from post-indictment or post-arrest cases where an accused has a Sixth Amendment right to counsel at a lineup.

Yes. The admission of testimony that a witness identified an accused at a post-indictment lineup conducted without counsel is a per se violation of the Sixth Amendment. The Court established two distinct rules for identifications made after an unconstitutional lineup. First, for an in-court identification by a witness who was present at the illegal lineup, the conviction must be vacated pending a hearing to determine if the identification had an independent source, or if its admission was harmless error, as established in *United States v. Wade*. Second, for testimony about the out-of-court lineup identification itself, that evidence is the direct result of the illegality and is subject to a per se exclusionary rule. The state is not entitled to show it had an independent source; its admission is constitutional error unless a court can declare it was harmless beyond a reasonable doubt. The court also held that compelling handwriting exemplars does not violate the Fifth Amendment, as they are identifying physical characteristics, not testimonial communications. It is also not a 'critical stage' requiring counsel under the Sixth Amendment.

Yes. While agreeing that admission of the lineup identification testimony was constitutional error, Justice Black dissented from the majority's reasoning on several grounds. He argued, consistent with his dissent in *Schmerber*, that compelling handwriting exemplars violates the Fifth Amendment privilege against self-incrimination. He also contended that obtaining the exemplar was a 'critical stage' requiring counsel. Furthermore, he disagreed with the 'independent source' test for in-court identifications, believing they should also be excluded if tainted by the prior illegal lineup.

Yes. Justice Douglas agreed with the majority's lineup-related holdings but dissented from its decision to dismiss the Fourth Amendment search-and-seizure claim. He argued that the factual record was sufficient to decide the issue and that the warrantless search of Gilbert's apartment was unconstitutional because it was a general search for evidence, not a 'hot pursuit,' as the officers knew the suspect was not present.

No. Concurring with the majority on the handwriting, co-defendant, and search issues, Justice White dissented from the holding that a post-indictment lineup conducted without counsel is unconstitutional. For the reasons stated in his *Wade* dissent, he would have affirmed the judgment of the California Supreme Court.

Yes. Justice Fortas agreed that the lineup identifications were unconstitutional but wrote separately to argue that taking a handwriting exemplar is also a 'critical stage' of the proceedings requiring the assistance of counsel. He distinguished the act of writing, which is a volitional process capable of abuse, from the passive submission to having one's blood drawn or being fingerprinted, arguing it falls within the 'stream of inculpation' and necessitates counsel's presence.

The taking of handwriting exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination because the exemplars are not communicative evidence. The absence of counsel during the taking of exemplars was not a critical stage of the criminal proceedings entitling petitioner to the assistance of counsel, as there is minimal risk that the absence of counsel might derogate from his right to a fair trial. However, a per se exclusionary rule as to testimony from witnesses who identified Gilbert at an illegal lineup is necessary to effectively sanction and ensure that law enforcement authorities respect the accused's constitutional right to the presence of his counsel at the critical lineup. In-court identification testimony by a witness to an illegal lineup identification may be admitted if the in-court identification has an independent source.

Joins Parts I, II, and III of the Court's opinion, but dissents from Part IV for the reasons stated in his separate opinion in United States v. Wade and would therefore affirm the judgment of the Supreme Court of California.

Concurs in the result of vacating the judgment and remanding the case, but believes the Court's opinion is inadequate. Would reverse and remand for a new trial on the additional ground that petitioner was entitled by the Sixth and Fourteenth Amendments to be advised that he had a right to counsel before and in connection with his response to the prosecutor's demand for a handwriting exemplar. Dissents from the Court's holding that compelling a handwriting exemplar does not violate the Fifth Amendment privilege against self-incrimination.

Dissents from the Court's Fifth Amendment holding, believing it unjustifiably detracts from the protection against compelled self-incrimination. Rejects the Court's holding that the taking of handwriting exemplars is not a critical stage entitling petitioner to the assistance of counsel under the Sixth Amendment. Agrees that Gilbert's case should not be reversed for state error in admitting pretrial statements of an accomplice. Would vacate the judgment and remand for consideration of whether the admission of the handwriting exemplars and out-of-court lineup identification was harmless error.

Agrees with the Court's opinion except for Part I. Would reverse and remand for a new trial on the search and seizure issue. Believes the search of petitioner's apartment was a general search for evidence that violates the Fourth Amendment and cannot be justified under the 'hot pursuit' doctrine.

Gilbert v. California

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot