No. The constitutional right to a lawyer during an identification doesn't start right when you're arrested. It only kicks in when the legal system formally accuses you of a crime, like with an indictment or a court hearing. Before that, it's considered just a police investigation, not a formal 'criminal prosecution.' So, the rule that says evidence from a lawyer-less lineup must be thrown out doesn't apply here. If the identification was super unfair, the suspect could still challenge it, but not because he didn't have a lawyer.

I agree. The right to a lawyer begins once you're formally charged, so I join the main opinion.

I agree with the final decision because I don't think we should expand the rule that automatically throws out identification evidence.

Yes. It shouldn't matter if the identification happens before or after formal charges are filed. The risk of a witness making a mistake and identifying the wrong person is exactly the same. The whole point of having a lawyer is to make sure the identification is fair and to protect the suspect's right to a fair trial. Calling the moment of charging the 'starting point' is just a technicality that ignores the real danger of a mistaken identification ruining an innocent person's life.

Yes. Previous cases on this topic should apply here, and the lower court's decision should be reversed.

No, the rule that you get a lawyer doesn't kick in until the government has formally started the process to take you to court. Since Kirby was identified before that happened, the rule about excluding witness identification without a lawyer present doesn't apply here. The Court points out that the right to counsel becomes relevant when the government is set on prosecuting and the legal battle lines are drawn, which is usually marked by formal charges or an arraignment.

I disagree, believing that previous decisions should control this case and that the verdict should be reversed because of that. I voice concern over the majority's limitation of the Sixth Amendment's scope, potentially allowing for unjust pre-indictment procedures.

I disagree, saying that the rules about having a lawyer should apply as soon as the police arrest you and start trying to identify you as the criminal, because the risks of being wrongly identified are the same. I argue for the recognition of the right to counsel during critical pretrial procedures to protect the fairness of the trial. The suggestive identification process in this case shows why safeguards are needed.

I agree with the main decision that you get a lawyer when the court process officially starts against you, emphasizing that formal charges are the trigger for the Sixth Amendment's protections.

I agree with the outcome of the case but don't explain further.

A person's Sixth Amendment right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him," "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

The sixth amendment right to counsel, however, attaches only at or after the initiation of "adversary judicial proceedings" against the defendant.

"It is only at that time `that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'"

—the right to counsel attaches at or immediately after the "initiation of adversary judicial criminal proceedings."

The Sixth Amendment right to counsel does not attach until "the time that adversary judicial proceedings have been initiated."

—the United States Supreme Court held that a defendant's right to counsel at a pretrial lineup occurs only after formal charges have been filed against him.

—"[t] he Court held that there was no Sixth Amendment right to assistance of a counsel at a showup conducted after the accused had been arrested but before he had been indicted or formally charged."

The Sixth Amendment right to counsel attaches only upon reaching a critical stage of the adversary proceeding.

No. The Sixth Amendment right to counsel does not apply to pre-indictment identification procedures because the right attaches only upon the initiation of adversary judicial criminal proceedings. The Court's precedents, including Powell v. Alabama, establish that the right to counsel is triggered only at or after the point where the government has committed itself to prosecute, such as through a formal charge, indictment, or arraignment. This marks the commencement of a 'criminal prosecution' as specified in the Sixth Amendment. The Wade-Gilbert rule, which mandates counsel at post-indictment lineups, was based on the fact that a post-indictment lineup is a 'critical stage of the prosecution.' A police station showup that occurs before any formal charges are filed is merely part of a routine police investigation, not a formal prosecutorial proceeding, and therefore the per se exclusionary rule from Wade does not apply. Any unfairness in a pre-charge identification procedure is instead evaluated under the Due Process Clause's prohibition against unnecessarily suggestive confrontations.

I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a 'criminal prosecution.' Therefore, I join in the plurality opinion and in the judgment.

I concur in the result because I would not extend the Wade-Gilbert per se exclusionary rule.

Yes. The principles of United States v. Wade should apply to pre-indictment identifications because the inherent dangers of misidentification and prejudice to the accused's right to a fair trial are identical regardless of when the confrontation occurs. The rationale of Wade was to protect the accused's right to meaningfully cross-examine witnesses and prevent unfairness at trial, which can be irreparably tainted by a suggestive pretrial identification. The initiation of formal judicial proceedings is a 'mere formalism' that is irrelevant to the potential for prejudice in a police-arranged confrontation. A post-arrest showup is a critical stage because it is designed to build the prosecution's case and can effectively settle the accused's fate before trial, making the presence of counsel just as necessary as it is post-indictment.

Yes. United States v. Wade and Gilbert v. California govern this case and compel reversal of the judgment below.

No, the Sixth Amendment right to counsel does not apply to pre-indictment identification procedures because this right attaches only at or after the initiation of adversary judicial criminal proceedings. The identification procedure in question occurred before any formal charges were made against Kirby, and therefore, the exclusionary rule established in Wade and Gilbert does not apply. I emphasize that the right to counsel is only implicated when the government has committed itself to prosecute, and the adverse positions of government and defendant have solidified, which is typically marked by formal charges or arraignment.

I dissent, stating that the precedents set by Wade and Gilbert should govern this case and require reversal of the judgment. I express concern that the majority's holding undermines the protections afforded by the Sixth Amendment by allowing pre-indictment identifications without the presence of counsel.

I dissent, arguing that the principles of Wade and Gilbert should apply to pre-indictment confrontations, as the hazards to a fair trial inherent in such confrontations are the same as those present in post-indictment confrontations. I contend that the right to counsel should be recognized at the critical stage of a pretrial lineup, regardless of whether formal charges have been filed, to ensure the fairness of the criminal process. The highly suggestive showup in this case underscores the need for safeguards against mistaken identification.

I concur with the majority opinion that the right to counsel attaches when criminal charges are formally made and the subject becomes part of a criminal prosecution, underscoring the importance of formal charges as the point at which the protections of the Sixth Amendment become applicable.

I concur in the result reached by the Court but do not provide a separate reasoning.

Kirby v. Illinois

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