United States v. Ash
413 U.S. 300 (1973)
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Rule of Law:
The Sixth Amendment does not grant an accused the right to have counsel present at a post-indictment photographic display conducted by the government for the purpose of allowing a witness to attempt an identification of the offender.
Facts:
- On August 26, 1965, two men wearing stocking masks robbed a bank in Washington, D.C.
- A government informant, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr.
- In February 1966, an FBI agent showed black-and-white mug shots, including one of Ash, to four witnesses, who all made uncertain identifications. At this time, Ash had not been charged.
- On April 1, 1966, a grand jury returned an indictment charging Ash and a co-defendant, John L. Bailey, with the robbery.
- Shortly before the trial in May 1968, a prosecutor and an FBI agent showed a display of five color photographs to the same four witnesses.
- Three of the witnesses selected Ash's picture from the color photo array, but one was unable to make a selection. Ash's counsel was not present for this identification procedure.
Procedural Posture:
- Charles J. Ash, Jr. was indicted in the U.S. District Court for the District of Columbia on charges related to a bank robbery.
- Following a jury trial, Ash was convicted on all counts.
- Ash appealed his conviction to the United States Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals, sitting en banc, reversed the conviction, holding that Ash's Sixth Amendment right to counsel was violated because his lawyer was not present at the post-indictment photographic display.
- The United States petitioned the Supreme Court for a writ of certiorari, which was granted to resolve a conflict among the circuit courts.
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Issue:
Does the Sixth Amendment grant an accused the right to have counsel present at a post-indictment photographic display conducted by the government for identification purposes?
Opinions:
Majority - Mr. Justice Blackmun
No, the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. The core purpose of the Sixth Amendment's counsel guarantee is to provide assistance to the accused at trial-like confrontations with the state, where the accused is physically present and faces the intricacies of the legal system or the advocacy of a professional prosecutor. A photographic display is not a 'critical stage' because the accused is not present, and it does not constitute a trial-like adversary confrontation. Unlike a physical lineup, it is part of the prosecutor's trial preparation, and any potential for unfairness can be sufficiently challenged at trial through cross-examination and by having the jury view the photographic array itself.
Dissenting - Mr. Justice Brennan
Yes, a pretrial photographic display is a 'critical stage' of the prosecution at which the accused is constitutionally entitled to the presence of counsel. The dangers of mistaken identification and impermissible suggestion outlined in United States v. Wade regarding physical lineups are equally, if not more, applicable to photographic identifications. Because the accused is not present, it is even more difficult to reconstruct any subtle, suggestive influences—such as comments or gestures by the prosecutor—that may have tainted the identification. The presence of counsel as a trained observer is essential to detect unfairness and ensure the defendant's right to a fair trial is protected, making a photographic display a critical stage requiring counsel.
Concurring - Mr. Justice Stewart
No, a photographic display is not a 'critical stage' requiring counsel's presence. A pretrial proceeding is 'critical' only if counsel's presence is necessary to protect the fairness of the trial itself, particularly the right to meaningful cross-examination. A physical lineup is a dynamic, drama-like event with subtle possibilities for suggestion that are difficult to reconstruct at trial, making counsel's role as an observer essential. In contrast, a photographic identification is a static event where any unfairness, such as a suggestive array of pictures, can be easily reconstructed and demonstrated to the jury at trial. Therefore, an accused is not foreclosed from effective cross-examination, and the procedure is not a critical stage under the Sixth Amendment.
Analysis:
This decision significantly narrowed the Sixth Amendment right to counsel at pretrial identifications that was established in United States v. Wade. By distinguishing between corporeal (live) lineups and photographic displays, the Court limited the definition of a 'critical stage' to events that are trial-like confrontations where the accused is physically present. This ruling forces defendants to challenge suggestive photographic identifications under the more difficult Due Process standard, which requires showing the procedure was impermissibly suggestive and led to a substantial likelihood of misidentification, rather than relying on a per se violation of the right to counsel. The decision effectively categorizes photo arrays as part of the prosecutor's investigative trial preparation rather than a formal confrontation with the accused.
