To: Benjamin Kontaxes - PLST 230
From: Caroline Stevens
Date: November 15, 2021
RE: John Smith - Suspect in the Post office on 100 Circle Street Burglary
MEMORANDUM OF LAW
FACTS
At 2:30am on October 19, 2020, John Smith was finishing up his bartending shift at
O’Mally’s Pub. The pub is located at 123 Circle Street in Lynchburg, Virginia. John lives three
blocks away from his work, at 145 Prince Street. He walked to his home alone, arrived around
3:00 am, and went to bed. Around 2:45 am, just before he arrived home, the post office John
passed on his way home was broken into. Emily Jones, an eye witness, observed a white male
approximately 5’10” and 180lbs with brown hair and a mustache running out of the post office
with mail. She described him wearing a blue jacket, blue jeans, and a black hat. Ms. Jones
advised she felt she could make a positive identification if she saw the suspect again.
The next day when John went to work there was a police officer at the pup waiting to
speak with him. The officer advised that John was a suspect in the breaking and entering of the
post office near his house the night before around 2:45 am. Several boxes were opened and many
pieces of mail had been taken. A witness identified a man running from the post office that met
the general description of John. When questioned by the officer, John denied any involvement
and refused to speak any further. The police officer left and John continued to work his shift at
the pub. A couple hours later, two police officers arrived at the pub. They advised that they had a
warrant for John’s arrest and a search warrant for John’s apartment. Police found several pieces
of mail that were stolen from the post office in John’s apartment. John was then arrested and
taken to the police station for a subject line-up. He was not advised of having the right to an
attorney and he did not have an attorney.
The line up was conducted with six other individuals wearing blue jeans and a white T-
shirt similar to John’s description. John was identified by Emily Jones as the individual she saw
running out of the post office with the mail.
ISSUE
Under United States v. Wade, 388 U.S. 218 (1967) and Kirby v. Illinois, 406 U.S. 682
(1972), will the line-up conducted at the police station be admissible in court?
BRIEF ANSWERS
According to the first applicable cases, United States v. Wade, 388 U.S. 218 (1967) a
defendant has the right to an attorney if the lineup is a “critical” stage. Generally an attorney is
required post-indictment. The purpose of a line-up during this time is generally for evidence
gathering to help the police with their case. However, if the line-up is a part of an active
investigation then counsel is not required. When reviewing Kirby v. Illinois, 406 U.S. 682
(1972), this case comes to the conclusion of the opposite. The Exclusionary Rule does not apply,
and the identification can be admitted at trial. It is the understanding that is more of a courtesy
than a requirement that counsel is present during a line-up. Based on these two cases, whether
counsel is present during the line-up or not, it can still be admissible in trial.
DISCUSSION
Under the United States v. Wade, 388 U.S. 218 (1967) it was held that a post-indictment
pretrial line-up at which the witness is exhibited to identify a suspect is a critical stage in a
criminal prosecution. It also goes to say that if police conduct such line-up in the absence of the
defendant's attorney it then denies the accused of his Sixth Amendment right to counsel.
However, if the line-up is a part of an active investigation then counsel is not required. In this
case, it was during an active investigation; therefore, the line-up is admissible at court.
Upon review on the case Kirby v. Illinois, 406 U.S. 682 (1972), it is concluded that due
process does not require that an accused be advised of his right to counsel before an
identification that takes place before the accused has been charged formally. Justice Potter
Stewart, writing for a four justice plurality, delivered the judgment of the court. The plurality
expressed that there is no constitutional right to counsel for an identification that takes place
before the accused is indicted or formally charged. Due to this the Exclusionary Rule does not
apply, and the identification can be admitted at trial. Id.
After reviewing these two cases, it is apparent that a subject line-up can be admissible in
trial whether counsel is present or not.
CONCLUSION
On October 19, 2020, John Smith was on his way home from work between 2:00 am and
3:00 am. During this time, the post office that Mr. Smith passes on his way home, was broken
into and mail was stolen. A witness of the burglary, Emily Jones, gave a description of the man
she saw running out of the post office with mail. The following day, Mr. Smith was questioned
then later brought to the police station after a warrant was obtained to search his apartment. In
his apartment they found several pieces of mail that were stolen from the post office. A line-up
was then conducted at the police station; where Ms. Jones positively identified Mr. Smith as the
man she saw running out of the post office. Mr. Smith’s attorney was not present for the line-up
nor was he notified that a line-up was going to be conducted. The question is, should this line-up
be admissible in trial.
In conclusion, it is my opinion that the line-up that was conducted without legal counsel
is admissible in trial. United States v. Wade, 388 U.S. 218 (1967) goes to say that if the line-up is
a part of an active investigation then counsel is not required. Justice Potter Stewart in Kirby v.
Illinois, 406 U.S. 682 (1972) applies that the Exclusionary Rule does not apply, and the
identification can be admitted at trial. Based on these two applicable cases, the subject line-up is
admissible in trial.
Powered by TCPDF (www.tcpdf.org)
