1
MEMORANDUM
To: Benjamin Kontaxes, Assistant District Attorney
From: Bridget Hale, Legal Assistant
Date: May 10, 2024
RE: Smith, John – pre-trial line-up without counsel
Issue
Whether or not the line-up will be admissible in court without the client being advised of
his right to have counsel present.
Brief Answer
Yes, the line-up is admissible in court. In Kirby v. Illinois, the appellate court determined
that the “per se exclusionary rule of United States v. Wade, 388 U. S. 218 did not apply to pre-
indictment confrontations.” The line-up where the eyewitness identified John Smith was
conducted pre-indictment and he was not required to be offered counsel at that time. The
identification from the line-up will be admissible in court.
Fact Summary
On October 19, 2020, John Smith finished his shift as a bartender around 2:30 A.M. at
O’Mally’s Pub. He indicated that he normally walks home, which is three blocks from where he
works. Mr. Smith usually passes by The United States Post Office, which is located between his
2
place of employment and his residence. Mr. Smith said he arrived home around 3:00 A.M. and
went to bed alone.
When Mr. Smith arrived at work the next day, a police officer was waiting and asked to
speak to him. The officer told him that he was a suspect in the post office breaking and entering
at 2:45 A.M. Mr. Smith was informed that the suspect was seen fleeing and that he fit the
description of the suspect. The witness, Emily Jones, said she saw a white male, roughly 180
lbs., 5’10”, with brown hair and a mustache, dressed in a blue jacket, blue jeans, and a black hat,
running from the scene of the crime. She stated the man she saw had mail in his hands. Ms. Jones
was confident she could identify the suspect if she saw him again.
Mr. Smith vehemently denied his involvement in the crime and refused to speak to the
officer. The officer left, returning a few hours later while he was working, and presented a
warrant for his arrest. The police had a search warrant for Mr. Smith’s dwelling as well, and upon
executing the warrant, they found stolen mail from the post office. He was arrested and placed in
a line-up. He was not advised of his rights to counsel and did not have an attorney present for the
line-up. The line-up was standard, where Mr. Smith and six other white males, similar in size,
were placed in a room with a one-way mirror, all wearing blue jeans and white shirts. They all
faced the mirror, turned left and right, and each stepped forward when told. Ms. Jones identified
John Smith as the man she saw running from the post office.
Discussion
In the United States v. Wade, 388 U.S. 218 (1967), the defendant was subject to an in-
court line-up without counsel. The Court of Appeals reversed the conviction based on “the
3
absence of counsel at the lineup denied respondent his right to counsel under the Sixth
Amendment and required the grant of a new trial.” Id. The court held the following:
1. “The Sixth Amendment guarantees an accused the right to counsel not only at his trial
but at any critical confrontation by the prosecution at pretrial proceedings where the
results might well determine his fate and where the absence of counsel might
derogate from his right to a fair trial.” Id. at 223-227.
2. “The post-indictment lineup (unlike such preparatory steps as analyzing fingerprints
and blood samples) was a critical prosecutive stage at which respondent was entitled
to the aid of counsel.” Id. at 227-239.
The major difference when comparing United States v. Kirby is in that line-up, “witnesses
saw the respondent in the custody of the FBI before the lineup began.” Id. at 233-234. In the
line-up for Mr. Smith, the witness never saw the defendant in police custody before viewing him
in the line-up.
In the case, Kirby v. Illinois 406 U.S. 682 (1972), the courts held “that the per se
exclusionary rule of United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S.
263, did not apply to pre-indictment confrontations.” The courts ruled that the Sixth Amendment
right to counsel only applies when formally indicted. In Kirby v. Illinois, two men were stopped
by the police and asked to provide identification. Both suspects presented identification with the
same name, Shard. Id. Once taken to the police station, officers gained knowledge of the robbery
of a man named Shard. The victim of the robbery was brought to the police station and later
identified the two men in police custody as the men who robbed him. Neither suspect was
advised of their right to counsel for the line-up. The courts determined:
4
1. “A showup after arrest, but before the initiation of any adversary criminal proceeding
(whether by way of formal charge, preliminary hearing, indictment, information, or
arraignment), unlike the post-indictment confrontations involved in Gilbert and Wade, is
not a criminal prosecution at which the accused, as a matter of absolute right, is entitled
to counsel.” Id. at 687-691.
The circumstances in United States v. Wade are not applicable to John Smith’s line-up. Mr.
Smith was not formally indicted, only arrested. His Sixth Amendment right, the right to
counsel at a critical stage in criminal proceedings, was not violated during the line-up. In
keeping with Kirby v. Illinois, the line-up identification of Mr. Smith would be admissible.
The per se exclusionary rule has no bearing on Mr. Smith’s pre-indictment identification.
Conclusion
Admissibility of a pre-indictment line-up identification is found in Kirby v. Illinois, 406
U.S. 682 (1972). This case maintains that the Sixth Amendment right to counsel does not
pertain to a pre-indictment identification. Mr. Smith was arrested but nothing suggested at
that time he had been formally indicted for the crime. This removes the “post-indictment”
requirement and the per se exclusionary rule in United States v. Wade. Thus, the line-up
identification that Mr. Smith was a part of before pre-indictment is admissible.
Powered by TCPDF (www.tcpdf.org)
