MEMORANDUM OF LAW
TO: Monica Burke
FROM: Mary Dunn
RE: Cory Brown, Police Line-up Without Representation
DATE: May 6, 2019
QUESTION PRESENTED
Whether Cory Brown’s Sixth Amendment right to counsel was violated when he participated in a
police line-up without counsel present.
SHORT ANSWER
Yes. Cory Brown’s Sixth Amendment right to counsel was violated when he participated in a
police line-up without counsel present.
STATEMENT OF FACTS
On May 25, the United States Post Office on Evergreen Road was burglarized. On June 3, Cory
Brown was arrested in connection with the burglary. Brown stated that on the night in question,
he arrived home from work at approximately 6:30 pm. He left his apartment and went to Carr’s
Dive Bar arriving at approximately 9 pm and stayed until approximately 1 am. Brown stated that
he did not leave the bar during that time period. Brown stated that the bartender, Charley, could
attest to his being there as well as two or three other guys. About 12:30 am. his friend Vince
arrived, and they had a drink together. Brown then left to return to his apartment. When he was
arrested on June 3, he had approximately $4,000 in cash on his person and stated that his father,
and boss, had paid him for overtime and back pay. He was advised by police that he had been
spotted by a witness leaving the post office at approximately 10:30 pm on May 25.
Police requested that Brown participate in a line-up and he readily accepted wanting to prove his
innocence. He did so without an attorney. The police did not advise Brown that he had the right
to have an attorney present. There were six people in the line-up. All varied in height and
weight. Two were bald and the other four had short dark hair. One person was Asian, one was
Hispanic, and the other four were Caucasian. The witness identified Cory Brown as the person
that she saw, and she had already given police his name. She advised that she had met Brown
previously at Carr’s Dive Bar approximately two weeks ago. The police went to the bar and
asked if the bartender knew any patrons named Cory. After the line-up and based on the witness’
identification, Brown was arrested.
DISCUSSION
In the case involving Cory Brown, there are two precedential cases that back-up Brown’s
contention that his Sixth Amendment right to counsel was violated when he was in a police line-
up without the assistance of counsel. The police failed to advise Brown that he had the right to
counsel at the line-up. There is a high probability of a successful outcome of this case based on
prior case law.
In U.S. v. Wade 388 U.S. 218 (1967), Wade was arrested on suspicion of committing a bank
robbery. The witnesses said that he entered the bank and demanded money from the only two
employees in the bank at the time, a cashier and the vice president. They did as asked and he
left, getting into a stolen car with an accomplice leaving the scene. After Wade’s subsequent
indictment, and after he had already retained counsel, he was asked to be in a police line-up. The
question before the court in Wade is “whether courtroom identification of an accused at trial are
to be excluded because the accused was exhibited to witnesses before trial at a post-indictment
line-up without notice to and in the absence of counsel.” Id. At trial, the cashier and the vice
president, identified Wade in the courtroom as the person who robbed the bank. The prior line-
up identification was “then elicited from both employees on cross-examination.” Id. At the
close of testimony, Wade's counsel moved for a judgment of acquittal or, alternatively, “to strike
the bank officials' courtroom identifications on the ground that conduct of the line-up, without
notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege
against self-incrimination and his Sixth Amendment right to the assistance of counsel.” Id. The
motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit
reversed the conviction, held that the identification was to be excluded, holding that “though the
line-up did not violate Wade's Fifth Amendment rights, the line-up, held as it was, in the absence
of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment
rights.” Id. In Wade, the court found that because it is nearly impossible to reconstruct a police
line-up in the courtroom during trial, the defense could not adequately cross-examine witnesses.
And in this case, the identification was certainly suspect. The cashier and vice president of the
bank were taken to a courtroom for identification. They had a clear view of the hallway outside
the courtroom and both saw Wade in the hallway. The cashier stated that she saw Wade
“standing in the hall within sight of an FBI agent.” Id. The vice president testified that he saw a
person in the hall “in custody of the agent who resembled the person who robbed the bank.” Id.
If Wade’s attorney had been with him at the time, he may well have seen that potential witnesses
saw Wade in the hallway with an FBI agent before the other line-up participants arrived. This
would have given him an argument for an illegal line-up. If Brown’s attorney had an opportunity
to be present during the line-up he may have been able to argue that the other participants were
too dissimilar to Brown to be fair and impartial. They varied in ethnicity, height, weight, and
two were bald. Indeed, the court held that the assistance of counsel during the identification line-
up was “indispensable to protect Wade's most basic right as a criminal defendant, his right to a
fair trial at which the witnesses against him might be meaningfully cross-examined.” Id. This is
a valuable argument for the Brown case. It can be argued that he deserved the same right. The
court identified this period as a “critical stage” in the accused’s prosecution which necessitated
the presence of counsel. The court went further in discussing the problems inherent with
eyewitness identification, noting that there is no way to determine whether the identifications are
independent, or have they been influenced by suggestion, either intentionally or unintentionally.
The court held that “it is a matter of common experience that, once a witness has picked out the
accused at the line-up, he is not likely to go back on his word later on, so that in practice the
issue of identity may (in the absence of other relevant evidence) for all practical purposes be
determined there and then, before the trial." Id. This court granted certiorari and reversed the
decision in the Court of Appeals and remanded the case to that court and instructed them to
vacate the conviction to the District Court for further proceedings consistent with the opinion of
the court. Wade is a necessary precedential case for Brown because Wade was also in a line-up
without the presence of counsel and the case decision was vacated and remanded back to a lower
court. This makes Wade a good source of case law as pertains to violations of the Sixth
Amendment which is the issue of the Brown case.
Gilbert v. California 388 U.S. 263 (1967) was argued along with Wade because it “presents the
same alleged constitutional error in the admission in evidence of in-court identifications there
considered. In addition, petitioner alleges constitutional errors in the admission in evidence of
testimony of some of the witnesses that they also identified him at the line-up.” This line-up
was conducted after Gilbert had been indicted for armed robbery and murder of a police officer
and counsel appointed. Gilbert was not notified of his right to counsel at the line-up. A total of
ten eyewitnesses identified Gilbert during the line-up. There were two witnesses who identified
Gilbert as the robber in the current case. Gilbert’s apartment manager also identified him as a
current resident. Eight eyewitnesses, who testified during the penalty phase, all testified that
they had identified Gilbert as being involved in other robberies in the area. All of the witnesses
testified to identifying Gilbert during the police line-up. During the guilt phase of the trial, a
cashier identified Gilbert in the courtroom. The defense attorney requested a hearing outside the
presence of the jury to present evidence supporting his claim that her in-court identification was,
and others to be elicited by the State from other eyewitnesses would be, "predicated at least in
large part upon their identification or purported identification of Mr. Gilbert at the show up . . . ."
Id. The defense did so under the predication that it was violative of the Sixth Amendment. The
judge ruled that the motion was premature. On cross-examination, the defense elicited the fact
that the cashier’s identification was in a line-up and again moved to have the testimony stricken.
In separate proceedings, the jury found Gilbert guilty and imposed the death penalty. The
California Supreme Court affirmed the conviction and sentence and this court granted certiorari.
The court held that “if our holding today in Wade is applied to this case, the issue whether
admission of the in-court and line-up identifications is constitutional error which requires a new
trial could be resolved on this record only after further proceedings in the California courts.” Id.
This also applies to the Brown case as his identification line-up was also conducted without the
presence of his counsel which constituted a constitutional error as well. “Since none of the
petitioner's other contentions warrants relief, the issue becomes what relief is required by
application to this case of the principles today announced in United States v. Wade.” Id.
“The admission of the in-court identifications without first determining that they were not tainted
by the illegal line-up but were of independent origin was constitutional error.” Id. The court
further held that “police conduct of such a line-up without notice to and in the absence of his
counsel denies the accused his Sixth Amendment right to counsel and calls in question the
admissibility at trial of the in-court identifications of the accused by witnesses who attended the
line-up. “ Id.. Holding that it is unknown whether the in-court identifications came from an
independent source in the two trial phases, Gilbert is only entitled to a vacation of his conviction
and remand back to the California Supreme Court to determine if the in-court identifications had
an independent source or that their “introduction in evidence was in any event harmless error.”
Id.. The testimony of Gilbert’s apartment manager, where incriminating evidence was found,
and the eight witnesses that appeared during the penalty phase had different considerations.
“That testimony is the direct result of the illegal line-up come at by exploitation of the primary
illegality." Id.. This means that the California Supreme Court has no opportunity to show that
the testimony had an independent source, but 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 line-up.” Id.. The
desire to prevent the constitutionally objectionable practice “must prevail over the undesirability
of excluding relevant evidence.” Id. This conclusion is supported by the consideration that
testimony by witnesses related to identification in a line-up presented at trial to the jury will
“enhance the impact of his in-court identification on the jury and seriously aggravate whatever
derogation exists of the accused's right to a fair trial.” Id. Here is another point that lends to the
inadmissibility of the eyewitness identification of Gilbert without his attorney present-his basic
right to a fair trial. So, if the California Supreme Court can prove beyond a reasonable doubt that
the line-up was harmless, Gilbert will be entitled to a new trial. If no prejudicial error is found at
the guilt phase but is at the penalty phase, Gilbert will be entitled to relief as California law
affords where the penalty phase must be set aside. The judgment of the California Supreme
Court and the conviction are vacated, and the case is remanded to that court for further
proceedings not inconsistent with this opinion. The Gilbert case law is important, precedentially,
to Brown for the same reasons as Wade. Gilbert was in a line-up without the benefit of his
counsel though it was his right provided for in the Sixth Amendment. In Gilbert, the case
conviction was vacated, and the case remanded to the lower court for further proceedings not
inconsistent with the case opinion. This case will show the inherent violation of a person’s right
to counsel during a police line-up which is the issue in the Brown case.
There are similarities and differences in the three cases. All cases involve some element of theft.
All of the accused participated in police line-ups without the benefit of counsel, though it was
their right as provided by the Sixth Amendment. The differences in the cases are that both in
Wade and Gilbert the accused participated in the line-ups after indictment and appointment of
counsel. Though it may seem significant, even though Brown had no attorney appointed to him
at the time of the line-up, it was his right to have counsel present during this critical stage of the
investigation.
CONCLUSION
So, Wade and Gilbert have precedential value in the Brown case. Both of the cited cases involve
a Sixth Amendment violation of right to counsel during a police line-up. Indeed, it was even
called a “critical” stage in both cases. The fact that both cases have had their convictions vacated
and cases remanded back to the lower court for further proceedings either consistent or not
inconsistent with the current court’s opinion give good reason to think that the court will find in
favor of Brown. Also, his contention that his Sixth Amendment right to counsel has been
violated should be upheld and the witness identification stemming from the police line-up
thrown out.
