United States v. Wade/Opinion of the Court

by William J. Brennan, Jr.

United States Supreme Court

388 U.S. 218

United States  v.  Wade

 Argued: Feb. 16, 1967. --- Decided: June 12, 1967

Mr. Justice BRENNAN delivered the opinion of the Court.

The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's appointed counsel.

The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank's money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself. Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade's lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like 'put the money in the bag,' the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.

At trial the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. 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 lineup, 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. The motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade's Fifth Amendment rights, 'the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights * * *.' 358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, 87 S.Ct. 81, 17 L.Ed.2d 53, and set the case for oral argument with No. 223, Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and No. 254, Stovall v. Denno, 386 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.

Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the pivilege 'pot ects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * *.' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908. We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court rejected the claim as 'an extravagant extension of the Fifth Amendment,' Mr. Justice Holmes saying for the Court:

'(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.' 218 U.S., at 252-253, 31 S.Ct. at 6.

The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, 'we need now consider how far a court would go in compelling a man to exhibit himself.' Id., at 253, 31 S.Ct. at 6. ^[1]

We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, 384 U.S. at 761, 86 S.Ct. at 1830, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused's 'communications' in whatever form, vocal or physical, and 'compulsion which makes a suspect or accused the source of 'real or physical evidence," Schmerber, supra, at 764, 86 S.Ct. at 1832. We recognized that 'both federal and state courts have usually held that * * * (the privilege) offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' Id., at 764, 86 S.Ct. at 1832. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.

Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no suc e vidence as part of its case, and what came out about the lineup proceedings on Wade's cross-examination of the bank employees involved no violation of Wade's privilege.

The fact that the lineup involved no violation of Wade's privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that '(n)o issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented.' 384 U.S., at 766, 86 S.Ct. at 1833. In contrast, in this case it is urged that the assistance of counsel at the lineup 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.

The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in 'matters of law,' and eschewing any responsibility for 'matters of fact.' ^[2] The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction. Powell v. State of Alabama, 287 U.S. 45, 60-65, 53 S.Ct. 55, 60-62, 77 L.Ed. 158; Note, 73 Yale L.J. 1000, 1030-1033 (1964). 'Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.' 73 Yale L.J., supra, at 1033-1034. This background is reflected in the scope given by our decisions to the Sixth Amendment's guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. ^[3] The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings. The guarantee reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.' (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.'

As early as Powell v. State of Alabama, supra, we recognized that the period from arraignment to trial was 'perhaps the most critical period of the proceedings * * *,' id., at 57, 53 S.Ct. at 59, during which the accused 'requires the guiding hand of counsel * * *,' id., at 69, 53 S.Ct. at 64 if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment-for example, that provided by Alabama-where certain rights might be sacrificed or lost: 'What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted * * *.' Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 159, 7 L.Ed.2d 114. See White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. The principle was also applied in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, where we held thatin criminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant's lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. People of State of New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265, that '(a)nything less * * * might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him." 377 U.S., at 204, 84 S.Ct. at 1202.

In Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to present a defense at the trial itself:

'The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the 'right to use counsel at the formal trial (would be) a very hollow thing (if), for all practical purposes, the conviction is already assured by pretrial examination'. * * * 'One can imagine a cynical prosecutor saying: 'Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the trial.'" 378 U.S., at 487-488, 84 S.Ct. at 1763.

Finally in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.

Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions 'no more than (reflect) a constitutional principle established as long ago as Powell v. Alabama * * *.' Massiah v. United States, supra, 377 U.S. at 205, 84 S.Ct. at 1202. It is central to that principle that in addition to counsel's presence at trial, ^[4] the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. ^[5] The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment-the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused's interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.

In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a far trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.

The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution's evidence, not different for Sixth Amendment purposes-from various other preparatory steps, such as systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. ^[6] Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent-not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '(t)he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor-perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. ^[7] And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, '(i)t 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.' ^[8]

The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an 'identification parade' or 'showup,' as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. ^[9] But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. 'Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on * * *.' Miranda v. State of Arizona, supra, 384 U.S. at 448, 86 S.Ct. at 1614. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; ^[10] in any event, the participants' names are rarely recorded or divulged at trial. ^[11] The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim's understandable outrage may excite vengeful or spiteful motives. ^[12] In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences. ^[13] Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. ^[14] Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; ^[15] the jury's choice is between the accused's unsupported version and that of the police officers present. ^[16] In short, the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.

What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:

'In a Canadian case * * * the defendant had been picked out of a lineup of six men, of which he was the only Oriental. On other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short nonsuspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a lineup with five other persons, all of whom were forty or over.' ^[17]

Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness, ^[18] that the other participants in a lineup were grossly dissimilar in appearance to the suspect, ^[19] that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, ^[20] that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, ^[21] that the suspect is pointed out before or during a lineup, ^[22] and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect. ^[23]

The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade 'standing in the hall' within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who 'resembled the person that we identified as the one that had entered the bank.' ^[24]

The lineup in Gilbert, supra, was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other's presence, a procedure said to be fraught with dangers of suggestion. ^[25] And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32.

The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification an t he suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, '(T)he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not 'come clean,' involves a a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way * * *.' Identification Parades, Part I, (1963) Crim.L.Rev. 479, 483.

Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness 'that's the man.'

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, ^[26] there can be little doubt that for Wade the postindictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. State of Alabama, 287 U.S. 45, at 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.' See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay. ^[27] And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. State of Arizona, concerning presence of counsel during custodial interrogation, 384 U.S. at 480-481, 86 S.Ct. at 1631, 16 L.Ed.2d 694:

'(A)n attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath-to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.'

In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration of taint in the prosecution's indentification evidence. ^[28] That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice. ^[29]

Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical.' ^[30] But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today 'in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.' Miranda v. State of Arizona, supra, at 467, 86 S.Ct. at 1624.

We come now to the question whether the denial of Wade's motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U.S. 52, 79, n. 18, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678. ^[31] Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. ^[32] See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses' identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses' unequivocal courtroom identifications, and not mention the pretrial identification as part of the State's case at trial. Counsel is then in the predicament in which Wade's counsel found himself-realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification. Since counsel's presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.

We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, "(W)hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959).' See also Hoffa v. United States, 385 U.S. 293, 309, 87 S.Ct. 408, 17 L.Ed.2d 374. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. ^[33]

We doubt that the Court of Appeals applied the proper test for exclusion of the in-court identification of the two witnesses. The court stated that 'it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,' and that the testimony of the two witnesses 'may well have been colored by the illegal procedure (and) was prejudicial.' 358 F.2d, at 560. Moreover, the court was persuaded, in part, by the 'compulsory verbal responses made by Wade at the instance of the Special Agent.' Ibid. This implies the erroneous holding that Wade's privilege against self-incrimination was violated so that the denial of counsel required exclusion.

On the rco rd now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 245-246, 78 S.Ct. 245, 253, 2 L.Ed.2d 234.

The judgment of the Court of Appeals is vacated and the case is remanded to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion. It is so ordered.

Judgment of Court of Appeals vacated and case remanded with direction.

THE CHIEF JUSTICE joins the opinion of the Court except for Part I, from which he dissents for the reasons expressed in the opinion of Mr. Justice FORTAS.

Mr. Justice DOUGLAS joins the opinion of the Court except for Part I. On that phase of the case he adheres to the dissenting views in Schmerber v. State of California, 384 U.S. 757, 772-779, 86 S.Ct. 1826, 16 L.Ed.2d 908, since he believes that compulsory lineup violates the privilege against self-incrimination contained in the Fifth Amendment.

Notes

1  Holt was decided before Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, fashioned the rule excluding illegally obtained evidence in a federal prosecution. The Court therefore followed Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, in holding that, in any event, 'when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent.' 218 U.S., at 253, 31 S.Ct. at 6.

2  See Powell v. State of Alabama, 287 U.S. 45, 60-65, 53 S.Ct. 55, 60-62, 77 L.Ed. 158; Beaney, Right to Counsel in American Courts 8-26.

3  See Note, 73 Yale L.J. 1000, 1040-1042 (1964); Comment, 53 Calif.L.Rev. 337, 347-348 (1965).

4  See, e.g., Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

5  See cases cited n. 4, supra; Avery v. State of Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377.

6  Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases; 3 Wigmore, Evidence § 786a (3d ed. 1940); Rolph, Personal Identity; Gross, Criminal Investigation 47-54 (Jackson ed. 1962); Williams, Proof of Guilt 83-98 (1955); Wills, Circumstantial Evidence 192 205 (7th ed. 1937); Wigmore, The Science of Judicial Proof §§ 250 253 (3d ed. 1937).

7  See Wall, supra, n. 6, at 26-65; Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col.L.Rev. 94, 98-99 (1966); Williams, Identification Parades, (1955) Crim.L.Rev. (Eng.) 525; Paul, Indemnification of Accused Persons, 12 Austl.L.J. 42 (1938); Houts, From Evidence to Proof 25; Williams & Hammelmann, Identification Parades, Parts I & II, (1963) Crim.L.Rev. 479-490, 54-5 55; Gorphe, Showing Prisoners to Witnesses for Identification, 1 Am.J.Police Sci. 79 (1930); Wigmore, The Science of Judicial Proof, supra, n. 6, at § 253; Devlin, The Criminal Prosecution in England 70; Williams, Proof of Guilt 95-97.

8  Williams & Hammelmann, Identification Parades, Part I, (1963) Crim.L.Rev. 479, 482.

9  Williams & Hammelmann, Identification Parades, Part I, supra, n. 7.

10  See Wall, supra, n. 6, at 57-59; see, e.g., People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963); People v. James, 218 Cal.App.2d 166, 32 Cal.Rptr. 283 (1963).

11  See Rolph, Personal Identity 50: 'The bright burden of identity, at these parades, is lifted from the innocent participants to hover about the suspect, leaving the rest featureless and unknown and without interest.'

12  See Williams & Hammelmann, Identification Parades, Part II, (1963) Crim.L.Rev. 545, 546; Borchard, Convicting the Innocent 367.

13  An additional impediment to the detection of such influences by participants, including the suspect, is the physical conditions often surrounding the conduct of the lineup. In many, lights shine on the stage in such a way that the suspect cannot see the witness. See Gilbert v. United State, 366 F.2d 923 (C.A.9th Cir. 1966). In some a one-way mirror is used and what is said on the witness' side cannot be heard. See Rigney v. Hendrick, 355 F.2d 710, 711, n. 2 (C.A.3d Cir. 1965); Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961).

14  Williams & Hammelmann, Part I, supra, n. 7, at 489; Napley, supra, n. 7, at 99.

15  See In re Groban, 352 U.S. 330, 340, 77 S.Ct. 510, 516, 1 L.Ed.2d 376 (Black, J., dissenting). The difficult position of defendants in attempting to protest the manner of pretrial identification is illustrated by the many state court cases in which contentions of blatant abuse rested on their unsupportable allegations, usually controverted by the police officers present. See, e.g., People v. Shields, 70 Cal.App.2d 628, 634-635, 161 P.2d 475, 478-479 (1945); People v. Hicks, 22 Ill.2d 364, 176 N.E.2d 810 (1961); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); Redmon v. Commonwealth, 321 S.W.2d 397 (Ky.Ct.App.1959); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). For a striking case in which hardly anyone agreed upon what occurred at the lineup, including who identified whom, see Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965).

16  An instructive example of the defendant's predicament may be found in Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960). A prior identification is admissible in Maryland only under the salutary rule that it cannot have been made 'under conditions of unfairness or unreliability.' Id., at 401, 164 A.2d, at 712. Against the defendant's contention that these conditions had not been met, the Court stated:

'In the instant case, there are no such facts as, in our judgment, would call for a finding that the identification * * * was made under conditions of unfairness or unreliability. The relatively large number of persons but into the room together for (the victim) to look at is one circumstance indicating fairness, and the fact that the police officer was unable to remember the appearances of the others and could not recall if they had physical characteristics similar to (the defendant's) or not is at least suggestive that they were not of any one type or that they all differed markedly in looks from the defendant. There is no evidence that the Police Sergeant gave the complaining witness any indication as to which of the thirteen men was the defendant; the Sergeant's testimony is simply that he asked (the victim) if he could identify (the defendant) after having put the thirteen men in the courtroom.'

17  Wall, Eye-Witness Identification in Criminal Cases 53. For other such examples see Houts, From Evidence to Proof 25; Frankfurter, The Case of Sacco and Vanzetti 12-14, 30-32; 3 Wigmore, Evidence § 786a, at 164, n. 2 (3d ed. 1940); Paul, Identification of Accused Persons, 12 Austl.L.J. 42, 44 (1938); Rolph, Personal Identity 34-43.

18  See People v. James, 218 Cal.App.2d 166, 170-171, 32 Cal.Rptr. 283, 286 (1963); People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963).

19  See Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); People v. Adell, 75 Ill.App.2d 385, 221 N.E.2d 72 (1966); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); People v. Seppi, 221 N.Y. 62, 116 N.E. 793 (1917); State v. Duggan, 215 Or. 151, 162, 333 P.2d 907, 912 (1958).

20  See People v. Crenshaw, 15 Ill.2d 458, 460, 155 N.E.2d 599, 602 (1959); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961); State v. Ramirez, 76 N.M. 72, 412 P.2d 246 (1966); State v. Bazemore, 193 N.C. 336, 137 S.E. 172 (1927); Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516, 18 A.L.R.2d 789 (1950).

21  See Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1961); Bishop v. State, 236 Ark. 12, 364 S.W.2d 676 (1963); People v. Thompson, 406 Ill. 555, 94 L.Ed.2d 349 (1950); People v. Berne, 384 Ill. 334, 51 N.E.2d 578 (1943); People v. Martin, 304 Ill. 494, 136 N.E. 711 (1922); Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516, 18 A.L.R.2d 789 (1950).

22  See People v. Clark, 28 Ill.2d 423, 192 N.E.2d 851 (1963); Gillespie v. State, 355 P.2d 451, 454 (Okl.Cr.1960).

23  See People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963).

24  See Wall, supra, n. 6, at 48; Napley, supra, n. 7, at 99: '(W)hile many identification parades are conducted by the police with scrupulous regard for fairness, it is not unknown for the identifying witness to be placed in a position where he can see the suspect before the parade forms * * *.'

25  Williams & Hammelmann, Part, I, supra, n. 7, at 486; Burtt, Applied Psychology 254-255.

26  One commentator proposes a model statute providing not only for counsel, but other safeguards as well:

'Most, if not all, of the attacks on the the lineup process could be averted by a uniform statute modeled upon the best features of the civilian codes. An p roposed statute should provide for the right to counsel during any lineup or during any confrontation. Provision should be made that any person, whether a victim or a witness, must give a description of the suspect before he views any arrested person. A written record of this description should be required, and the witness should be made to sign it. This written record would be available for inspection by defense counsel for copying before the trial and for use at the trial in testing the accuracy of the identification made during the lineup and during the trial.

'This ideal statute would require at least six persons in addition to the accused in a lineup, and these persons would have to be of approximately the same height, weight, coloration of hair and skin, and bodily types as the suspect. In addition, all of these men should, as nearly as possible, be dressed alike. If distinctive garb was used during the crime, the suspect should not be forced to wear similar clothing in the lineup unless all of the other persons are similarly garbed. A complete written report of the names, addresses, descriptive details of the other persons in the lineup, and of everything which transpired during the identification would be mandatory. This report would include everything stated by the identifying witness during this step, including any reasons given by him as to what features, etc., have sparked his recognition.

'This statute should permit voice identification tests by having each person in the lineup repeat identical innocuous phrases, and it would be impermissible to force the use of words allegedly used during a criminal act.

'The statute would enjoin the police from suggesting to any viewer that one or more persons in the lineup had been arrested as a suspect. If more than one witness is to make an identification, each witness should be required to do so separately and should be forbidden to speak to another witness until all of them have completed the process.

'The statute could require the use of movie cameras and tape recorders to record the lineup process in those states which are financially able to afford these devices. Finally, the statute should provide that any evidence obtained as the result of a violation of this statute would be inadmissible.' Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610, 627-628.

27  Although the right to counsel usually means a right to the suspect's own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect's own counsel.

28  Concern is also expressed that the presence of counsel will force divulgence of the identity of government witnesses whose identity the Government may want to conceal. To the extent that this is a valid or significant state interest there are police practices commonly used to effect concealment, for example, masking the fase.

29  Many other nations surround the lineup with safeguards against prejudice to the suspect. In England the suspect must be allowed the presence of his solicitor or a friend, Napley, supra, n. 7, at 98-99; Germany requires the presence of retained counsel; France forbid t he confrontation of the suspect in the absence of his counsel; Spain, Mexico, and Italy provide detailed procedures prescribing the conditions under which confrontation must occur under the supervision of a judicial officer who sees to it that the proceedings are officially recorded to assure adequate scrutiny at trial. Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L.Rev. 610, 621-627.

30  Thirty years ago Wigmore suggested a 'scientific method' of pretrial identification 'to reduce the risk of error hitherto inherent in such proceedings.' Wigmore, The Science of Judicial Proof 541 (3d ed. 1937). Under this approach, at least 100 talking films would be prepared of men from various occupations, races, etc. Each would be photographed in a number of stock movements, with and without hat and coat, and would read aloud a standard passage. The suspect would be filmed in the same manner. Some 25 of the films would be shown in succession in a special projection room in which each witness would be provided an electric button which would activate a board backstage when pressed to indicate that the witness had identified a given person. Provision would be made for the degree of hesitancy in the identification to be indicated by the number of presses. Id., at 540-541. Of course, the more systematic and scientific a process or proceeding, including one for purposes of identification, the less the impediment to reconstruction of the conditions bearing upon the reliability of that process or proceeding at trial. See discussion of fingerprint and like tests, Part III, supra, and of handwriting exemplars in Gilbert v. California, supra.

31  See Goldstein v. United States, 316 U.S. 114, 124, n. 1, 62 S.Ct. 1000, 1005, 86 L.Ed. 1312 (Murphy, J., dissenting). '(A)fter an accused sustains the initial burden, imposed by Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, of proving to the satisfaction of the trial judge in the preliminary hearing that wire-tapping was unlawfully employed, as petitioners did here, it is only fair that the burden should then shift to the Government to convince the trial judge that its proof had an independent origin.'

32  We reach a contrary conclusion in Gilbert v. California, supra, as to the admissibility of the witness' testimony that he also identified the accused at the lineup.

33  Thus it is not the case that '(i)t matters not how well the witness knows the suspect, whether the witness is the suspect's mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime.' Such factors will have an important bearing upon the true basis of the witness' in-court identification. Moreover, the State's inability to bolster the witness' courtroom identification by introduction of the lineup identification itself, see Gilbert v. California, supra, will become less significant the more the evidence of other opportunities of the witness to observe the defendant. Thus where the witness is a 'kidnap victim who has lived for days with his abductor' the value to the State of admission of the lineup identification is indeed marginal, and such identification would be a mere formality.