Kirby v. Illinois 406 U.S. 62, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)
The police stopped Kirby and Bean and asked for identification. In their wallets they both had some traveler's checks issued to a guy named Shard.
Coincidentally, a guy named Shard just so happened to have reported getting mugged a few days earlier...
The police contacted Shard,
who came down to the police station and identified Kriby and Bean as the
men who robbed him (aka a show-up).
At this point Kirby and Bean
had not been arrested, so they had not been advised of their rights and
did not have a lawyer.
At trial, Shard made an
in-court identification of Kirby and Bean as his assailants.
The Trial Court found Kirby
and Bean guilty of robbery. They appealed.
Kirby argued that based on United
States v. Wade (388 U.S. 218 (1967))
and Gilbert v. California
(388 U.S. 263 (1967)), identifications made outside the presence of
defense counsel were inadmissible.
Unless the prosecution
could show an independent origin for the in-court identification.
The Appellate Court upheld the
conviction. Kirby and Bean appealed.
The Appellate Court found
that the per se exclusionary rule
established by Wade did not apply to pre-indictment
The US Supreme Court upheld
The US Supreme Court found
that, unlike in Wade and Gilbert, the defendants were not under arrest at the
time of the identification.
Since the 6th
Amendment right to counsel only
attaches once an indictment is made, at the time of the identification,
Kirby did not have a right to counsel. Therefore there is no violation of
the 6th Amendment.
The Court did note that even
if the 6th Amendment
doesn't apply, there still could be a theoretical due process
argument to be made. But Kirby didn't make it.
In a dissent it was argued
that Wade and Gilbert were based on the idea that an identification
could be faulty and therefore required the presence of counsel to ensure
that it was not faulty. If true, what difference does it make if the
person is technically under arrest or not? It's the same exact issue!
Doesn't this ruling imply
that the police can get around the requirement for counsel to be present
during a line-up by just doing all
pre-indictment? Is that fair?