United States v. Wade 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)
Somebody wrapped their face up
in tape and robbed a bank. The police arrested Wade on suspicion of being
The police put Wade in a line-up with other people wearing tape, and he was
identified by two bank employees.
This was done after Wade had
been assigned an attorney but the attorney was not notified of the line-up.
At trial, the employees again
positively identified Wade as the robber.
The Trial Court convicted Wade
of bank robbery. He appealed.
Wade argued that the
admission of the identifications was a violation of his 6th
Amendmentright to counsel
because his attorney was not told about the line-up.
Wade also unsuccessfully
argued that being made to stand there and let people look at his face was
a violation of his 5th Amendmentright against self-incrimination.
The Appellate Court overturned
the conviction. The prosecutor appealed.
The Appellate Court found
that once an identification is made outside the presence of defense
counsel, all futuer identifications (either in-court or out of court) of
the defendant by the witness are inadmissible.
The US Supreme Court reversed
and remanded for a new trial.
The US Supreme Court found
that a defendant has a 6th Amendment right to counsel not only at
his trial but at any critical confrontation by the prosecution at
In cases of a line-up, it is possible that the police will take
some actions that will make it biased to the defendant (the police may
lead the witness into choosing the suspect). Without a defense attorney
present to examine the facts of the identification, they cannot
adequately cross-examine the witness and thus cannot provide effective
"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 for
all practical purposes be determined there and then, before the
Btw, when fingerprinting
or DNA sampling, the defense can always rebut with expert witnesses
after the fact. But for line-ups,
it is difficult to rebut at trial. Hence the need for counsel to make
sure that it is done correctly.
The Court found that an in-court
identification by a witness to whom the accused was exhibited before
trial in the absence of counsel must be excluded unless it can be established that such evidence had
an independent origin or that the error in its admission was harmless.
Once a witness has
identified a defendant in a line-up
without counsel being present, there will always be a suspicion that
there was a problem with the line-up. Therefore, even if they identify the
defendant in court, you can never be sure if it is because they really
know he did it, or because they just remember seeing him in the (faulty)
line-up. So the
prosecution has to show that they are making a good identification based
on something outside the line-up.
Aka the per se exclusionary
The Court remanded the case
to see if there was any independent evidence outside of the line-up that could account for the in-court
identification. If so, then the identification is admissible.
Otherwise, it would be inadmissible.
The Court noted that, in
theory, if another procedure (like videotaping) was suggested, it might satisfy the constitutional requirements and
excuse the failure to have a lawyer present.
Basically, an in-court
identification is "fruit of the poisonous tree" if there was an
unconstitutional out-of-court identification. But, if there is an independent
source that the prosecution can point
to, then the in-court identification can be admissible.
For example, if the witness,
prior to the flawed line-up, worked
with a police sketch artist and made a drawing that looked exactly like
the suspect, that would be an independent source of evidence to prove the
reliability of the in-court identification.