United States v. Wade
The Supreme Court ruled that police violated a bank-robbery suspect's Sixth Amendment right to counsel by placing him in a post-indictment lineup for eyewitness identification without notifying his lawyer.
The decision establishes that lineups are a 'critical stage' of a criminal case where a defense lawyer must be allowed to attend, because suggestive or unfair lineup procedures can taint identifications in ways that are almost impossible to expose later at trial.
How it got here: A jury convicted Wade; the Fifth Circuit reversed and ordered a new trial excluding the courtroom identifications; the Supreme Court granted certiorari to review the ruling.
The Case in Depth
What happened
A masked-with-tape gunman robbed a small Texas bank in 1964. Months later, Wade was indicted and arrested, and a lawyer was appointed for him. Before trial, an FBI agent had the two bank employees who witnessed the robbery view a lineup that included Wade, without telling Wade's lawyer. Both employees identified Wade there and again at trial.
The question before the Court
Did police violate a bank-robbery suspect's right to a lawyer by putting him in a lineup for eyewitness identification without telling his court-appointed attorney?
The Court's answer
Yes — the Supreme Court ruled that police violated Wade's Sixth Amendment right to counsel by putting him in the lineup without notifying his lawyer, because a post-indictment lineup is a "critical stage" of a criminal case where suggestive or mistaken identifications can effectively decide guilt before the trial even begins.
But the Court didn't automatically throw out the bank tellers' courtroom identification of Wade. Instead, it sent the case back so the government could try to show, with clear and convincing evidence, that the witnesses' in-court identification came from their own memory of the robbery rather than from the tainted lineup. If it can't, Wade is entitled to a new trial without that identification testimony.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Police departments nationwide had to start notifying defense lawyers before conducting post-charge lineups, giving suspects someone in the room who could watch for unfair or suggestive procedures. Prosecutors kept a path around exclusion — they can still use courtroom identifications if they prove the witness's memory didn't depend on the tainted lineup — but defendants gained a real tool to challenge shaky eyewitness evidence.
What changes now
The case returns to the District Court for a hearing on whether the bank employees' courtroom identifications came from their independent memory of the robbery or were tainted by the uncounseled lineup. If the government cannot show an independent source, Wade is entitled to a new trial without that identification testimony; if it can, or if any error was harmless, his conviction may be reinstated. The constitutional ruling itself is final, but this factual question remains open.
What this does not decide
The Court did not create a blanket rule excluding all courtroom identification testimony whenever a lineup happened without counsel. It also did not extend the counsel requirement to other evidence-gathering steps like fingerprint or blood analysis, which it treated differently because those techniques can be meaningfully challenged later through expert cross-examination.
Concurrences and dissents
Dissent in part — Justice Black
Black agreed that Wade's lawyer should have been notified of the lineup, violating the Sixth Amendment, but dissented on two points: he believed compelling Wade to speak the robber's words also violated the Fifth Amendment privilege against self-incrimination, and he thought the Court should simply affirm Wade's conviction outright rather than remand for a hearing, since the prosecution never used the lineup identification itself at trial.
Dissent in part — Justice White
“The Court has again propounded a broad constitutional rule barring use of a wide spectrum of relevant and probative evidence, solely because a step in its ascertainment or discovery occurs outside the presence of defense counsel.”White's objection to the Court's new rule requiring counsel at pretrial identifications.
White, joined by Harlan and Stewart, agreed only that the lineup didn't violate the Fifth Amendment and that identification procedures resemble other evidence-gathering steps like fingerprinting. He dissented from the new rule requiring counsel at lineups, arguing the Court had no real evidence that police misconduct at lineups was widespread and that the rule would delay investigations without meaningfully improving reliability.
Concurrence in part — Justice Fortas
Fortas, joined by Warren and Douglas, agreed that lineups are a critical stage requiring counsel and joined the remand for a hearing, but dissented on the Fifth Amendment question. He argued that forcing Wade to speak the robber's words was a volitional, testimonial act unlike merely producing a blood sample, and so violated the privilege against self-incrimination.
Concurrence — Justice Clark
Clark wrote separately to stress that he found it obvious a lineup is a critical stage requiring counsel once Miranda v. Arizona was decided, even though he had personally dissented in Miranda and remained bound by it. He agreed Schmerber foreclosed Wade's self-incrimination claim and joined the Court's opinion in full.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether forcing Wade to stand in the lineup, wear tape, and repeat the robber's words amounted to being compelled to testify against himself under the Fifth Amendment. Relying on its recent decision in Schmerber v. California, the Court held the privilege against self-incrimination protects only testimonial or communicative evidence, not a person's physical characteristics.
- Because Wade's appearance and voice were used only as physical identifying traits, not as statements revealing knowledge or guilt, the Court found no Fifth Amendment violation in requiring his participation in the lineup.
- Turning to the Sixth Amendment, the Court applied its 'critical stage' test, asking whether a pretrial event carries enough risk of unfair prejudice to the later trial that a lawyer's presence is necessary to protect a defendant's right to a fair trial and meaningful cross-examination.
- The Court found lineups uniquely risky: police suggestion can quietly steer a witness toward the wrong person, that influence is usually invisible and can't be reconstructed at trial, and once a witness picks someone out, they rarely change their identification later, meaning the lineup itself can decide guilt before trial even starts.
- Because a lawyer's presence could detect and expose such suggestive influences, and no strong law-enforcement interest justified keeping counsel out, the Court held the post-indictment lineup was a critical stage requiring Wade's lawyer to be notified and present, absent a valid waiver.
- To fashion a remedy without banning all identification testimony outright, the Court adopted the 'independent source' test from Wong Sun v. United States, asking whether the courtroom identification came from the witness's own memory of the crime or was instead the tainted product of the uncounseled lineup.
Doctrinal impact
Cases affected by this decision
Reaffirms Schmerber v. California (384 U.S. 757)
The Court relied on Schmerber's rule that only testimonial evidence, not physical characteristics, is protected by the self-incrimination privilege.
Reaffirms Powell v. Alabama (287 U.S. 45)
The Court leaned on Powell's principle that counsel must be present at any critical stage of a criminal prosecution.
Reaffirms Wong Sun v. United States (371 U.S. 471)
The Court adopted Wong Sun's test for whether evidence tainted by an earlier illegality still has an independent, admissible source.