Kirby v. Illinois
The Supreme Court ruled that a robbery suspect had no Sixth Amendment right to a lawyer at a police station identification showup because he had not yet been indicted or otherwise formally charged when it happened.
The decision draws a sharp line for when the constitutional right to counsel begins, holding that it attaches only once formal criminal proceedings — like an indictment or arraignment — have started, not merely upon arrest or during a police investigation.
“It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable.”
The plurality's core holding that the right to counsel begins only once formal charges are filed.
How it got here: An Illinois trial court denied a motion to suppress the identification testimony; the Illinois Appellate Court affirmed the conviction, and the Supreme Court granted certiorari on the limited question of whether counsel was required.
The Case in Depth
What happened
A Chicago man reported he had been robbed of his wallet, traveler's checks, and a Social Security card. The next day, police stopped the petitioner and a companion for an unrelated reason, found the victim's property on them, and arrested them. Before any charges were filed, police brought the robbery victim to the station, where he immediately identified the two men as his robbers without a lawyer present for either man.
The question before the Court
Does a suspect have a right to have a lawyer present at a police lineup or showup held before he has been formally charged with a crime?
Why it matters
Police can conduct lineups, showups, and other identification procedures on suspects who have been arrested but not yet charged without providing a lawyer, and any resulting identification testimony can still be used at trial. This gives law enforcement significant leeway during the investigative stage, though suspects retain a separate due-process claim if a procedure was unnecessarily suggestive.
What changes now
The conviction stands as affirmed; no further proceedings on the right-to-counsel claim were required. The Court left open whether the particular showup in this case might still have violated due process because it was unnecessarily suggestive, noting that question could still be raised in a federal habeas corpus proceeding since it was outside the limited question the Court had agreed to review.
What this does not decide
The Court did not decide whether this particular showup was so suggestive that it violated due process — that question was left open for a habeas corpus proceeding. The ruling also does not address confrontations before custody, accidental confrontations, or brief on-the-scene identifications made right after a crime.
Concurrences and dissents
Concurrence — Justice Burger
The Chief Justice agreed that the right to counsel attaches only once formal criminal charges are filed against a person, making him the subject of a 'criminal prosecution.' He joined the plurality opinion and the judgment without further elaboration.
Concurrence — Justice Powell
Justice Powell did not join the plurality's reasoning but agreed with the outcome. He stated simply that he would not extend the Wade-Gilbert automatic exclusion rule to this pre-charge showup, and so concurred only in the result.
Dissent — Justice Brennan
“A post-arrest confrontation for identification is not "a mere preparatory step in the gathering of the prosecution's evidence."”Brennan's argument that arrest, not formal charging, creates the dangers Wade sought to address.
Justice Brennan argued that Wade and Gilbert were never about the formal timing of charges but about the serious risk of unfair, suggestive identification procedures and the suspect's need for a lawyer to protect his right to a fair trial. He argued that an arrest, not a later formal charge, is what creates prosecutorial forces against the accused and triggers the same dangers Wade addressed, and would have reversed the conviction because the police-station showup here was highly suggestive and conducted without counsel.
Dissent — Justice White
Justice White wrote a brief dissent stating that United States v. Wade and Gilbert v. California controlled this case and required reversal, without elaborating further reasoning.
How the Court got there
The legal reasoning, step by step
- The Court first noted that the privilege against compelled self-incrimination was not at issue, since being viewed by a witness for identification does not force a suspect to give testimonial evidence against himself.
- The Court then looked to its line of right-to-counsel cases holding that the Sixth and Fourteenth Amendment right to counsel attaches only once adversary judicial proceedings have begun — through a formal charge, preliminary hearing, indictment, information, or arraignment — not merely upon arrest.
- Applying that timing rule, the Court explained that its earlier decisions requiring counsel at lineups, United States v. Wade and Gilbert v. California, involved lineups held after indictment, so their rule about a 'critical stage' of the prosecution requiring counsel was tied to that post-charge point in time.
- Because the identification showup here took place while the police were still investigating an unsolved crime and before any formal charge, the Court concluded the Wade-Gilbert automatic exclusion rule for identification testimony did not apply.
- The Court noted that suspects are not left unprotected even before formal charges, because the separate Due Process Clause still forbids identification procedures that are unnecessarily suggestive and likely to produce a mistaken identification.
Doctrinal impact
Cases affected by this decision
Limits United States v. Wade (388 U.S. 218)
The Court confined Wade's rule requiring counsel at lineups to confrontations occurring after formal charges are filed.
Limits Gilbert v. California (388 U.S. 263)
The automatic exclusion rule for uncounseled identifications was limited to post-charge lineups, not earlier police showups.
Distinguishes Escobedo v. Illinois (378 U.S. 478)
The Court said Escobedo was really about self-incrimination, not the right to counsel, and limited to its own facts.
Reaffirms Stovall v. Denno (388 U.S. 293)
The Court relied on Stovall's due-process standard as the ongoing protection against unnecessarily suggestive pre-charge identifications.