Kirby v. Illinois (1972)

Supreme Court of the United States

Thomas Kirby v. Illinois 

Decided June 7, 1972 – 406 U.S. 682


Mr. Justice STEWART announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join.

In United States v. Wade and Gilbert v. California this Court held “that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth (and Fourteenth) Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.” Those cases further held that no “in-court identifications” are admissible in evidence if their “source” is a lineup conducted in violation of this constitutional standard. “Only a per se exclusionary rule as to such testimony can be an effective sanction,” the Court said, “to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.

On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler’s checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in Chicago. When asked for identification, the petitioner produced a wallet that contained three traveler’s checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard’s name on them were also found in Bean’s possession. When asked to explain his possession of Shard’s property, the petitioner first said that the traveler’s checks were “play money,” and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.

Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. A police car was then dispatched to Shard’s place of employment, where it picked up Shard and brought him to the police station. Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had  robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.

More than six weeks later, the petitioner and Bean were indicted for the robbery of Willie Shard. Upon arraignment, counsel was appointed to represent them, and they pleaded not guilty. A pretrial motion to suppress Shard’s identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimony he described his identification of the two men at the police station on February 22, and identified them again in the courtroom as the men who had robbed him on February 20. He was cross-examined at length regarding the circumstances of his identification of the two defendants. The jury found both defendants guilty, and the petitioner’s conviction was affirmed on appeal. The Illinois appellate court held that the admission of Shard’s testimony was not error, relying upon an earlier decision of the Illinois Supreme Court … that [held] the Wade-Gilbert per se exclusionary rule is not applicable to preindictment confrontations. We granted certiorari, limited to this question. 



This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. 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. 

In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: “The rationale of those cases was that an accused is entitled to counsel at any ‘critical stage of the prosecution,’ and that a post-indictment lineup is such a ‘critical stage.’” We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.


What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. The judgment is affirmed.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.

While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that Wade did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words “criminal prosecutions” in the Sixth Amendment. Counsel is required at those confrontations because “the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification” mean that protection must be afforded to the “most basic right [of] a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” 

An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not “a mere preparatory step in the gathering of the prosecution’s evidence.” A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those “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.”

The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard’s understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed the robbers. “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.” The State had no case without Shard’s identification testimony,93 and safeguards against that consequence were therefore of critical importance. Shard’s testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers on trial in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation that “[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.”

Wade and Gilbert, of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance. For my part, I do not agree that we “extend” Wade and Gilbert by holding that the principles of those cases apply to confrontations for identification conducted after arrest. Because Shard testified at trial about his identification of petitioner at the police station showup, the exclusionary rule of Gilbert requires reversal.

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Notes, Comments, and Questions 

In our next chapter we will conclude our review of identification evidence, focusing on recent state-court decisions, and will examine best practices suggested by modern research.

Before moving on, students may wish to consider some real-life consequences of unintentional witness misidentification. In one case, Ronald Cotton was identified as the rapist who attacked Jennifer Thompson in 1984 in North Carolina. Police showed Thompson a photo array, and she chose Cotton’s photo. She later identified Cotton at a line up. He was convicted of rape and sentenced to life in prison. Subsequently, DNA evidence proved that a different man—who looked somewhat like Cotton—had committed the rape. Cotton was released from prison in 1995. Cotton and Thompson have since become advocates for criminal justice reform. They give talks and have published a book: Picking Cotton: Our Memoir of Injustice and Redemption

On the book’s website, one can view documents from the case file, as well as photos of Cotton and of Bobby Poole, who committed the rape for which Cotton served more than ten years in prison. A short video (three minutes) about the case is available here:

A longer video (30 minutes), featuring remarks from Thompson and Cotton, is available here: 


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