WADE, UNITED STATES v. 388 U.S. 218 (1967)

Wade's conviction of bank robbery depended heavily on the identification of him as the robber by two bank employees. After he was indicted and counsel appointed for him, the federal bureau of investigation arranged a lineup, which included Wade and five or six other people. Wade's counsel was not notified of the procedure; neither he nor anyone else representing Wade's interests was present.

The Supreme Court held that the lineup was a "critical stage" of the proceedings; thus, the Sixth Amendment guarantees a right to the presence of counsel at the pre-trial identification if evidence of the lineup were to be used at the trial. The Court reasoned that counsel was necessary at this early stage in order to assure the fairness of the trial itself. The two premises were that eyewitness identification is treacherously subject to mistake, and that police methods in obtaining identifications are often and easily unduly suggestive. If a lawyer has been present at the lineup, later, at the trial, by his questioning of the eyewitnesses he will be able to show how any irregularities have tainted the in-court identification of the defendant.

Wade established a per se rule: if counsel is absent at the pretrial confrontation, the government may not use evidence that such an event happened. Whether the witness can nevertheless make an in-court identification depends on whether the unfair procedure tainted his present ability to identify: if he had not seen the uncounseled lineup, would he still be able to pick out the defendant?

Finally, the Court suggested that the pretrial confrontation might not be a "critical stage" if other methods were developed to assure against the risk of irreparable mistaken identification. In kirby v. illinois (1972) the Court restricted the holding in Wade to lineups held after defendants have been formally charged with crime.

Barbara Allen Babcock
(1986)