UNITED STATES v. ASH 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)
Facts: Charles J. Ash and another man (defendants) were suspected of robbing a bank. Before Ash was formally charged, police conducted a photo lineup. Four witnesses identified Ash, and Ash was indicted. Prior to trial, the prosecutor conducted another photo lineup to find out if the witnesses would be able to identify Ash in court. Only three of the witnesses identified Ash, and none identified Ash’s co-defendant. The Supreme Court of the United States (“Supreme Court”) granted certiorari to resolve the split in the circuits as to the issue of whether an accused has the right to counsel at a post indictment photographic lineup.
Issue: whether the Sixth Amendment grants an accused the right to have counsel present during a post-indictment photographic display conducted by the Government for the purpose of witness identification
Rule:
- The Sixth Amendment guarantees that '(i)n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.' This Court's decisions make it clear that a defendant is entitled to the assistance of counsel not only at the trial itself, but at all 'critical stages' of his 'prosecution.' See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
- In United States v. Wade, supra, the Court determined that a pretrial proceeding is a 'critical stage' if 'the presence of . . . counsel is necessary to preserve the defendant's . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.' 388 U.S., at 227, 87 S.Ct., at 1932. Pretrial proceedings are 'critical,' then, if the presence of counsel is essential 'to protect the fairness of the trial itself.' Schneckloth v. Bustamonte, 412 U.S. 218, 239, 93 S.Ct. 2041, 2054, 36 L.Ed.2d 854
- To be deemed 'critical,' the particular 'stage of the prosecution' under consideration must, at the very least, involve the physical 'presence of the accused,' at a 'trial-like confrontation' with the Government, at which the accused requires the 'guiding hand of counsel.'
Application:
In United States v. Ash, the respondent, Charles J. Ash, Jr., was identified by witnesses through a post-indictment photographic display conducted by the Government without his attorney present. The Court of Appeals held that this photographic identification constituted a critical stage of the prosecution, thereby requiring the presence of counsel to prevent possible prejudice and ensure fairness.
The Supreme Court, however, examined whether the principles underlying the Sixth Amendment's right to counsel were applicable in this context. Historically, the right to counsel has been extended to pretrial events that are analogous to trial-like confrontations, where the accused needs legal assistance to navigate procedural complexities and protect against prosecutorial overreach.
The Court differentiated between a photographic display and a lineup. While a lineup involves the physical presence of the accused and can be suggestive, a photographic display does not involve the accused directly and allows for later cross-examination and reconstruction at trial. The adversarial balance is maintained because defense counsel has the same opportunity to prepare and challenge the identification as the prosecution.
The Court emphasized that the primary safeguard against improper conduct during photographic displays is the ethical responsibility of the prosecutor, complemented by the possibility of judicial review under due process standards if there is evidence of suggestiveness or prejudice. The Court found no compelling reason to extend the right to counsel to photographic displays, as the risks associated with them do not outweigh the procedural safeguards already in place.
Conclusion: The Supreme Court held that the Sixth Amendment does not grant the right to counsel at post-indictment photographic displays conducted by the Government. A photographic display is different from a line up, because the accused is not present and is not in danger of being misled or overpowered by the opposing attorney.
Justice Potter Stewart concurred in the judgment, stating that pretrial photographic displays are not a critical stage of prosecution. Justice William J. Brennan, Jr. dissented, arguing that there is no meaningful difference between a pretrial lineup and a pretrial photo identification, so the right to counsel should extend in both circumstances. Justice William O. Douglas and Justice Thurgood Marshall joined in the dissent.
Feedback:
Difference between photo identification v. lineup
What are the important matters to incur the critical stage in the lineup situation?
- Counsel play an important role to cure the deficiency at the photo identification procedure
No confrontation situation in photo identification which does not incur the right to counsel
- by cross-examination, defense counsel can cure the problems of the photo identification problems
- clearly relies on the US legal system such as professional responsibility procedure
Should the photo identification without the presence of counsel be submitted to the jury?