NCJ Number
11224
Journal
Criminal Law Bulletin Volume: 9 Issue: 1 Dated: (JANUARY-FEBRUARY 1973) Pages: 49-58
Date Published
1973
Length
10 pages
Annotation
DOCTRINAL AND OPERATIONAL IMPLICATIONS OF A JUDICIAL DECISION WHICH HELD THAT COUNSEL IS NOT REQUIRED AT A LINEUP PRIOR TO THE FILING OF CRIMINAL CHARGES.
Abstract
IN, UNITED STATES V. WADE (1967), THE SUPREME COURT APPLIED THE DOCTRINE OF RIGHT TO COUNSEL TO LINEUPS AS A MEDIUM FOR INSURING THE FAIRNESS OF SUCH LINEUPS ACCORDING TO DUE PROCESS STANDARDS. IN 1972 KIRBY V. ILLINOIS QUALIFIED THIS DECISION TO APPLY TO POST INDICTMENT LINEUPS ONLY. DOCTRINALLY, KIRBY MAY HAVE LOCATED THE PRECISE POINT AT WHICH THE 6TH AMENDMENT RIGHT TO COUNSEL COMMENCES. OPERATIONALLY, KIRBY SHIFTS THE FOCUS ON LINEUPS FROM ONE OF CONCERN ABOUT RIGHT TO COUNSEL AND WAIVER OF THAT RIGHT, TO ONE OF CONCERN ABOUT FAIRNESS, AND METHODS FOR ESTABLISHING THE PRESENCE OR ABSENCE OF THAT ESSENTIAL FAIRNESS. THE AUTHOR DOES NOT BELIEVE THAT POLICE PRACTICES WILL CHANGE VERY MUCH AS A RESULT OF THAT DECISION. ADDITIONALLY, HE SEES NEW BURDENS CAST ON COUNSEL AS WELL AS A NEED TO EXPAND DISCOVERY IN CRIMINAL CASES TO ALLOW FOR RECONSTRUCTION OF THE LINEUP. (AUTHOR ABSTRACT MODIFIED)