Kirby v. Illinois Case Brief

Why is the case important?

Willie Shard (“Mr. Shard”) had his wallet stolen while on the street in Chicago. Police arrested two men in connection with a separate offense and brought them to the police station. The police learned of the offense against Mr. Shard only upon arriving at the station. Whereupon, Mr. Shard was called to come down to the police station, and upon walking into the building, immediately identified the two men, without counsel present, and before any formal charges had been levied.

Facts of the case

William Shard reported to the Chicago police that two men stole his wallet. The wallet contained traveler’s checks and his social security card, among other things. The next day, two police officers stopped Thomas Kirby and his friend, Ralph Bean. When asked for identification, Kirby produced Shard’s wallet. The officers arrested Kirby and Bean and brought them to the Maxwell Street Police Station. Once there, the officers learned about Shard’s robbery and sent a car to pick up Shard and bring him to the station. Without an attorney present, police asked Shard if Kirby and Bean were his robbers. Shard instantly gave a positive identification. Kirby and Bean were not indicted until almost 6 weeks later. At trial, Kirby unsuccessfully attempted to suppress Shard’s identification. The jury found Kirby guilty and the Appellate Court of Illinois, First District affirmed.


Whether a per se exclusionary rule grounded in the Sixth and Fourteenth Amendment rights to counsel should be applied to identification testimony based upon a police station show up that took place before the defendant had been indicted or otherwise formally charged with any criminal offense?


No. The right to counsel attaches only at the initiation of formal adversarial proceedings, which have not begun prior to an indictment or formal charge.


The Court held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court identifications in the absence of counsel did not apply to identification testimony based upon a police station show-up which took place before the accused had been indicted or otherwise formally charged with any criminal offense. According to the Court, because defendant was identified before he was arrested on the robbery charge, the pre-indictment identification was admissible, even though counsel was not present.

  • Case Brief: 1972
  • Petitioner: Thomas Kirby
  • Respondent: Illinois
  • Decided by: Burger Court

Citation: 406 US 682 (1972)
ReArgued: Mar 20 – 21, 1972
Decided: Jun 7, 1972
Argued: Nov 11, 1971
Granted May 24, 1971