Kirby v. Illinois

LOCATION:Maxwell Street Police Station

DOCKET NO.: 70-5061
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 406 US 682 (1972)
REARGUED: Mar 20, 1972 / Mar 21, 1972
DECIDED: Jun 07, 1972
ARGUED: Nov 11, 1971
GRANTED: May 24, 1971

Jerold S. Solovy – for petitioner on reargument
James B. Zagel – for respondent
Michael P. Seng – for petitioner
Ronald M. George – for the State of Cal., as amicus curiae, by special leave of Court

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.


Does due process require that an accused be advised of his right to counsel before an identification that takes place before the accused has been charged formally?

Media for Kirby v. Illinois

Audio Transcription for Oral Reargument – March 21, 1972 in Kirby v. Illinois
Audio Transcription for Oral Argument – November 11, 1971 in Kirby v. Illinois

Audio Transcription for Oral Reargument – March 20, 1972 in Kirby v. Illinois

Warren E. Burger:

We’ll hear arguments next in Number 70-5061, Kirby against Illinois.

Mr. Solovy you may proceed.

Jerold S. Solovy:

Mr. Chief Justice and may it please the Court.

This case is again heard on re-argument that takes us back to, after listening to the last arguments, more simplistic questions of criminal law and involves the proper application of Gilbert and Wade to pre-indictment identification proceedings.

And I use the term pre-indictment identification proceedings because there was no lineup as such in this case.

We should also bear in mind that the facts of this case pertaining to a case where the defendant has been arrested and he is in police custody, and the identification takes place at the police station.

I assume for the purpose of my argument that we are dealing with the petitioner’s right to counsel under the Sixth Amendment and that the identification process is not violative of the Fifth Amendment privilege against self-incrimination because this Court decided in Wade and Gilbert, that such identification and proceedings did not abridge the defendant’s privilege against self incrimination.

So I will be restricting my argument to petitioner’s right under the Sixth Amendment.

Potter Stewart:

Also — we also — Mr. Solovy we don’t have here a question arising under the Due Process Clause for the Fourteenth Amendment simplicity do we that, i.e. a Stovall case simply because the Court — this Court limited the grant of certiorari, is that correct?

Jerold S. Solovy:

That is correct, Justice Stewart but I think is Illinois argues in its brief that in deciding the case would be within the discretion of the Court to say if the Court we’re to say that we do not have to reach the Gilbert and Wade question because this identification was so violative of due process that it comes within Stovall, I think that clearly would be within the province in jurisdiction and quite proper within the grant of certiorari in this case to take that view.

Potter Stewart:

You did have or did you not have that as a separate question in your original petition for (Voice Overlap).

Jerold S. Solovy:

No, we do not, I do not believe.

I’ll double check but I think our separate questions were dealing with the propriety of the arrest and the propriety of the search and seizure.

I will check (Voice Overlap) certiorari petition, but I might point that I believe in all the opinions of the Court in dealing with this question, this Court always ends up with the Stovall issue in any event.

The Court may say we will not apply Wade and Gilbert retroactively or we will apply it retroactively and the Court looks at the Stovall issue.

Now, I think that it would be proper for the Court in this case to look at the Stovall issue.

And my — this the same, my associate points out that the first question in our petition was that the identification should have been by means of a lineup that there were not compelling circumstances just to find a show up.

Potter Stewart:

Well, at least peripherally that is a Stovall acclaimed?

Jerold S. Solovy:

Peripherally that is a Stovall claim but it’s my position Mr. Justice Stewart that this Court could under the grant of certiorari look at the Stovall issue.

Potter Stewart:

And we did decline to accept that question? (Voice Overlap)

Jerold S. Solovy:

You did decline to accept that question as barely drawn.

William J. Brennan, Jr.:

Am I — in my recollection on the last argument, it’s a little vague but I thought Illinois suggested at the last argument that Illinois already –Illinois print code already has decided that it would will apply the Stovall principle in proper cases, is that right?

Jerold S. Solovy:

Well, I think Mr. Justice Brennan, that in reading the decisions of the Illinois Supreme Court they say two things, they say that we will not apply Gilbert and Wade to pre-indictment identifications and then they will look in a proper case to see whether Stovall versus Denno is applicable and they will look to the facts of a particular case.

Now, the Illinois Supreme Court refused to do that in this case by refusing to grant our petition for leave to appeal.

This case comes before this Court from the decision of the Illinois Appellate Court.

And analyzing the facts in this case, its also important to bear in mind, the petitioner was an indigent person throughout the course of the Illinois proceedings, being represented in a criminal Court by the public defender and then in the Illinois Appellate Court by Court-appointed counsel, Mr. Sang (ph).

We have followed the case to this Court.

Potter Stewart:

Yes, just to back again a little bit to this Stovall claim, you said that this case was not considered by the highest Court in your State but it was considered by the Appellate Court of Illinois, First District and I gather that they rejected the Stovall claim if I understand their opinion directly as it appears on page 54 of the appendix, on the basis that there was an independent identification at the trial de novo, is that it?

Jerold S. Solovy:


Your Honor it can be no question Mr. Justice Stewart that there was an — in — a separate in court identification as I will get to him my argument, the in-Court identification was wholly dependent upon the police station identification, they — the view of the Illinois Appellate Court was rather that the victim in this case had a sufficient opportunity to observe this assailant and I will go into those facts before this Court because it think that conclusion is not sustained by the record that the — you cannot say that the victim in this case had an ample opportunity, he did — had never seen this gentlemen before in his life?

Jerold S. Solovy:

At the most he only had a few seconds to observe them and that as whole identification came from the police station identification which as I will show is rankly violative of Stovall but since again Mr. Justice Stewart since you raise the question, Illinois assumes that that issue is before this Court at least collaterally by saying at page 42 of their brief, that this Court can overrule Gilbert and Wade by looking to the holding Stovall and by applying to this case in all other cases.

The Stovall test of whether the identification is so ranked and so pre assess to violate due process, so I submit that that issue one way or another passed to be before the Court in deciding this case.

After he kept —

Warren E. Burger:

Very well, when you were using those terms, were you referring to an identification in the courtroom or an identification sometime prior to that in whatever process.

Jerold S. Solovy:

The identification Mr. Chief Justice before the courtroom identification, the courtroom identification is always very dignified, is also very rote.

You have to understand it’s what — is made by rote, the witness has no really choice in the courtroom because of the geographic location of everybody.

When you have a trial in the criminal Court of Cook County and the witness is on the stand and the — the witness was asked, he was asked in this case, do you see your assailants?

The witness looks around, he has the judge to his left, he has the jutry to the right —

Warren E. Burger:

Yes, but you’re not describing every courtroom in the United States, might just be Cook County —

Jerold S. Solovy:

That is —

Warren E. Burger:

Are you suggesting that there is something inherently unreliable about the courtroom identification of a person under oath on the stand because he is quite sure that that’s the man that stabbed or shot him or cut him or whatever?

Jerold S. Solovy:

I am saying Mr. Chief Justice that for my very realistic point of view, there is something unreliable because the witness understands, sees the prosecutor — he sees the defense counsel has rested a nice suit and he sees the defendant in 90% over the cases, an indigent person, the defendant is not out on bail, he is surrounded by the bailers wearing a badge, they are sitting around him, and naturally he will pick out the defendant, as a matter of fact there was a case in Cook County about a year ago, where the public defender brought in to the courtroom by some ruse a different defendant, in another case and the witness picked out that defendant as his assailant.

Warren E. Burger:

You wouldn’t want as to decide the case on that hypothetical situation, would you?

Jerold S. Solovy:

No, I do not Mr. Chief Justice, I only point out that because of that reality of any criminal case that the pre trial identification is the crucial identification.

That is the identification as this Court said in Gilbert, as this Court said in Wade will determine that faith of the accused.

If he is identified improperly in the police station that identification is going to take all the way through to the trial.

William H. Rehnquist:

Mr. Solovy.

Jerold S. Solovy:


William H. Rehnquist:

Without the benefit of any constitutional principal defense counsel at the trial is always free to bring out and cross examination and to argue to the jury these very facts that you’re talking about now, have they not?

Jerold S. Solovy:

Mr. Justice Rehnquist, you are entirely correct.

Illinois has a patterned jury instruction which we have on your criminal cases which points out that the jury is entitled to consider the opportunity to observe the defendant and circumstances such as that, but the impartial so to speak, identification of an accused by the victim on the stand is the most hoped evidence that the prosecution has in its arsenal in convicting a defendant.

In my judgment, in experience which is limited to appointed cases but in my experience that type of evidence is much more legal to the defendant than as a confession from its own mouth.

When you have a witness who gets on the stand, and says that is the man who held me up, that is the man who robbed me, it is very difficult to get a jury to disbelieve that witness.

Warren E. Burger:

I supposed that’s even more aggravated if a man holds up a supermarket and the eleven witnesses take the stand and say, yes, this is the man.

Jerold S. Solovy:

It is much more aggravated.

Warren E. Burger:

Now would you say all eleven of those people are subject ti this infirmity unreliability that you’ve been describing to us?

Jerold S. Solovy:


When I say its an infirmity of unreliability, I am not suggesting Mr. Chief that during the course of the trial, that you have a lineup so to speak although that would certainly, if you’re speaking about realities, Mr. Chief Justice of a criminal trial that would certainly be much more reliable than asking the witness, does he or she see his assailant her assailant in the courtroom when there is only one person from whom the witness can pick out.

He has to pick out the defendant.

There is no one else there.

Jerold S. Solovy:

It would be much more reliable I suppose if you had a lineup in the courtroom and then I would like to see if the defendant was protected by not having the witnesses seeing their picture.

How many victims could pick out their assailants?

I think you would see an entirely different result but since we do not do that in the trial in our criminal cases and I have seen very few judges who allow you to do that other than in preliminary hearings.

I submit that it is particularly important that we protect the pre trial identification proceeding to make sure that that was not tainted.

Now jumping ahead of my story for a second to point out that what happened in this case was that the defendant and his codefendant were sitting in a squad in the city of Chicago police station between their two arresting officers.

The complainant had said that the assailants were Negro, the two defendants were Negro, the two officers were White and the victim was brought in and said, point out your assailants.

Well, that is highly a very fair way to conduct an identification proceedings.

He could either pick amongst the two Negro defendants or the two White police officers.

And when you have that type of identification in the absence of counsel and that is what you will have in the absence of counsel, because these police officers were not raw rookies they have on the force eleven years, they knew better and they conducted this type of identification proceeding either because they were lazy or because they were indifferent to the defendants’ rights.

I don’t really believe that these police officers were trying to railroad this defendants, this wasn’t a hot case.

This was just an ordinary robbery.

They happened to — onto these defendants and unless you have counsel present, then you are not going to have a fair identification proceeding.

Now to go back to the facts of the case, on February 20, 1968, at approximately 4:30 PM, the victim in this case Mr. Shard, had recently returned from trip to Orleans, it was late afternoon, he was walking down the street on the west side of Chicago.

The record doesn’t disclose bit from the neighborhood in which Mr. Shard live in, I believe that it’s a fair assumption that he is also a Negro.

He stated that he noticed two men behind him, at about 15 feet behind him, and that the next thing he knew as he was about to cross the street to go to a restaurant, he was grabbed from behind, he did not know who grabbed him from behind.

They held him, they took his wallet.

His wallet contained $140.00 and traveler’s checks, $30 to $35 of cash and certain identification papers.

He went one direction.

His assailants went the other direction.

The record does not disclose what time elapsed but we can assume that since this happened on the street, that it happened pretty rapidly.

Mr. Shard, the victim did not report this occurrence to the city of Chicago Police till the next day.

At that time, he gave only the most general of descriptions to the police.

On the very next day, February 22, two City of Chicago police officers were cruising in a non-marked car on the west side of Chicago.

They had no knowledge whatsoever of this crime.

They were totally ignorant of the crime, and they happened to see the petitioner, Mr. Kirby walking on the street with Mr. Bean who was eventually to be his codefendant.

Now this was February 1968 and one officer had in his possession a flyer which said that one, Alfonso Hampton, was wanted for a competent escape and he said to his partner, see that fellow, he looks like Hampton.

Now the flyer described Hampton as being five foot, two inches tall and the same officer testified in court, the petitioner was 5 foot, 5 inches in height.

But in any event, he stopped petitioner and Bean, and he said are you Hampton and petitioner Kirby said, no I am not, he said, let me see your identification papers.

So petitioner took out his wallet, started to show the officers the identification papers identifying himself, this time its Kirby and the officer testified he saw some traveler’s checks in his wallet and he saw the name Willie and he asked petitioner what those traveler’s and petitioner responded that it was play money.

Now the officer testified that he thereafter asked petitioner to give them the checks.

Jerold S. Solovy:

His partner testified that this officer took the checks himself out of the wallet and there he saw the full name Willie Shard.

Now bear in mind he still did not know that a robbery had taken place, but he said, where did you get the traveler’s checks?

And the petitioner said, I won them in a crap game.

They searched the other codefendant and they found some identifications papers also bearing the name Willie Shard, petitioner had identification papers bearing the name Willie Shard and they were taken to the police station, put under arrest.

I don’t now whether they were arrested for a robbery of Mr. Shard because the officers didn’t know that this robbery had taken place or whether they were arrested because the officers thought he was Hampton wanted for the (Inaudible) some nine months ago.

The record doesn’t disclose what happened when they got to the police station in terms of whether the police determined that Hampton was or was not still at large.

In any event they checked the records, they found that Mr. Shard had been robbed and they called up, contact another officer who proceeded in bringing Mr. Shard to the police station.

Now, it Now it took several hours to bring Mr. Shard to the police station.

Under Illinois law, petitioner had the right to consult with counsel.

If petitioner were a rich man, his lawyer would have been there within a matter of five or ten minutes, but he had no money and he was not advised of his right to counsel although that is his statutory right under Illinois law, to consult with counsel as soon as he is arrested for as many times as he wishes.

He was not advised of this right.

While they waited several hours for Mr. Shard to came in to the squad room and there were the two White police officers, there were the two Negro defendants, Mr. Shard was asked, if they were his assailants?

He said, yes, whereupon the state not very rapidly proceeded to bring this matter to indictment.

There was a preliminary hearing held on this days.

Some five weeks later, on March 25, again in direct violation of Illinois law, counsel was not appointed to represent petitioner at this preliminary hearing.

This isn’t a matter of Constitutional law, this is a matter of Illinois statute as at a preliminary hearing the defendant shall have counsel appointed to representative.

No counsel was appointed.

Petitioner Bean were indicted on April 20 — on April 8, they were arraigned on April 16 some eight weeks following their arrest.

William J. Brennan, Jr.:

Was it the kind of preliminary hearing that under Coleman Alabama, they would’ve been entitled (Voice Overlap)

Jerold S. Solovy:

Clearly, Mr. Justice Brennan as I will develop in a minute, it was really crucial for their defense and yet even under the States Attorney’s examination we will see that damaging evidence was elicited from the complainant.

So some eight weeks later we finally have counsel appointed.

Appointed council filed on behalf on both defendants a motion to suppress the evidence.

A motion to suppress the station house identification, these were denied.

The jury found the defendants guilty.

They were given a term of five to 12 years.

I might point out because it is significant in the case of Mr. Bean that an appeal to the Illinois Appellate Court, the State of Illinois conceded for the first time that his arrest was indeed illegal and based upon that concession the Illinois Appellate Court reversed the conviction outright, they said, they have no right to detain them, they had no right to identify him, therefore there was no other evidence to convict Bean on and they reversed the case outright.

Now we should get some facts in clear focus.

The State of Illinois and the State of California’s amicus in their brief, contend, may it please the Court that this assailant had a chance to have a clear view and a long time to observe there — his assailants so that there could be no question as the identification.

I want to point out in that connection that Mr. Shard’s identification to the police, the very day after the robbery was that he described both defendants in the same manner identically that they’re both between 5’ 6” and 5’7”, that they both weight between a 140 and 150 pounds and that they were both dark brown skin.

No further description was given according to this record of these defendants and at the trial, Mr. Shard was asked, I read from page 23 of the record, did you tell the police what they were wearing or anything?

Jerold S. Solovy:

Answer, well, no.

I did not directly see what they was wearing, how they was dresses.

Question, you did not observe what they were wearing regarding their clothing, trousers or anything?

Answer, right.

Question, you did not see what they were wearing?

Answer, no.

So that the victim did not even have the opportunity to see anything about how his assailants were dressed and bear in mind he first saw him 15 feet away and did not pay any attention to them.

He was grabbed from behind, they took his wallet and then he went in one direction, his assailants went another direction.

And yet — and the state argues because they have Mr. Shard crying for the trial that he had a good opportunity to observe his assailants.

Warren E. Burger:

In the trial the case, was there an instruction given with respect to any inferences that can be drawn from the possession of recently stoling — stolen property having in mind the credit cards and the money orders of Mr. Shard that were found in the possession in this two men?

Jerold S. Solovy:

Mr. Chief Justice we do not have the full record here.

Normally —

Warren E. Burger:

Is that an instruction (Voice Overlap).

Jerold S. Solovy:

That instruction under my knowledge and I will check it overnight is not given in the robbery case, it was given in the burglary case, it is given in the theft case, I do not believe that that instruction is given in the robbery case but I will check that Mr. Chief Justice.

So that there would not in any event, however Mr. Chief Justice, be a sufficient record to convict either of these defendants if you did not have an identification, in other words, under Illinois law, I’m sure the state of Illinois will concede because there was an outright reversal by the Illinois Appellate Court as to defendant Bean that the mere possession of stolen property might unexplained support another charge, its certainly Mr. Chef Justice, would not support in Illinois absence any another proof they charge a robbery.

You need something further than the mere possession of stolen property in order to convict the man of robbery.

William H. Rehnquist:

Mr. Solovy, I take your — take an argument in before the Illinois Appellate Court in this case on the evidence that was permitted to come in by the trial Court.

Would you say there was a strong argument to be made as a matter of state law given both the identification and the documents found on the defendants that there was — the evidence was insufficient as a matter of state law to convict him?

Jerold S. Solovy:


Once you had the admissibility Mr. Justice Rehnquist of the identification by the victim of his assailants, once you have that, then there certainly wasn’t enough sufficient evidence to convict these defendants if you knocked out, it should have been knocked out.

The station house identification upon which the in court identification was based then he would not have sufficient evidence to convict.

Under no ones imagination would there be sufficient evidence.

The whole case hinged upon the station house identification law.

The whole case rose and fall — fell on that identification.

If that identification was out as the Illinois Appellate Court held, we should’ve been in Bean’s case they reversed the case outright, they did not even send it back for a new trial.

They just released Mr. Bean.

William H. Rehnquist:

Yes, that wasn’t the only evidence of guilt, was it?

Jerold S. Solovy:

Yes it was Mr. Justice Rehnquist.

William H. Rehnquist:

Well, how about the traveler’s check?

Jerold S. Solovy:

Well, I’m saying the possession — the reason — possession of the traveler’s checks and the identification papers that was one item of evidence and the other item of evidence, the crucial item of evidence was the station house identification which was repeated in the courtroom, but if you knocked out station house identification and all you have is the possession of the traveler’s checks and identification papers then that is not sufficient to support a conviction of robbery.

William H. Rehnquist:

But this wasn’t just a swearing contest where there was not corroboration on either side.

There was corroboration of the complainant’s testimony to the extent of this documents were found on the person of the petitioner.

Jerold S. Solovy:

If you view that as a corroboration, that is correct.

William H. Rehnquist:

Well, don’t you view this corroboration?

Jerold S. Solovy:

Well I don’t know as in any case, there can be, you know an explanation Mr. Bean gave an explanation he said they found the traveler’s check and the identification papers in an alley some two hours before they were arrested.

William H. Rehnquist:

Well, you know, I don’t need conclusive corroboration but I just meant to ask whether or not in your opinion this was simply a question of a two persons uncorroborated views being judged by the jury or whether there was additional evidence that a reasonable juror could find to be corroborated.

Jerold S. Solovy:

There was, once you admit the legality of the identification, then there was sufficient basis for the conviction.

If you knocked out the identification or your left this the reason possession of the stolen property and that is the Illinois Appellate Court held was not sufficient to sustain the conviction and that’s all the evidence there was in this case.

This was a jury case they were starting to complete in one day.

Warren E. Burger:

My recollection of the evidence was that one of the two codefendants testified that he had won these money orders rolling dice.

Jerold S. Solovy:

My petitioner, Your Honor stated — gave two explanations to the police and that is his first, was before the police officer saw the entire traveler’s checks he said it was play money, he then said that it was won in the crap game.

Warren E. Burger:

Then what about this — whoever — who said they were found in an alley?

Jerold S. Solovy:

That was the codefendant Mr. Bean who was — who in the state of Illinois before the Illinois Appellate Court conceded was arrested illegally and the Illinois Appellate Court reversed this condition outright Mr. Chief Justice so that case is not before this Court, Mr. Bean just his codefendant as well.

Now, I want to point out what happened in the station house identification in this case because I think all the ills that this Court perceived in Gilbert and Wade came true in this case.

Mr. Shard was contacted by a third police officer.

He was asked if he was robbed.

He was asked if he could identify his assailants.

He was told that they had two suspects in custody and he was brought to the police station.

Now the state of Illinois and the State of California’s amicus would lead this Court to believe that Mr. Shard walked in to the police station and made this spontaneous identification of his assailants.

They walked in and said those are the men.

Now the record is quite to the contrary.

Reading at page 24, this is when Mr. Shard testified at the trial, then running on to page 25.

Question: Did the police officer anything to you?

Answer: They asked me to point them out and I pointed them two guys out.

Question: They asked you if these were the ones.

Answer: Right.

Question: How many other people were sitting there?

Answer: I did not pay much attention.

Question: They asked you if these two Kirby and Bean were the one, correct.

Answer: Yes.

Jerold S. Solovy:

Then a little later because there was four people in the room, two White officers and two Negro defendants, the defense counsel said, did he asked you about the other ones to which the — Mr. Shard said no, they just asked me if Kirby and Bean were the ones and I said they were.

So I submit that there was no spontaneous identification.

That the identification was based solely upon the fact that you had two white officers and two Negro defendants and if that is a lineup, then if that is identification then the criminal process in this country has come to a very sad state.

Was Shard a white man or a Negro?

Jerold S. Solovy:

They’re both Negro, Your Honor.

Both Shard — Shard is — as I state — at the beginning of my argument Mr. Justice Stewart the record doesn’t disclose but from the address in which he lives and my knowledge of the City of Chicago I would say he was a Negro.

Warren E. Burger:

Had anyone — does this record show whether Shard when he came to the police station, was aware that Bean and Kirby had his money orders and his credit cards?

Jerold S. Solovy:

He — Mr. — if it may please Court Mr. Chief Justice, he didn’t — he’d never seen Bean and Kirby before.

Warren E. Burger:

No, at the trial was it developed on cross examination of Shard whether when he made the original identification, he knew that these two men had his money order?

Jerold S. Solovy:

I don’t

Warren E. Burger:


Jerold S. Solovy:

The record doesn’t disclose that.

I do want to point out that there was no independent in court identification in this case.

The record at page 21 shows that at the trial, Shard was asked, Question: When you went to the police station did you see the two defendants?

Answer: Yes I did.

Question: Do you see them in Court today?

Answer: Yes sir.

Question: Point them out please.

Answer: Yes, that one and the other one, indicating Shard and Bean.

Question: And you positively identified them at the police station, is that correct?

Answer: Yes.

So that you have a perfect case fitting within all force of Gilbert.

I submit that the State of Illinois and the State of California impliedly concede that Gilbert and Wade apply to pre-indictment identification proceedings since they asked that this Court overturned those decisions.

I do not believe that California and Illinois would take that position unless they really admitted and really knew that Gilbert and Wade by its force, by its language, by its rationale, by its philosophy must by force applied to pre-indictment situations.

William H. Rehnquist:

Mr. Solovy, that one question you read of the prosecutor asking Shard, and you positively identified them at the station apparently, wouldn’t that the objection under the Illinois law as leading?

I mean couldn’t the defense counsel have put the prosecutor through a little more of a performance on that point simply as a matter of state evidence law?

Jerold S. Solovy:

Certainly Mr. Justice Rehnquist but when you have a defense counsel, public defender who is highly experienced, they try hundreds of these cases more than I will try in a lifetime, he knows that as a matter of trial tactics if he gets up and objects that the question is leading, what have you — that he will only be highlighting in exacerbating the problem, so as a matter of trial tactics, share the question was leading but as a matter of trial fact as he wanted to not object.

I don’t know the public defender who handled this case that is only my supposition.

William H. Rehnquist:

But the question least argued there was objection or was it not?

Jerold S. Solovy:

I — the whole line of questioning was leading when he went to the police station, did you see the two defendants?

Jerold S. Solovy:

Answer: Yes I did.

Did you see him in the court and you positively identify, I agree Mr. Justice Rehnquist but still the — for defense counsel he knows what the answer’s going to be.

He knows he is going to say, yes, so maybe for trial tactics you know if he gets up and objects then the State’s Attorney says very complainingly, alright, you know, they does it very painstakingly, this all in front of the jury.

So, in any of event, I know its time for the Court to adjourn in — I just want to make one point, I would like the court to consider why this case should not be summarily reversed and to avoid the problem even gained to Gilbert-Wade and even Stovall for the state’s concession, when I considered to be a concession.

And I’m sure they may have an answer tomorrow but that is they concede in my mind that the arrest as to petitioner was illegal because in order to avoid the force of Wade and Gilbert, they say at page six of their brief that this identification was not accusatory but was rather investigatory.

Warren E. Burger:

We’ll pick that up at that point in the morning.