Kirby v. Illinois

PETITIONER: Thomas Kirby
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?