United States v. Wade

PETITIONER: United States
RESPONDENT: Billy Joe Wade
LOCATION: Smith County Jail

LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 388 US 218 (1967)
ARGUED: Feb 16, 1967
DECIDED: Jun 12, 1967
GRANTED: Oct 10, 1966

Beatrice Rosenberg - for the petitioner
Weldon Holcomb - for the respondent

Facts of the case

Billy Joe Wade was arrested and indicted for robbing a federally-insured bank. Without giving notice to Wade’s counsel, an FBI officer set up a lineup for two bank employees including Wade and several other prisoners. The officer had each prisoner put strips of tape on their face and say, “Put the money in the bag,” like the robbers did. The employees identified Wade as the robber. At trial, the employees identified him again. Wade’s counsel moved to strike the identifications because the lineup violated Wade’s Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. The trial court denied the motion, but the U.S. Court of Appeals for the Fifth Circuit reversed, holding that the lineup without counsel violated the Sixth Amendment.


Does a lineup conducted without notifying a suspect's counsel require exclusion of an in-court identification of a suspect by a witness be excluded from trial?

Media for United States v. Wade

Audio Transcription for Oral Argument - February 16, 1967 in United States v. Wade

Earl Warren:

Number 334, United States petitioner, versus Billy Joe Wade.

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the court, this case comes here on petition for -- government petition for a writ of certiorari to the Fifth Circuit, which refers respondents conviction for bank robbery because it held that Sixth Amendment right to counsel had been violated in the lineup.

There is a lineup which was held after indictment, as a matter of fact the respondent was arrested after indictment and after counsel had been appointed for him without notification to counsel.

It does not appear on the record, but the United States Attorney in the argument before the Court of Appeals conceded that after line-up the persons in the lineup, I think there were six of them that doesn’t appear in the record either, were asked to say some words like, put the money in this bag.

The Court of Appeals reversed the conviction holding first that the fact alone, that counsel had not been notified of the decision to conduct a lineup was a violation of the Sixth Amendment right to counsel for the defendant and further that because of this violation, the witnesses, the victims of the robbery should not have been allowed to identify the defendant, the respondent in Court at all.

This despite the fact that the record shows they had quite a lot of time, ample time to observe them at the trial, despite the fact that the record shows that at least one of them had picked out his photographs before the lineup, before his arrest and despite the fact that the government on its own made no attempt to make affirmative use of the fact that defendant had been identified at a lineup, but that the whole question of the lineup was introduced into the case by the defendant.

It’s the government position that the Court was wrong on both aspects of the decision and that’s why we brought the case here.

Potter Stewart:

Well by both aspects, I want to be sure.

Beatrice Rosenberg:

Well one in holding that there was a violation of the Sixth Amendment right to counsel.

Potter Stewart:

And secondly in the sanctions.

Beatrice Rosenberg:

Secondly in the sanctions that it imposed.

Potter Stewart:


Beatrice Rosenberg:

On the Sixth Amendment question, in our view the key to the problem is that by a line up, that what the government is really seeking, is to find out what the witness knows, the witness, the victims of the robbery not what the defendant knows.

It really is asking this question.

Mr. Witness can you identify this man?

Now the reason you use the defendant instead of using photographs is because it’s better, you get better testimony.

If somebody looks at that real thing, than if he looked at a photograph and the reason you use a lineup is that it’s fairer, if you haven’t looked at six people, as the same way then if he just looks at one person, but the question that you are asking is the question of the witness, do you recognize him and this is true whether its before indictment or after indictment.

Now the most frequent use of a line up of course, is when the arrest is made shortly after the crime, it’s very frequent in day time crimes, robberies, holdups, so on; you get the victims, maybe the robbery has been at night or the holdup is at night and you try to get them identified quickly, so that it’s a technique for helping the police know they’ve the right man.

Now this case in that sense is atypical.

But even in this situation it’s the same question, because what happened here was that two accomplices were caught in another bank robbery and they subsequently identified -- they told a story about this bank robbery and named respondent as a person who had gone into the bank.

Now there are stories checked out in many details as is shown from the transcript which isn’t printed here.

But there’s a long record that shows that the story as to all the preparations and so forth were corroborated in quite considerable detail, but only one man went into the bank and they named respondent as that man.

Well, obviously it was important, both from the point of view of prior preparation and bolstering the point of assurance they you really did have the right man, that the victim who were in the bank, the only people in the bank when he was there, say whether they could identify him or not and so although it was after indictment, it served an identification purpose because those were the two people who had actually seen him at the turn.

Byron R. White:

I know you suddenly said before you – the respondent for that statement, who asked the question, what was the question and what was the answer?

Beatrice Rosenberg:

Well, as I understand it, no there is no record of it at all.

United States Attorney see this argument as we’ve gotten in fact as far as we can, as I understand it there were six people at the lineup all dressed alike and they were told, each told to say the same thing, “Put the money in the bag.”

Byron R. White:

Told by who?

Beatrice Rosenberg:

The police.

Well there were some local police and there was an FBI agent who were responsible for the lineup.