United States v. Wade

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

DOCKET NO.: 334
DECIDED BY:
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

ADVOCATES:
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.

Question

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?

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:

Right.

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.

Beatrice Rosenberg:

This wasn’t — the United States Attorney as such did not participate.

Potter Stewart:

And I understand about the record, this was not kept side from the trial.

Beatrice Rosenberg:

No this was not kept aside from the trial, all that happened at the trial was the first witness got up, she was the cashier of the bank, she was the one whom the defendant first approached and she testified to the circumstances of the robbery that a man came in, she and — she was at the cashier’s desk, about 10 feet away from the entrance, she was alone, that a man came in and said I have to check to cash and she said okay, come here.

And then she looked up and he had a gun pointed at her and then he walked right close to her and said this is a holdup and get the money and then she walked back to the hall where the manager was and she said that Mr. Gray we are being robbed and so the robber said put the money — he handed her a pillow case, said put the money in here and they did, they put the money and then she — they both started to go out and the robber said no, you stay back there with Mr. Gray like (Inaudible), but you come with me and I want the money that’s upfront and then he said to Mr. Gray, if you do what you are told you won’t get hurt and so Mr. Gray went around and took the money upfront.

And then the man left, and one of the accomplices was driving a getaway car.

Now that’s all that happened, they testified to that and they said do you see that man, and she said, yes, each of them, this man here.

Well the first witness, she just said I see this man and defense counsel got up and he said something about when did you see it before or something like that and she said, well I identified a photograph.

That came out by then and then he asked her about the lineup.

Now defense counsel’s main point at this time is perfectly clear from the record, was to bring out an incident that happened during the lineup, which was that the lineup was conducted in a court room.

I’m told that — defense counsel tells me that’s about 60 miles from the place where the bank was robbed and the two witnesses were seated at the benches of court room, I take it about 20 feet and then about where — as I understand is about where Justice Harlan and Justice Stewart said, there is an empty room from the court room which the witnesses called to pool, apparently an empty room and there is a door to the empty room, well while they were sitting there waiting for the lineup, a door — (Inaudible) open, it swung open and at that point both of the witnesses said that they saw the FBI agent, Mrs. Gray said with respondent the manager and Mrs. Chamber said, the cashier, the manager said he saw the FBI agent and a man who looked like the man they identified.

Mrs. Chamber said this is just a glance and as I say, the manager said, it looked liked that they entered and then the lineup was conducted.

It’s really all the record shows.

Then what the defense counsel did was argued to the jury that well, how could they be sure and after, when they saw him with the FBI agent, this minute, this glance and how could they be sure and he did make a motion I will say, he did bring out the fact that he was not at the present at the lineup and he did make a motion —

(Inaudible)

Beatrice Rosenberg:

Present, he did bring that out, in addition to this incident and he really made his motion basically on the fact that he was not present.

He asked for a judgment of acquittal or for exclusion of the testimony of the witnesses.

But the circumstances of the lineup were developed only to the extent of bringing out this incident which one of the witnesses says was just a glance, it was the court —

Potter Stewart:

Here again, we have no record of actually what questions were asked.

Beatrice Rosenberg:

It is my understanding that no questions were asked in that sense.

Potter Stewart:

But as far as this record is concerned we don’t know what actually happened at glance, do you?

Beatrice Rosenberg:

No, no.

Byron R. White:

Does the record show at the initial — whether the defendant had a counter —

Beatrice Rosenberg:

Yes the record does show defense counsel did bring out the fact he has been appointed on April 26th at arraignment.

The dates on this are that on September 16th, the offence was committed.

The indictment was retained on March 23, 1965, long time this was an unsolved robbery.

The petitioner was arrested I think not in Texas on April 2nd and counsel was appointed for him at arraignment on April 26th.

The lineup was held on May 10th, the trial was in August and his — this was tried except for that incident.

I mean the motion was based on the fact that counsel was not present at the lineup.

There was no —

Potter Stewart:

He hadn’t been notified of the lineup?

Beatrice Rosenberg:

No he has not been notified of the line up and so it comes to you in a sense on the Fifth, Sixth Amendment problem, — the question, the Court of Appeals apparently asked counsel about what happened and he told them, and the Court of Appeals referred to the fact that the defendant was asked to speak, but the fact of that didn’t even come out at the trial.

There is not one thing in the record on that, and our petition on the Sixth Amendment is simply that a line up is basically in its function and in the purpose not different from intervening a witness either as an investigation or as preparation for a trial and in neither case on our system of government is that an adversary, cooperative type of thing.

Potter Stewart:

Now by interviewing the witness you don’t mean equivalent to revealing an indicted dependency.

Beatrice Rosenberg:

No, but I’m saying witness because our whole point on the Sixth Amendment is that what you are trying to get is the question of what the witness knows.

Potter Stewart:

But I gather Ms. Rosenberg if that’s the government position, then indeed there is no Fifth or Sixth or any other kind of problem involved here since the only effort is to get the information of a witness to be used as evidence at the trial because that’s it, and then I would suppose the government’s position is it is utterly immaterial what questions are asked to the people in a line up.

Even if they are asked for to say I did or didn’t commit this offence.

Beatrice Rosenberg:

Well, let me say I think you have to separate the question.

The mere conducting of a lineup is — I understand the decision below and the position of counsel is if by virtue of the fact if you simply paraded them across the hall and said not one word, asked them nothing that if counsel was not notified that in and of itself.

Potter Stewart:

So I understand that’s the other side of it.

What I — or perhaps I read too much of what you said, but your emphasis on a line up is nothing more than an effort by the government to interview one of its own witnesses or perspective of it, now if that’s the correct analysis.

It seems to me it must mean it’s utterly immaterial what questions you put to the people in the line up included?

Beatrice Rosenberg:

Well, so long as the government — If the government goes beyond what I consider the function of a line up, if it abuses it then there is another problem.

Now if — as our provision is that so long as a line up —

Potter Stewart:

Let me ask you this if I may, that is to say then your position does not go so far as to say that in the presence of your perspective witness questions can be put to the indicted defendant in a line up, are you or are you not guilty of this offence?

Beatrice Rosenberg:

That is not — that’s right, our position is not —

Potter Stewart:

You would not say that they could that far.

Beatrice Rosenberg:

No.

Potter Stewart:

What would be involved then?

Beatrice Rosenberg:

Because then you would trying to find out what the defendant knows.

Potter Stewart:

Alright, and this is a Fifth or a Sixth Amendment?

Beatrice Rosenberg:

Which the Fifth?

You are asking about it?

Potter Stewart:

Yes.

Beatrice Rosenberg:

It is both I take it under Miranda.

I mean I find that it’s certain times hard to draw the lines but I take it under Miranda it would be both.

Potter Stewart:

Would it would it be —

Beatrice Rosenberg:

I take Miranda to be a combination of the Fifth and Sixth.

Potter Stewart:

Certainly under Miranda —

Beatrice Rosenberg:

It would be a violation of Miranda anyway.

Potter Stewart:

And certainly it would be a violation of both because at least under Miranda it’s the Fifth Amendment violation and under Messiah if not under Miranda it’s a Sixth Amendment of violation that’s right?

Beatrice Rosenberg:

That’s right, after indictment certainly, but I take it that and let me say that’s in a sense why we here on the merit let’s say because the question of notifying him as a matter of what do I say, running a police department or procedures where a defendant has that counsel –- they might prepared for argument one way or another, I don’t know, but if you appeal to a constitutional right under Sixth Amendment then it does create real problem because it is a constitutional right, then it attaches — well at least as soon as man is arrested, and it mean that you can’t conduct a lineup until counsel has been appointed for him, unless there is a knowing explicit way for it and it means that you can’t conduct a line up, unless counsel is present, unless there is a knowing, an explicit waiver.

Now, there are parts of the country where you can conduct a line up and where you can get counsel appointed just the minute the man is arrested.

It doesn’t — some places big cities you can, but the most — in many places you can’t.

Certainly, if the lawyer has to be present without knowing an explicit waiver, lawyers are busy.

I mean sometimes, in this case the witnesses had to be brought 60 miles.

Lawyers had to be on trial again.

Lawyer can pretend to be busy.

Abe Fortas:

Does intervention of the indictment make any difference do you think?

That is to say is there a distinction between a pre-indictment lineup for identification and a post indictment lineup, which it might be suggested as part of trial preparation.

Beatrice Rosenberg:

Well, I don’t think that the Sixth Amendment purposely makes the difference because I never thought the trial preparation.

The government trial preparation is something — not something in which the defense participates.

Abe Fortas:

Yes, but —

Beatrice Rosenberg:

Now in many — oh I am sorry.

Abe Fortas:

No that’s all right, I was just going to suggest that perhaps purposes of post indictment lineup may be a reason to — there maybe less of a reason for the state not to take time and trouble to his counsel and to invite counsel to be there, then this were a purely identification to see whether this is the man who in effect should be charged.

Beatrice Rosenberg:

Well, my problem with that Mr. Justice Fortas is that I don’t see that the Sixth — as I understand the decisions of this Court, if it’s a Sixth Amendment right to counsel, I don’t see how it can attach (Inaudible) and take this case as I say, he was indicted before he was ever picked up.

Now the first chance that he had to confront the witnesses and the defendant to make sure they had the right man as well, you know obviously what they would testify to the trial.

Abe Fortas:

They should have had a pretty good idea about that before they got the —

Beatrice Rosenberg:

Well not, well they did have a good idea, there is no question about that they had the concessions of confederate and they had, had people look at photographs.

Abe Fortas:

Okay, let me ask you this, suppose that — you said that, as I understand it that you might think that a lineup created a real problem in the event that it involved a Fifth Amendment violation.

Beatrice Rosenberg:

No, I said — I am sorry I don’t think that’s not what I said, I said to the extent that the government tried to find out what the defendant knows, instead of what the witness knows, then we have a completely different question and therefore I am confining my argument to a lineup in which the defendant — the government tries to find out only what the witness knows.

Abe Fortas:

Suppose you had a crime that was committed by one man and the government stages to lineup, prosecution stage for line up, police stage for lineup, then they ask the person who had been indicted a single question, within that line up they had him as the one man there and rest of them were women and then the witnesses who were there viewing the lineup went into the court room and they testified that yes, this is the man and they said this fact that they also testify that yes we identify him with the lineup.

Beatrice Rosenberg:

I think we have due process question — I think we would have to a due process question — that is I think that — if the government used forgery to get a handwriting testimony, the government would be happy (Inaudible).

Abe Fortas:

Well if it is a due process question I suppose the next problem is whether the Sixth Amendment right that attaches in the sense that a defendant as a constitutional matter is entitled to have counsel present.

Again I say —

Beatrice Rosenberg:

(Voice Overlap)

Abe Fortas:

A due process violation may arise.

Beatrice Rosenberg:

It seems to be involved — pardon.

Abe Fortas:

I am sorry to interrupt you.

Beatrice Rosenberg:

I am sorry to interrupt you, I thought you were through, I am sorry.

I was saying it seems to me that it involves a tremendous change in our system, because I suppose anytime you interview a witness, you could have a due process question.

Beatrice Rosenberg:

Anytime you use in a ballistic expert, you can have a due process question.

Anytime – well just any piece of evidence.

If we’re going to have a joint development of evidence between counsel for the government and counsel for the defense, that’s a revolutionary change in our methods.

Sorry.

Earl Warren:

We will recess now.

No, no Mr. Holcomb?

Weldon Holcomb:

Thank you, your honor.

Mr. Chief Justice, members of the Court, to start with I would like to correct some inverted statements by my opponent.

The robbery occurred on September the 21, 1964.

The indictment was March 23, 1965.

The defendant was arrested on April the 2nd, 1965 in Houston, Texas.

The counsel was appointed April the 26th.

The line up was May the 12th, 1965, the trial on its merits was held before Judge Shehi (ph) August the 2nd, through the 4th, 1965.

Summons was on the 30th.

The counsel believes that the Sixth Amendment as well as the Fifth Amendment tie in very closely in this matter.

Counsel had already been appointed.

The man had already been indicted upon the statements and confessions of two admitted as they were referred to at large in brief by respondent.

He was arrested upon the indictment.

There after, 12 days after counsel had been appointed to assist him in the protection of his rights, he had notified the Court that he did not have a counsel.

That he did not have means to retain a counsel, counsel was appointed.

Thereafter the FBI agent made the arrangements for the lineup, the witnesses were called from the City of Eustis, a small town northwest of Tyler.

The defendant was brought from his cell and according to the record, he was observed alone or with Mr. Albert from the records.

In the printed record on page 31, we find further contrary to as I understood the statement of Ms. Rosenberg, did all the man in the lineup have tape on their faces?

Yes, where they all dressed alike other than tape on their faces?

No I don’t think so.

Similar statements were made by the other witness Mr. Gray.

It is counsel’s position in this particular instance that the taking of this man from a cell, taking him to the court room.

He already has a counsel, having him observe even pleadingly in the presence of the instigator of the lineup.

The inquisitor if you please of the lineup, the entire matter was being handled by Mr. Kenneth Albert of the FBI, he made all the arrangements, he had talked with the witnesses, the witnesses knew him.

According to one witness a photograph had been identified, and I think it’s a reasonable statement to say that the picture was probably taken after the arrest, for the reason that if a competent FBI agent had, had a witness testify that a photograph reflected the robber, that he would have taken some action. So therefore I think it’s a reasonable assumption from the circumstances here, that this picture was taken after the arrest of the defendant, after the appointment of his counsel and that the purpose for this lineup was not for the purpose of merely identification, if it was as counsel stated in its brief, why have the defendant and others repeat statements as admitted by counsel for the government in the Fifth Circuit.

Weldon Holcomb:

Words identical or words very similar to that used by the robber, such as fill up the bag, they could just as easily have him read a few portions of the constitution or a novel or a newspaper.

But he was required to reenact a portion of the crime in the absence of his attorney.

So what do we have here Mr. Chief Justice and members of the Court?

We do not have the situation as we have is in this Schmerber case, in the Schmerber case by Justice Brennan, we found a blood test taken under hospital conditions by someone of no interest in the case, a disinterested person.

The lawyer was there and even though I disagree with result, as I understand the statements by Justice Brennan that because of these safe guards there that the constitutional rights of the man were not violated, but we do not have that here.

You may take a blood test, examine it today and the result will be this, examine it next week and the blood will remain the same, they have all types of things that they put in the blood to keep in that condition.

But here we have a man required to make statements, similar to those used in the robbery.

It goes into the ears, the eyes perceive, eye witness do that six months after the robbery they have seen this man with this man whom they known to be a Federal Agent, alone (Inaudible) he resembles him or it was him.

Then this time six months after which he comes in, he has tape placed upon his face and according to the record he was not dressed like the others.

William J. Brennan, Jr.:

May I ask what you’re hoping to say that the identifying witnesses had seen photographs of the respondent?

Weldon Holcomb:

According to the record Your Honor one witness Miss — the lady testified that she had identified a photograph of the defendant.

William J. Brennan, Jr.:

And when was that identification?

Weldon Holcomb:

There is no date in the record Your Honor as to when it occurred, in my examination of her, I was trying to show whether or not she had seen a picture or anything of that nature during the investigation and as I understand the record Mr. Albert had shown every picture he does not state he —

William J. Brennan, Jr.:

Well, did I understand you to say earlier that the record was supportive inference of the photographs she saw or the photograph taken of the respondent after he was arrested.

Weldon Holcomb:

I believe that it would be a fair inference from it Mr. Justice Brennan based upon the surrounding facts of the case, that had FBI agent Albert been told by the witness that this is the man and I identify him, I think it’s reasonable to assume that a competent Federal Agent would have issued a warrant and attempted to arrest the man and such was not done.

Abe Fortas:

Mr. Holcomb, suppose you were then invited to the line up, (Inaudible)

Weldon Holcomb:

First of all Your Honor if I had the opportunity I would have done my utmost as counsel to prevent my client from being seen alone or under any circumstances which might tend to point the finger of guilt toward him, such has being observed alone.

Secondly, I would have advised my client to refrain from making any statements of any kind whatsoever at the line up.

Especially those that would be incriminatory or a reenactment of a portion of the crime.

(Inaudible)

Weldon Holcomb:

No sir, yes sir.

I believe I conceded that in my brief Your Honor and that I believe that the mere exhibition of the body as such and the physical characteristics of his arms, legs or so forth of that nature will not cause to be a constitution of violation.

Byron R. White:

Even if alone.

Weldon Holcomb:

Sir?

Byron R. White:

Even if alone, even if seen alone like in the court room.

Weldon Holcomb:

I will not go that far Mr. Justice White.

Byron R. White:

You mean identification in the court room is unconstitutional.

Weldon Holcomb:

No sir, I think you are referring —

Byron R. White:

We’ll he is seen alone there.

Weldon Holcomb:

Not, not in an open court during a trial but I thought you were referring to the line up bringing him by himself.

Byron R. White:

All I’m talking about whether or not in the process of the identification, the defendant has to be viewed alone or with other?

Weldon Holcomb:

In open court, I couldn’t conceive a no violation of any kind whatsoever there Your Honor in an open court.

Byron R. White:

Well what about some other place, with counsel present?

Weldon Holcomb:

With counsel Your Honor I think that his rights could be protected, he will be not shown possibly as a prisoner by himself in the custody of — the point I’m trying to make Justice White is the fact that this man Mr. Albert, the FBI agent has been handling it all the way through, he was a man that made all of the arrangements.

He brought the witnesses back and as I understand that record the defendant was alone with Mr. Albert.

Byron R. White:

What if the man is on bail and FBI agent takes a witness to view this man walking down the street or having a cup of coffee in some café?

Weldon Holcomb:

I see no violation Your Honor.

Byron R. White:

Just viewing of the body alone is all right.

Weldon Holcomb:

I see no constitutional violation on certain facts that he states –

Potter Stewart:

Suppose Mr. Holcomb, Mr. Albert instead of taking these identifying witnesses in the room where they conducted a lineup, had taken the three of them down to the cell where the respondent was being been kept.

Weldon Holcomb:

Alone, Your Honor?

Potter Stewart:

Yes, didn’t Mr. Albert walk down with the identifying witness and said look this man over.

Weldon Holcomb:

I believe that, that would be a possible constitutional violation.

Potter Stewart:

Of what?

Weldon Holcomb:

Under the circumstances, I believe that he would be violating his due process.

Potter Stewart:

Not counsel or direct to counsel.

Weldon Holcomb:

It could involve counsel, but —

Potter Stewart:

Not incrimination.

Weldon Holcomb:

Not the incrimination.

Hugo L. Black:

What’s wrong with taking somebody to the cell, they do not direct the man to do anything, or to say anything and let the man that is looking.

Weldon Holcomb:

That standing alone I would say would not be a violation.

Hugo L. Black:

Suppose in addition to that, he took somebody to the cell and said now we direct you to answer these questions and assume this position, what would you say about it?

Weldon Holcomb:

I would say that, that would be a violation of his constitutional rights in regard to counsel and self incrimination on the Fifth Amendment Your Honor.

Potter Stewart:

Well a whole purpose of the lineup though, why do they have lineups, rather than take people down to the cell?

Weldon Holcomb:

I believe that it’s an attempt to be as fair as possible Justice White, but in this instance, under these circumstances, I do not believe that the main purpose was simply for identification, because the man had already been identified, he was under indictment, two alleged accomplices had given statements that this man was the man and he was just awaiting trial and so they bring the people over and put him in there, but they didn’t put a straw hat on him and they didn’t see that he was dressed similar to the robber in circumstances that count and I still get back to the individual officer who is running the show, that his association would and I feel that that any normal human being who is attempting to maintain a position.

I prosecuted for ten years myself Your Honor.

I feel like when the man was indicted, he felt now this is the man.

But he has been indicted and either consciously or unconsciously he was attempting to build the government’s case and close the gate, but all the change around him —

Potter Stewart:

What’s wrong with making clear judgment if that’s a found case –

Weldon Holcomb:

Nothing at all Your Honor, except the fact that you are taking witnesses there — putting them with the authority exhibited by this officer, taking it into the courtroom, his lawyer wasn’t there, a judge wasn’t there, he was held in a courtroom under circumstances these two lay witnesses sitting as spectators in the courtroom and the courtroom gives the (Inaudible) to what the officer is doing and just adds to it on the circumstances that the man doesn’t have his lawyer there and as the Powell case said the guiding hand of counsel, whatever he could do. I don’t now what you could do for him, but at least you are there and you’ll do your best to protect the rights of that individual.

Hugo L. Black:

I gather you are drawing a distinction between the government simply having witnesses look at a defendant and the government officers compelling him to do something which will be useful to the government in the prosecution of him for the crime such as writing letters or assuming certain positions.

Weldon Holcomb:

Yes Your Honor.

I believe as I have conceded that the mere viewing of the body under proper circumstances would not be a violation, in my opinion of the man’s constitution rights.

Potter Stewart:

And you told us that this man was dressed differently from the others, did you mean to say that all the others were dressed alike and he was dressed differently or that each one was dressed differently?

Weldon Holcomb:

I have no way of knowing Your Honor, it’s directly from the record here that the witness said they were not all dressed alike.

In the Smith County Jail, if the Court will allow, I will tell you what their policy is in Smith County Jail, Justice Stewart.

In the Smith County Jail the county prisoners wear white uniforms.

The Federal prisoners have there own attire whatever it may be.

Potter Stewart:

But you don’t — there is no indication that —

Weldon Holcomb:

No sir, none.

Potter Stewart:

All the other were dressed one way and he was dressed in a distinctive way different from the all the others.

Weldon Holcomb:

No sir.

Getting to the portion there where the Court of Appeals or the Fifth Circuit has ruled in regard to the reenactment of the portion of the crime.

It is our position that in the event this Court were to see fit to say that the mere asking of a man’s name or the mere asking of non-inculpatory statements or those not involving the reenactment of the crime were constitutional and will not be a violation of the man’s right, then we say that this case would be clearly distinguishable from such a case, because the defendant was required to utter words, reenact a portion of the crime and therefore the self incrimination was violated and also the Sixth Amendment because his counsel was not witness.

Potter Stewart:

Wasn’t each — was one of these people in the lineup required to use your phrase reenact a portion of the crime?

Weldon Holcomb:

Yes sir.

Potter Stewart:

You think each one constitutional rights is violated?

Weldon Holcomb:

No sir, now rest are wondering that Justice Stuart, this man was already —

Potter Stewart:

He was asked to do the same thing.

Weldon Holcomb:

Yes sir, yes sir, as I understand correct.

Abe Fortas:

You draw did the distinction between current statement after indictment and before indictment?

Weldon Holcomb:

Yes sir, but not necessarily so the distinction that I really draw Your Honor is the fact that this man had a lawyer, and these things occurred.

Now if they were still investigating this matter like there had just been a robbery and they were picking up suspect to just take a look at him and see if they get him identified that’s one thing, but where six months has transpired and a man’s indicted.

He appears for arraignment before the Federal Judge and the Judge appoints him a lawyer and then these things occur, I think it’s highly probable.

Abe Fortas:

(Inaudible)

Weldon Holcomb:

And ask questions or just put in a plain line up?

Abe Fortas:

(Inaudible)

Weldon Holcomb:

Just a plain line up, I doubt that there would be a constitution violation under I believe Justice Holmes and the whole case.

Potter Stewart:

Even after you could indict him?

Weldon Holcomb:

I hate to go that far Your Honor, but if the viewing of the body —

Potter Stewart:

Well I know, what your point is, as I understood it.

Weldon Holcomb:

Yes sir.

Potter Stewart:

The Sixth Amendment argument is that merely putting him in the line up, when the knowledge of prosecution, he has a lawyer violates his Sixth Amendment rights, if he is under indictment at that time they put him in the lineup, is that right?

Weldon Holcomb:

Yes sir, that’s the position that I desire to maintain.

Potter Stewart:

I don’t quite understand why you answered Mr. Justice Harlan that you don’t think it could be a violation in this situation where it doesn’t have a lawyer.

Weldon Holcomb:

Well based upon the opinions of this Court in the past, I think, that that distinction is there sir.

Hugo L. Black:

You mean the Court held that with, but you are not part.

Weldon Holcomb:

Yes sir.[Laughter]

Potter Stewart:

Well, I suppose under today’s disconcertion, by the time you get to indictment, you are likely to have a lawyer, so the practical matter when I would like to go (Inaudible).

Weldon Holcomb:

No sir, but if you do I think it should be — this Court should tell the investigating authority whether it be the state or the federal that this will not be tolerated.

Potter Stewart:

Mr. Holcomb as I understand it, if we affirm the decision below, it means that your client cannot effectively be tried.

Weldon Holcomb:

Yes sir, under the federal rules of evidence he can be tried, he could not be tried effectively in the state of Texas, in the state courts because it requires corroboration, but under the federal rules and law, as I understand it, the testimony of these two admitted robbers, who denied they know anything for six months and then came around and told the federal authorities, yes this man did it, that Judge Shehi (ph) could put him to trial, have a jury and if the jury saw fit they could convict him one the uncorroborated testimony of the two accomplices alone.

Potter Stewart:

But the witnesses who saw him at the lineup could not identify him again.

Weldon Holcomb:

Could not testify as to the identification, they could testify as to all of the actions of the robbery that occurred at the time the robbery occurred, but they would not be allowed to identify the defendant because of the theory applied for the Fifth Circuit, as I understand it, that it might be under the (Inaudible) doctrine and so forth in the court that there is question there as to whether or not, who can reasonably say that this line up did not occur or could not occur (Inaudible) — it’s not like the blood test or the footprint, but defense counsel can examine those at leisure, he could have someone else examine the footprint or someone else examine the blood test.

But who can examine the workings of the human man and the memory, whenever it’s passed, in other words the government’s counsel says (Inaudible) that if I had been there, I’d go talk to the government’s witnesses and so forth, examine their minds, but isn’t it a basic human feeling to sustain what you said that I believe, I am right, I am going to stay there and try to sustain your position.

Abe Fortas:

(Inaudible)

Weldon Holcomb:

That’s correct.

Abe Fortas:

It would not be?

Weldon Holcomb:

Yes sir.

Hugo L. Black:

Why was that called?

Weldon Holcomb:

The identification as arrived at under the opinion of the Fifth Circuit says that who can reasonably say Justice Black that the identification that the action of the witnesses in identifying this man was not colored by the activities of the FBI agent, the observation of the person alone or the asking of this individual to reenact a portion of the crime.

Hugo L. Black:

What use could the government make of this identification in the trial?

Weldon Holcomb:

As such Your Honor it was not brought up by them that there had been a line up, but they used the eyewitness testimony that the two witnesses Gray and Chamber said this is man, this is the man that robbed me and it’s my contention and which the Fifth Circuit agreed Your Honor that who can reasonably say that the identification, the positive identification of my client, Mr. Wade was not colored in any manner by the improper activity of the lineup of requiring him to reenact a portion of the crime six months after the robbery.

(Inaudible)

Weldon Holcomb:

No sir I was sitting there, if I recall correctly trying to keep my business straight Your Honor and my client leaned across the table behind me and mentioned something about the lineup and I proceeded from there, I think and my questioning reflected that I was not appraised of it Justice Harlan.

If I had been I would very probably have asked for some type of a hearing or filed some type of a motion to find out what happened.

Abe Fortas:

This is not routine practice then?

Weldon Holcomb:

No sir, especially after an indictment Justice Fortas, it’s been common as a state prosecutor we utilize it all the time.

Abe Fortas:

Before —

Weldon Holcomb:

Before indictment if we were trying to find out who robbed the bank or who burglarized the place or any type involving a person.

Did you often use an after indictment?

Weldon Holcomb:

Sir?

Did you often use an after indictment?

Weldon Holcomb:

No sir, not unless it called for by improper examination of one of our witnesses by the undecided.

Well, no, I don’t mean that and did you often use a lineup after indictment?

Weldon Holcomb:

No sir, to my knowledge I do not recall having participated in one or authorized in one as district attorney after indictment.

Hugo L. Black:

Why should not the government use the view of that witness to ask him the same question then, do you see the defendant here, why should they not be allowed to do that so long as they not rely at all upon what had occurred in the lineup?

Weldon Holcomb:

Justice Black, I don’t see how we can separate it, who can say — I believe that all of us are part of everything we have been exposed to.

So if something improper has been exposed to us, that no matter how much that I feel that even though we might say, well we are just laid aside and we cannot where this lineup occurred six months, approximately six months after the robbery.

And then these other things, with this man being observed in the hall or in any room, alone or with this man, Mr. Albert whom they knew and which I ask in the interrogation of the witnesses, they knew Mr. Albert was the FBI agent, they knew he was man who called them down there, they knew the purpose for which they were called, there is the man with Mr. Albert, there is the man alone and other people come down who can reasonably say that the workings of the human mind for identification was not in anyways affected by this activity.

(Inaudible)

Weldon Holcomb:

Your Honor it could Justice Harlan.

(Inaudible)

Weldon Holcomb:

If the lineup is held without any adornments and without any viewing of the body so to speak, I would say that would be merely to the weight of it Justice Harlan.

But if they go further and ask for a reenactment of a portion of the crime or such questions did you rob this bank?

Yes sir, they make him speak –

Good Morning, how do you do, or anything that involved in (Inaudible)

Weldon Holcomb:

I hate to concede that Justice Harlan but I believe that it in all fairness that I should, that if the man is asked his name, that it’s hard to draw the line, Justice Harlan, I will say that if you ask him about the crime or reenact a portion of it and so forth in my opinion without a doubt is a violation.

But the viewing of the body and how much further this Court would desire to go I’m not in position to say but I would say that, just getting on the line, yes.

(Inaudible)

Weldon Holcomb:

Yes Your Honor.

And your Sixth Amendment claim (Inaudible)

Weldon Holcomb:

Yes Your Honor.

(Inaudible)

Weldon Holcomb:

My basic position is the Sixth Amendment claim of deprivation of counsel and the Fifth Amendment is just in conjunction with it.

Potter Stewart:

Well Mr. Holcomb that being so, I suppose the exclusionary rule which you argued for, the exclusionary rule you argued for, would be more in the nature of a prophylactic rule to prevent denial by officers of rights to counsel, is that it?

Weldon Holcomb:

Yes sir.

Potter Stewart:

Without regard to change or anything else or the reliability of the identification evidence.

Weldon Holcomb:

Yes sir, but in the event, you do have this type of activity that if the government is not prohibited from using this tainted evidence, then there is no punishment for the government or any other authority.

Potter Stewart:

But you surely have to rest it on the need for some kind of prophylactic rule in order to protect the right to counsel under the Sixth Amendment, not on any argument which you can make, can you necessarily that the identification evidence is unreliable.

Weldon Holcomb:

No sir, no sir.

In other words, I think that I rest basically on my Sixth Amendment Your Honor.

Byron R. White:

Well, but your Sixth Amendment claim as I gather it is really a mechanism to prevent violation under the Fifth, the way you have been presenting it.

Weldon Holcomb:

As an attorney anything that I am charged by the law to prevent from them occurring Your Honor.

Byron R. White:

Well yes, but if it were just the counsel, the right to counsel you are talking about unrelated to the Fifth Amendment, I would think you would claim that viewing the body in the absence of counsel is also a violation.

But you say it isn’t, so you really are saying, you are deprived of counsel until and unless he asks something or he is asked to reenact a crime and then you come into the Fifth Amendment which the counsel might be able to protect it.

Weldon Holcomb:

Yes sir and I find it very —

Byron R. White:

Is that your argument?

Weldon Holcomb:

Yes and no Your Honor and may I say this, it’s like I said a while ago on the Court opinion on Justice Holmes that’s what the Court have ruled not that I necessarily agree with, but that’s what the Court has held, but I feel like it, if you deprive the man of his attorney, then everything else is unreal.

So if the man’s got a lawyer, his lawyer should be entitled to be with him.

It is one case for this Court to deprive a man —

Byron R. White:

Now do you say, if there were a case where, it was perfectly clear that both the defendant admitted it and the state said it that all that happened at the lineup was a viewing, no movements, no speaking, nothing except a viewing and counsel was not present, would you say then that the courtroom identification should be excluded?

Weldon Holcomb:

On that alone I’d say no sir.

Byron R. White:

So you really aren’t relying just on say Sixth Amendment right to counsel I gather.

So you really aren’t — so you are saying that even if — even though it’s post indictment if it’s perfectly clear and the defendant admits that nothing happens at the lineup except a viewing.

Weldon Holcomb:

No sir, you put post indictment when you put the indictment —

Byron R. White:

What’s this case?

Weldon Holcomb:

Yes, post indictment I say yes, that if he is entitled to have his lawyer, have him there, but now as I replied to Justice Fortas, when we were investigating cases that’s one thing.

Byron R. White:

I understand that, so you would say even though that’s perfectly clear that nothing happened at the line up.

Hugo L. Black:

Then I suppose that everyone would agree that it was a violation of the defendant’s rights.

Take him down and make him say something like they did here or to take certain position, your next problem is that consequence of that and I gather that your argument, that the government would be deprived of the use of those people as witnesses.

Weldon Holcomb:

Yes Your Honor.

Hugo L. Black:

Suppose the government had, had five witnesses to look into it, that’s the only eye witnesses to the crime, you would say that they couldn’t use a single one of those witnesses why do you have to go that far?

Weldon Holcomb:

If they violate the man’s constitutional rights Justice Black I think that they —

Hugo L. Black:

They violated it in connection with identifying him on the — by reason of some motion with and what he said.

Why would it not be enough to deprive the government of the benefit which is supposed to come from a spontaneous identification and a lineup namely that I did this when they were in line there and that strengthened my statement that I, that I am right in my identification.

Why should it bar those witnesses from testifying with reference to the other elements of the crime which had nothing whatever to do with the identification?

Weldon Holcomb:

I believe my statement Justice Stewart I believe it was sir that these witnesses could testify to that but not to the identification, that the only thing that would be barred was their eye witness identification based upon the lineup —

Hugo L. Black:

In other words they couldn’t buttress their statement of identification by proving that they had picked him out in this lineup.

Weldon Holcomb:

Not — as I understand not in our position Your Honor.

Hugo L. Black:

That’s what?

Weldon Holcomb:

It’s not my position my position is, my position Your Honor is that the witness can testify to anything except the identification that he made there, in other words, he testified at the robbery, he testified all the facts that occurred and so forth but he cannot testify that this is a man that did it, if the rights of the man were violated at the lineup.

Hugo L. Black:

Alright in other words and that’s what the Court of Appeals held, isn’t it?

Weldon Holcomb:

Yes sir.

Potter Stewart:

That the witnesses could say that there was a hold up that day, but they couldn’t say who did it?

Weldon Holcomb:

That’s correct sir.

The two accomplices could.

Potter Stewart:

That’s exactly what the Court of Appeals held.

Abe Fortas:

Let me put another hypothetical to you.

(Inaudible) would that be a violation?

Weldon Holcomb:

It could be sir.

If the prosecutor said, if there is a benefit —

Abe Fortas:

I am talking about the waiver, I am talking about the fact that whenever technique you possibly use, is not known by the counsel, and his client when he walked in to the courtroom in the morning prior (Inaudible)

Weldon Holcomb:

No sir.

Abe Fortas:

Why not?

Weldon Holcomb:

It’s open court Your Honor and everyone is there —

Abe Fortas:

(Inaudible)

Weldon Holcomb:

Yes, his counsel —

Abe Fortas:

(Inaudible)

Weldon Holcomb:

If counsel is with his client there in open court and so forth Your Honor and nothing else was known, I would say that there would be no violation.

Byron R. White:

Suppose the prosecutor says to the witness there is the fellow who did it, do you recognize him, would that violate something?

Weldon Holcomb:

Certainly that has been done, I think that would be a violation Justice.

Byron R. White:

There is something —

Weldon Holcomb:

Yes sir, as I say we all sustain position, I feel that would be improper thank you.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

I just wanted to take up this matter of indictment.

Very often it is really happened today whether the indictment in return or not.

Of course the sooner you get a man in some respect, if you arraign him promptly and recognize his right to a speedy trial, but as soon as you have probable cause you should take step to arraign him, to charge him and so on.

Obviously a great deal of interviewing of witnesses, preparation, all kinds of tests goes on after indictment.

Now this case is a little different, the reason for the delay here is different, this was an unsolved crime for a long time, they knew there was a bank robbery, they didn’t know who did it.

Beatrice Rosenberg:

Then these two men were caught in a quite different bank robbery and eventually, this took them time to do.

They talked about this particular robbery and the stories were checked and this is not in the record before the Court, but shows up in the transcript, a lot of their story was checked but as I think I said before according to their story and according to facts of the robbery one man with in the bank.

Now the indictment was returned before these men were arrested.

But obviously, the way you see whether the final corroboration of these accomplices was to have the people who where in the robbery look at it, that’s what this lineup was for, if you call it preparation for trail in one sense of course it was but it was also identification in the same way that identification is used where a man is called earlier and that’s why it seems to be an artificial line to try to draw it before or after indictment, so long as the (Inaudilbe) confines himself to finding out what the witness can say and doesn’t try to get information as such for the defendant and that brings me to the subject of the remedy, on that the Court of Appeals below I think stands alone, so far as I know. The defendants in the next case would have said merely that the government could not make affirmative use of the lineup identification, well the government in this case didn’t try to, they didn’t even bring out that the witness had identified photographs.

This came in originally — brought in by the defense, what the government relied on was that the witness had really quite a long time to identify the robber and they did identify him in the courtroom.

The government didn’t bring him in the lineup at all.

Hugo L. Black:

Do you think the government could have brought in that fact, without violating this man’s constitutional rights in the trial?

Beatrice Rosenberg:

(Inaudible) so hold Your Honor.

There have been — the rule on whether you can offer proof of identification at a lineup, if that’s what — if you’re taking about that rule of evidence, the federal cases say that you may, that this as an exceptions to the hearsay rule.

If you are talking about the question of whether the lineup as such is a violation of constitutional right, I think that is the question on which the Court disagreed in Schmerber, on the view Your Honor expressed there, I take it that having a man even stand up to the extent that the witness looks at him for that purpose and certainly from Your Honor’s point of view having him repeat any word would have been a violation.

As I understand the majority opinion in Schmerber, the Court held to the contrary that, that was not a violation of constitutional right, because you were not getting from the witness what he knew and let me say that is about on the assumption of the fact —

Potter Stewart:

Just before we believe that, I think you said it, but I want to be sure, if I understand what you have said and what did happen here as a matter of fact, am I correct in understanding that the government in its case in the Court, trial of this man, made no use indeed, no mention whatsoever of any lineup, is that right?

Beatrice Rosenberg:

Well let me put it — exactly what happened.

The first witness was Mrs. Chambers and on her testimony the government made absolutely no mention of it all.

Potter Stewart:

I mean she made no mention.

Beatrice Rosenberg:

No she was not questioned about — nothing would said about it.

Potter Stewart:

Right.

Beatrice Rosenberg:

On Cross examination counsel asked her whether she had seen the defendant between the time of the offense, of the time of the trial, and she first said she had picked that photograph.

Well I don’t think she said that first, she said she had seen him at the lineup.

Potter Stewart:

The question that she doesn’t —

Beatrice Rosenberg:

No she said she had seen him at the lineup and then there was some question, had she seen anything before and she said, she had seen photographs before the lineup.

Then the Mr. Gray came up and he — again the government asked him about the effect — about the facts of the robbery.

Potter Stewart:

And asked then to identify the defendant.

Beatrice Rosenberg:

And it said did you see this defendant in this courtroom on the tenth?

But this was after there had been all this cross examination about the lineup.

Potter Stewart:

Of the other witness?

Beatrice Rosenberg:

That’s right.

But that’s was all and then the defense court examined him.

Potter Stewart:

And just did you see him here at this courtroom on the tenth and the answer was what, yes?

Beatrice Rosenberg:

Yes.

Potter Stewart:

Then, was there any description of what happened?

Beatrice Rosenberg:

No then the defense cross-examined and the defense cross-examined him with reference to this info tro that where we got this pleading glance through the — when the door opened.

The government did never — did not — in Mrs. Chamber’s testimony, not one mention of the lineup.

Potter Stewart:

So assuming that it is a violation of the Fifth Amendment or perhaps the Sixth Amendment to ask somebody to say, how do you do, if his lawyer isn’t there, no evidence of any such violation or any such facts were introduced by the government except for the response and this came in response to cross examination by the defendant.

Beatrice Rosenberg:

Except what — on the second witness there was this one line, the government did ask one question at the end of the second witness, after the defense had brought it out for the first time.

Hugo L. Black:

Ms. Rosenberg let us assume for the moment that the Court of Appeals was right in saying that the rights of this defendant had been violated, but let us say also for the sake of argument that it was wrong as you contend in applying the remedy that it proposes.

My question is what remedy could the Court of Appeals have applied in order to vindicate the violation of petitioner’s constitutional rights?

Beatrice Rosenberg:

Well, there have been two suggestions by defending opinion in the federal Gilbert case about which it held and that in the next case and so forth, by courts that have held that there was violation of rights.

One suggestion is that the government be barred from affirmatively bringing before the jury and of course that wasn’t done in this case, any evidence that the lineup identification had been met.

So that — because in many cases where it’s very close to time, this may be more significant than it was in this case, that kind of remedy.

The other suggestion that has been made for a remedy is Judge Browning (ph) suggestion in the defense in the Federal Gilbert case which is that where a court feels that there has been a violation of right, that there be a hearing outside the presence of the jury.

Hugo L. Black:

There would be what?

Beatrice Rosenberg:

A hearing outside the presence of the jury to determine as near as one can, all law requires some weighing, some evidence, how much opportunity did the witness have to see the defendant at that time of the crime.

How certain — how — had he identified them before the lineup?

In other words, can one say with a reasonable degree of certainty that the identification, the knowledge of the looks of this man came long before the lineup or if it’s so doubtful and are the circumstances such that you can’t honestly say that the identification — the original identification at the lineup — suppose the first time you identified him as a lineup, let’s assume it was – that’s very unfair lineup that Mr. Justice Fortas put to me as a hypothetical question.

The action there is that in that kind of a situation you’d say well the chances are that his identification in the courtrooms stems from the illegal lineup, we won’t allow him to identify in the courtroom.

But where the evidence shows very clearly that the witness did have lots of opportunity to observe and that the — that the lineup legal or illegal was not the major factor, then we will allow the witness to identify in the courtroom, but I presume not show if some question is raised, not allow him to show that he did it three months before or six months before at the lineup.

And when you considered, that this is not the problem that the Court was dealing with in Miranda, that is rule — a line up is really basically designed to be there.

Hugo L. Black:

Basically what?

Beatrice Rosenberg:

Designed to be there because a line up as conducted is done so that witness sees several people rather than one, it doesn’t have any of the potentialities of the evil, which this Court was dealing with in Miranda and that it was trying to avoid, to what it found to be — and I suppose in same cases actually have it found to be potentialities is nothing that a line up is secret, the witnesses are there, people are there, it’s a short duration, it can’t be long, its basically designed to be a fair procedure, maybe in this case —

Potter Stewart:

Really Ms. Rosenberg, that might be an incident, of course, but that’s fair to the defendant.

You don’t really suggest that the purpose to have a lineup is to be fair to defendant, isn’t in the purpose to be done darn sure they have witnesses upon whom they can rely when they go to trial.

Beatrice Rosenberg:

Well, yes but I mean it’s certainly easier to take him down — to identify this man in this cell.

Potter Stewart:

It may be, but they might get into trouble with that whereas they have someone who can say, look there is six or seven, but I know what I’m talking about that’s the guy, when it comes to that matter.

Beatrice Rosenberg:

Well Your Honor, I don’t know what you want to call it, it’s a fairer method.

Potter Stewart:

But it may work out that way.

Beatrice Rosenberg:

If it was a fair method?

Potter Stewart:

Well that’s certainly not —

Beatrice Rosenberg:

I don’t know.

I have not found prosecutors interested in convicting innocent.

Beatrice Rosenberg:

Sometimes they get mistaken though I’m not saying that.

I have found prosecutors who have asked ahead of time, have tried to be assured of themselves, they sometimes are convinced that someone and maybe mistakenly convinced, there maybe occasionally people who are put.

But I doubt things by and large, people are seeing United States attorneys offices, are out to convict a man at any Court.

They want to know they have the right man, yes I think they do.