KIRBY v. ILLINOIS 406 U.S. 682 (1972)

In an effort to eviscerate united states v. wade (1967) without overruling it, a plurality of the Supreme Court held that the right to counsel does not apply to pretrial identification procedures that occur before indictment or other indicia of formal criminal charges. The case involved the most suggestive confrontation imaginable: a one-toone presentation of the person upon whom police had found a robbery victim's credit cards. Yet the Court held that because this confrontation occurred before Kirby had been formally charged, it was not a "critical stage" of the proceedings requiring counsel to preserve a future right to a fair trial.

The distinction between pre-and postindictment identification procedures is dubious for two reasons. First, the vast majority of lineups occur while cases are under investigation, and thus before indictment. Second, all the dangers of irreparable mistaken identification and the inability of counsel to reconstruct the pretrial confrontation—which had been the foundation of Wade—apply whether the identification occurs before or after formal charging. The plurality's startling misreading of precedent was highlighted when Justice byron r. white, who dissented in Wade, dissented in Kirby also, saying that Wade compelled the opposite result.

Kirby leaves untouched the possible due process objections to an unfair pretrial confrontation. Proof of unfairness would require suppression of testimony about the pretrial procedure as well as the in-court identification by a witness whose perceptions were possibly tainted. A due process objection may be made whether the pretrial confrontation has occurred before or after formal charging. Of course, it is much more difficult for the accused to show that a confrontation was fundamentally unfair than to prove that it was done without counsel.

Barbara Allen Babcock
(1986)