People v. Hickman

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 20, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 122548

JONATHAN D. HICKMAN,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

In this case, we must determine when the right to

counsel attaches to corporeal identifications. We adopt

the analysis of Moore v Illinois, 434 US 220; 98 S Ct 458;

54 L Ed 2d 424 (1977), and hold that the right to counsel

attaches only to corporeal identifications conducted at or

after the initiation of adversarial judicial criminal

proceedings. To the extent that People v Anderson, 389

Mich 155; 205 NW2d 461 (1973), goes beyond the

constitutional text and extends the right to counsel to a

time before the initiation of adversarial criminal
proceedings, it is overruled. The Court of Appeals

decision is affirmed.

I. FACTUAL HISTORY AND PROCEDURAL POSTURE

Defendant was convicted of possession of a firearm

during the commission or attempted commission of a felony,

MCL 750.227b(1); conspiracy, MCL 750.157a; and armed

robbery, MCL 750.529, for robbing the complainant of $26

and two two-way radios. The complainant testified that

two men approached him from behind and robbed him. He

testified that one of the men, later identified as

defendant, pointed a gun at his face while the other person

took the radios and money. The complainant then called the

police and gave a description of the two men, as well as a

description of the gun.

An officer soon saw a man fitting the description of

the man with the gun. The man, later identified as

defendant, was caught after a foot chase. During the

chase, the police saw defendant throw something and they

later recovered a chrome handgun that matched the

complainant’s description of the gun. Defendant was

carrying one of the two-way radios.

Approximately ten minutes later, an officer took the

complainant to a police car in which defendant was being

held. The officer asked the complainant if the person

2

sitting in the police car was involved in the robbery. The

complainant immediately responded that defendant was the

man who had the gun.

Defendant’s motion to suppress an on-the-scene

identification by the victim on the ground that defendant

was not represented by counsel at the time of the

identification was denied, and defendant was convicted.

The Court of Appeals affirmed defendant’s conviction.1 The

Court held that the prompt on-the-scene identification did

not offend the requirements set forth in Anderson and

rejected defendant=s due process claim, holding that the

identification was not unduly suggestive.

Defendant appealed, and this Court granted leave,

limited to the issue “whether counsel is required before an

on-the-scene identification can be admitted at trial.” 468

Mich 944 (2003).

II. STANDARD OF REVIEW

This Court reviews de novo questions of law relevant

to a motion to suppress. People v Hawkins, 468 Mich 488,

496; 668 NW2d 602 (2003). The inquiry here involves issues

of constitutional law, which are also reviewed de novo.

People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001).

1
Unpublished opinion per curiam, issued September 17,
2002 (Docket No. 232041).

3

 III. DISCUSSION

A. BACKGROUND: PEOPLE V ANDERSON

In Anderson, the right to counsel was extended to all

pretrial corporeal identifications, including those

occurring before the initiation of adversarial proceedings.

This extension of United States v Wade, 388 US 218; 87 S Ct

1926; 18 L Ed 2d 1149 (1967), to all pretrial

identification procedures was based on “psychological

principles,” 389 Mich 172-180, and “social science,” 389

Mich 182.

Notably absent was any grounding in our federal

constitution or state constitution. In People v Jackson,

391 Mich 323, 338; 217 NW2d 22 (1974), this Court

acknowledged that the Anderson rules were not

constitutionally mandated:

The . . . Anderson rules . . . represent the
conclusion of this Court, independent of any
Federal constitutional mandate, that, both before
and after commencement of the judicial phase of a
prosecution, a suspect is entitled to be
represented by counsel at a corporeal
identification . . . . [Emphasis added.]

The Jackson Court affirmed the Anderson rules, however, as

an exercise of the Court’s “constitutional power to

establish rules of evidence applicable to judicial

proceedings in Michigan courts and to preserve best

evidence eyewitness testimony from unnecessary alteration

4

by unfair identification procedures . . . .” Id. at 338-

339. Finally, in People v Cheatham, 453 Mich 1, 9 n 8; 551

NW2d 355 (1996), this Court noted in obiter dictum that the

right to counsel under Const 1963, art 1, § 20 “attaches

only at or after the initiation of adversary judicial

proceedings by way of formal charge, preliminary hearing,

indictment, information, or arraignment.”

Thus, the Anderson rules lack a foundation in any

constitutional provision, whether state or federal.

Instead, the rules reflect the policy preferences of the

Anderson Court. Similarly, the Jackson Court’s attempt to

rationalize the promulgation of the rules as an exercise of

the Court’s authority to promulgate rules of evidence is

unpersuasive. The Anderson rules encompassed more than

purely evidentiary matters,2 and the rationale underlying

them has since been disapproved in Moore.

B. MOORE V ILLINOIS

In Moore, the United States Supreme Court adopted the

plurality opinion in Kirby v Illinois, 406 US 682; 92 S Ct

1877; 32 L Ed 2d 411 (1972), holding:

2
See McDougall v Schanz, 461 Mich 15, 29; 597 NW2d 148
(1999), which disapproved of previous blanket statements of
authority over all matters relating to the admission of
evidence.

5

 [T]he right to counsel announced in Wade[
supra] and Gilbert [v California, 388 US 263; 87
S Ct 1951; 18 L Ed 2d 1178 (1967),] attaches only
to corporeal identifications conducted “at or
after the initiation of adversary judicial
criminal proceedings—whether by way of formal
charge, preliminary hearing, indictment,
information, or arraignment” . . . because the
initiation of such proceedings “marks the
commencement of the criminal prosecutions to
which alone the explicit guarantees of the Sixth
Amendment[3] are applicable.” [Moore, supra at
226-227 (citations omitted).]

The Court further noted that identifications conducted

before the initiation of adversarial judicial criminal

proceedings could still be challenged:

In such cases, however, due process protects
the accused against the introduction of evidence
of, or tainted by, unreliable pretrial
identifications obtained through unnecessarily
suggestive procedures. [Id. at 227 (emphasis
added; citations omitted).]

3
The Sixth Amendment of the United States Constitution
provides:

In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining witnesses
in his favor, and to have the Assistance of
counsel for his defense. [Emphasis added.]

6

 Therefore, it is now beyond question that, for federal

Sixth Amendment purposes, the right to counsel attaches

only at or after the initiation of adversarial judicial

proceedings.

This conclusion is also consistent with our state

constitutional provision, Const 1963, art 1, § 20, which

provides:

In every criminal prosecution, the accused
shall have the right to a speedy and public trial
by an impartial jury, which may consist of less
than 12 jurors in prosecutions for misdemeanors
punishable by imprisonment for not more than 1
year; to be informed of the nature of the
accusation; to be confronted with the witnesses
against him or her; to have compulsory process
for obtaining witnesses in his or her favor; to
have the assistance of counsel for his or her
defense; to have an appeal as a matter of right,
except as provided by law an appeal by an accused
who pleads guilty or nolo contendere shall be by
leave of the court; and as provided by law, when
the trial court so orders, to have such
reasonable assistance as may be necessary to
perfect and prosecute an appeal. [Emphasis
added.]

As Judge YOUNG noted in his opinion in People v Winters, 225

Mich App 718, 723; 571 NW2d 764 (1997), neither the

Anderson decision nor the Jackson decision was based on our

state constitutional provision; therefore, those cases

cannot be read as expanding art 1, § 20 protections beyond

those provided by the Sixth Amendment. Further, this Court

has already noted in Cheatham, albeit in obiter dictum,

7

that a defendant’s right to counsel under art 1, § 20

attaches only at or after the initiation of adversarial

judicial proceedings. This Court also held in People v

Reichenbach, 459 Mich 109, 119-120; 587 NW2d 1 (1998),

quoting People v Pickens, 446 Mich 298, 318; 521 NW2d 797

(1994):

[T]here exists no structural differences
with regard to the right to assistance of counsel
between federal and Michigan provisions.
Moreover, no peculiar state or local interests
exist in Michigan to warrant a different level of
protection with regard to the right to counsel in
the instant case. Both the federal and the state
provisions originated from the same concerns and
to protect the same rights.

Because the Moore analysis is consistent with both US

Const, Am VI and Const 1963, art 1, § 20, which expressly

apply only to criminal prosecutions, we adopt that analysis

and hold that the right to counsel attaches only to

corporeal identifications conducted at or after the

initiation of adversarial judicial criminal proceedings.4

Further, we agree with Judge YOUNG’s observation in

Winters that the Anderson decision generated considerable

4
Because the instant case involves a corporeal
identification conducted prior to the initiation of
adversarial judicial proceedings, we do not, contrary to
the dissent’s contention, address whether a defendant has a
right to an attorney after the initiation of adversarial
judicial proceedings during a photographic showup. Post at
2.

8

confusion regarding its proper application. First, the

Court in People v Marks, 155 Mich App 203, 209-210; 399

NW2d 469 (1986), noted that although Anderson appeared to

be a Sixth Amendment case, it was really divorced from any

constitutional considerations. Nevertheless, the Marks

Court observed that the issue of on-the-scene

identification is still often raised in the context of the

Sixth Amendment right to counsel.

The Winters Court also lamented the lack of any

simple, practical standard regarding on-the-scene corporeal

identifications. In People v Dixon, 85 Mich App 271, 280-

281; 271 NW2d 196 (1978), the Court held that if the police

have “more than a mere suspicion” that the suspect is

wanted for the crime, there can be no on-the-scene

corporeal identification; rather, the suspect must be taken

to the police station and participate in a lineup with

counsel present. In People v Turner, 120 Mich App 23, 36;

328 NW2d 5 (1982), however, the Court found the Dixon rule

too difficult5 and, instead, held that police may conduct

on-the-scene identifications without counsel unless the

police have “very strong evidence” that the person stopped

5
It must be noted that the Turner Court did retain the
Dixon standard where the police have already validly
arrested the suspect for an unrelated offense. Turner,
supra at 37.

9

is the perpetrator. “Very strong evidence” was defined as

“where the suspect has himself decreased any exculpatory

motive, i.e., where he has confessed or presented the

police with either highly distinctive evidence of the crime

or a highly distinctive personal appearance.” Id. at 36-

37.

As the Winters Court noted, the Turner “strong

evidence” rule is hardly more workable than Dixon’s “more

than a mere suspicion” rule. Rather than perpetuate the

confusion in this area, we take this opportunity to adopt

the Moore analysis and clarify that the right to counsel

attaches only to corporeal identifications conducted at or

after the initiation of adversarial judicial criminal

proceedings. This eliminates any unwarranted confusion and

allows the focus to be on whether the identification

procedure used violates due process.6

6
Although we recognize the importance of stare decisis,
it is appropriate to overrule Anderson because, as
explained above, it is clearly inconsistent with Const
1963, art 1, § 20. Further, there are no relevant
“reliance” interests involved and overruling Anderson
would, therefore, not produce any “practical real-world
dislocations.” See Robinson v Detroit, 462 Mich 439, 465-
466; 613 NW2d 307 (2000). Contrary to the dissent’s
suggestion, this Court has never held that a “special
justification” must be established before this Court will
depart from precedent. Post at 9. Finally, as explained
above, the courts have had considerable difficulty in

10

 IV. APPLICATION

The on-the-scene identification in this case was made

before the initiation of any adversarial judicial criminal

proceedings; thus, counsel was not required. Therefore,

this Court affirms the decision of the Court of Appeals.

V. CONCLUSION

The Anderson rule, extending the right to counsel to

all pretrial identifications, is without constitutional

basis. Consistently with both the United States

Constitution and the Michigan Constitution, we adopt the

straightforward analysis of Moore v Illinois and hold that

the right to counsel attaches only to corporeal

identifications conducted at or after the initiation of

adversarial judicial criminal proceedings. The Court of

Appeals decision is affirmed.

Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

applying Anderson, and the resulting confusion and
instability also demonstrate the need to overrule Anderson.

11
 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 122548

JONATHAN D. HICKMAN,

Defendant-Appellant.
_______________________________

KELLY, J. (dissenting).

To the casual reader, the rationale for today's

majority decision may be elusive. After all, as the

majority correctly notes, the case deals with law that has

been relatively well-settled for close to thirty years: a

potential criminal defendant does not have a Sixth

Amendment right to counsel during identifications that

occur before the initiation of adversarial judicial

proceedings, such as a formal charge or preliminary

hearing. Moore v Illinois, 434 US 220, 226-227; 98 S Ct

458; 54 L Ed 2d 424 (1977); People v Jackson, 391 Mich 323,

338; 217 NW2d 22 (1974); see also People Cheatham, 453 Mich

1, 9 n 8; 551 NW2d 355 (1996), citing People v Wright, 441

Mich 140, 173; 490 NW2d 351 (1992) (Riley, J., dissenting);
Moran v Burbine, 475 US 412, 430; 106 S Ct 1135; 89 L Ed 2d

410 (1986).

Nor has this Court held that the protective rules

enumerated by People v Anderson1 and its progeny apply to

on-the-scene identification procedures and require counsel

during those procedures. People v Anderson, 389 Mich 155,

186 n 23; 205 NW2d 461 (1973). In fact, the opposite is

true. Id.

Yet the majority undertakes today ostensibly to

resolve these issues. Its purpose is to take away the

potential defendant's entitlement to counsel during all

preindictment2 proceedings by overruling Anderson and its

progeny. Hereafter, a defendant, in custody but not yet

indicted, will no longer have the practical ability to

challenge photographic or corporeal identification

procedures. The police will be able to conduct such

procedures without allowing a defendant's attorney to be

present. Moreover, even after the initiation of adversarial

judicial procedures, a criminal defendant will no longer

have the right to counsel during a photographic showup.

1
389 Mich 155, 186 n 23; 205 NW2d 461 (1973).
2
For ease of explanation, I use the term "preindictment
identifications" to refer to identifications that occur
before the initiation of adversarial judicial proceedings.

2

 Because I do not see any good reason to depart from

longstanding precedent, I must respectfully dissent.

The majority is not correct in its assertion that,

under Anderson, "the right to counsel was extended to all

pretrial corporeal identifications, including those

occurring before the initiation of adversarial

proceedings." Ante at 4. Anderson, which itself dealt with

the right to counsel for pretrial custodial photographic

showup procedures, set forth "justified" exceptions, albeit

arguably in dicta, for the absence of counsel at eyewitness

identification procedures. Notably included as exceptions

were emergency situations requiring immediate

identification and "prompt, 'on-the-scene' corporeal

identifications within minutes of the crime . . . ." Id.,

at 187 n 23 (citations omitted). We have since

specifically affirmed the Anderson exception for prompt on-

the-scene identifications. City of Troy v Ohlinger, 438

Mich 477, 487; 475 NW2d 54 (1991).

The majority could reaffirm the Anderson exception for

prompt on-the-scene identifications, or perhaps enlarge the

explanation of the exception to provide a workable

framework for the lower courts. Instead, it unnecessarily

chooses to remove the Anderson protections from all

preindictment identification procedures. It is an ill-

3

conceived decision that ignores principles of stare

decisis. It also fails to consider the adverse effect on

defendants' rights to be assured that pretrial

identifications are not obtained through mistake or

unnecessarily suggestive procedures.

In deciding to remove the Anderson protections for all

preindictment identifications, the majority chooses to

decide an issue already decided. It sweeps aside

longstanding precedent, asserting that the Anderson

protections reflect the policy preferences of the Anderson

Court and that the Jackson Court failed to justify the

Anderson Court's ruling.3 Apparently the majority's own

"policy preferences" outweigh those of the members of the

Anderson Court and the Jackson Court, as well as other

members of this Court. Unlike the majority, I believe

3
The majority relies on McDougall v Schanz, 461 Mich
15, 29; 597 NW2d 148 (1999), for the proposition that this
Court "disapproved of previous blanket statements of
authority over all matters relating to the admission of
evidence." I did not then, nor do I now, agree with the
majority opinion in McDougall. But it is my understanding
that McDougall was not a broad disapproval of blanket
statements regarding the admission of evidence. Rather, it
was a disapproval of a specific rule of evidence. Even the
McDougall majority acknowledged that the line between
substantive law and practice and procedure must be drawn
case by case. McDougall, supra at 36. The McDougall
decision concerned the interaction of statutes and this
Court's constitutional rule-making authority over "practice
and procedure." Because there is no statute at issue in
this case, McDougall is not applicable.

4

Anderson was decided with due deference to the practical

problems of ensuring accurate identifications. I am

concerned that the majority’s policy decision gives

insufficient thought to the underlying rationale for our

long-existing decision to grant counsel to defendants where

practicable.

Anderson discussed at length the scope of the problem

of misidentifications, particularly in the use of

photographic identification procedures. Anderson, supra at

182-187, 192-220 Appendix A. These concerns have certainly

not diminished with time. See, e.g., Utah v Ramirez, 817

P2d 774, 779-780 (Utah, 1991); Rutledge, They all look

alike: The inaccuracy of cross-racial identifications, 28

Am J Crim L 207, 209-210 (2001); Brigham, Disputed

eyewitness identification evidence: important legal and

scientific issues, 36 Ct Rev 12, 12-13 (1999). Wise, A

survey of judges' knowledge and beliefs about eyewitness

testimony, 40 Ct Rev 6, 6-8 (2003); Risinger, Three card

monte, Monty Hall, modus operandi and "offender profiling":

Some lessons of modern cognitive science for the law of

evidence, 24 Cardozo L Rev 193, 194 (2002). The latter law

review article noted that the past century has seen the

accumulation of literally thousands of studies on the

weakness of eyewitness testimony. Id.

5

 Defendant points out in his appellate brief that in

1996, after DNA identification techniques became more

common, the United States Justice Department conducted a

study of exonerated defendants and prepared a research

report. Connors, Convicted by juries, exonerated by

science: Case studies in the use of DNA evidence to

establish innocence after trial (1996). The study was

commissioned by the National Institute of Justice. It

reviewed twenty-eight cases where the defendants had been

exonerated through the use of DNA identification

techniques.

Among the conclusions reached was that, in the

majority of cases, "eyewitness testimony was the most

compelling evidence. Clearly, however, those eyewitness

identifications were wrong." Id. at 24. Notably, one of

the significant factors of misidentification listed in the

Justice Department report involves an issue directly raised

in the instant case and the majority's decision to overrule

Anderson: the potential susceptibility of eyewitnesses to

suggestions from the police, whether intentional or

unintentional. Id.

6

 One of the major underpinnings of the Anderson

decision, and the later affirmation in Jackson,4 was the

recognition of difficulties with obtaining reliable

identification evidence. Courts and scholars have

recognized the continued validity of these concerns.

Nonetheless, this Court refuses to recognize that

Anderson's rules were, in fact, grounded on more than a

transient notion of what the Sixth Amendment requires.

The majority does so with barely a nod to the

principle of stare decisis. As my frequent colleague in the

dissent so well articulated recently, "[t]he doctrine of

stare decisis is more than a fad and decades of precedent

cannot be readily discounted as the majority suggests."

Monat v State Farm Ins Co, 469 Mich 679, 699; 677 NW2d 843

(2004) (Cavanagh, J., dissenting). "The application of

stare decisis is generally the preferred course because it

promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and

perceived integrity of the judicial process." People v

Petit, 466 Mich 624, 633; 648 NW2d 193 (2002) (citations

and internal quotation marks omitted).

4
Jackson, supra at 338-339.

7

 Even if this Court has found that an error occurred,

before it "'overrules a decision deliberately made, it

should be convinced not merely that the case was wrongly

decided, but also that less injury will result from

overruling than from following it.'" Id. at 634, quoting

McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006

(1904). I take as my guide the following from the recent

United Supreme Court opinion in Dickerson v United States,

530 US 428, 443-444; 120 S Ct 2326; 147 L Ed 2d 405 (2000),

discussing the requirement of Miranda5 warnings during

interrogations:

Whether or not we would agree with Miranda's
reasoning and its resulting rule, were we
addressing the issue in the first instance, the
principles of stare decisis weigh heavily against
overruling it now. See, e.g., Rhode Island v.
Innis, 446 U.S. 291, 304, 64 L. Ed. 2d 297, 100
S. Ct. 1682 (1980) (Burger, C. J., concurring in
judgment) ("The meaning of Miranda has become
reasonably clear and law enforcement practices
have adjusted to its strictures; I would neither
overrule Miranda, disparage it, nor extend it at
this late date"). While "'stare decisis is not an
inexorable command,'" State Oil Co. v. Khan, 522
U.S. 3, 20, 139 L. Ed. 2d 199, 118 S. Ct. 275
(1997) (quoting Payne v Tennessee, 501 U.S. 808,
828, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991)),
particularly when we are interpreting the
Constitution, Agostini v. Felton, 521 U.S. 203,
235, 138 L. Ed. 2d 391, 117 S. Ct. 1997 (1997),
"even in constitutional cases, the doctrine
carries such persuasive force that we have always

5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).

8

 required a departure from precedent to be
supported by some 'special justification.'"
United States v. International Business Machines
Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 135 L.
Ed. 2d 124 (1996) (quoting Payne, supra, at 842
(SOUTER, J., concurring) (in turn quoting Arizona
v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164
104 S. Ct. 2305 (1984))).
We do not think there is such justification
for overruling Miranda. Miranda has become
embedded in routine police practice to the point
where the warnings have become part of our
national culture. See Mitchell v. United States,
526 U.S. 314, 331-332, 143 L. Ed. 2d 424, 119 S.
Ct. 1307 (1999) (SCALIA, J., dissenting) (stating
that the fact that a rule has found "'wide
acceptance in the legal culture'" is "adequate
reason not to overrule" it). While we have
overruled our precedents when subsequent cases
have undermined their doctrinal underpinnings,
see, e.g., Patterson v. McLean Credit Union, 491
U.S. 164, 173, 105 L. Ed. 2d 132, 109 S. Ct. 2363
(1989), we do not believe that this has happened
to the Miranda decision. If anything, our
subsequent cases have reduced the impact of the
Miranda rule on legitimate law enforcement while
reaffirming the decision's core ruling that
unwarned statements may not be used as evidence
in the prosecution's case in chief.

In the instant case, the injury done by unnecessarily

overruling Anderson is grave. Conversely, the continued

use of its precedent would harm no one but those who fail

in their duty to ensure that identifications are made under

circumstances that render them reliable. The use of

counsel during preindictment procedures has become part of

the accepted practice in Michigan courts. I see nothing

9

even approaching a "special justification" to depart from

precedent here.6

The majority incorrectly asserts that defendant's due

process protections will be sufficient to protect the

accused against the introduction of unreliable

identification evidence. Ante at 6. Such an assertion

ignores the reality of numerous preindictment

identification procedures and this Court's attempt to

ensure that these procedures lead to reliable information.

The fact that the majority has seen fit to

unnecessarily overturn Anderson creates a Catch-22 for

defendants during other preindictment identification

procedures. Until today, a defendant who was not

"formally" charged but in custody was entitled to an

attorney during any identification procedure. Now, the

only required persons in the room will be the investigating

6
The majority states that this Court has never held
that a "special justification" must be established before
it will depart from precedent. Ante at 10, n 7. I
disagree. See Brown v Manistee Co Rd Comm, 452 Mich 354,
365; 550 NW2d 215 (1996) (absent the rarest of
circumstances, this Court should remain faithful to
established precedent). It certainly could be said that the
current majority does not share my view and that of Brown.
See Delaney, Stare decisis v The "New Majority": The
Michigan Supreme Court's practice of overruling precedent,
1998-2002, 66 Alb L Rev 871, 903-904 (2003). But I persist
in clinging to this archaic notion despite the urging of my
colleagues.

10

officer and the witness. Where the defendant is presented

to a potential witness during an on-the-scene

identification, the defendant himself is present to observe

the actions and words of the officer. Arguably, a

defendant who has been subjected to an unnecessarily

suggestive on-the-scene identification procedure has the

opportunity to present a coherent rationale for his

arguments.

In contrast, a defendant who seeks to challenge a

corporeal identification procedure will be effectively

unable to do so. He must stand before the one-way glass

and trust the competence and conscience of the

investigating officer. I doubt that J.R.R. Tolkien's image

of Wormtongue whispering quietly into the ear of Theoden,

King of Rohan7 will be one that is frequently repeated in

practice. However, even an inadvertent suggestion will be

imperceptible to a defendant who remains precluded from

witnessing it.8 The majority is essentially creating a

black box into which the defendant will not be allowed to

7
See J.R.R. Tolkien. The Lord of the Rings (New York:
Ballantine Books 1954-1974).
8
See United States v Wade, 388 US 218, 228-230; 87 S Ct
1926; 18 L Ed 2d 1149 (1967) (recognizing that the
"vagaries" of eyewitness testimony during a corporeal
lineup can be effectively challenged only if there is
adequate observation of the process of identification).

11

peer. It then requires him to refute the premise that what

occurred inside did not violate his right to due process.

Nothing in the majority's opinion provides for

substitute protections to guard against overzealous

individual officers or the failure of an officer to avoid

or correct potentially suggestive procedures in these

cases. As one author has aptly noted, the fact that

identification evidence is unique in character should

instead warrant the imposition of greater protections,

rather than less:

In most situations the state simply collects
preexisting evidence about a crime; through
pretrial identifications the state creates a
piece of evidence that would not otherwise exist.
The creation of evidence, rather than its
collection, should impose a special obligation on
the state to behave correctly, because the
creation of evidence presents heightened
opportunity for wrongdoing and unfairness by the
state and to the detriment of the defendant.
[Rosenberg, Rethinking the right to due process
in connection with pretrial identification
procedures: An analysis and a proposal, 79 Ky L
J 259, 291-292 (1991). (emphasis omitted).]

I disagree with the majority's decision to effectively

remove any ability for a criminal defendant to raise a due

process argument relating to these preindictment

identification procedures. In so doing, I agree

wholeheartedly with Justice Brennan's dissenting statement

12

in Kirby v Illinois, 406 US 682, 699 n 8; 92 S Ct 1877; 32

L Ed 2d 441 (1972):

As the California Supreme Court pointed out,
with an eye toward the real world, "the
establishment of the date of formal accusation as
the time wherein the right to counsel at lineup
attaches could only lead to a situation wherein
substantially all lineups would be conducted
prior to indictment or information." People v.
Fowler, 1 Cal. 3d 335, 344, 461 P. 2d 643, 650
(1969).

Until today, Michigan has not known this to occur.

However, I seriously doubt that it will long be the case

after the majority's ruling.

In addition, the majority claims that it is not

deciding today whether a defendant retains the protection

of counsel at custodial photographic showups, ante at 8 n

5. However, it is clear from the thrust of the majority

opinion that such protections have been removed. Anderson

itself involved a photographic lineup where the defendant

was in custody before the photographs were shown to the

witness. Anderson, supra at 160. Because of the Court's

distrust of photographic identification procedures, it

established rules regarding their use, including the right

to counsel when a suspect is in custody. See People v

Kurylczyk, 443 Mich 289, 298; 505 NW2d 528 (1993), citing

Anderson, supra at 186-187.

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 The United States Supreme Court stated in United

States v Ash,9 that the Sixth Amendment does not guarantee

the right to counsel at photographic displays where

witnesses attempt to identify a suspect. This is true,

even when the suspect is in custody. Anderson, supra at

186-187. However, as noted by the majority, ante at 4,

Jackson took Ash into consideration and nevertheless

affirmed the Anderson decision to extend the protections to

suspects in Michigan. It did so using the power of the

Court to exercise its authority to establish rules of

evidence. Jackson, supra at 338.

Today, the majority decides to overrule Anderson and

repudiate the Jackson rationale. Ante at 5. Therefore, it

has removed the protection of counsel at custodial

photographic showups. I leave for another day an

enumeration of the additional areas of law affected by the

majority's sweeping language and abdication of judicial

power.

I realize that it might be difficult at times for the

majority to keep track of the specific cases it is

overruling. This is due in part to its propensity to reach

for issues and decide them with a broad pen stroke.

9
413 US 300, 318; 93 S Ct 2568;37 L Ed 2d 619 (1973).

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However, when one specifically mentions a case by name, it

should be easy to remember that its holding must be

analyzed before it is rejected.

Finally, I disagree with the majority's disposition of

the question whether the identification procedure used here

violated defendant's right to due process irrespective of

whether a Sixth Amendment right to counsel existed.

Especially because defendant was sixteen at the time of his

arrest, I find troubling the majority's abdication of the

issue to the Court of Appeals without any further

explanation.

In conclusion, I believe that the majority has reached

out to take this case needlessly in order to address

constitutional questions. I would further find that,

whatever the scope of the protections of the Sixth

Amendment or Michigan's Constitution, the decision to

overrule Anderson is misguided. It has been made without

due deference to the principles of stare decisis and

without a comprehension of the practical realities of

frequent eyewitness misidentifications.

Marilyn Kelly
Michael F. Cavanagh

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