with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.
The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today’s decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today’s decision marks simply another 1 step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). I dissent.
I
On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. in Washington, D. C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers’ facial characteristics. Some five months later, on February 3, 1966, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent’s photograph was included because of information received from a Government informant charged with other crimes.2 None of the wit*327nesses was able to make a “positive” identification of respondent.3
On April 1, 1966, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 1968, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than %¿¡. hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent.
At trial, all four witnesses made in-court identifications of respondent, but only one of these witnesses was “positive” of her identification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evi*328dence implicating respondent in the crime was the testimony of the Government informant.4 On the basis of this evidence, respondent was convicted on all counts of the indictment.
On appeal, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent's conviction. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). Noting that “the dangers of mistaken identification from uncounseled lineup identifications . . . are applicable in large measure to photographic as well as corporeal identifications,” 5 the Court of Appeals reasoned that this Court’s decisions in Wade, Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a “critical” stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his Sixth Amendment right to “the Assistance of Counsel for his defence” when his attorney was not given an opportunity to attend the display of the color photographs on the very eve of trial.6 In my view, both the reasoning and conclusion of the Court of Appeals were unimpeach-ably correct, and I would therefore affirm.
II
In June 1967, this Court decided a trilogy of “lineup” cases which brought into sharp focus the problems of *329pretrial identification. See United States v. Wade, supra; Gilbert v. California, supra; Stovall v. Denno, supra. In essence, those decisions held (1) that a pretrial lineup is a “critical stage” in the criminal process at which the accused is constitutionally entitled to the presence of counsel; (2) that evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible; and (3) that evidence of a subsequent in-court identification of the accused is likewise inadmissible unless the Government can demonstrate by clear and convincing evidence that the in-court identification was based upon observations of the accused independent of the prior uncounseled lineup identification. The considerations relied upon by the Court in reaching these conclusions are clearly applicable to photographic as well as corporeal identifications. Those considerations bear repeating here in some detail, for they touch upon the very heart of our criminal justice system — the right of an accused to a fair trial, including the effective “Assistance of Counsel for his defence.”
At the outset, the Court noted that “identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, supra, at 228. Indeed, “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. Apart from “the dangers inherent in eyewitness identification,” id., at 235, such as unreliable memory or perception, the Court pointed out that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id., at 228. The Court recognized that the dangers of suggestion are not necessarily due to “police *330procedures intentionally designed to prejudice an accused.” Id., at 235. On the contrary, “[suggestion can be created intentionally or unintentionally in many subtle ways.” Id., at 229. And the “ 'fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense . . . involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way Id., at 235, quoting Williams & Hammelmann, Identification Parades-I, [1963] Crim. L. Rev. 479, 483.
The Court also expressed concern over the possibility that a mistaken identification at a pretrial lineup might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed that “ 'once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482.
Moreover, “the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.” United States v. Wade, supra, at 230. For “as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups . . . .” Ibid. Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle “improper influences” that might infect the identification.7 In addition, the Court empha*331sized that “neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.” Ibid. As a result, “even though cross-examination is a precious safeguard to a fair trial, it cannot [in this context] be viewed as an absolute assurance of accuracy and reliability.” Id., at 235.
With these considerations in mind, the Court reasoned that “the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.” Id., at 231-232. And “[ijnsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. Thus, noting that “presence of counsel [at the lineup] can often avert prejudice and assure a meaningful confrontation at trial,” the Court concluded that a pretrial corporeal identification is “a critical stage of the prosecution at which [the accused is] ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 236, 237, quoting Powell v. Alabama, 287 U. S. 45, 57 (1932).
*332Ill
As the Court of Appeals recognized, “the dangers of mistaken identification ... set forth in Wade are applicable in large measure to photographic as well as corporeal identifications.” 149 U. S. App. D. C., at 9, 461 F. 2d, at 100. To the extent that misidentification may be attributable to a witness’ faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.8 But “[b]ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, ... a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification.” P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965). Indeed, noting “the hazards of initial identification by photograph,” we have expressly recognized that “a corporeal identification ... is normally more accurate” than a photographic identification. Simmons v. United States, 390 U. S. 377, 384, 386 n. 6 (1968).9 Thus, in this sense at *333least, the dangers of misidentification are even greater at a photographic display than at a lineup.
Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See id., at 383. Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.10
Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, “increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Ibid. And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, “any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone.” P. Wall, supra, at 81.
Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain *334witness to select the “correct” photograph. For example, the prosecutor might “indicate to the witness that [he has] other evidence that one of the persons pictured committed the crime,”11 and might even point to a particular photograph and ask whether the person pictured “looks familiar.” More subtly, the prosecutor’s inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness’ objectivity. Thus, as is the case with lineups, “[i]mproper photographic identification procedures, ... by exerting a suggestive influence upon' the witnesses, can often lead to an erroneous identification . . . .” P. Wall, supra, at 89.12 And “ [r] egardless of how the initial misidentification comes about, the wit*335ness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen . . . Simmons v. United States, supra, at 383-384.13 As a result, “ 'the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482.
Moreover, as with lineups, the defense can “seldom reconstruct” at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But “it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101. Cf. United States v. Wade, supra, at 239 and n. 30. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not “apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect” since the witnesses are hardly “likely to be schooled in the detection of suggestive influences.” Id., at 230.
*336Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in Wade, the Government itself observed: 14
“When the defendant is present — as he is during a lineup — he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. ... [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in ‘sloppy or biased or fraudulent’ conduct ... , it would be far more likely to do so when the accused is absent than when he himself is being ‘used.’ ”
Thus, the difficulties of reconstructing at trial an un-counseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.15 And, as the Government ar*337gued in Wade, in terms of the need for counsel, “[t]here is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.” 16 For, in both situations “the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” United States v. Wade, supra, at 231-232. As *338a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a “critical stage of the prosecution at which [the accused is] 'as much entitled to such aid [of counsel] ... as at the trial itself.' ” Id., at 237, quoting Powell v. Alabama, 287 U. S., at 57.
IV
Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused’s right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by en-grafting a wholly unprecedented — and wholly unsupportable — limitation on the Sixth Amendment right of “the accused ... to have the Assistance of Counsel for his defence.” Although apparently conceding that the right to counsel attaches, not only at the trial itself, but at all “critical stages” of the prosecution, see ante, at 309-311, the Court holds today that, in order to be deemed “critical,” the particular “stage of the prosecution” under consideration must, at the very least, involve the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” According to the Court a pretrial photographic identification does not, of course, meet these criteria.
In support of this rather crabbed view of the Sixth Amendment, the Court cites our decisions in Coleman v. Alabama, 399 U. S. 1 (1970), Massiah v. United States, 377 U. S. 201 (1964), White v. Maryland, 373 U. S. 59 *339(1963), and Hamilton v. Alabama, 368 U. S. 52 (1961). Admittedly, each of these decisions guaranteed the assistance of counsel in pretrial proceedings at least arguably involving the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused required the “guiding hand of counsel.” 17 Moreover, as the Court points out, these decisions are consistent with the view that the Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). But, contrary to the Court’s assumption, this is merely one facet of the Sixth Amendment guarantee, and the decisions relied upon by the Court represent, not the boundaries of the right to counsel, but mere applications of a far broader and more reasoned understanding of the Sixth Amendment than that espoused today.
The fundamental premise underlying all of this Court’s decisions holding the right to counsel applicable at “critical” pretrial proceedings, is that a “stage” of the prosecution must be deemed “critical” for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary “to protect the fairness of the trial itself.” Schneckloth v. Bustamonte, 412 U. S., 218, 239 (1973) (emphasis added). Thus, in Hamilton v. Ala*340bama, supra, for example, we made clear that an arraignment under Alabama law is a “critical stage” of the prosecution, not only because the accused at such an arraignment requires “the guiding hand of counsel,” but, more broadly, because “[w]hat happens there may affect the whole trial!” Id., at 54. Indeed, to exclude counsel from a pretrial proceeding at which his presence might be necessary to assure the fairness of the subsequent trial would, in practical effect, render the Sixth Amendment guarantee virtually meaningless, for it would “deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.' ” Massiah v. United States, supra, at 204, quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring); see Escobedo v. Illinois, 378 U. S. 478, 484-485 (1964).
This established conception of the Sixth Amendment guarantee is, of course, in no sense dependent upon the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” On the contrary, in Powell v. Alabama, 287 U. S. 45 (1932), the seminal decision in this area, we explicitly held the right to counsel applicable at a stage of the pretrial proceedings involving none of the three criteria set forth by the Court today. In Powell, the defendants in a state felony prosecution were not appointed counsel until the very eve of trial. This Court held, in no uncertain terms, that such an appointment could not satisfy the demands of the Sixth Amendment, for “ '[i]t is vain ... to guarantee [the accused] counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.' ” Id., at 59. In other words, Powell made clear that, in order to preserve the accused’s right to a fair trial and to “effective and substantial” 18 assist-*341anee of counsel at that trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. Yet it can hardly be said that this preparatory period of research and investigation involves the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.”
Moreover, despite the Court’s efforts to rewrite Wade so as to suggest a precedential basis for its own analysis,19 the rationale of Wade lends no support whatever to today’s decision. In Wade, after concluding that compelled participation in a lineup does not violate the accused’s right against self-incrimination,20 the Court addressed the argument “that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant — his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.” 388 U. S., at 223-224. The Court then surveyed the history of the Sixth Amendment, and specifically concluded that that Amendment guarantees “counsel’s assistance whenever necessary to assure a meaningful ‘defence.’” Id., at 225 (emphasis added). *342Then, after examining this Court's prior decisions concerning the applicability of the counsel guarantee,21 the Court stressed once again that a pretrial proceeding is a “critical stage” of the prosecution if “the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id., at 227.
The Court next addressed the Government’s contention that a lineup is “a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like.” Id., at 227. If the Court in Wade had even the remotest intention of embracing the wooden interpretation of the Sixth Amendment ascribed to it today, it could have rejected the Government’s contention simply by pointing out the obvious fact that such “systematized or scientific analyzing” does not in any sense involve the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” But the Court offered not even the slightest hint of such *343an approach. Instead, the Court reasoned that, in light of the scientific nature of such analyses,
“the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.” Id., at 227-228 (emphasis added).
Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that “[i]nsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. The Court therefore concluded that “[s]ince it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 286-237.
Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a “critical stage” of the prosecution did not in any sense turn on *344the fact that a lineup involves the physical “presence of the accused” at a “trial-like confrontation” with the Government. And that conclusion most certainly did not turn on the notion that presence of counsel was necessary so that counsel could offer legal advice or “guidance” to the accused at the lineup. On the contrary, Wade envisioned counsel’s function at the lineup to be primarily that of a trained observer, able to detect the existence of any suggestive influences and capable of understanding the legal implications of the events that transpire. Having witnessed the proceedings, counsel would then be in a position effectively to reconstruct at trial any unfairness that occurred at the lineup, thereby preserving the accused’s fundamental right to a fair trial on the issue of identification.
There is something ironic about the Court’s conclusion today that a pretrial lineup identification is a “critical stage” of the prosecution because counsel’s presence can help to compensate for the accused’s deficiencies as an observer, but that a pretrial photographic identification is not a “critical stage” of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned Sixth Amendment principles, I can only conclude that a pretrial photographic display, like a pretrial lineup, is a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel.
See Kirby v. Illinois, 406 U. S. 682 (1972).
At the time of respondent’s trial, the informant, one Clarence McFarland, was serving a sentence for bank robbery. According to the Court of Appeals, “McFarland had been before the grand jury *327with regard to five separate offenses, in addition to his bank robbery, and had not been indicted on any of them, including one in which he had confessed guilt. The Assistant United States Attorney had arranged to have McFarland transferred from the D. C. Jail to a local jail in Rockville, Maryland, and in addition had helped McFarland’s wife move from Southeast Washington to an apartment near the parochial school that McFarland’s children were due to attend. 149 U. S. App. D. C. 1, 6 n. 7, 461 F. 2d 92, 97 n. 7 (1972). The Assistant United States Attorney also testified that he “had indicated he would testify before the parole board in McFarland’s behalf.” Id., at 6, 461 F. 2d, at 97.
Respondent does not contend that he was denied his Sixth Amendment right to counsel at the pre-indictment display of the black and white photographs. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n. 21.
As the Court of Appeals noted, this testimony was of at least questionable credibility. See n. 2, supra.
149 U. S. App. D. C., at 9, 461 F. 2d, at 100.
The Court of Appeals also noted “that there are at the very least strong elements of suggestiveness in this color photo confrontation,” and that “it is hard to see how the Government can be held to have shown, by clear and convincing evidence, that these color photographs did not affect the in-court identification made one day later.” Id., at 7, 14 n. 20, 461 F. 2d, at 98, 105 n. 20.
The Court pointed out that “[i]mproper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal *331record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present.” United States v. Wade, 388 U. S. 218, 230-231 (1967).
Thus, “[a] witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures . . . there is some danger that the witness may make an incorrect identification.” Simmons v. United States, 390 U. S. 377, 383 (1968).
See also Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L. Rev. 261, 264, 296 (1971); Williams, Identification Parades, [1955] Crim. L. Rev. 525, 531; Comment, Photographic Identification: The Hidden Persuader, 56 Iowa L. Rev. 408, 419 (1970); Note, Pretrial Photographic Identification — A “Critical Stage” of Criminal Proceedings?, 21 Syracuse L. Rev. 1235, 1241 (1970). Indeed, recognizing the superiority of corporeal to photographic identifications, English courts have long held that once the accused is in custody, pre-lineup photographic identification is “in*333defensible” and grounds for quashing the conviction. Rex v. Haslam, 19 Crim. App. Rep. 59, 60 (1925); Rex v. Goss, 17 Crim. App. Rep. 196, 197 (1923). See also P. Wall, Eye-Witness Identification in Criminal Cases 71 (1965).
See, e. g., Comment, supra, n. 9, at 410-411; Note, Criminal Procedure — Photo-Identification—Stovall Prospectivity Rule Invoked to Avoid Extension of Right to Counsel, 43 N. Y. U. L. Rev. 1019, 1021 (1968).
Simmons v. United States, supra, at 383.
The Court maintains that “the ethical responsibility of the prosecutor” is in itself a sufficient “safeguard” against impermissible suggestion at a photographic display. See ante, at 320. The same argument might, of course, be made with respect to lineups. Moreover, it is clear that the “prosecutor” is not always present at such pretrial displays. Indeed, in this very case, one of the four eyewitnesses was shown the color photographs on the morning of trial by an agent of the FBI, not in the presence of the “prosecutor.” See 149 U. S. App. D. C., at 5, 461 F. 2d, at 96. And even though “the ethical responsibility of the prosecutor” might be an adequate “safeguard” against intentional suggestion, it can hardly be doubted that a “prosecutor” is, after all, only human. His behavior may be fraught with wholly unintentional and indeed unconscious nuances that might effectively suggest the “proper” response. See P. Wall, supra, n. 9, at 26-65; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col. L. Rev. 94, 98-99 (1966); Williams & Hammelmann, Identification Parades-I, [1963] Crim. L. Rev. 479, 483. See also United States v. Wade, supra, at 229, 235, 236. And, of course, as Wade itself makes clear, unlike other forms of unintentional prosecutorial “manipulation,” even unintentional suggestiveness at an identification procedure involves serious risks of “freezing” the witness’ mistaken identification and creates almost insurmountable obstacles to reconstruction at trial.
See also P. Wall, supra, n. 9, at 68; Napley, supra, n. 12, at 98-99; Williams & Hammelmann, supra, n. 12, at 484; Comment, supra, n. 9, at 411—413; Note, supra, n. 10, at 1023.
Brief for United States 24-25 in United States v. Wade, No. 334, O. T. 1966.
The Court’s assertion, ante, at 317-319 and n. 10, that these difficulties of reconstruction are somehow minimized because the defense can “duplicate” a photographic identification reflects a complete misunderstanding of the issues in this case. Aside from the fact that lineups can also be “duplicated,” the Court’s assertion is wholly inconsistent with the underlying premises of both Wade and Gilbert. For, unlike the Court today, the Court in both of those decisions recognized a critical difference between “systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like,” on the one hand, and eyewitness identification, on the other. United States v. Wade, supra, at 227; Gilbert v. California, 388 U. S. 263, 267 (1967). In essence, the Court noted in Wade and Gilbert that, in the former situations, the accused can preserve his right to a fair trial simply by “duplicating” the tests of the Government, thereby enabling him to expose any errors in the Gov*337ernment’s analysis. Such “duplication” is possible, however, only because the accused’s tests can be made independently of those of the Government — that is, any errors in the Government’s analyses cannot affect the reliability of the accused’s tests. That simply is not the case, however, with respect to eyewitness identifications, whether corporeal or photographic. Due to the “freezing effect’’ recognized in Wade, once suggestion has tainted the identification, its mark is virtually indelible. For once a witness has made a mistaken identification, “ ‘he is not likely to go back on his word later on.’ ” United States v. Wade, supra, at 229. As a result, any effort of the accused to “duplicate” the initial photographic display will almost necessarily lead to a reaffirmation of the initial misidentification.
The Court’s related assertion, that “equality of access” to the results of a Government-conducted photographic display “remove [s] any inequality in the adversary process,” ante, at 319, is similarly flawed. For due to the possibilities for suggestion, intentional or unintentional, the so-called “equality of access” is, in reality, skewed sharply in favor of the prosecution.
Brief for United States 7, in United States v. Wade, supra. The Court seems to suggest that, under no circumstances, would it be willing “to go so far as to extend the right [to counsel] to a portion of the prosecutor’s trial-preparation interviews with witnesses.” Ante, at 317. This suggestion illustrates once again the Court’s readiness in this area to ignore “real-world” considerations for the sake of “mere formalism.” Kirby v. Illinois, 406 U. S., at 699 (Bren-NAN, J., dissenting). Moreover, this suggestion demonstrates the Court’s failure to appreciate the essential differences, outlined persuasively by the Court of Appeals, between “the prosecutor’s trial-preparation interviews with witnesses” and pretrial identification procedures. See 149 U. S. App. D. C., at 10, 461 F. 2d, at 101.
Coleman, White, and Hamilton, guaranteed the assistance of counsel at preliminary hearings and arraignments. Massiah held that incriminating statements of a defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant’s lawyer, arranged a meeting between the defendant and an accomplice turned informant. Thus, it is at least questionable whether Massiah involved a “trial-like confrontation” with the Government.
287 U. S., at 53.
See ante, at 313-316. In an effort to justify its contention that Wade itself in some way supports the Court’s wooden analysis of the counsel guarantee, the Court points to the so-called “careful limitation of the Court’s language [in Wade] to ‘confrontations.’ ” Ante, at 315. But Wade involved a lineup which is, of course, a “confrontation.” Thus, it is neither surprising, nor significant, that the Court interchangeably used such terms as “lineup,” “confrontation” and “pretrial identification” as descriptive of the facts. Indeed, the Wade dissenters recognized that Wade logically applies, not only to lineups, but “to any other techniques employed to produce an identification United States v. Wade, supra, at 251 (White, J., concurring and dissenting).
See United States v. Wade, supra, at 221-223.
See id., at 225-227. The Court's quotation of Escobedo v. Illinois, 378 U. S. 478 (1964), is particularly instructive:
" 'The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the “right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination” .... “One can imagine a cynical prosecutor saying: ‘Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the trial.’ ” ’ ” United States v. Wade, supra, at 226, quoting Escobedo v. Illinois, supra, at 487-488.