(dissenting):
In dissent in United States v. Marson, 408 F.2d 644 (4 Cir. 1968), I had occasion to express my views on the applicability of the Wade and Gilbert decisions to identifications made from photographs after an accused is in custody. This case presents another aspect of the same issue.
Collins was not taken into custody until a year and a half after the bank robbery with which he was charged. Between the time he was taken into custody and his trial, he lost approximately 75 pounds. Perhaps for this reason, at his trial three government witnesses who had observed the robbery were unable to identify him, but one of the three was permitted to testify that he had identified Collins at a corporeal lineup at which Collins’ counsel were present. The other two were permitted to testify that they had identified Collins, at a date subsequent to the corporeal lineup, from a photograph taken of it.
While the district judge made some exploration of how the photographic identification procedure was conducted, not all of the circumstances were disclosed. The witnesses denied that their identification had been consciously influenced or that they were aware of any suggestiveness on the part of the government agents. But the record is silent as to whether either of Collins’ counsel was present. Mere silence in this regard would support the inference that he was not, but, in any event, consistent with Wade, it must be assumed that counsel was absent unless the contrary were shown. The record provides no explanation of why Collins was not exhibited in person to the two witnesses *701who made a photographic identification: (a) there is no satisfactory explanation why one of these two witnesses was not present at the corporeal lineup which was held, and (b) more importantly, the record contains no explanation why the government could not have conducted a second corporeal lineup for these two witnesses at a time convenient for them. The record is also silent as to whether the witnesses were shown any photographs other than the one in which Collins appeared as the only person in a colored shirt and shiny trousers, or what procedure was followed in exhibiting to them the one or more photographs that they examined.
I would conclude, under the circumstances of this ease, that the photographic lineup was a “critical” stage at which Collins, under Wade, was entitled to be represented by counsel. Because of the inability of any witness to make a courtroom identification, the issue of identification was determined principally at the photographic lineup. Yet, there, Collins was unrepresented. Short of conscious and purposeful influence, which the witnesses denied, the circumstances of the witnesses’ photographic identification may have been such as to exert unconscious influence on them. They may not have been alert to this possible suggestiveness — purposeful or inadvertent — but, once having identified Collins, they would be quite loath to recant. Even though the photograph was available, the ability of counsel to reconstruct what occurred at the lineup was so seriously impaired that it is unlikely that he could have brought to light at trial any of these possibilities of misidentification.
Aside from the possibility of unconscious influence or suggestion, the greater reliability of an identification based upon a person-to-person confrontation ought not to be so lightly sacrificed in the absence of a compelling explanation why confrontation under the circumstances of the case was not possible. Photographic identifications, in particular, have proved to be an unreliable and insecure basis for correct identifications, and underlying Wade and Gilbert is the Supreme Court’s concern for the reliability of eyewitness identifications in general. See also, Simmons v. United States, 390 U.S. 377, 385-386 & n. 6, 88 S.Ct. 67 & n. 6, 19 L.Ed.2d 1247 & n. 6 (1968). I repeat that this record is devoid of any purported justification for the sacrifice.
I disagree with the majority that Simmons has relevance to this case. I do not read Simmons as modifying the application of Wade and Gilbert to post-custody identifications as I read the majority’s opinion to suggest. Simmons was not in custody at the time of the identifications made from photographs. Simmons v. United States, 390 U.S. at 384-385, 88 S.Ct. 967, 19 L.Ed.2d 1247. In the instant case Collins was in custody and a corporea.1 lineup had been held. This is the crucial distinction between Simmons and the instant case. As Mr. Justice Harlan explained in his opinion for the Court in Simmons, photographic identifications prior to arrest serve the important functions of aiding in the apprehension of offenders still at large and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them. Neither of these functions can be fulfilled once a suspect has already been taken into custody. See also, United States v. Marson, 408 F.2d 644 (4 Cir. 1968).1
I do not now concern myself with the effect of 18 U.S.C.A. § 3502 (1969 Ed.). By a literal reading, it may not be ap*702plicable to testimony of the fact of previous identification, as distinguished from a courtroom identification. More importantly, the government does not advance it as a ground for affirmance; and, until fully briefed and argued, I would not deal with the troublesome question of the validity of the statute. See, Note, Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Harvard L.Rev. 1392 (1969).
I would reverse and grant a new trial.2 I respectfully dissent from the majority’s different conclusion.
. In passing I note that two factors present in Simmons, which served as a basis of decision, are also conspicuously absent here. In Simmons the photographic identifications occurred one day after the robbery while the witnesses’ impressions and recollections of what they had seen were fresh, and each witness was able to make a courtroom identification at trial. These facts alleviated the Court’s concern for the reliability of photographic identifications. By contrast, the photographic identifications here were made 18 months after the event and neither witness could make a courtroom identification.
. In Wade the relief granted was remand for an evidentiary determination of whether the courtroom identification was tainted by the absence of counsel at the critical lineup. That relief would be inappropriate where, as here, two of three witnesses testifed solely as to their identification of Collins at the photographic lineup. Rather, the disposition is governed by Gilbert . where, in addition to an in-court identification, there was also testimony of the fact of identification at a pre-trial lineup.