United States v. Rufus Brown

BAZELON, Chief Judge,

concurring in No. 22,340 United States v. Ash, 149 U.S.App.D.C. -, 461 F.2d 92 and dissenting in No. 24,452 United States v. Brown, Proctor & Williams: Given the complex entanglement of our holding in these cases it is distressingly easy to lose sight of the straightforward propositions on which our decisions should rest. First, identifications are crucial to the fairness and reliability of convictions. No other aspect of the accusatory process creates so much opportunity for miscarriage of justice — for punishment of an innocent man.1 Second, the safeguard at issue *146here obviously cannot be subjected to the attack so often leveled at judicial efforts to enforce the .Constitution. Even if the convenience of the police were a controlling consideration, by no stretch of the imagination could this safeguard tie their hands or make the apprehension and conviction of criminals more difficult. If the Court were to hold that counsel must be present at all photographic identifications which take place after arrest, even the most zealous critic could not reasonably argue that law enforcement would be hindered.2

In fact, the only argument against this safeguard is a vague suggestion that it would be bothersome for the police to telephone the defense attorney and to postpone the identification until he or his designee arrives. Considering the interests of the defendant and the very real possibility that an innocent man will be convicted on the basis of a mistaken identification, I am distressed by the failure to recognize an unambiguous constitutional requirement that counsel must be present at all post-arrest photographic identifications.

Recognizing that a post-arrest photographic identification is a “poor substitute for a corporeal lineup,” the Court holds in Ash that such an identification *147is a critical stage of the prosecution at which the presence of counsel is required. But the Court explicitly points out that “[w]e do not consider in this opinion whether or to what extent [the principle of Asft] should be applicable in case of a photographic showing subsequent to a lineup.” 3

By means of this limitation, the opinion in Ash leaves room for the decision in Brown, where the Court validates an uncounselled identification at which the witness was shown a photograph of a prior lineup. Yet in neither opinion does the Court convincingly explain why a photographic identification ceases to be a critical stage of the prosecution merely because it comes on the heels of a corporeal lineup. There are, of course, differences between Ash and Brown. But whether those differences amount to a meaningful distinction is a question answered conclusively in the negative by Judge Wright’s dissenting opinion, which I join, in Brown.

According to the Court’s opinion in Ash, the premise of Brown is that prosecuting attorneys, given their professional responsibilities and fears of jeopardizing their professional careers, are so unlikely to steer identifications that we should not impose on their busy schedules by requiring the presence of defense counsel at identifications which follow counselled lineups. Majority opinion in Ash at - of 149 U.S.App.D.C., at 104 of 461 F.2d 92; majority' opinion in Brown at - of 149 U.S.App.D.C., at 141 of 461 F.2d 134. Whatever the force of that reasoning, it clearly does not differentiate Brown from Ash. In Ash, just as in Brown, the identification interview was conducted by a prosecuting attorney. And as to the reasoning itself, see, for example, the confessions of a liberal and extremely well-intentioned “prosecuting attorney” in Schrag, On Her Majesty’s Secret Service: Protecting the Consumer in New York City, 80 Yale L.J. 1529, 1597-1598 (1971):

All of us in the [Consumer] Law Enforcement Division were civil libertarians. We applauded the Supreme Court decision requiring policemen to warn suspects that their admissions could be used against them, and scoffed at police officials who claimed that the ease would “hamstring” law enforcement officials. We condemned eavesdropping and wiretapping. We decried the loss of privacy in American life. We demonstrated when police forces took the law into their own hands and beat kids over the head, or when they stood by passively while construction workers did so. We protested the use of informers and secret agents to convict Jimmy Hof fa.
Yet here we were, after experiencing for only one year the frustrations of law enforcement, eager to emulate every police trick we despised, and indeed, ready to invent a few of our own. By the end of that year we had an impressive inventory of electronic gadgetry, including a subminiature tape recorder with one microphone that looked like a vest-pocket fountain pen and another that hooked onto a bra-strap. We thought of the press as one of a number of arrows for our bow, rather than the safeguard of a free people against oppressive government. We first learned that the government had to lie when we discovered that many subpoenas could not be served unless we used a ruse to get into the presence of a company’s officers. By the end of the year, we were routinely engaging in deception to fight deception, and even the use of wired secret agents to infiltrate companies was becoming commonplace.

In fact, of the two cases, Brown seems to present the greater danger of prejudice to the defense — and hence the greater need for the protection of counsel’s presence. For it is precisely where *148a photographic identification follows a corporeal lineup, as in Broim, that the need for counsel is likely to be most acute. Photographic identifications are, after all, unlikely to follow lineups at which the witnesses successfully identify the suspect. As Broivn unfortunately demonstrates, it is only where the prosecution is dissatisfied with the results of the lineup that it has a significant interest in making a second effort to obtain a positive identification. And this second attempt imposes the greatest incentive to resort, wittingly or unwittingly, to suggestive practices. Yet there is no discernible reason to conclude that the prior lineup will in any way enhance the fairness of the second, uncounselled attempt to obtain an identification. And it is entirely unclear to me why the presence of counsel at the earlier lineup —which, by hypothesis, failed to yield a positive identification — is thought to immunize the defendant from prejudice at the second identification, where the prosecution is trying to salvage its case and the risks of suggestivity are therefore maximized.

Accordingly, I dissent from Brown because it violates the controlling constitutional standard as announced in Ash. And for the same reason I would hold in Ash that counsel must be present at all photographic identifications held after the accused is in custody whether or not a lineup has previously been held.4 Nothing less will satisfy the demands of the Sixth Amendment. And nothing more is needed to satisfy the demands of law enforcement.

J. SKELLY WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, and SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concur, dissenting:

In June 1967 the Supreme Court decided a trilogy of “lineup” cases which brought into sharp focus the problem of pretrial identifications. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). These cases held that a lineup is a critical stage in the criminal process at which an accused is constitutionally entitled to the assistance of counsel. In reaching this result, the Court noted that pretrial identification procedures are “peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial,” and 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.” 388 U.S. at 228, 87 S.Ct. at 1933.

The Court therefore concluded that the presence of counsel at lineups is necessary (1) to minimize the likelihood of an unduly suggestive confrontation and (2) to enable an informed challenge to be made at trial to either the admissibility or the credibility of identification evidence. See Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, *1491234 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). With these considerations in mind, the Court laid down a prophylactic rule that evidence of identification at a tainted pretrial lineup is per se inadmissible, and the admission of such evidence is cause for automatic reversal unless shown to be “harmless beyond a reasonable doubt.” 388 U.S. at 274, 87 S.Ct. 1951.

Recognizing that many of the same dangers inherent in lineup procedures exist also in pretrial photographic identifications,1 this court in United States v. Ash, 149 U.S.App.D.C. —, 461 F.2d 92 (No. 22,340, decided today) (en banc), a companion to this case, held the teachings of Wade and Gilbert applicable to pretrial photographic identifications. The majority here, however, holds that presence of counsel is unnecessary where the identification is based on a fair and accurate photograph of a properly conducted lineup. I cannot agree. Although such a procedure may avoid many of the hazards inherent in other forms of photographic identifications, the potential for prejudice is by no means eliminated. There are two very separate aspects to the problem of suggestion in this context — the fairness of the photographs themselves and the manner in which they are presented to the witness. It may well be, as the majority suggests, that presence of counsel at the lineup will insure the fairness of the photographs. But the fairness of the photographs themselves is wholly irrelevant to the potential for prejudice in the manner in which they are displayed to the witness. Comment, Criminal Procedure — Photo-Identifications, 43 N.Y.U.L.Rev. 1019, 1025 (1968). Gestures or comments of the prosecutor at the time of the identification may lead the witness, uncertain at the prior lineup, to select the “correct” defendant. Indeed, the possibilities for suggestion, both conscious and unconscious, are manifold, and the mere fact that the photographs are not themselves prejudicial affords little protection indeed to the unrepresented accused.

The majority argues, however, that photographic identifications conducted by the prosecutor should be judicially acceptable because any dangers that may inhere in such identifications are reasonably guarded against by the professional responsibilities of an attorney. Assuming prosecutorial good faith, however, it can hardly be doubted that a prosecutor is, after all, only human. As such, his behavior may be fraught with wholly unintentional nuances which may suggest the “proper” response.2 Indeed, the Supreme Court in Wade made quite clear that it was concerned not only with intentional misbehavior, but also with the possibility of more subtle, yet equally prejudicial, unintentional suggestive influences. 388 U.S. at 229, 235, 236, 87 S.Ct. 1926, 18 L.Ed.2d 1149. These dangers cannot simply be assumed out of existence. Moreover, instances of abuse of prosecutorial discretion are not exactly unknown to the law, and a blanket assumption of prosecutorial good faith is, to say the least, highly questionable.3

In a further attempt to justify its result, the majority asserts that the dangers of suggestion and manipulation inherent in this photographic identification session are no greater than the dangers thát inhere in any pretrial witness interview. As this court noted in Ash, however, there is a crucial distinction *150between these two situations. Although the Government is forbidden to introduce testimony on direct of the statements made by a witness at an earlier interview with the prosecutor, no such rule bars admission of the witness’ pretrial photographic identification. United States v. Kirby, 138 U.S.App.D.C. 340, 342 n. 2, 427 F.2d 610, 612 n. 2 (1970). Moreover, testimony of a witness’ pretrial identification is likely to have far more weight with the jury than the taken for granted in-eourt identification. Clemons v. United States, supra, 133 U.S.App.D.C. at 40, 408 F.2d at 1243. And, as with lineups, once a witness has picked out the accused at a photographic display, he is unlikely to retract that identification later. As a result, “ ‘the issue of identity may * * * for all practical purposes be determined [at the pretrial confrontation], before the trial.’ ” United States v. Wade, supra, 388 U.S. at 229, 87 S.Ct. at 1933, quoting from Williams & Hammelmann, Identification Parades, Part I, [1963] Crim.L.Rev. 479, 482. Thus the potential prejudice to the accused is far greater in the context of photographic identifications than in the ordinary pretrial interview.

Finally, the majority argues that Wade is inapplicable here because “all three persons present [at the identification session] were subjected to vigorous cross-examination, and no hint of sug-gestivity or unfairness in the presentation on the part of the prosecution was elicited.” This argument is, however, a master stroke of circularity; it completely misses the thrust of Wade. In Wade the Court made clear that a prophylactic rule of exclusion was required because cross-examination alone could not protect the rights of the accused who was unrepresented at the identification. Noting that an absent defense counsel is seldom able to reconstruct at trial the precise manner and mode of lineup identification, the Court concluded that where “the accused is helpless to subject [the pretrial identification] 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. Pointer v. Texas, 380 U.S. 400 (1965), 85 S.Ct. 1065, 13 L.Ed.2d 923. And even though cross-examination is a precious safeguard to. a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus * * * the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the [identification] itself.” 388 U.S. at 235, 87 S.Ct. at 1936.

Moreover, the difficulty in reconstructing at trial an uncounselled pretrial photographic identification is substantially greater than an uncounselled lineup, for at least the accused is present at the lineup and can relate what occurred there to his attorney.4 See United States v. Zeiler, 3 Cir., 427 F.2d 1305, 1307 (1970); United States v. Hamilton, 137 U.S.App.D.C. 89, 92, 420 F.2d 1292, 1295 (1969); Thompson v. Nevada, 85 Nev. 134, 451 P.2d 704, 706, cert. denied, 396 U.S. 893, 90 S.Ct. 189, 24 L.Ed.2d 170 (1969); Comment, *151Criminal Procedure — Photo-Identifications, supra, 43 N.Y.U.L.Rev. at 1028. And since “witnesses * * * are [not] likely to be schooled in the detection of suggestive influences,” 388 U.S. at 230, 87 S.Ct. at 1934, and consequently cannot be relied on to expose them at trial, the need for presence of counsel is even more compelling in the context of photographic displays. What this court said in Mason v. United States, 134 U.S.App.D.C. 280, 284, 414 F.2d 1176, 1180 (1969), in a slightly different context, is equally pertinent to our own fact situation :

“* * * An absence of secrecy * * * is at best a modest benefit if no one is watching. So long as only the policeman and the witness know that an identification * * * is in process, the defendant will be hard put to discover the myriad subtle suggestions which may have passed from policeman to witness. * * * ”

Thus while it is true, as the majority argues, that defense counsel here was unable to uncover any hint of impropriety in the identification session, we do not know whether this was due to the actual lack of any such impropriety or, rather, to the severe handicap under which defense counsel was required to conduct the cross-examination. Wade was intended to eliminate just such uncertainty.

Moreover, the facts of this case demonstrate the need for presence of counsel at photographic displays. Mrs. Edge-comb’s identification of the accused came about under what can only be termed “unusual” circumstances. Between June 27, 1969, the date of the robbery, and October 25 of that year, Mrs. Edgecomb selected photographs of several persons other than the defendants as “resembling” the robbers, and on October 25 she failed to identify pictures of both Brown and Proctor. On the following day she again failed to identify a photograph of Proctor, and at the November 4 lineup she was unable to identify any of the defendants. Finally, almost eleven months after the robbery, and shortly before trial, she identified the accused from a photograph of the lineup in the prosecutor’s office.

Under the circumstances, the pretrial photographic identification here in question carried a grave potential for prejudice, whether intentional or not, which may not be capable of reconstruction at trial. And since presence of counsel might well have averted the possibility of such prejudice and would have assured a meaningful confrontation and cross-examination at trial, this case presents the precise type of problem that Wade sought to avoid. I would hold, therefore, that pretrial photographic identifications- — even where the photograph involved is of the lineup itself— are, like lineups, a critical stage of the prosecution at which the accused is constitutionally entitled to the assistance of counsel. This being so, the ruling of the District Court excluding Mrs. Edge-comb’s pretrial identification should be affirmed.

I would also affirm the District Court’s ruling as to Mrs. Edgeeomb’s in-court identification of the accused. In Wade the Court held that an in-court identification by a witness who participated in a “tainted” lineup must be excluded unless the Government proves “by clear and convincing evidence that the in-court [identification is] based upon observations of the suspect other than the lineup identification.” 388 U.S. at 240, 87 S.Ct. at 1939. Among the factors to be considered in making this determination are the opportunity of the witness to observe during the crime itself, any identification of another person prior to the tainted identification, any failure to identify the accused on a prior occasion, and the lapse of time between the crime and the in-court identification. 388 U.S. at 241, 87 S.Ct. 1926. Here, Mrs. Edgecomb observed the robbers, whom she had never seen before, for only a few moments on June 27, 1969, almost a year before trial. She subsequently failed to identify the defendants or their photographs on no less than four separate occasions. Her inability *152to identify the accused, whether or not due to a desire to be fair, evinces an uncertainty that cannot be lightly ignored.

Moreover, the District Court excluded her in-court identification as “tainted in some way by the recent viewing of the photograph.” Implicit in this ruling is a finding that the Government had failed to sustain its heavy burden of showing by “clear and convincing evidence” that the in-court identification was based solely on her recollection of the robbers themselves and was not affected by her subsequent exposure to the defendants and their photographs. In light of the “key role” played by the trial court in determining whether there was an independent source for the identification, Clemons v. United States, supra, 133 U.S.App.D.C. at 38, 408 F.2d at 1241, I see no reason to disturb the District Court’s ruling.

I respectfully dissent.

. Of course, not all of the problems connected with identifications can be fully cured by requiring the presence of counsel. One critical problem concerns their reliability, yet courts regularly protest a lack of interest in the reliability of identifications, as opposed to the suggestivity that may have prompted them, arguing that reliability is simply a question of fact for the jury. See, e. g., majority opinion in Brown, Proctor & Williams at - of 149 U.S.App.D.C., at 144 of 461 F.2d. There already exists, however, great doubts — if not firm evidence — about the adequacy and accuracy of the process. Unquestionably, identifications are often unreliable — perhaps consistently less reliable than lie detector tests, which we have in the past excluded for unreliability. See Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923); 3A J. Wigmore, Evidence § 999 at n. 2 (Chadbourn rev. 1970). The difference between our approach to polygraph tests and to identifications is, no doubt, attributable at least in part to the perceived differences in our need for the information. We have no diffi*146culty conceiving of a criminal process that operates without the aid of lie detectors, even if we assume that lie detectors might in some instances enhance the process. But it is hard to see how the process could operate without identifications, and we have bravely assumed that the jury is capable of evaluating their reliability.

Even accepting the validity of that balancing approach, it seems to me clear that we need more information about the reliability of the identification process and about the jury’s ability to cope with its responsibility. For it should be obvious that we cannot strike a reasonable and intelligent balance if we take pains to remain in ignorance of the pitfalls of the identification process. The empirical data now available indicates that the problem is far from fanciful. See generally P. Wall, Eye-Witness Identification in Criminal Cases (1965); I. Hunter, Memory 169-175 (1964); H. Munsterberg, On the Witness Stand 39-69 (1908); R. Yin, Face Recognition: A Special Process? 35-71 (1970) (unpublished dissertation submitted to the Department of Psychology, Massachusetts Institute of Technology). But for a variety of reasons we have been unwilling to face up to the doubts to which this data gives rise. And despite repeated charges and counter-charges concerning the accuracy of inter-racial identifications, we have developed a reluctance that is almost a taboo, cf. People v. Hearns, 18 App.Div.2d 922, 923, 238 N.Y.S.2d 173, 174-175 (2d Dept.1963), against even acknowledging the question, much less providing the jury with all of the available information. The data on this point is unfortunately meager, but it offers at least tentative support for the widely-held, common sense view that whites have greater difficulty identifying blacks than identifying other whites. And it also seems true that blacks can identify other blacks more easily than they can identify whites. See P. Wall, supra, 122-125; Malpass & Kravitz, Recognition for Faces of Own and Other Race, 13 J. Personality & Social Psychology 330 (1969); Fein-gold, The Influence of Environment on Identification of Persons and Things, 5 J.Crim.L., O. & P.S. 39, 50 (1914); of. Seeleman, The Influence of Attitude Upon the Remembering of Pictorial Material, Archives of Psychology No. 258, at 61 (1940) (“Unfavorable attitude toward the Negro tended to obliterate recognition of individual differences among Negro pictures, whereas favorable attitude tended to heighten recognition of these differences.”). More information is needed to assist the jury’s resolution of identification issues, and that information may reveal that in some instances questions of reliability should be resolved by courts as threshold questions of law. In any case, our doubts will not disappear merely because we run away from the problem.

. Assuming it were clear that the convenience of the police could be raised in opposition to a claim of constitutional right, the appropriate course would be to remand the case to the District Court for an inquiry into the extent, if any, of the inconvenience that would be imposed. Nothing, in the record before us even begins to indicate that this constitutional requirement of counsel would impose any discernible burden on the police or prosecution. Cf. United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

. Majority opinion in Ash at-of 149 U.S.App.D.C., at 104 of 461 F.2d 92.

. It is further regrettable that Ash may be thought to leave room not only for Brown but also for a considerable extension of Brown’s unfortunate result. In Brown the prosecution displayed to the witness a photograph of the very lineup which the witness had attended. Yet in Ash the Court puts to one side all cases in which a lineup was previously held, no matter what sort of photograph is subsequently shown to the witness. Thus, Ash refuses to decide whether counsel is constitutionally required where the witness sees a photograph which is not of the prior lineup. My objections to Brown apply with the same or greater force to this penumbra of Brown. Clearly, Brown does not control this question since its ill-conceived holding, which is premised in part on the assumed fairness of displaying a photograph of a previous, counselled lineup, has no application to a case where the witness is shown a photograph that is not of a lineup. I can see no justification for expanding the anomalous exception created by Brown, or for launching a further assault on the integrity of the principles established in Ash.

. See United States v. Zeiler, 3 Cir., 427 F.2d 1305 (1970); P. M. Wall, EyeWitness Identification in Criminal Cases 66-89 (1965); Comment, Criminal Procedure — Photo-Identifications, 43 N.Y.U.L.Rev. 1019 (1968); Note, Right to Counsel at Pre-trial Lineup, 63 Nw.U.L.Rev. 251, 258 (1968).

. See Williams & Hammelmann, Identification Parades, Part I, [1963] Crim.L. Rev. 479, 483; P. M. Wall, supra Note 1, at 26-65; Napley, Problems of Effecting tlie Presentation of the Case for a Defendant, 66 Colum.L.Rev. 94, 98-99 (1966).

. It should be noted that in AsTi the court reversed the conviction because of the absence of defense counsel, even though the identification interview was conducted by the prosecutor.

. Because the defendant is not present at the photographic identification, irregularities in the procedure may never come to light. The Government, in Wade, expressed the problem clearly:

“ * * * 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. When the prosecutor interviews a witness in 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.’ ”

Brief for petitioner, at 24-25, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). (Footnotes omitted.)