(concurring):
I concur in the observations expressed by the majority in Part III of the opinion. The sensible and costless procedural mechanism of requiring the Government to give notice of prior identification procedures before the jury hears identification testimony imposes no additional burdens upon the trial courts. In no sense does it contravene the letter or the spirit of the discovery rules or the Jencks Act. The suggestion that court and counsel be timely notified of prior identifications comports with the Federal Rules of Criminal Procedure, and was specifically contemplated by the Advisory Committee on Rules in its 1974 amendments to Rule 12(d), F.R.Crim.P. Nothing less than this will protect the right of an accused to test the constitutional validity of identification testimony before the jury is exposed to it. Nothing less will avoid the dilemma of the trial judge faced with the alternatives of sanctioning testimony that has already reached the jury or declaring a mistrial. Where the defense requests a hearing, it may be convened at any time convenient to the trial court provided that the hearing on taint precedes the actual testimony before the jury. Where the defense elects not to press for a hearing, the notice already upon the record will lend credence to the inference of waiver. In sum, the suggested procedure is desirable from every point of view including that of judicial economy, and I am in full agreement with its exposition by the majority.
I am unable to join, however, in the majority’s conclusion that “. . . on the totality of the circumstances presented by this record, the identifications were based on the observation by the witnesses of the defendant on February 12 and 14,” ante at 1167, and were untainted by pretrial identification procedures. The central problem in this case is that we are confronted with the claim of undue suggestion on only the briefest and most barren of records. No adver*1169sary hearing was ever held to explore these issues outside the presence of the jury. No findings of fact or conclusions of law were ever made by the district judge. In my view such a determination cannot be made in the first instance on appeal, particularly in light of the evidence of suggestive conduct which appears in this record.
For example, at least three and possibly four of the Government’s witnesses were present at a preliminary hearing in this case. None of them testified, and their presence in the courtroom on that occasion remains unexplained. The grand jury which sat to hear this case indicted appellant on the very day that the preliminary hearing was held.
A preliminary hearing is conducted to test the propriety of the detention of an accused person. It is not meant to provide a stage upon which the Government may parade a defendant for surreptitious viewing by witnesses whose only function at the hearing is to watch. United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1349-1351 (3rd Cir. 1972), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); United States v. Lipowitz, 407 F.2d 597, 599 (3rd Cir. 1969). How much these witnesses heard of the Magistrate’s determination of probable cause, how much they heard of the hearsay testimony of the FBI agent who was the sole witness at the hearing, what they heard about the appellant’s prior criminal record and what they heard about his bail conditions is nowhere even hinted at in the record before us. Here, in contrast to Riffert and Lipowitz, the suggestiveness inherent in any such pretrial confrontation was not balanced by any necessity for the testimony of the witnesses. None of them were called to testify. In view of the fact that the grand jury returned an indictment in this case on the day of the preliminary hearing, the purpose served by convening the hearing at all is obscure, and the questionable conduct of the Government echoes unanswered in the record. The inference that the witnesses were brought there by the Government solely to observe the defendant is obvious and such order.
In addition, the photographic spread to which the teller Milford White alluded in his testimony apparently was never before the district court, and is not now before us. The district judge never considered the fairness of the spread, and we can hardly do so now. For these reasons I do not believe that the record permits this Court, in the complete absence of any fact-finding by the district court, to dispose of the question of taint.
Thus in my opinion this case presents us squarely with the issue of waiver. I concur in the judgment of the Court for the following reasons:
(1) I would hold that the record demonstrates that appellant waived his right to a hearing outside the jury’s presence on the issue of taint; (2) I agree with the majority that the district judge should not be required to order such a hearing sua sponte in every case, regardless of the tactical or other judgments of defense counsel; and (3) I would hold that the decision to waive the hearing in the instant case was nevertheless not so clearly erroneous as to give rise to a violation of appellant’s right to the effective assistance of counsel.
The issue of taint was clearly present in counsel’s mind from the outset of the case. He raised it in Demand Seven of his motion for a bill of particulars. He obviously proceeded to trial without further inquiry because of the misleading nature of the Government’s response to this Demand, ante at 1165. Thus he did not learn of the existence of pretrial identification procedures until White had already identified appellant before the jury. While identifying surveillance photographs later in his direct testimony, White’s own sense of fairness impelled him to comment further:
I would like to say something. I think it’s only fair that I do this, because in fairness to Mr. Mitchell I did not identify Mr. Mitchell by these pictures here. I identified him by the other pictures that were shown to me. These pictures here I did not identify him by, on these pictures here. I only think it’s right that I state this.
*1170(Tr. 24-25) (Emphasis supplied) Having thus been alerted by the witness himself to the existence of pretrial identification procedures, appellant sought on cross-examination to elicit the circumstances of the photospread in order to impeach the fairness and validity of the prior out-of-court identification to which White had alluded.
Appellant took care to elicit from each of the successive identifying witnesses the circumstances of their prior contacts with appellant. It was these inquiries which revealed their presence at the preliminary hearing. Once again, however, appellant chose to rest upon his cross-examination. Each witness was permitted to leave the stand after cross-examination. At no time did appellant demand a hearing outside the presence of the jury. He presumably relied upon the record developed in cross-examination in the course of argument to the jury (which was not transcribed); he clearly did so in his post-trial motions addressed to the court. Appellant demonstrated awareness of the issues and chose to rely upon cross-examination in lieu of a hearing outside the jury’s presence. Under the circumstances, I would hold that the right to such a hearing is extinguished with the verdict of the jury.
To hold otherwise and to remand this case for a hearing would be to require that trial judges in the future order such hearings in every case, even over the objection of defense counsel. It might even require that the court conduct such an inquiry on its own, or relieve counsel who did not do so.* Such a precedent, moreover, would not be easily cabined, since many types of evidence may be challenged outside the presence of the jury as a matter of right. As the majority notes, the courts which have considered this issue have rejected the argument that the trial judge is under a duty to make sua sponte inquiry into the circumstances of identification testimony. United States v. Wingard, supra; cf. United States ex rel. Bush v. Ziegele, 474 F.2d 1356, 1360 (3rd Cir. 1973). I too am unwilling to countenance such a grave encroachment upon the adversary system. To remand this case, thereby holding by implication that the hearing cannot be waived, would enable us to dispose of the thorny issues here only at the cost of creating a precedent whose implications are obscure and potentially pernicious. Thus I find and would hold that Wade-Simmons-Stovall hearings can be waived, and that appellant waived such a hearing here. Cf. Estelle v. Williams, 425 U.S. 501, 513-515, 96 S.Ct. *11711691, 48 L.Ed.2d 126 (1976) (Powell, J., concurring).
The question remains whether appellant received the effective assistance of counsel in the context of the case at bar. Upon a review of the entire record, I am not persuaded that the decision to forego the hearing, erroneous as it now appears to have been, was below the standard of advocacy imposed by the Sixth Amendment. Moore v. United States, 432 F.2d 730, 736 (3rd Cir. 1971). There are obviously some instances in which tactical considerations may militate against such a hearing. When a witness has not yet made an in-court identification and where there is reason to doubt that the identification procedures employed were improper, there may well be reasons for the defense attorney to postpone or to eliminate an additional pretrial confrontation between the witness and his client. It is difficult, however, to perceive any tactical advantage in foregoing such a hearing once the jury has heard the witness’ identification testimony. Whatever damage could be done to the defendant has already been done. A defendant in this position has nothing to lose and much to gain from a hearing outside the jury’s presence.
Counsel here attempted to develop these issues on cross-examination, in effect trying the case as though Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) had not been decided. The full range of considerations which may have played a role in his decision to rest upon his cross-examination is not now before us. The demeanor of the witnesses during the course of cross-examination may have convinced him that further inquiry would be fruitless. Under the standards of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), counsel may have concluded that argument on the due process question was so closely related to the success of his argument to the jury that a separate hearing and a separate trier weie unnecessary. In sum, I am not persuaded that counsel’s decision to waive the hearing was so egregious as to deprive appellant of his right to the effective assistance of counsel. I would thus bind appellant to his record at trial, incomplete though it is.
For the foregoing reasons, I concur in the judgment but respectfully dissent from the reasoning of the majority.
The dilemma in which such a holding would place the trial courts is clear. Where the court is convinced that counsel has elected an incorrect or foolish course, should it interfere?Must it interfere? If, so, to what extent? Must counsel be relieved for failing to ask a question, or for failing to request a hearing to ask many? Even if the formidable Sixth Amendment issues raised by such judicial intrusion into the attorney-client relationship can be surmounted, the remedy is equally fraught with difficulty. To declare a mistrial in such a situation is a difficult decision at best. The implications of such action for double jeopardy purposes have not yet been fully explored. Compare United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), with United States v. Jom, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Where, as in the instant case, counsel is appointed by the court to represent an indigent, incarcerated defendant, the argument against permitting re-prosecution after a mistrial caused by derelictions of counsel may have substantial merit. The sole option available on appeal, to declare a mistrial sub siientio by the invocation of the plain error rule, is unavailable to the trial courts without attendant issues of double jeopardy.
It is of course a clear anomaly that historically both bench and bar have resisted certification procedures designed to regulate and improve the quality of the trial bar, content to indulge in the fiction that a graduate of a law school who has passed a bar examination is qualified to try any case, from the simplest intersection accident to the most serious criminal indictment. We should not forget that it is the courts themselves who license, and thus extend an implied promise of the competence of the attorney to all. When the plain error rule is invoked, or even discussed, there ought to be coordinate consideration given to remedial action, designed to improve the quality of the representation either in general or particular. The restrictions which the Sixth Amendment and the double jeopardy clause of the Fifth Amendment place upon the powers of the trial courts to intervene in an ongoing trial make this issue of crucial and immediate significance.