People v. Wilki

R. M. Maher, P.J.

(concurring). I specially con*146cur to state that, after reevaluating the question of on-the-scene identifications, I have reconsidered my position in People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978), lv den 406 Mich 906 (1979), and adopt the position taken in People v Turner, 120 Mich App 23; 328 NW2d 5 (1982), lv den 417 Mich 1064 (1983).

As the majority opinion states, panels of this Court have taken widely divergent positions on when a suspect is entitled to have counsel present at "prompt, 'on-the-scene’ corporeal identifications within minutes of the crime”, People v Anderson, 389 Mich 155, 187, fn 23; 205 NW2d 461 (1973). The positions have ranged from always permitting such identifications without counsel present (People v Coward, 111 Mich App 55; 315 NW2d 144 [1981]) to permitting them only if the police have no more than a "mere suspicion that the person in custody is wanted for the crime” (Dixon, supra). In Turner, supra, this Court took a middle position and held that counsel need be present only where the police have "very strong evidence” that the person apprehended is the criminal. While I now believe that the position in Turner is the most tenable position available to this Court, I am nevertheless troubled by the suggestiveness inherent in any on-the-scene identification and believe that this factor, and not the amount of evidence pointing to a particular suspect, should be the deciding criterion in determining whether or not the presence of counsel is required in an on-the-scene identification. Such identifications are generally one-on-one confrontations which occur almost immediately after the "victim” has suffered the trauma of a crime and in which the suspect is personally brought before the victim by a police officer. These circumstances must almost inevita*147bly lead to a high degree of suggestiveness. See Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969).

However, in People v Anderson, supra, the Supreme Court apparently determined that this suggestiveness did not outweigh the benefits of such prompt identifications without counsel present. See 389 Mich 187, fn 23. This Court is therefore precluded from holding that, as a matter of law, counsel must always be present at such procedures. Given the Supreme Court’s statement in Anderson, I believe that the position taken in Turner presents the best balance between the rights of suspects and the need for practical standards in police investigations. I therefore join the majority in adopting and applying the Turner position in this case.