concurring. I agree that neither the federal nor our own state constitution entitles an accused to the assistance of counsel at a preindictment lineup. Concurrence on that score, however, does not mean that I am unaware that the potential for suggestive procedures and for abuse is present at a preindictment lineup just as it is at one that occurs subsequent to the initiation of adversary judicial proceedings. The Constitution minimizes that potential at post-indictment lineups by guaranteeing an accused the right to the presence of counsel. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). By monitoring the fairness of lineup procedures, counsel can assist an accused both in protecting his rights at the lineup and in preserving challenges for later review.
I would protect the accused at preindictment lineups as well by requiring the law enforcement authorities to take a color photograph of the lineup and additional color photographs of each participant, thereby enabling a reviewing court effectively to evaluate procedural fairness. Although the prosecution’s failure to produce such photographs should not itself invalidate an identification, I believe that such an *577omission, if unexplained, should be deemed to be evidence the lineup was tainted by suggestive procedures. State v. Earle, 60 N.J. 550, 552, 282 A.2d 2, 3 (1972).
Several courts have cited with approval police regulations requiring photographs or other forms of recording lineups for later review. United States v. Hamilton, 420 F.2d 1292, 1295 (D.C. Cir. 1969); People v. Jones, 47 Mich. App. 160, 163, 209 N.W.2d 322, 324 (1973); see People v. Fowler, 1 Cal. 3d 335, 346-48, 461 P.2d 643, 652-53, 82 Cal. Rptr. 363, 372-73 (1969). Commentators have also suggested similar procedures. E.g., Sobel, Eye-Witness Identification §56.03 at 107 (1972); Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L. Rev. 610, 627-28. I would adopt this requirement because an accused who is unable to reconstruct a lineup may be denied an effective means of challenging it.
Mr. Justice Kelleher, with whom Mr. Chief Justice Bevilacqua joins, dissenting. In 1970 this court held that the right to counsel enunciated in Wade and Gilbert applies to all lineups, whether they are conducted before or after the return of indictment. In re Holley, 107 R.I. 615, 618-19, 268 A.2d 723, 725-26 (1970). At that time we considered the Court’s reference to post-indictment lineups in those cases as being merely descriptive of the particular factual situation then present. Almost 2 years later, in Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), the United States Supreme said otherwise. In a plurality decision, Mr. Justice Stewart held that an accused’s sixth- and fourteenth-amendment right to counsel attaches “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 417.
Today, the majority holds that an accused in this state no longer enjoys a right to counsel at a preindictment lineup under either the United States or Rhode Island Constitution since it is not a “phase of criminal prosecution.” While I agree that we are bound by the Kirby Court’s interpretation of the Federal Constitution, I feel that the individual liberties *578at stake here require that we adopt a higher standard of protection by relying upon the assistance-of-counsel guarantee afforded by the Declaration of Rights that is embodied in art. I, §10, of the Rhode Island Constitution. In the past we have adopted a similar course of action. See State v. Maloof, 114 R.I. 380, 389, 333 A.2d 676, 681 (1975).
In the post-Kirby era, at least three states have held that an accused is entitled to have counsel present at a preindictment identification proceeding. Blue v. State, 558 P.2d 636 (Alas. 1977); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974).
In Richman the defendant had been found guilty of burglary and rape and on appeal argued that he had been denied his right to counsel at a lineup conducted some AA hours after his arrest but before he had been indicted. The Supreme Court of Pennsylvania reasoned that Kirby’s ultimate concern was with striking a balance between the “right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.” 406 U.S. at 691, 92 S. Ct. at 1883, 32 L. Ed. 2d at 418-19. Stating that Kirby only sought to limit the Wade rule when the interest of society would be enhanced, the court held that in Pennsylvania, judicial proceedings begin at the time of arrest. The Wade rule was, therefore, held to apply to all confrontations conducted after arrest. The court hastened to add that its decision did not require counsel at prompt on-the-scene indentifications. Commonwealth v. Richman, 458 Pa. at 174 N.5, 320 A.2d at 354 n.5.
In Jackson the defendant had been convicted of assault with intent to rob. On appeal he raised several issues, among which was the one stating that the trial judge should have excluded the victim’s in-court identification testimony as well as testimony pertaining to her pretrial identifications because he had apparently been denied counsel at certain photographic and lineup procedures. Aside from the Wade-Gilbert-Kirby trilogy, the appeal involved United States v. *579Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973), where the Supreme Court held that the sixth amendment does not guarantee an accused the right to counsel at photographic displays at which witnesses attempt to identify a suspect. After discussing each case, the Michigan Supreme Court held that
“independent of any Federal constitutional mandate * * * both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel and that, except in exigent circumstances, photographs of a suspect known to be in custody or who can readily be produced for a lineup may not be displayed to witnesses.” People v. Jackson, 391 Mich, at 338, 217 N.W.2d at 27.1
The court’s decision was based on its view that the best evidence of an eyewitness’ identification of a suspect is his response to a fairly conducted lineup unaffected by an earlier photographic display of the suspect.
In Blue the Supreme Court of Alaska ruled that under its constitution a suspect in custody is entitled to have counsel present at a preindictment lineup unless exigent circumstances exist in which efforts to provide counsel would unduly interfere with a prompt and purposeful investigaton. The court concluded, however, that providing counsel at Blue’s lineup, which was conducted just 3 hours after the crime and at 11 p.m., could have precluded the state’s diligent attempt to obtain an identification while the eyewitness’ memory was still fresh.
*580I subscribe to the sentiments expressed in Jackson and Blue. In balancing the state’s concern for a “prompt and purposeful investigation of an unsolved crime” with a suspect’s right “to be protected from prejudicial procedures,” I believe that a suspect, once in custody, has a right to have counsel present at a preindictment lineup unless exigent circumstances exist. In Holley this court quoted at length from People v. Fowler, 1 Cal. 3d 335, 461 P.2d 643, 82 Cal. Rptr. 363 (1969), where the California Supreme Court in a pre-Kirby decision held that the Wade-Gilbert rules were not restricted to post-indictment lineups.2 I feel it necessary to reiterate now that “[a] lineup which occurs prior to the point in question may be fraught with the same risks of suggestions as one occurring after that point, and may result in the same far-reaching consequences for the defendant.” Id. at 342, 461 P.2d at 649, 82 Cal. Rptr. at 369. As Judge Sobel states: “In practical effect the Kirby plurality has not only reversed Wade’s counsel requirement but also Wade’s principal salutary accomplishment.” Indeed, as this distinguished jurist points out, the federal constitutional right to counsel is now afforded to a defendant at a time when “he least needs it.” Sobel, Eye-Witness Identification §17 at 33 (1972).
Since I can find no evidence that the state’s investigation here would have been placed in jeopardy by providing the defendant with counsel prior to conducting the lineup, I would hold that he has been denied his right to counsel under art. I., §10, of our constitition. In applying this standard, I would follow the principle we set forth in State v. Gannites, 101 R.I. 216, 219-21, 221 A.2d 620, 622-23 (1966), and hold that the right to counsel would apply to lineups taking place 7 days following the publication of this opinion.
*581Dennis J. Roberts II, Attorney General. John S. Foley, Special Assistant Attorney General, for plaintiff. Mann ir Roney, Robert R. Mann, for defendant.In a footnote the court stated that “[a] violation of either or both rules will entitle a defendant to a hearing to determine whether the witness’ subsequent corporeal identification has a source independent of the photographic identification.” People v. Jackson, 391 Mich. 323, 339 n.16, 217 N.W.2d 22, 28 n.16.
In 1973 the California Supreme Court stated that in light of Kirby its Fowler decision was no longer controlling People v. Chojnacky, 8 Ca. 3d 759, 764, 505 P.2d 530, 533, 106 Cal. Rptr. 106, 109 (1973). There is’some dispute whether Chojnacky overrules Fowler. See People v. Johnson, 85 Cal. App. 3d 684,_, 149 Cal. Rptr. 661, 664-65 (1978).