United States v. Ash

United States v. Ash Case Brief

United States Supreme Court
413 U.S. 300 (1973)

ISSUE: Was it a violation of D's 6th Amdt. right to counsel when police used a photographic lineup outside the presence of D's counsel to see if the witness could identify D?
  • 2 men robbed a bank in Washington, DC with stockings over their faces, and the men escaped through an alleyway
  • A govt. informant told the authorities that D had discussed the robbery with him
  • FBI showed the 4 witnesses 5 B&W photos, including D's photo, and all 4 identified D
  • In preparation for trial 3 years later, an FBI agent & a prosecutor showed the 4 witnesses 5 color photos, and only 3 of the 4 witnesses were able to identify D; the 4th was unable to make a selection
  • Trial judge held that the govt. had shown by clear and convincing evidence that the in-court IDs would be based on observation of the suspect other than at the photo lineups
  • 3 witnesses testified but they refused to say that they were certain in their IDs -- none made an in-court ID of D's accomplice
  • The 4th W made positive in-court IDs of D and his accomplice, even though he had not been able to ID the accomplice in the color photos
  • Ct. App. reversed, holding that D's 6th Amdt. right to counsel was violated when his atty was not present at the photo lineup
  • Dangers of mistaken IDs N/A: The dangers of mistaken IDs mentioned in Wade were removed from context by the Ct. App. and were incorrectly utilized as a sufficient basis for requiring counsel
    • Wade Court recognized that there were times when the subsequent trial could cure a one-sided confrontation between prosecuting authorities and the uncounseled D
    • If accurate reconstruction of the event is possible, the opportunity to cure defects at trial causes the confrontation to cease to be "critical"
  • N/A to photographic displays: 6th Amdt. does not grant the right to counsel at photographic displays conducted by the govt. for the purpose of allowing a witness to attempt to ID the offender
    • Accused himself is not present at the time of the display, so there's no possibility that the accused might be misled by his lack of familiarity with the law
    • Not willing to extend the right to counsel to prosecutor's trial-preparation interviews with witnesses
    • Equality of access to photos removes any inequality in the adversary process and thus fulfills the spirit of the 6th Amdt.
    • Prosecutor's ethical responsibility is the primary safeguard here
  • NO right to have counsel present at photographic lineup
    • Defense counsel can reconstruct the photo lineup later on by obtaining the photos that were in the lineup
    • However, there's still no way to determine whether the police unduly suggestive a certain suspect during the lineup
  • 6th Amdt. right only for live lineups/physical confrontation

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