United States v. Wade 388 U.S.

218, June 12, 1967 Facts: Several weeks after respondent's indictment for robbery of a federally insured bank and for conspiracy, respondent, without notice to his appointed counsel, was placed in a lineup in which each person wore strips of tape on his face, as the robber allegedly had done, and, on direction, repeated words like those the robber allegedly had used. Two bank employees identified respondent as the robber. At the trial, when asked if the robber was in the courtroom, they identified respondent. The prior lineup identifications were elicited on cross-examination. Urging that the conduct of the lineup violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, respondent filed a motion for judgment of acquittal or, alternatively, to strike the courtroom identifications. The trial court denied the motions, and respondent was convicted. The Court of Appeals reversed, holding that, though there was no Fifth Amendment deprivation, the absence of counsel at the lineup denied respondent his right to counsel under the Sixth Amendment and required the grant of a new trial at which the in-court identifications of those who had made lineup identifications would be excluded. Issue: Whether or not courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a postindictment line- up and respondents constitutional rights were violated. Held: In- court identification by a witness to whom the accused was exhibited in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that error in its admission was harmless. Since it is not clear that the Court of Appeals applied the prescribed rule of exclusion, and since the nature of the in-court identifications here was not an issue in the trial and cannot be determined on the record, the case must be remanded to the District Court for resolution of these issues. Neither the line up itself nor anything required therein violated respondents Fifth Amendment privilege against self- incrimination, since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment.