Cleveland State University
From the SelectedWorks of Stephen W. Gard
1973
Recent Development, Kirby v. Illinois
Stephen W. Gard, Cleveland State University
Available at: http://works.bepress.com/stephen_gard/14/
+(,121/,1(
Citation: 6 Ind. L. Rev. 365 1972-1973
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prosecution of a witness who has been compelled to incriminate
himself, the promise has a hollow ring. Kastigar and Zicarelli
have now legalized the unfortunate process by which a witness will
be "whipsawed" between federal and state jurisdictions. The witness can be compelled to testify by the state and given only use/
derivative use immunity. The practical effect will be that the state
authorities can then prosecute the witness on investigatory leads
obtained from the compelled testimony, subject to asserting the
new evidence's independent source. The state can also turn the witness' testimony over to the federal authorities who will be able to
use the compelled evidence to prosecute the witness, again subject
to the independent source requirement. In this manner, the witness
may be shuttled among various state prosecuting authorities using
evidence unobtainable had the witness not been forced to testify.
Alternatively, the witness can be offered up to the federal authorities for prosecution. The result is a perversion of the fifth amendment privilege against self-incrimination, while giving lazy prosecutors a new fishing license in the form of use/derivative use
immunity statutes. The late Justice Black lamented this Pandora's
Box, the top to which has now been opened by the Kastigar and
Zicarelli decisions:
Indeed things have now reached the point ..
where a
person can be whipsawed into incriminating himself
under both state and federal law even though there is a
privilege against self-incrimination in the Constitution
of each . . . . I can not agree that we must accept this
intolerable state of affairs as a necessary part of our
federal system of government.8 9
39.
Knapp v. Schweitzer, 357 U.S. 371, 385 (1958) (Black, J., dissenting).
CONSTITUTIONAL LAW-CRIMINAL
PROCEDURE-Pre-indictment identification confrontations, without presence of counsel,
held constitutionally permitted.-Kirby v. Illinois, 406 U.S. 682
(1972).
On February 22, 1968, Thomas Kirby was found by police officers to be in possession of travelers checks and a social security
card bearing the name of Willie Shard. Unable to give a satisfactory explanation, Kirby was arrested. Upon arriving at the
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police station, the arresting officers first learned that a Willie
Shard had been robbed the preceding day.1 The police summoned
Shard to the station for the purpose of identifying Kirby and his
companion, Ralph Bean. This Shard did as petitioner and Bean
sat alone at a table flanked by two uniformed police officers.2
Neither petitioner nor Bean had been advised of any right to the
presence of counsel, and no attorney was present at the identifica3
tion confrontation.
More than six weeks later, petitioner and Bean were indicted
for robbery and subsequently convicted. Kirby's conviction was
affirmed by the Illinois appellate court,4 which held that People
v. Palmer5 was dispositive of the issue of the applicability of
United States v. Wade6 and Gilbert v. California7 to pre-indictment identification confrontations.
The rationale of the Supreme Court of Illinois in People v.
Palmer was disarmingly simple. The court merely cited language
in Wade and Gilbert which specified those lineups as post-indictment and then quoted Simmons v. United States8 where, in reference to the "lineup cases," it was maintained that "[t] he rationale
of [Wade and Gilbert] was that an accused is entitled to counsel
at any 'critical stage of the prosecution' and that a post-indictment
The United States Supreme
lineup is such a 'critical stage.'"
Court granted petitioner's writ of certiorari because "[t]he issue
of the applicability of Wade and Gilbert to pre-indictment confrontations [had] severely divided the courts."'10
1. Kirby v. Illinois, 406 U.S. 682, 684 (1972), noted in The Supreme Court,
1971 Term, 86 HARV. L. REv. 1, 156 (1972).
2. Id. at 691 (Brennan, J., joined by Douglas & Marshall, J.J., dissent
Ing).
3. Id. at 685.
4.
People v. Kirby, 121 Ill. App. 2d 323, 257 N.E.2d 589
(1970).
Bean's
conviction was reversed by the Illinois supreme court on the grounds that
the Identification was the product of an illegal search and arrest.
Bean, 121 Ill. App. 2d 332, 257 N.E.2d 562 (1970).
5. 41 Ill. 2d 571, 244 N.E.2d 173 (1969).
People v.
6. 388 U.S. 218 (1967).
7. 388 U.S. 263 (1967).
8. 390 U.S. 377 (1968).
9. Id. at 382-83.
10. 406 U.S. at 688 n.5. In fact all United States courts of appeals
which had considered the issue had held Wade and Gilbert were applicable
to post-arrest, pre-lndictment identification confrontations. Wilson v. Gaffney,
454 F.2d 142 (10th Cir. 1972); Government of Virgin Islands v. Callwood, 44G
F.2d 1206 (3d Cir. 1971);
United States v. Greene, 429 F.2d 193 (D.C.
Cir.
1970); Cooper v. Picard, 428 F.2d 1351 (1st Cir. 1970); United States v.
Phillips, 427 F.2d 1035 (9th Cir. 1970); United States v. Ayres, 426 F.2d 524
(2d Cir. 1970); United States v. Broadhead, 413 F.2d 1351 (7th Cir. 1969);
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On June 12, 1967, the United States Supreme Court, Mr. Justice Brennan speaking for the majority, decided United States v.
Wade based on the following reasoning: (1) Pre-trial lineups are
critical stages of the prosecution because they can and frequently do
settle the accused's fate and render the trial a mere formality. 1
(2) The sixth amendment right to counsel is applicable to all "critical stages of the proceedings," and the accused has the right to
counsel "whenever necessary to assure a meaningul 'defense.' "12
(3) Identification evidence is peculiarly untrustworthy due to (a)
"the dangers inherent in eyewitness identification" and (b) "the
suggestibility inherent in the context of the pre-trial identification."' 13 (4) "[Als is the case with secret interrogations, there is
serious difficulty in depicting what transpires at lineups and other
forms of identification confrontations." 14 (5) The presence of
counsel can work to avoid the prejudice that inheres in pre-trial
identification confrontations and thus protect both the accused's
right to a fair trial and the right to have effective assistance of
Rivers v. United States, 400 F.2d 935 (5th Cir. 1968).
Furthermore, fifteen states have found Wade and Gilbert applicable.
People v. Fowler, 1 Cal. 3d 335, 82 Cal. Rptr. 363, 461 P.2d 643 (1969); Martin
v. State, 279 N.E.2d 189 (Ind. 1972) ; State v. Singleton, 253 La. 18, 215 So.2d
838 (1968); Palmer v. State, 5 Md. App. 691, 249 A.2d 482 (1969); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E.2d 427 (1970); People v. Hutton,
21 Mich. App. 312, 175 N.W.2d 860 (1970); Thompson v. State, 451 P.2d 704
(Nev. 1969); State v. Edge, 111 N.J. Super. 182, 268 A.2d 35 (1970); State v.
Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Isaacs, 24 Ohio App. 2d 115,
265 N.E.2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738
(1970) ; In re Holley, 268 A.2d 723 (R.I. 1970) ; Martinez v. State, 437 S.W.2d 842
(Tex. Ct. Crim. App. 1969); State v. Hicks, 76 Wash. 2d 80, 455 P.2d 943 (1969);
Hayes v. State, 46 Wis. 2d 93, 175 NW.2d 625 (1970).
The Supreme Court of Indiana held in Martin v. State, supra, that a
suspect's right to counsel attaches at a post-arrest line-up where the investigation has focused on the accused. This rule is still valid in Indiana although
it will probably be re-evaluated in light of Kirby.
In contrast, the plurality could marshall only five lower court opinions
to support its view. State v. Fields, 104 Ariz. 486, 455 P.2d 964 (1969);
Perkins v. State, 228 So.2d 382 (Fla. 1969); People v. Palmer, 41 Ill. 2d 571,
244 N.E.2d 173 (1969); State v. Walters, 457 S.W.2d 817 (Mo. 1970); Buchanan
However, Buchanan
v. Commonwealth, 210 Va. 664, 173 S.E.2d 792 (1970).
v. Commonwealth, supra, is not very strong support for the plurality's posi"[I]t appears that there is
tion, considering the following statement:
no fixed time between crime and indictment when there accrues the right
to counsel at a witness-suspect confrontation." 173 S.E.2d at 794.
11. 388 U.S. at 224.
12. Id. at 224-25.
13. Id. at 235.
14. Id. at 230.
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counsel at that trial." (6) The deficiency in knowledge concerning
what actually transpires at the identification confrontation deprives
the accused of his right to meaningfully cross-examine the witnesses against him.' 6 The Supreme Court held specifically that in
Wade the post-indictment lineup was a critical stage of the prosecution because of the inherent dangers of prejudice and that the
presence of counsel was required at such lineups in order to avoid
such prejudice and deprivation of the accused's right to a meaningful confrontation at trial. 17
In the case of Gilbert v. California the accused's lineup also
had chanced to occur after his indictment. The Supreme Court took
the opportunity presented by Gilbert both to apply the Wade rule
to the states via the fourteenth amendment as well as to invoke a
per se exclusionary rule concerning evidence of pre-trial lineups
conducted in the absence of counsel. In Stovall v. Denno the petitioner's pre-trial identification confrontation did occur prior to his
indictment. The Court did not believe this fact important, however,
and affirmed Stovall's conviction solely on the grounds that Wade
and Gilbert were to be applied only prospectively. Therefore, the
United States Supreme Court appeared to have decided the issue
conclusively, and the right to counsel at all pre-trial confrontations
appeared securely fixed in American jurisprudence. At least that
was the consensus of American jurists and legal scholars. 8
In Kirby, Mr. Justice Stewart, writing for the Court in an
opinion joined by the Chief Justice, Mr. Justice Blackmun, and Mr.
Justice Rehnquist, 19 characterized the holdings of Wade and Gilbert
15. Id. at 236.
16. Id. at 231-32. In Kirby the plurality did not discuss the sixth amendment confrontation issue.
17. In Wade Mr. Justice Brennan stated the holding of the Court as
follows:
Since it appears that there is a grave potential for prejudice, intentional or not, in the pre-trial lineup, which may not be capable
of reconstruction at trial, and since presence of counsel itself can
often avert prejudice and assure a meaningful confrontation at trial,
there can be little doubt that for Wade the post-indictment lineup was
a critical stage of the prosecution at which he was "as much entitled
to such aid [of counsel] as at the trial Itself."
Id. at 236-37.
18. See 4 JOHN MARSHALL J. PRAC. & PROCEDURE 316 (1971); 29 U. PITr.
L. REv. 65 (1967); see also 51 MARQ. L. REV. 191 (1968); 63 Nw. U.L. REv. 251
(1968); 2 SUFFOLR: L. REV. 117 (1968); 36 U. CHI. L. REv. 830 (1969); 30 U.
PITT. L. REV. 517 (1969); 9 Wm. & MARY L. REv. 528 (1967). See note 10
supra.
19. Mr. Justice Powell concurred in the result In a separate opinion:
"As I would not extend the Wade-Gilbert per se exclusionary rule, I concur
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as limited to post-indictment lineups.2" According to the Kirby
plurality, this limited holding was in accordance with the rationale
of Wade-Gilbert which the Court ascertained by reference to
21
dicta found in Simmons v. United States.
By distinguishing the Wade-Gilbert rationale and holding as
pertinent only to the right to counsel at post-indictment lineups,
the Court enabled itself to decide Kirby on the basis of whether or
not the Wade-Gilbert rule should be extended to govern pre-indictment lineups. The Court decided that Wade-Gilbert should not be
so extended by reviewing the holdings of the sixth amendment
right to counsel precedents which have never extended that right
to a pre-indictment situation.2 2 In order to make its conclusions
in the result reached by the Court." 406 U.S. at 691.
20. The Court accomplished this by referring to Gilbert v. Galifornia
as follows:
[A] post-indictment pre-trial lineup at which the accused is exhibited
to identifying witnesses is a critical stage of the prosecution; that police conduct of such a lineup without notice to and in the absence of
his counsel denies the accused his Sixth [and fourteenth] amendment
right to counsel.
406 U.S. at 683, quoting 388 U.S. at 272.
21. 406 U.S. at 690, quoting 390 U.S. at 382-83. See text at note 9 supra.
22. Id at 688, citing Powell v. Alabama, 287 U.S. 45 (1932); Johnson
v. Zerbst, 304 U.S. 458 (1938); Hamilton v. Alabama, 368 U.S. 52 (1961); Gideon
v. Wainwright, 372 U.S. 335 (1963); White v. Maryland, 373 U.S. 59 (1963);
Massiah v. United States, 377 U.S. 201 (1964); United States v. Wade, 388
U.S. 218 (1969); Gilbert v. California, 388 U.S. 263 (1967); Coleman v.
Alabama, 399 U.S. 1 (1970). By consulting only the holdings of these
cases, the Kirby plurality conveniently ignored the following language of
Powell:
The right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel. Even the intelligent
and educated layman has small and sometimes no skill in the science
of law . . . . He requires the guiding hand of counsel at every stage of
the proceedings against him.
287 U.S. at 68-69 (emphasis added).
This language was cited with approval by the Court in Johnson v. Zerbst,
304 U.S. at 463; Spano v. New York, 360 U.S. 315, 325 (Douglas, J., concurring);
and Massiah v. United States, 377 U.S. at 204-05. Perhaps the most cogent
criticism of discovering constitutional principles by reference solely to holdings Is contained in Gideon v. Wainwright:
While the Court at the close of its Powell opinion did by its language,
as this Court frequently does, limit its holding to the particuliar
facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakeable.
372 U.S. at 343.
Interestingly, the Kirby plurality also chose to ignore United States v.
Marion, 404 U.S. 307 (1971), which, in consideration of another sixth amend-
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compatible with these precedents, it was necessary for the Court to
distinguish Escobedo v. Illinois2s and Miranda v. Arizona 24 as inapplicable to the case at bar.
Escobedo was differentiated by reference to Johnson v. New
Jersey,25 which the plurality read as not only limiting Escobedo
to its facts, but which also declared that ". . . the 'prime purpose'
of Escobedo was not to vindicate the constitutional right to counsel
as such, but, like Miranda, 'to guarantee full effectuation of the
,'"26 The Supreme Court
privilege against self-incrimination..
found Miranda inapplicable to Kirby because Miranda was based
upon the fifth amendment while Kirby was a sixth amendment
case.
27
According to Mr. Justice Stewart, application of a fifth
amendment case to a sixth amendment question would be to aban-
don "all semblance of principled constitutional adjudication."28
The plurality in Kirby also was faced with the dissent's as-
sertion that an indictment is a mere formalism in the pre-trial procedure. 29 In an attempt to refute this allegation, Mr. Justice
Stewart stated that the indictment marks the point in time when
the Government commits itself to prosecute and, therefore, it is
the beginning of the adversary system of criminal justice.8 0 It was
upon this reasoning that the Court concluded that it was merely refusing "to impart into a routine police investigation an absolute
constitutional guarantee."' 81
The limited grant of certiorari in Kirby
2
precluded the Court
ment claim, stated: "Invocation of the speedy trial provision thus need not
await indictment, information, or other formal charge." Id. at 321.
23. 378 U.S. 478 (1964).
24. 384 U.S. 436 (1966).
25. 384 U.S. 719 (1966).
26. 406 U.S. at 689, quoting 384 U.S. at 729.
27. Id. at 688.
28. Id.
29. Id. at 698-99.
30. Id. at 689.
31. Id. at 690. The Court did hold that pre-indictment Identification confrontations would be governed by the fourteenth amendment due process clause.
Id. at 691. The efficacy of this approach is questionable. See Stovall v.
Denno, 388 U.S. 293 (1967); People v. Kirby, 121 Ill. App. 2d 323, 257 N.E.2d
589 (1970).
32. Certiorari was granted limited to the narrow question:
Whether due process requires that an accused be advised of his right
to counsel prior to a pre-indictment show up at a police station
several hours after his arrest and forty-eight hours after the alleged
crime occurred.
Kirby v. Illinois, 402 U.S. 995 (1971).
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from considering accidental confrontations, "s confrontations occurring before custody,3 4 and on-the-scene encounters between the
witness and the suspect shortly after the occurrence of the crime."
The Court, perhaps unwisely, limited itself to consideration of the
Wade-Gilbert rule's applicability to a post-arrest, pre-indictment
identification confrontation bearing none of the countervailing
policy considerations that had originally been alluded to in Wade."
The Court chose to leave Wade intact although refusing to apply it
to an essentially similar situation where the issuance of an indictment was the only distinguishing factor. By viewing Kirby in this
manner, the plurality's characterization of the holding and
rationale of Wade and Gilbert becomes crucially important. If
that characterization cannot withstand scrutiny, then the entire
foundation of Kirby becomes illusory.
There are three fundamental considerations that must be
analyzed in order to discover the true rationale and holding of Wade
and Gilbert. First, the rationale and factual foundation of the
Wade case must be considered. Wade was grounded in the fact
that there is an inherent potential for prejudice and unintentional
suggestion in pre-trial identificaton proceedings, making those
proceedings a critical stage of the criminal prosecution. At such a
critical stage, the Court recognized the right of the accused to have
counsel present. If this probability of inherent prejudice and suggestion in identification procedures is the true rationale of Wade,
then it would appear that the mere issuance of an indictment is
irrelevant. The Kirby plurality made no attempt to dispute the
factual foundation of Wade, as well it could not since it was purporting to leave that decision intact.
Secondly, it becomes clear that the holdings of Wade and Gilbert were not so clearly limited to post-indictment lineups as the
decision of Mr. Justice Stewart in Kirby would have us believe. In
Wade, Mr. Justice Brennan, writing for the majority, stated that
the constitutional principle enunciated in a long line of Supreme
33. See United States v. Pollack, 427 F.2d 1169 (5th Cir. 1970); State
v. Bibbs, 461 S.W.2d 755 (Mo. 1970).
34. See Bratten v. Delaware, 307 F. Supp. 643 (Del. 1969); People v.
Cesarz, 44 Ill. 2d 180, 255 N.E.2d 1 (1969); State v. Moore, 111 N.J. Super. 528,
269 A.2d 534 (1970).
35. See Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969); United
States v. Davis, 399 F.2d 948 (2d Cir. 1968); State v. Boens, 8 Ariz. App. 110,
443 P.2d 925 (1968); McPhearson v. State, 253 Ind. 254, 253 N.E.2d 226 (1969);
State v. Satterfield, 103 N.J. Super. 291, 247 A.2d 144 (1968) ; State v. Bertha.
4 N.C. App. 422, 167 S.E.2d 33 (1969).
36. 388 U.S. at 237.
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Court cases beginning with Powell v. Alabama87 makes it the duty
of the Court to determine whether the absence of counsel at any
pre-trial confrontation is constitutionally permissible. Mr. Justice
Stewart foresaw the question presented in Kirby, and in Wade
concurred in the dissenting position of Mr. Justice White that the
Wade-Gilbert rule was applicable to pre-indictment identification
confrontations.18 If compatibility of rationale and decision is to be
the guide, then it appears that the characterization of Wade as
applicable to all pre-trial identifications would be the better interpretation. There remains, however, the question of why the Wade
and Gilbert decisions used the post-indictment language if in fact
they were not intended to be so limited. This question has been the
subject of scholarly and judicial discussion with the general consensus being that the term "post-indictment" in the Wade decision
was merely descriptive of the particular factual situation presented
and was not intended to be a limitation on the actual decision."
Since this explanation has reason to commend it and can alone reconcile the Wade rationale and decision, it would appear that Wade
was intended to be applicable to all pre-trial identification confrontations, regardless of whether occurring before or after indictment. In light of this analysis, the Kirby characterization of Wade
was, at best, erroneous, or, at worst, sophistry to achieve a desired
result.
Finally, a review of Supreme Court decisions after Wade and
Gilbert can only buttress this conclusion.
In Stovall v. Denno,
where the identification confrontation occurred prior to the is37.
287 U.S. 45 (1932).
In sum, the principle of Powell v. Alabama and succeeding cases
requires that we scrutinize any pre-trial confrontation of the accused
to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his
right meaningfully to cross-examine the witnesses against him
and to have effective assistance of counsel at the trial itself. It calls
upon us to analyze whether potential substantial prejudice to the
defendant's rights inheres in the particular confrontation and the
ability of counsel to help avoid that prejudice.
388 U.S. at 227 (emphasis in original).
38. Mr. Justice Stewart, who wrote the Court opinion's in Kirby, concurred in a dissent in Wade written by Mr. Justice White in which it was
stated:
The rule applies to any lineup, to any other techniques employed
to produce an identification and a fortiori to a face-to-face encounter
between the witness and the suspect alone, regardless of when the
identification occurs, in time or place, and whether before or after
indictment or information.
388 U.S. at 251.
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suance of the indictment,"° the Court stated that it was considering
the identical issue presented in Wade and Gilbert. 1 No member of
the Court saw any significance in the pre-indictment nature of
Stovall's identification confrontation. If Wade and Gilbert were in
fact limited to post-indictment identification confrontations, then
the Supreme Court clearly violated long-established constitutional
precepts by rendering an advisory opinion in Stovall.42 Further44
4
more, in neither Foster v. California1 nor Coleman v. Alabama,
both cases of pre-indictment confrontations, did any member of
the Court find the pre-indictment nature of the identification confrontation significant, and it was not mentoned in either opinion.
Although the defective characterization of Wade and Gilbert
renders the foundation of the Kirby decision illusory, the plurality
had to surmount even greater intellectual difficulties in order to
justify its post-indictment limitation. Unless the Court could distinguish Escobedo and Miranda so as to make those decisions inapplicable to the sixth amendment right asserted by Kirby, the weight
of precedent would require an "extension" of Wade and Gilbert to
pre-indictment identification confrontations. Intellectually, it is
impossible to so distinguish Escobedo and Miranda and leave Wade
and Gilbert intact since the latter decisions explicitly relied on
45
Escobedo and Miranda.
The Kirby plurality did not attempt to overcome this problem
but rather considered the applicability of Escobedo and Miranda
as if it were a matter of first impression for the Court. The plurality's statement that Escobedo and Miranda were inapplicable because their purpose was the protection of the accused's privilege
against self-incrimination clearly ignored their relevance in Wade
and that decision's statement that ". . . nothing decided or said
in the opinions in [Escobedo and Miranda] links the right to counsel only to protection of the fifth amendment rights.14
Similarly,
the plurality's assertion that Johnson v. New Jersey limited Esco39. See notes 10 & 18 supra. See also People v. Fowler, 1 Cal. 3d 335,
342, 82 Cal. Rptr. 363, 370, 461 P.2d 643, 650 (1969); In re Holley, 268 A.2d
723, 727 (R.I. 1970).
40.
406 U.S. at 702-03 n.12.
41. 388 U.S. at 294.
42. Stovall would hardly have been an appropriate vehicle to hold Wade
and Gilbert only prospectively applicable if all three cases had not presented
the same issue.
43. 394 U.S. 440 (1969).
44. 399 U.S. 1 (1970).
45. 388 U.S. at 225, 226, 230, 238.
46. 388 U.S. at 226.
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bedo to its facts, aside from its reliance on ambiguous language, 1
is unconvincing given the fact that Wade and Gilbert, decided after
Johnson, clearly found this decision applicable and not limited to
its facts by Johnson. Without a complete re-evaluation of Wade
and Gilbert and a forthright redefinition of those opinions, it is not
possible to rationally distinguish Escobedo and Miranda so as to
5
make them inapplicable in Kirby.4
The plurality in Kirby clearly expressed a radical departure
from the views held in Wade and Gilbert concerning the rights of
the accused. By freeing the police from absolute constitutional
obligations, the Kirby plurality effectively overruled Wade and
Gilbert. As Mr. Justice Sullivan of the Supreme Court of California stated: "[TIhe establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches
could only lead to a situation wherein substantially all lineups
' 9
would be conducted prior to indictment or information. 1
That Wade and Gilbert have had a beneficial impact on the
administration of criminal justice was not disputed in Kirby."°
Instead, the plurality used Kirby to express a preference for the
limitation of the rights of the accused to the formal stage of the
prosecution. In so doing the plurality has made an observation
concerning the American system of judicial administration that
brings to mind Mr. Justice Goldberg's statement in Escobedo:
No system worth preserving should have to fear that if
47. "Apart from its broad implications, the precise holding of Escobedo
was that statements elicited by the police during an interrogation may not be
used against the accused at a criminal trial." 384 U.S. at 733-34.
48. See 4 JOHN MARSITALL J. PRAC. & PROCEDURE 316 (1971):
The parallel between Wade, Escobedo, and Miranda is unmistakeable. All three are concerned with the subtleties of psychologically
oriented interrogations. Finally, each of them was an attempt to
counter the secrecy and police dominated atmosphere of their respective pre-trial proceeding. In Escobedo the test used to mark the beginning of a "critical stage" at which counsel was required was "focus
on a particuliar suspect." The Escobedo Court clearly rejected the
contention that the start of this critical stage depended on the obtaining of an indictment. In Miranda the test of "custodial interrogation" did not require indictment. The critical stage in Wade Is the
line-up, just as "focus on a particular suspect" and "custodial interrogation" is In Escobedo and Miranda. By analogy, this critical stage
should not be dependent on whether an indictment has been procured.
Id. at 321.
49. People v. Fowler, 1 Cal. 3d 335, 342, 82 Cal. Rptr. 363, 370, 461 P.2d
643, 650 (1969).
50. 29 U. PITT. L. REv. 65, 82 (1967).
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an accused is permitted to consult with a lawyer, he will
become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. 51
51.
378 U.S. at 490.
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