United States vs. Ash, 413 U.S. 300

United States vs. Ash, 413 U.S. 300

Nature:  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Keywords:  Right to counsel at a post indictment photographic lineup

Summary:  A number of informants were asked to identify a number of suspects in connection with a bank robbery. The respondent, Ash (the “respondent”), challenged the identification because counsel was not present at what was arguably a critical stage of the prosecution.

Synopsis of Rule of Law. An accused does not have the right to counsel at a post indictment photographic lineup

BLACKMUN, J.

Facts:  Charles J. Ash Jr. was indicted for robbing the American Trust & Security Company in Washington, D.C. Before his trial, almost three years after the robbery, an FBI agent and a prosecutor showed five color mug shot photographs to potential witnesses to make sure they would be able to make an in court identification of Ash. Ash’s counsel was not present for this process. Some of these witnesses then made in court identifications of Ash. Ash was convicted. The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that Ash’s Sixth Amendment right to counsel was violated because his attorney was not given the opportunity to be present for the photo identifications before trial. The court of appeals opinion expressed doubt that the in court identifications could have happened without the prior photo identifications.

Details:

•       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

PROCEDURAL HISTORY:

•       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

Issue:  Whether the Sixth Amendment of the Constitution grants an accused the right to have counsel present at a post indictment photographic identification procedure?

Held:  No. Justice Harry A. Blackmun, writing for a 7-3 majority, reversed the court of appeals and remanded. The Supreme Court held that the Sixth Amendment does not guarantee the right to counsel for photographic displays held for the purpose of allowing a witness to attempt an identification of the offender. A photographic display is different from a line up, because the accused is not present and is not in danger of being misled or overpowered by the opposing attorney. Justice Potter Stewart concurred in the judgment, stating that pretrial photographic displays are not a critical stage of prosecution. Justice William J. Brennan, Jr. dissented, arguing that there is no meaningful difference between a pretrial lineup and a pretrial photo identification, so the right to counsel should extend in both circumstances. Justice William O. Douglas and Justice Thurgood Marshall joined in the dissent.

Ruling:  reversed and remanded.

Doctrine: – Syllabus

The Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a "critical stage" when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary.

United States v. Wade, 388 U. S. 218, distinguished. Pp. 413 U. S. 306-321.