[740]*740OPINION OF THE COURT
ALDISERT, Circuit Judge.
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1968), the Supreme, Court applied a constitutional gloss to what theretofore had been an evidentiary rule and held that a post-indictment lineup where the accused was exhibited to witnesses is a “critical stage” requiring the presence of counsel and that otherwise a presumption of impropriety obtains. In the absence of counsel, the prosecution must establish by clear and convincing evidence that any subsequent in-court identification was based upon observations other than the lipeup identification. In United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), this court extended the Wade “critical stage” rule to those instances where the prosecution introduces as evidence of guilt a pre-trial photographic identification of the accused which takes place after an accused has been arrested and charged by some judicial officer with the crime. Today we re-examine this holding.
Convicted of armed robbery, Cleveland Reed was given a ten-year sentence, and appealed to the Delaware Supreme Court, where he contended that while he was in custody, the alleged robbery victim made an out-of-court identification of him, without the presence of his counsel. The details of this pre-trial photographic identification were introduced by the State as part of its case. Relying on Wade and Gilbert, he argued that this evidence was inadmissible. The Delaware Supreme Court refused to extend the reach of those cases to these circumstances and denied relief. Reed v. State of Delaware, 281 A.2d 142 (Del.Sup. 1971). When Reed sought relief by federal habeas corpus, the district court ruled that it was duly bound to apply the teaching of Zeiler, and granted the writ. 329 F.Supp. 15 (D.Del.1971). The State has appealed.
Because Delaware’s appeal squarely meets the constitutional issue, we agreed to en banc consideration. In so doing, we recognize that the facts in this case would permit us to avoid meeting the substantive issue, deciding this case solely on the question of retroactivity. Indeed, such an approach would, in our view, admit of easy resolution.1 But we are persuaded that the substantive issue is important enough to merit reconsideration of the important, underlying constitutional questions.2 Thus, we to[741]*741day decide whether there should be continuing viability of the central issue therein stated:
The considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody.
427 F.2d at 1307.
Our anaylsis of Wade begins with the observation that this landmark case is not bottomed on the Fifth Amendment. Although Chief Justice Warren, and Justices Black, Douglas, and Fortas would have applied this additional constitutional dimension to the problem, the Court relied solely on Sixth Amendment considerations.3 Indeed, throughout the Court’s opinions in the Wade trilogy runs an unabated emphasis on its confrontation clause:
In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.
The issue posed in Wade was “ . whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation.” In focusing on the “confrontation compelled by the State between the accused and the victim or witnesses,” 388 U.S. at 228, 87 S.Ct. at 1933, the Court described lineups and showings as “either form of confrontation,” 388 U.S. at 229, 87 S.Ct. at 1933 and emphasized the difficulty in “depicting what transpires at lineups and other forms of identification confrontations,” 388 U.S. at 230, 87 S.Ct. at 1934. In discussing these problems it referred to “pre-trial confrontations for identification,” 388 U.S. at 232, 87 S.Ct. at 1935, “suggestive influences in the secrecy of the confrontation,” 388 U.S. at 235, 87 S.Ct. at 1936, “meaningful fionfronta-tions,” 388 U.S. at 236, 87 S.Ct. at 1937, that “no argument is made . . . that notice to counsel would have prejudicially delayed the confrontations,” 388 U.S. at 237, 87 S.Ct. at 1938.
Indeed, the Court suggested that the necessity for the constitutional rule would be removed if “ [legislative or other regulations, such as those of local police departments, [were instituted to] eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial,” 388 U.S. at 239, 87 S.Ct. at 1938.
Thus, while the constitutional underpinnings relate to the broader base of right of confrontations at trial, the actual mischief sought to be avoided was the physical confrontation of an un-counseled defendant with his alleged victim and other witnesses. Influenced by the dictates of public policy, the Court promulgated a presumption of constructive impropriety or suggestiveness in police lineups and showups, characterizing them as sources of “[a] grave potential for prejudice, intentional or not.” 388 U.S. at 236, 87 S.Ct. at 1937. This conclusion can be analogized to the presumption of constructive psychological or physical coercion in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1961), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964), environing the statements taken by the police of those in custody. Because of such atmospheres, the Court has concluded that the potential for harm to the accused can be minimized by the presence of counsel.
In the various Supreme Court articulations of Sixth Amendment requirements of counsel, there appears one omnipresent characteristic common to the diverse [742]*742fact situations — the physical presence of the accused at the “critical stage”: presence at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); presence at confrontation of witness, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); presence at police interrogation after indictment, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); presence at the police interrogation in custody, Escobedo v. Illinois, supra, and Miranda v. Arizona, supra; presence at preliminary hearings or arraignments, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); presence at sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct.
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[740]*740OPINION OF THE COURT
ALDISERT, Circuit Judge.
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1968), the Supreme, Court applied a constitutional gloss to what theretofore had been an evidentiary rule and held that a post-indictment lineup where the accused was exhibited to witnesses is a “critical stage” requiring the presence of counsel and that otherwise a presumption of impropriety obtains. In the absence of counsel, the prosecution must establish by clear and convincing evidence that any subsequent in-court identification was based upon observations other than the lipeup identification. In United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), this court extended the Wade “critical stage” rule to those instances where the prosecution introduces as evidence of guilt a pre-trial photographic identification of the accused which takes place after an accused has been arrested and charged by some judicial officer with the crime. Today we re-examine this holding.
Convicted of armed robbery, Cleveland Reed was given a ten-year sentence, and appealed to the Delaware Supreme Court, where he contended that while he was in custody, the alleged robbery victim made an out-of-court identification of him, without the presence of his counsel. The details of this pre-trial photographic identification were introduced by the State as part of its case. Relying on Wade and Gilbert, he argued that this evidence was inadmissible. The Delaware Supreme Court refused to extend the reach of those cases to these circumstances and denied relief. Reed v. State of Delaware, 281 A.2d 142 (Del.Sup. 1971). When Reed sought relief by federal habeas corpus, the district court ruled that it was duly bound to apply the teaching of Zeiler, and granted the writ. 329 F.Supp. 15 (D.Del.1971). The State has appealed.
Because Delaware’s appeal squarely meets the constitutional issue, we agreed to en banc consideration. In so doing, we recognize that the facts in this case would permit us to avoid meeting the substantive issue, deciding this case solely on the question of retroactivity. Indeed, such an approach would, in our view, admit of easy resolution.1 But we are persuaded that the substantive issue is important enough to merit reconsideration of the important, underlying constitutional questions.2 Thus, we to[741]*741day decide whether there should be continuing viability of the central issue therein stated:
The considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody.
427 F.2d at 1307.
Our anaylsis of Wade begins with the observation that this landmark case is not bottomed on the Fifth Amendment. Although Chief Justice Warren, and Justices Black, Douglas, and Fortas would have applied this additional constitutional dimension to the problem, the Court relied solely on Sixth Amendment considerations.3 Indeed, throughout the Court’s opinions in the Wade trilogy runs an unabated emphasis on its confrontation clause:
In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.
The issue posed in Wade was “ . whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation.” In focusing on the “confrontation compelled by the State between the accused and the victim or witnesses,” 388 U.S. at 228, 87 S.Ct. at 1933, the Court described lineups and showings as “either form of confrontation,” 388 U.S. at 229, 87 S.Ct. at 1933 and emphasized the difficulty in “depicting what transpires at lineups and other forms of identification confrontations,” 388 U.S. at 230, 87 S.Ct. at 1934. In discussing these problems it referred to “pre-trial confrontations for identification,” 388 U.S. at 232, 87 S.Ct. at 1935, “suggestive influences in the secrecy of the confrontation,” 388 U.S. at 235, 87 S.Ct. at 1936, “meaningful fionfronta-tions,” 388 U.S. at 236, 87 S.Ct. at 1937, that “no argument is made . . . that notice to counsel would have prejudicially delayed the confrontations,” 388 U.S. at 237, 87 S.Ct. at 1938.
Indeed, the Court suggested that the necessity for the constitutional rule would be removed if “ [legislative or other regulations, such as those of local police departments, [were instituted to] eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial,” 388 U.S. at 239, 87 S.Ct. at 1938.
Thus, while the constitutional underpinnings relate to the broader base of right of confrontations at trial, the actual mischief sought to be avoided was the physical confrontation of an un-counseled defendant with his alleged victim and other witnesses. Influenced by the dictates of public policy, the Court promulgated a presumption of constructive impropriety or suggestiveness in police lineups and showups, characterizing them as sources of “[a] grave potential for prejudice, intentional or not.” 388 U.S. at 236, 87 S.Ct. at 1937. This conclusion can be analogized to the presumption of constructive psychological or physical coercion in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1961), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1964), environing the statements taken by the police of those in custody. Because of such atmospheres, the Court has concluded that the potential for harm to the accused can be minimized by the presence of counsel.
In the various Supreme Court articulations of Sixth Amendment requirements of counsel, there appears one omnipresent characteristic common to the diverse [742]*742fact situations — the physical presence of the accused at the “critical stage”: presence at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); presence at confrontation of witness, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); presence at police interrogation after indictment, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); presence at the police interrogation in custody, Escobedo v. Illinois, supra, and Miranda v. Arizona, supra; presence at preliminary hearings or arraignments, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); presence at sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); presence at a juvenile hearing, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and presence at the lineups and showups, Wade and Gilbert.
No critical stage has been found to exist — at pre-trial or trial — requiring the assistance of counsel in a factual setting where the accused was not physically present and required or entitled to participate by action or inaction. This factual homology emanates not merely from the design of the Sixth Amendment, which created both the right of confrontation and the right to assistance of counsel, but also from a common rationale. “Critical stages” are those links in the prosecutorial chain of events in which the potential for incrimination inheres or at which the opportunity for effective defense must be seized or foregone. Whether his role be active or passive, the accused must, therefore, be present at all such stages, for neither the prosecution nor the defense can otherwise proceed. And to insure that each proceeds in fairness, “the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Wade, supra, 388 U.S. at 226, 87 S.Ct. at 1932. This tenet of Wade is manifestly inapposite to pretrial photographic displays, where no actual confrontation of the accused takes place. Because the accused is not present, there need be no concern that he must “stand alone.”
Recurring through Wade is the Court’s concern over the difficulty of reconstructing with fairness and accuracy what actually took place at the lineup or showup: “the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial.” 388 U.S. at 230, 87 S.Ct. at 1934. “In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” 388 U.S. at 231-232, 87 S.Ct. at 1934-1935. Those who would evaluate this consideration as supportive of the Zeiler rule reason that a photographic identification procedure where the accused is not present is an argument of a fortiori proportions: the very absence of the accused or his counsel from the pre-trial proceedings makes it even more difficult for the accused to determine whether suggestive or improper techniques were employed.
Conceding there is logic and merit to this argument, we are nevertheless convinced that it is relatively simple to reconstruct identification by photographs in the presence of the judge and jury. Even on an appellate level, this court was able to determine in Zeiler that the photographic display to the witnesses in the second trial4 was “deemed ‘so unnec[743]*743essarily suggestive and conducive to irreparable mistaken identification,’ and so pointless for any purpose other than suggestion, as to violate due process” to the extent that held that it was “not a permissible conclusion” for the trial court to hold that the government established its burden of proving by clear and convincing evidence that the in-court testimony was not tainted. 427 F.2d 1308. Contrariwise in Zeiler II, after remand, we were able to reach the opposite conclusion in a review of a display of photographs involving other witnesses in the first trial.5 447 F.2d 993 (3d Cir. 1971).
Indeed, Wade and Gilbert contain sufficient references suggesting that the court did not consider the photographic identification process as a procedure extremely difficult to reconstruct at trial. Wade spoke of “fingerprints, blood sample, clothing, hair, and the like,” and said that the “variables in techniques [are] few enough.” 388 U.S. at 227, 87 S.Ct. at 1932. Gilbert held that the taking of exemplars of handwriting was not a critical stage because “there is minimal risk that the absence of counsel might derogate from his right to a fair trial.” 388 U.S. at 267, 87 S.Ct. at 1953. And as Judge Friendly observed in United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir. 1969), cert. denied, Jessup v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101, rehearing denied, 396 U.S. 949, 90 S.Ct. 376, 24 L.Ed.2d 256:
in Wade itself, the Court listed as one of the ways the prosecution might attempt to show that a witness’ identification of defendant at trial was not the fruit of a lineup held in the absence of counsel a showing of “the identification by picture of the defendant prior to the lineup,” 388 U.S. at 241, 87 S.Ct. 1926, at 1940, which clearly implies that such identifications are permissible even when defendant’s counsel is not present.
We turn now to the pervasive concern of the Court — “the vagaries of eyewitness identification.” We do not minimize the importance of imposing safeguards which the Court described as “pe[744]*744culiarly riddled with innumerable dangers and variable factors.” 388 U.S. at 228, 87 S.Ct. at 1933. Indeed, exercising our supervisory power in United States v. Barber, 442 F.2d 517, 528 (3d Cir. 1971), we imposed mandatory jury instructions designed to protect the accused in the trials of federal crimes where factors not conducive to proper identification are not present. This court has always been alert to extend to one accused of crime the optimum of constitutional and procedural protections. We recognize that the exclusionary rule of Zeiler brings on collision course the public policy considerations of Wade and Gilbert and the equally respected consideration that evidence relevant to the truth-finding process should not arbitrarily be withheld from the fact finder; this is especially so where, as here, the evidence traditionally has been regarded as admissible and subject only to the rigorous tests of credibility. At a time when traditional rules of evidence are constantly being subjected to reexamination, and efforts are constantly being made to extend the reach of the exclusionary rule, the determination of whether certain evidence should be placed beyond or within the constitutional pale becomes a task of exquisite agony.
Seeking guidance, as we must, from the Supreme Court, we deem it significant that notwithstanding the formidable analysis of eye witness identification in Wade, 388 U.S. 228-239, 87 S.Ct. 1926, and official recognition of the possible untrustworthiness of eye witness identification, the Court has enunciated no constitutional inhibitions except those directly intertwined with the concept of confrontation. Insofar as constitutional parameters have been drawn, an eye witness completely unknown to the police prior to trial may walk into a courtroom and properly testify; “I saw the accused do the deed. I never saw him before or since. I only looked for a second. But I am absolutely, unshakenly positive that he is the man.” Other than cautionary instructions concerning the weight to be given his testimony, there is no constitutional barrier to the admission of such testimony, despite the danger of its inherent untrustworthiness.
Finally, in striking the balance between the “desirability of deterring the constitutionally objectionable practice” of uncontrolled police lineups and the “undesirability of excluding relevant evidence,” the Wade Court stated: “No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel” at lineups, 388 U.S. 237, 87 S.Ct. 1937, and that “counsel can hardly impede legitimate law enforcement,” 388 U.S. 238, 87 S.Ct. 1938.
Unlike the circumstances in Wade, we believe there are countervailing policy considerations in the use of photographic identification. The brief, amici curiae,6 filed in this proceeding suggests that “the policy reasons against such a rule are overwhelming.” After making inferences to the problems inherent in investigating a prison riot, the brief at pages 19-20 states:
But it is clear that the problems caused by law enforcement officers, witnesses and defense counsel by a blanket prohibition of uncounseled photographic identifications of in-custody defendants is not confined to extraordinary situations such as those involved in the Holmesburg riot. Often the defendant will be in custody at a place far removed from potential witnesses. Although there may well have been probable cause for his arrest, that probable cause may well be based on a description or identification by fewer than all of the available eyewitnesses, and the police are rightly interested in discovering whether the other eyewitnesses corroborate or contradict the original identifications. [745]*745The only practical way to do so where the defendant is distant from the scene or the witnesses widely scattered, is by photographic identifications. If it would be unduly burdensome on witnesses to bring them to the prison— and this burden is likely to be greatest in wide ranging federal crimes although witnesses to state crimes may also live far apart — the burden on defense counsel to travel from place to place with the investigating detectives if the witnesses are not to be forced to come to the suspect, would be equally great. And, assuming counsel can be forced to accompany the detectives, this would be unduly burdensome on the criminal process in view of the limited number of counsel available to represent defendants at trial, during interrogations and at live lineups, as well as on collateral attack and in the appellate courts.
Other situations under which photographic identification of an in-custody defendant seems highly appropriate include the case of a robber, rapist or burglar with a distinctive modus operands When such a defendant is arrested, it is certainly good practice for the police to interview the victims and witnesses to similar crimes. Yet these victims and witnesses are likely to be even more widely scattered than the victims or witnesses to a single criminal event and the burden of either gathering the witnesses for a lineup or compelling counsel to travel from place to place for photographic identifications will be proportionately greater. Similar appropriate uses of photographs include viewings by victims of robbers, larcenists, or burglars where the defendant has been arrested and is in custody on charges of receiving stolen goods or where fingerprints or other circumstantial evidence is what links the in-custody defendant to the crime.
See also, United States v. Clark, 289 F.Supp. 610, 621 (E.D.Pa.1968).
We therefore conclude that the principles which dictated the per se exclusionary rule in Wade and Gilbert should not have been made applicable to a pre-trial photographic identification as we did in Zeiler.7 If, as here, the identification is not in a live lineup at which defendant may be forced to act, speak or dress in a suggestive way, where the possibilities for suggestion are multiplied, where the ability to reconstruct the events is minimized, and where the effect of a positive identification is likely to be permanent, but at a viewing of immobile photographs easily reconstructible, far less subject to subtle suggestion, and far less indelible in its effect when the witness is later brought face to face with the accused, there is even less reason to denominate the procedure a critical stage at which counsel must be present.
We therefore overrule that portion of Zeiler which denominated a pre-trial photographic identification as a critical stage requiring the presence of counsel to satisfy the Sixth Amendment.
This is not to say that a defendant will not be protected from inherently suspect identification evidence. As stated by Mr. Justice Harlan in California v. Green, 399 U.S. 149, 186, n. 20, 90 S.Ct. 1930, 1950, 26 L.Ed.2d 489 (1970), (concurring opinion):
Due process does not permit a conviction based on no evidence, Thompson v. City of Louisville, 362 U.S. 199, [80 S.Ct. 624, 4 L.Ed.2d 654] (1960), Nixon v. Herndon, 273 U.S. 536, [47 S.Ct. 446, 71 L.Ed. 759] (1927), or on evidence so unreliable and untrust[746]*746worthy that it may be said that the accused had been tried by a kangaroo court. Cf. In re Oliver, supra, [333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948)]; Turner v. Louisiana, 379 U.S. 466, [85 S.Ct. 546, 13 L.Ed.2d 424] (1965).
In Stovall v. Denno, 388 U.S. 293, [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967), and Simmons v. United States, 390 U.S. 377, [88 S.Ct. 967, 19 L.Ed.2d 1247] (1968), the underlying principle was refined. The Court there recognized that evidence of identification— always a critical issue in a criminal trial — should not be received if the circumstances of a pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentifieation.
An examination of the record indicates that a Simmons argument on the totality of circumstances, United States v. Conway, 415 F.2d 158, 163-164 (3d Cir. 1969), was presented to the district court on the possible impermissible suggestiveness of the photographic display:
[E]ach case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable misidentifieation.
390 U.S. at 384, 88 S.Ct. 971.
Because this issue was presented to the Delaware court which decided it adversely to Reed, 281 A.2d at 147, it was properly before the district court. Expressing no view on the merits of this contention, we will remand the proceedings for a proper resolution of it.
The order granting the writ of habeas corpus will be vacated and the proceedings remanded.