United States v. Ash

413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619, 1973 U.S. LEXIS 45

Opinions

Mr. Justice Blackmun

delivered the opinion of the Court.

In this case the Court is called upon to decide whether the Sixth Amendment¹ grants an accused the right to have counsel present whenever 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. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.² We granted certiorari to resolve the conflict and to decide this important constitutional question. 407 U. S. 909 (1972). We reverse and remand.

I

On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers’ drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.

A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash’s picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a co-defendant, John L. Bailey, in five counts related to this bank robbery, in violation of D. C. Code Ann. § 22-2901 and 18 U. S. C. §2113 (a).

Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment³ identification provides the basis for respondent Ash’s claim that he was denied the right to counsel at a “critical stage” of the prosecution.

No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.⁴ The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by “clear and convincing” evidence that in-court identifications would be “based on observation of the suspect other than the intervening observation.” App. 63-64.

At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey’s counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey’s counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey’s counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor’s request and over the objection of defense counsel.⁵

McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.

The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.

The five-member majority of the Court of Appeals held that Ash’s right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court’s lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967).

The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F. 2d, at 105-106 and nn. 20, 21, but-expressed doubt that the identifications at the trial had independent origins.

Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage” requiring counsel, and criticized the majority’s suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F. 2d, at 106-134.

II

The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification.

In Powell v. Alabama, 287 U. S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that “in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes.” Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule.

Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but the accused felon, in theory at least,⁶ could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.

A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland’s well-known observations in Powell bear repeating here:

“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U. S., at 69.

The Court frequently has interpreted the Sixth Amendment to assure that the “guiding hand of counsel” is available to those in need of its assistance. See, for example, Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), and Argersinger v. Hamlin, 407 U. S. 25, 31 (1972).

Another factor contributing to the colonial recognition of the accused’s right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:

“'[Ejarly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe’s inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” E. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted).

Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment’s counsel guarantee:

“It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”

This historical background suggests that the core purpose of the counsel guarantee was to assure “Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.⁷ Later developments have led this Court to recognize that “Assistance” would be less than meaningful if it were limited to the formal trial itself.

This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:

“When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings.” 388 U. S., at 224 (footnote omitted).

The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.

Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a “critical stage” preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.

The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:

“The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that's the man.' ” 388 U. S., at 235-236.

Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused’s right to the “Assistance of Counsel” has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U. S., at 54-55; 373 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U. S., at 205. Cf. Miranda v. Arizona, 384 U. S. 436, 466 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required “Assistance” at that hearing. 399 U. S., at 9.

The function of counsel in rendering “Assistance” continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused’s memory might be dimmed by “emotional tension,” that the accused’s credibility at trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U. S., at 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.

This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.

Ill

Although the Court of Appeals’ majority recognized the argument that “a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,” the court concluded that “other forms of prejudice,” mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.⁸

We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the “Assistance of Counsel” to preserve the adversary process by compensating for advantages of the prosecuting authorities.

The above discussion of Wade has. shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed , to render “Assistance” in counterbalancing any “overreaching” by the prosecution.

After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the “gathering of the prosecution’s evidence,” such as, for particular example, the taking of fingerprints or blood samples. 388 U. S., at 227.

The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not “critical.” Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:

“Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” 388 U. S., at 227-228.

The structure of Wade, viewed in light of the careful limitation of the Court’s language to “confrontations,” ⁹ makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be “critical.” The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a “critical” confrontation:

“Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ ” 388 U. S., at 239 (footnote omitted).

See, however, id., at 262 n. (opinion of Fortas, J.).

The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F. 2d 888 (1969), recognized that the “criticality” test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:

“None of the classical analyses of the assistance to be given by counsel, Justice Sutherland’s in Powell v. Alabama . . . and Justice Black’s in Johnson v. Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution’s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense’s interviews, notably with alibi witnesses.” Id., at 899-900.

We now undertake the threshhold analysis that must be addressed.

IV

A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.

Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor’s trial-preparation interviews with witnesses. Although photography is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.

That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.¹⁰ No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.¹¹ Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of a picture of the defendant would be useful to the prosecution.¹² In this very case, for example, the initial tender of the photographic display was by Bailey’s counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,¹³ it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment’s counsel guarantee.

The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.¹⁴ This Court has recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U. S. 377, 386 n. 6 (1968). Commentators have also proposed more accurate techniques.¹⁵

Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,¹⁶ who, as so often has been said, may “strike hard blows” but not “foul ones.” Berger v. United States, 295 U. S. 78, 88 (1935); Brady v. Maryland, 373 U. S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384.

We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.

We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U. S., at 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals’ remand to the District Court.

Reversed and remanded.

1 “In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.”

2 United States v. Bennett, 409 F. 2d 888, 898-900 (CA2), cert. denied sub nom. Haywood v. United States, 396 U. S. 852 (1969); United States ex rel. Reed v. Anderson, 461 F. 2d 739 (CA3 1972) (en banc); United States v. Collins, 416 F. 2d 696 (CA4 1969), cert. denied, 396 U. S. 1025 (1970); United States v. Ballard, 423 F. 2d 127 (CA5 1970); United States v. Serio, 440 F. 2d 827, 829-830 (CA6 1971); United States v. Robinson, 406 F. 2d 64, 67 (CA7), cert. denied, 395 U. S. 926 (1969); United States v. Long, 449 F. 2d 288, 301-302 (CA8 1971), cert. denied, 405 U. S. 974 (1972); Allen v. Rhay, 431 F. 2d 1160, 1166-1167 (CA9 1970); McGee v. United States, 402 F. 2d 434, 436 (CA10 1968), cert. denied, 394 U. S. 908 (1969). The en banc decision of the Third Circuit in Anderson overruled in part a panel decision in United States v. Zeiler, 427 F. 2d 1305 (CA3 1970).

The question has also produced conflicting decisions in state courts.. The majority view, as in the courts of appeals, rejects the claimed right'to counsel. See, e. g., McGhee v. State, 48 Ala. App. 330, 264 So. 2d 560 (Ala. Crim. App. 1972); State v. Yehling, 108 Ariz. 323, 498 P. 2d 145 (1972); People v. Lawrence, 4 Cal. 3d 273, 481 P. 2d 212 (1971), cert. denied, 407 U. S. 909 (1972); Reed v. State, - Del. -, 281 A. 2d 142 (1971); People v. Holiday, 47 Ill. 2d 300, 265 N. E. 2d 634 (1970); Baldwin v. State, 5 Md. App. 22, 245 A. 2d 98 (1968) (dicta); Commonwealth v. Ross, - Mass. -, 282 N. E. 2d 70 (1972), vacated on other grounds and remanded, 410 U. S. 901 (1973); Stevenson v. State, 244 So. 2d 30 (Miss. 1971); State v. Brookins, 468 S. W. 2d 42 (Mo. 1971) (dicta); People v. Coles, 34 App. Div. 2d 1051, 312 N. Y. S. 2d 621 (1970) (dicta); State v. Moss, 187 Neb. 391, 191 N. W. 2d 543 (1971); Drewry v. Commonwealth, 213 Va. 186, 191 S. E. 2d 178 (1972); State v. Nettles, 81 Wash. 2d 205, 500 P. 2d 752 (1972); Kain v. State, 48 Wis. 2d 212, 179 N. W. 2d 777 (1970). Cf. State v. Accor, 277 N. C. 65, 175 S. E. 2d 583 (1970). Several state courts, however, have granted a right to counsel at photographic identifications. See, e. g., Cox v. State, 219 So. 2d 762 (Fla. App. 1969) (video tapes); People v. Anderson, 389 Mich. 155, 205 N. W. 2d 461 (1973); Thompson v. State, 85 Nev. 134, 451 P. 2d 704, cert. denied, 396 U. S. 893 (1969); Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738, cert. denied, 400 U. S. 919 (1970).

3 Respondent Ash does not assert a right to counsel at the black- and-white photographic display in February 1966 because he recognizes that Kirby v. Illinois, 406 U. S. 682 (1972), forecloses application of the Sixth Amendment to events before the initiation of adversary criminal proceedings. Tr. of Oral Arg. 21-22; Brief for Respondent 32 n. 21.

4 At this hearing both the black-and-white and color photographs were introduced as exhibits. App. 44. The FBI agents who conducted the pretrial displays were called as witnesses and were cross-examined fully. App. 10, 28. Two of the four witnesses who were expected to make in-court identifications also testified and were cross-examined concerning the photographic identifications. App. 55, 65.

5 The majority of the Court of Appeals concluded that Ash’s counsel properly had preserved his objection to introduction of the photographs. 149 U. S. App. D. C., at 6 n. 6, 461 F. 2d, at 97 n. 6. Although the contrary view of the dissenting judges has been noted here by the Government, the majority’s ruling on this issue is not asserted by the Government as a basis for reversal. Pet. for Cert. 4 n. 6; Brief for United States 6 n. 6. Under these circumstances, we are not inclined to disturb the ruling of the Court of Appeals on this close procedural question. App. 104, 126-131-

6 Although the English limitation was not expressly rejected until 1836, the rule appears to have been relaxed in practice. 9 W. Holds-worth, History of English Law 235 (1926); 4 W. Blackstone, Commentaries *355-356.

7 Similar concerns eventually led to abandonment of the common-law rule in England. That rule originated at a time when counsel was said to be “hardly necessary” because expert knowledge of the law was not required at trial and systematic examination of witnesses had not yet developed. T. Plucknett, A Concise History of the Common Law 410 (4th ed. 1948).

Confrontation with legal technicalities became common at English trials when complex rules developed for attacking the indictment. Ibid. The English response was not an unlimited right to counsel, however, but was rather a right for counsel to argue only legal questions. See Powell v. Alabama, 287 U. S. 45, 60 (1932). A plea in abatement directed at insufficiency of the indictment, for example, allowed a prisoner to “pray counsel to be assigned to him to manage his exceptions and take more.” 2 M. Hale, Pleas of the Crown 236 (1736).

Confrontation with a professional prosecutor arose in English treason trials before it appeared in ordinary criminal trials. See 1 J. Stephen, History of the Criminal Law of England 348-350 (1883). In 1695 this imbalance in the adversary process was corrected by a statute granting prisoners the right to counsel at treason trials. 7 Wm. 3, c. 3 (1695). Hawkins explained that the professional ability of king’s counsel motivated this reform because it had “been found by experience that prisoners have been often under great disadvantages from the want of counsel, in prosecutions of high treason against the king’s person, which are generally managed for the crown with greater skill and zeal than ordinary prosecutions . . . .” 2 W. Hawkins, Pleas of the Crown 566 (Leach ed. 1787). The 1695 statute weakened the English rule and, after a century of narrowing practical application, see n. 6, supra, the rule was finally abrogated by statute in 1836. The Trials for Felony Act, 6 & 7 Wm. 4, c. 114 (1836).

8 “[T]he dangers of mistaken identification from uncounseled lineup identifications set forth in Wade are applicable in large measure to photographic as well as corporeal identifications. These include, notably, the possibilities of suggestive influence or mistake — particularly where witnesses had little or no opportunity for detailed observation during the crime; the difficulty of reconstructing sug-gestivity — even greater when the defendant is not even present; the tendency of a witness’s identification, once given under these circumstances, to be frozen. While these difficulties may be somewhat mitigated by preserving the photograph shown, it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel. The same may be said of the opportunity to examine the participants as to what went on in the course of the identification, whether at lineup or on photograph. Sometimes this may suffice to bring out all pertinent facts, even at a lineup, but this would not suffice under Wade to offset the constitutional infringement wrought by proceeding without counsel. The presence of counsel avoids possibilities of suggestiveness in the manner of presentation that are otherwise ineradicable.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101.

9 The Court rather narrowly defined the issues under consideration:

“The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an ‘identification parade’ or ‘showup,’ as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation .... But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations.” United States v. Wade, 388 U. S. 218, 229-230 (1967) (emphasis added).

The photographic identification could hardly have been overlooked by inadvertence since the Government stressed the similarity between lineups and photographic identifications. Brief for United States in Wade, No. 334, O. T. 1966, pp. 7, 14, 19, 24.

10 Duplication by defense counsel is a safeguard that normally is not available when a formal confrontation occurs. Defense counsel has no statutory authority to conduct a preliminary hearing, for example, and defense counsel will generally be prevented by practical considerations from conducting his own lineup. Even in some confrontations, however, the possibility of duplication may be important. The Court noted this in holding that the taking of handwriting exemplars did not constitute a “critical stage”:

“If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts.” Gilbert v. California, 388 U. S. 263, 267 (1967).

11 We do not suggest, of course, that defense counsel has any greater freedom than the prosecution to abuse the photographic identification. Evidence of photographic identifications conducted by the defense may be excluded as unreliable under the same standards that would be applied to unreliable identifications conducted by the Government.

12 The Court of Appeals deemed it significant that a photographic identification is admissible as substantive evidence, whereas other parts of interviews may be introduced only for impeachment. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. In this case defense counsel for Bailey introduced the inability to identify, and that was received into evidence. Thus defense counsel still received benefits equivalent to those available to the prosecution. Although defense counsel may be concerned that repeated photographic displays containing the accused’s picture as the only common characteristic will tend to promote identification of the accused, the defense has other balancing devices available to it, such as the use of a sufficiently large number of photographs to counteract this possibility.

13 Although the reliability of in-court identifications and the effectiveness of impeachment may be improved by equality of access, we do not suggest that the prosecution’s photographic identification would be more easily reconstructed at trial simply because defense counsel could conduct his own photographic display. But, as we have explained, supra, at 315-316, the possibility of perfect reconstruction is relevant to the evaluation of substitutes for counsel, not to the initial designation of an event as a “critical stage.”

14 Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Criminal Identification Methods, 38 Brooklyn L. Rev. 261, 299 (1971); Comment, 43 N. Y. U. L. Rev. 1019, 1022 (1968); Note, 2 Rutgers Camden L. J. 347, 359 (1970); Note, 21 Syracuse L. Rev. 1235, 1241-1242 (1970). A variant of this argument is that photographic identifications may be used to circumvent the need for counsel at lineups. Brief for Respondent 44-45.

15 E. g., P. Wall, Eye-Witness Identification in Criminal Cases 77-85 (1965); Sobel, supra, n. 14, at 309-310; Comment, 56 Iowa L. Rev. 408, 420-421 (1970).

16 Throughout a criminal prosecution the prosecutor’s ethical responsibility extends, of course, to' supervision of any continuing investigation of the case. By prescribing procedures to be used by his agents and by screening the evidence before trial with a view to eliminating'unreliable identifications, the prosecutor is able to minimize abuse in photographic displays even if they are conducted in his absence.