United States v. Rufus Brown

461 F.2d 134, 149 U.S. App. D.C. 43, 1971 U.S. App. LEXIS 11363

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 1, 1972
• Docket: 24452
• Status: Published

Opinions

WILKEY, Circuit Judge:

This is an appeal by the Government under 18 U.S.C. § 3731 from an order of the District Court suppressing “any photographic or in-court identification of the defendants Rufus Brown and Paul Proctor by Mrs. Barbara Edge-comb” at the trial. The case was initially argued before a three-judge panel of this court. We subsequently ordered sua sponte that the case be set down for argument and decision en banc. Finding the action of the trial court erroneous, we have vacated the order of the District Court and remanded the case for trial.

I. Facts and Proceedings Made the Basis of the District Court Order

A. The Offense

According to the evidence given at the suppression hearing, on 27 June 1969 two armed men, identified by eyewitnesses as appellees Proctor and Brown, robbed a Washington liquor store. During the course of the robbery the retired store owner, Israel Burka, arose from where he had been seated and took a few steps. Without uttering a word, Proctor allegedly shot Burka in the back. According to the Government’s evidence, while Burka lay face down on the floor in a large pool of blood, Brown forced the store manager to open the safe, and Proctor herded customers and clerks behind a counter.

As Mrs. Barbara Edgecomb, a customer who was the first to file behind the counter, stopped next to the fatally wounded Burka, she bent down to help him. As she looked up, the robber (identified as Proctor) who had fired the bullet into Burka’s back was “right there,” only three and a half feet away. Mrs. Edgecomb had other opportunities to observe both robbers at varying distances during the seven to eight minutes the robbery consumed. One hour later Burka was dead.

B. The Lineup

By October 1969 the police had information that appellees Proctor and Brown had robbed the liquor store, and that appellee Williams had driven the getaway car. Proctor was quoted as saying that he had “shot an old man.” After arrest, in a lineup on 4 November 1969 two witnesses identified Proctor and Brown as the gunmen.

At the lineup Proctor was represented by the same counsel who later appeared for him at the pre-trial hearing and on this appeal. Brown was also represented by counsel at the' lineup; different counsel were subsequently appointed for him and have represented him at the pretrial hearing and on appeal.

Brown does not claim that the lineup was unfair; Proctor contends it was. At the lineup the only objection clearly made by any counsel was that the defendants were brought there by an illegal arrest, an issue which is not before us on this appeal. In argument before the three-judge panel counsel for both sides agreed that the record is unclear whether Proctor’s counsel objected to the lineup on the grounds that Proctor was the only one of the nine persons who had a goatee. It is agreed that the witnesses at the lineup gave no indication that Proctor was in any way unique. In the lineup picture which we have in the record, it appears that the man next to Proctor has a mustache and goatee, as does Proctor. Six of the nine appear to have mustaches of varying density and style.

Appellees’ counsel on appeal agreed that, without the lineup photo having been shown to Mrs. Edgecomb, her testimony would be admissible at trial for whatever weight the jury chose to give it.

C. The Witness Edgecomb

In the pre-trial hearing Mrs. Edge-comb described the gunmen as she saw them at the time of the killing, and was able to give a very detailed description of both men. She said the light in the liquor store was fairly good, that there was no trouble with the light at all. She saw Brown for about three minutes, at times as close as four feet.¹ Proctor she remembered specially when she was standing next to the head of the fallen Burka while Proctor hovered over Bur-ka’s feet.² Immediately after the killing she and her husband went to the police building, saw a great number of pictures, but were unable to identify either of the two gunmen; nor were they able to do so on three other occasions when shown other photographs by the police.³

After the robbery was over Mrs. Edge-comb did not talk to her husband about what the gunmen looked like, “because we wanted to forget about it at that time.” While riding to the lineup on 4 November 1969, Mrs. Edgecomb told her husband that she thought she would know the robbers again. However, when she viewed the lineup, she was unable to identify anyone under the lights, which “just made people’s faces look like blobs.” Particularly she could not tell differing complexions. Under the lighting conditions she felt that she could not “fairly say for sure.”

On the way out of the police headquarters Mrs. Edgecomb did say to one of the policemen, “I wasn’t sure about a certain person in the lineup, but that I wouldn’t say yes for sure, that I’d like to see the lineup pictures.” On 19 May 1970, about two weeks prior to the scheduled trial, Mrs. Edgecomb came to the office of the prosecutor who was to try the case. In the course of the pretrial interview of the witness, he said, “You wanted to see the picture of the lineup, here it is.” Mrs. Edgecomb, without being asked or instructed, in the presence of the prosecutor and a detective of the homicide squad (her husband was outside the office), picked up the lineup photograph and systematically went down the line, reading from left to right. Originally she focused on Procter; then she “liked” Proctor, Brown, and the man on the left end next to Proctor (with mustache and goatee); and finally she chose Proctor and then Brown as the two robbers. Originally Mrs. Edgecomb had described Proctor at the time of the killing as having “the beginnings of a mustache and a goatee-type beard.” On seeing the lineup picture, she commented that the growth of his beard was different, that it was fuller in the lineup picture than at the time of the robbery.

D. The Trial Judge’s Suppression Order

The trial judge ruled that the 4 November 1969 lineup was properly conducted and that two other witnesses, liquor store employees, could testify as to their lineup identification and make whatever in-court identification they could. As to Mrs. Edgecomb,

However, the Court feels that in view of the fact that she did not pick out the people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the Court will deny the use of her identification of the defendants in the photograph at a later time.

The court further added,

In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendants at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph.

Although the trial court did not mention the Fifth or Sixth Amendment in making her suppression ruling, foot-noted in toto and sequentially below,⁴ nor did she make a specific finding as to any independent source, it appears that the District Judge’s ruling is relevant in the following manner to the two points alleged to be at issue on this appeal:

1. Appellees’ Sixth Amendment claim under the doctrine of United States v. Wade⁵ that representation by counsel was denied at a critical stage:

a. “It is felt that since this was after the lineup and close to the trial that it would have perhaps been better if counsel had been present at the time.”

b. “I think that if they had been present there would have been no question about it.”

c. “But there is always a question in their minds, defense counsel’s minds, as to just exactly what did happen at that time when she had not been able to determine prior thereto.”

2. Appellees’ Fifth Amendment claim of denial of due process on the grounds that the procedures followed were “so unnecessarily suggestive and conducive to irreparable mistaken identification,” and the existence or non-existence of any independent source for the in-court identification:

a. “It appears that Mrs. Edgecomb did have an ample opportunity to observe the two defendants while in the store.”

b. “However, the Court feels that in view of the fact that she did not pick out the people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the Court will deny the use of her identification of the defendants in the photograph at a later time.”

c. “There is no question in the Court’s mind that there was nothing improper insofar as her having seen the photograph in Mr. Shuker’s office.”

d. “In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendant at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph.”

e. “In view of the fact that she had seen photographs over a period of time and not made the identification before or at the lineup of the defendants the Court feels that the later identification [of lineup photo] just might be subject to question.”

f. “I don’t feel there was anything at all improper about counsel’s having shown her the photograph or actually her looking it over.”

Although the appellees have briefed and argued a Fifth Amendment due process justification for suppression of any in-court identification by Mrs. Edge-comb, the Government contends that an analysis of what District Judge Green said gives absolutely no support to forbidding photographic or in-court identification on Stovall6 due process grounds, that the trial court clearly ruled that the display of the lineup photograph was itself proper, that the trial court impliedly found an independent source for the witness’ identification at trial, and that the trial judge’s rationale for suppression was simply the absence of defendants’ counsel at the viewing of the lineup photograph, which is a Sixth Amendment ground under the rationale of Wade.

II. The Sixth Amendment Right to Counsel in Relation to a Witness' Post-Indictment Photographic Identification of a Defendant

A. The Photograph in Question

At the outset we note the following:

1. Counsel for both appellees Proctor and Brown were present at the lineup reproduced in the photograph shown to Mrs. Edgecomb.

2. We find no fault or unfairness in this lineup, judging from the picture itself and the testimony concerning it. Neither did the District Court. Brown even now makes no claim of unfairness. On the record it is agreed by both sides that it is unclear whether Proctor’s counsel, the same at the lineup as on this appeal, made any allegation that Proctor was the only one with a goatee; it appears in the photograph that the first man on the left, standing next to Proctor, does also have a mustache and goatee. Proctor’s only claim to unfairness in the lineup is a possible absence of sufficient goatees.

3. The lineup being fair, the photograph itself provides a fair comparison of nine persons from which Mrs. Edge-comb or any other witness at the robbery could make an identification.

4. The reason Mrs. Edgecomb did not make an identification at the lineup was plainly and clearly stated at the time to those present, i.e., all of the faces, their shapes and complexions, were equally indistinct to her because of the lightihg, and she could not fairly make any kind of choice. We take this reluctance to make an identification under these conditions, not as any indication of Mrs. Edgecomb’s uncertainty or lack of ability to make an identification under different conditions, but as an indication of Mrs. Edgecomb’s desire to be fair and accurate.

5. The witness herself requested, at the time she was leaving the lineup, to see a photograph of the lineup, because she believed she might be able to make an identification of at least one person from a photograph.

6. The Government complied with this request, not immediately after the lineup, but some seven months later, two weeks immediately prior to trial, as part of its preparation for trial by interviewing the witnesses as to their prospective testimony.

7. The witness herself initiated the discussion of the lineup photograph, without any prompting from the prosecutor or the detective present. She first picked out Proctor as she went down the lineup from left to right, then picked Brown and one other standing next to Proctor (also with mustache and goatee), then finally settled on Proctor and Brown as the two robbers.

B. The Authorities

Whatever might be said of another post-custodial photographic identification with a type photo or photos different from that we have in the case at bar, there is little in the rationale of Wade which supports the trial judge’s action or appellees’ position here. Throughout Part IV of the majority opinion in Wade there runs a two-factor rationale for the required presence of counsel at a lineup:

A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.⁷

And,

There is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. . . . The defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.⁸

From this Justice Brennan’s opinion concluded:

Since it appears that there is 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.’’ ⁹

However, prior to the enunciation of this rationale for right to counsel at lineups in Wade, the Supreme Court in Part III of its opinion had considered other pre-trial preparatory techniques, and concluded that these were different from the lineup. The Government had urged that the lineup was a mere preparatory step, not different for Sixth Amendment purposes from various other actions, such as scientific analysis of fingerprints, blood samples, clothing, hair, and the like. The Court said:

We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. 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 in the presentation of the evidence of its own experts. The denial of a right to have his counsel present at such analysis does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate his right to a fair trial.10 (Emphasis supplied.)

Obviously the pre-trial photo identification here is not similar to the scientific tests cited by the Court as examples of investigative steps, but we think the same reasoning — “there is minimal risk that his counsel’s absence at such stages might derogate his right to a fair trial” — applies. Since appellants were represented at the lineup by counsel, the lineup itself met the Sixth Amendment requirements of Wade. The photograph of that lineup is a completely neutral and wholly exact reproduction.¹¹ As for the possibility of manipulation by the prosecuting attorney in the showing of the photograph to the witness, we do not think the risk of impeding justice is such — considering the professional responsibilities and status of the prosecuting attorney, and the defense counsel’s right of cross-examination — as to require that this phase of preparation for trial by the busy prosecuting attorney be encumbered with attendance by defense counsel who has already attended the identification lineup recorded in the photograph.

There are many different kinds of photographs, and a wide variety of circumstances in which the validity of their use for criminal identification purposes may arise. The case before us involves a very special kind of photograph and a very special set of circumstances giving rise to its exhibition to the witness. To hold that there was no Sixth Amendment violation in this case, we need not, as some courts apparently have, embrace a general principle to the effect that no photographic showing can ever fall afoul of the Sixth Amendment for the reason that the right to counsel attaches only to confrontations, and confrontations by definition involve the presence of the accused.¹²

In the case before us there was a confrontation with counsel present. That was the lineup. All we have to decide is whether the subsequent showing of a photograph of that lineup to the witness occurred under circumstances necessitating the presence of counsel. This record shows no such need. Since defense counsel was present at the lineup, the lineup array was fair, and the picture was of the lineup itself, there is thus preserved for reconstruction at trial most of the factors which the Supreme Court in Wade felt required the presence of counsel, even by appellees’ definition.¹³ As for the manner in which the photograph was presented to the witness, all three persons present were subjected to vigorous cross-examination, and no hint of suggestivity or unfairness in the presentation on the part of the prosecution was elicited.¹⁴ Having had the benefit of this pre-trial hearing, defense counsel is now thoroughly prepared for cross-examination on this pretrial photographic identification.¹⁵ The rationale of Wade ¹⁶ has no application here.

III. The Fifth Amendment Claim of Denial of Due Process in the Identification Procedure

A. Suppression of the Pre-Trial Photo Identification

1. The District Court’s Ruling

Among other reasons for suppressing Mrs. Edgecomb’s identification of the lineup photo, the trial judge enunciated two which did not relate to denial of counsel: First, that she did not pick the people out at the time of the lineup; and, second, that she had seen photographs over a period of time and had not identified the two defendants in them.¹⁷ This might appear that the court was stating a Fifth Amendment ground for suppression of the pre-trial photo identification. But, before the first statement, between the two statements, and after the second, the trial judge made a finding of fact — “It appears that Mrs. Edgeeomb did have an ample opportunity to observe the two defendants while in the store” (2a, supra) —and conclusions of law — “There is no question in the court’s mind that there was nothing improper insofar as her having seen the photograph in Mr. Shu-ker’s office” (2c, supra), and “I don’t feel there was anything at all improper about counsel’s having shown her the photograph or actually her looking it over” (2f, supra) — which completely negate any due process violation.

We conclude that the trial court’s ruling really rested unambiguously on Sixth Amendment grounds, but whether or not the trial court relied on a Fifth Amendment rationale, there is nothing in the record to support such reliance. The photograph depicted a lineup, which we and the trial court have found to be fair, during which appellees were represented by counsel. Mrs. Edgeeomb and Detective Pierson were vigorously cross-examined regarding the 19 May interview, and there is nothing in the record which hints at anything in any way suggestive concerning the manner in which the photograph was presented to Mrs. Edgeeomb or any other actions taken to influence Mrs. Edge-comb’s testimony.

2. Appellees’ Position

Appellees’ brief makes a Fifth Amendment denial of due process argument as justification for the trial court’s suppression of Mrs. Edgecomb’s pre-trial photographic identification.

In support of this argument, appellees recite and dwell at length upon the times at which Mrs. Edgeeomb did not make an identification of Proctor and Brown. Specifically, on 25 October 1969, when shown ten photographs including both Proctor and Brown, she was unable to identify anyone. On 26 October 1969, she was shown eight photographs, including Proctor and Brown, out of which she “liked” Brown and one other not involved in the crime, but was not at all certain. On 4 November 1969 at the lineup, already discussed in detail, she made no identification, in fact no attempt to pick out anyone because of the reasons previously stated. She did, however, ask for a photograph of this lineup, because she felt that without the glaring lights, the attendant confusion, and the nearby presence of suspected criminals she might identify at least one person in that lineup. On 19 May 1970 she was shown this photograph, and without any suggestion whatsoever proceeded in her own way to identify both Proctor and Brown. Appellees also cite Mrs. Edgecomb’s reluctance to talk about the crime with her husband or anyone else as an indication of uncertainty in her identification.

3. Testimony as to Pre-trial Photographic Identification Admissible

Appellees interpret Mrs. Edge-comb’s hesitancy in firmly identifying the two perpetrators of this murder and robbery as implying a lack of accuracy in her identification and as justifying invalidating her subsequent identification. Neither conclusion is correct. Mrs. Edgecomb’s testimony is replete with indications of her awareness of the seriousness of the crime, and of the seriousness of her identification of anyone perpetrating murder. We interpret her hesitancy as the hesitancy of the responsible citizen knowingly performing an important act. It has been frequently observed that, sad to relate, the more glib and self-assured witness sometimes makes a stronger impression on an unsophisticated jury than does a careful and conscientious witness, who registered fairly his certainties and uncertainties on different aspects of his testimony. The appellees urge us to draw the same false conclusion, i. e., take the conscientious effort of Mrs. Edgecomb to be absolutely fair and careful in her identification as the mark of an unreliable or influenced witness, when in fact it is probably the mark of reliability and independence of judgment.

It is significant that the photos shown to the witness in October, allegedly of Brown and Proctor, do not at all resemble the appellees as they appear in the lineup photo. In reliance on both briefs’ statement that Proctor’s photo was included in each group, we believe Proctor is identifiable in two individual photos, one in each group shown. (Mrs. Edge-comb was not told a definite suspect was in either group, and had twice previously been shown many photos in which Brown and Proctor were not included; she made no identification on either occasion.) As for Brown, there appears one photo in each group that is similar to Brown’s picture in the lineup, but these two individual photos appear to be of two different men.

We draw these conclusions: First, that it is thoroughly understandable why Mrs. Edgecomb made no identification of Brown and Proctor from the individual photos shown her in October. Second, we conclude that neither her identification of Brown and Proctor in the lineup photograph nor her possible identification of the appellees at trial was or would be “tainted” by viewing the individual photos; rather, such identification would be made in spite of such viewing. It follows that appellees’ due process violation argument based on repeated showings of photographs of the accused to the witness — on the facts of this case — is not sustainable. And, third, it appears that Mrs. Edgecomb did have an ample opportunity to observe the two defendants while in the store.

To whatever extent the argument about Mrs. Edgecomb’s hesitancy in making her identification of Proctor and Brown has validity or affects the strength of her testimony, it is an argument which appellees can make to a jury. But it is not a valid due process argument for suppressing her identification of the lineup photograph.

In considering the admissibility of identification evidence at trial, constitutional infirmities will bar its admission, but testimonial infirmities go only to the weight of the evidence. We start with the principle, well phrased by Judge (now Chief Justice) Burger in a different context but thoroughly applicable here: “When an eyewitness is willing to give testimony, under oath and subject to all the rigors of cross-examination and penalties of perjury, he must be heard.”¹⁸

B. Suppression of the In-Court Identification

The only ground advanced by the trial judge for her suppression of the prospective in-court testimony of Mrs. Edge-comb was:

In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendants at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph. (2d, supra)

Of course, if a pre-trial identification is found to have been obtained in violation of the accused’s Fifth or Sixth Amendment rights, the burden is then on the Government to show an “independent source” for any subsequent identification made at trial.¹⁹ A finding that this burden was not met may be inferred from the District Judge’s statement quoted above. The opposite can also be inferred from what the District Judge plainly stated at the outset, “It appears that Mrs. Edgecomb did have an ample opportunity to observe the two defendants while in the store,” that Mrs. Edgecomb did have an independent source for in-trial identification.

At oral argument appellees’ counsel conceded that, without the display of the lineup photograph, Mrs. Edgeeomb’s testimony would be admissible at trial, for whatever weight the jury might give it.²⁰

3. In-Trial Identification Permissible

On the whole record of the pre-trial hearing, evaluating Mrs. Edgecomb’s opportunity to observe at the time of the robbery and murder, the comparative clarity of the lineup photograph and the individual photographs of the accused shown the witness, her care, selectivity and spontaniety in making the identifications in the lineup photograph which she did (coupled with the previous refusal to identify in the other photos), we conclude that the witness Edgecomb had an independent source from which she may attempt an in-court identification of the accused at trial.²¹

We have found that there were no Sixth Amendment right to counsel nor Fifth Amendment due process violations involved in the showing of the lineup photograph to Mrs. Edgecomb. It therefore follows that no showing of an “independent source” is required, although the trial court may be considered to have determined an independent source and on the record we have so determined; hence, any in-court identification by Mrs. Edgecomb will be properly admissible at trial.

Reversed and remanded.

1 . She described Brown as a tallish man; slender; a long face, with a long cheekbone to the jawline, high forehead; lightish complexion; hair cut shortish, not an Afro cut but beginning to fill, about an inch and a half long; wearing a greenish shirt with long sleeves, kind of a checkish thing; wearing grayish or tan slacks.

2 . According to Mrs. Edgecomb’s description, Proctor had a heart-shaped face; medium dark complexion; about 5'11" in height; high cheekbones, accentuated cheekbones; wearing a burgundy-ma-roonish kind of shirt, and his sleeves weren’t short. “He had the beginnings of a mustache and a goatee-type beard.” His eyes were “lazy,” with heavy lids, well-shaped brows, hair about an inch and a half in length.

3 . It was only on the latter two of these occasions, 25 and 26 October 1969, that pictures of Brown and Proctor were included in the groups of photographs viewed. See infra, pp. 346-147.

4 . The trial court’s opinion, delivered orally from the bench, together with the inquiries of counsel with respect thereto, appear in the record as follows:

THE COURT: The Court has taken under advisement the question of the identification by Mrs. Edgecomb.

It appears that Mrs. Edgecomb did have an ample opportunity to observe the two defendants while in the store.

However, the Court feels that in view of the fact that she did not pick out tlie people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the Court will deny the use of her identification of the defendants in the photograph at a later time.

There is no question in the Court’s mind that there was nothing improper insofar as her having seen the photograph in [the prosecutor’s] office.

However, it is felt that since this was after the lineup and close to the trial that it would have perhaps been better if counsel had been present at the time.

In view of the fact that the photographic identification is excluded the Court feels that she should not make an in-court identification of the defendants at the time of her appearance here in fear it might be tainted in some way by the recent viewing of the photograph.

[DEFENSE COUNSEL]: Thank you, Your Honor.

[THE PROSECUTOR] : Is it Your Honor’s ruling then that there is some taint in the viewing of the photograph ?

THE COURT: Just with an abundance of caution insofar as the defendants are concerned.

The court feels if there is any question that it should be resolved in favor of the defendants and, therefore, that is the reason for the Court’s ruling.

In view of the fact that she bad seen photographs over a period of time and not made tile identification before or at the lineup of the defendants the Court feels that the later identification just might be subject to question.

[THE PROSECUTOR]: As I understand it, Your Honor had stated that there was amide opportunity for her to observe but that it was the Court’s feeling that counsel should have been present when she viewed the photograph of the lineup?

THE COURT: I think that if they had been present there would have been no question about it.

I don’t feel there was anything at all improper about counsel’s having shown her the photograph or actually her looking it over but there is always a question in their minds, defense counsels’ minds, as to just exactly what did happen at that time when she had not been able to determine prior thereto.

5 . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

6 . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

7 . 388 U.S. 218, 228, 87 S.Ct. 1926, 1933.

8 . Id. at 230, 87 S.Ct. at 1934.

9 . Id. at 236-237, 87 S.Ct. at 1937.

10 . Id. at 227-228, 87 S.Ct. at 1932.

11 . The dissenting judges accuse us of missing the thrust of Wade, in that we do not believe that the Wade rationale of the difficulty of reconstruction at trial of the “precise manner and mode of lineup identification” applies to a pre-trial photographic identification, such as we have here. We are of this belief because we do not feel that a pre-trial photographic identification as in this case presents as many elements difficult of reconstruction as does the “little drama” of a lineup itself. See the writer’s dissenting opinion in United States v. Ash, 149 U.S.App.D.C. -, -, 461 F.2d 92, 106 (No. 22,340, decided this day).

12 . See the extensive discussion of these cases by both the majority and dissenting opinions in United States v. Ash, No. 22,340, 149 U.S.App.D.C. -, 461 F.2d 92 decided this day.

13 . “The underpinnings of the Wade holding are twofold: First, that the presence of defense counsel may prevent unfairness in the lineup array itself and in the circumstances under which the witnesses view the suspects, and therefore may avert an erroneous identification; and, second, that counsel will be better equipped to cross examine the identifying witnesses at trial because he has been able to observe the identification proceeding and is thus aware of many of the factors relevant to the validity of the identification.” Appel-lees’ brief, 24.

14 . The dissenters would favor the presence of counsel at pre-trial identifications such as the one in the case at bar in order to guard against prosecutorial bad faith, or even “wholly unintentional nuances which may suggest the ‘proper’ response.” As to the latter, we are far from sure that the presence of counsel can counter or hold in check the unconscious responses • of the prosecutor, and as for the problem of “bad faith,” while we believe such instances to be very rare, we are certain that an accomplished and hardened prosecutor fatally bent on mischief could easily sway a witness through a hundred subtle or not-so-subtle means. For example, it would be comparatively easy in a lineup or photographic identification for the prosecution to let a witness know in advance the identification numbers that would be assigned to a defendant the prosecution wished to convict. A counsel present at such a “rigged” identification would have no way of knowing of such a “fix,” and his presence would serve as no deterrent. The protection of defense counsel would lie in vigorous cross-examination of the witness, whether counsel had been present or not. Thus we feel that the possibility of prosecutorial bad faith has little relevance to the problem at hand.

15 . The dissenting judges criticize our decision in light of what they see as the great difficulty of reconstruction of the photographic identification at trial, as this difficulty “is substantially greater than an uncounselled lineup, for at least the accused is present at the lineup and can relate what occurred there to his attorney.” (at p. 150.) It should be pointed out that in the lastest police procedures, for instance now in the District, the goal at lineups is to make it impossible for the accused to see the identification procedures, lest there be reprisals against identifying witnesses. Ararious devices are used to implement this policy, with perhaps the most effective being that used by the AVashington police, a one-way mirror behind winch the men in the lineup stand, where they may be viewed by witnesses, but may not see them. Furthermore, the comments of witnesses are not audible on the other side of the glass section, and the only communication between the two areas is by telephone ’between the officer with the witnesses and the officer in control of the subjects in the lineup.

16 . See particularly, 388 U.S., at 231-232, 240-241, 87 S.Ct. 1926.

17 . As quoted under 2b, supra p. 8 :

[I]n view of the fact that she did not pick out the people at the time of the lineup, and with an abundance of caution on behalf of the defendants, the court will deny the use of her identification of the defendants in the photograph at a later time.

And under 2e, supra, p. 9 :

In view of the fact that she had seen photographs over a period of time and not made the identification before or at

the lineup of the defendants the Court feels that the later identification [of lineup photo] just might he subject to question.

18 . Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, at 319 (1966).

19 . United States v. Wade, 388 U.S. 218, 240-242, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970).

20 . At oral argument before the panel the following exchange occurred:

THE COURT: Minus the lineup photograph then you would say that, for whatever it’s worth, Mrs. Edge-comb could testify in court?

COUNSEL FOR APPELLEES: It was Judge Green’s finding that it was the lineup photograph that did it.

21 . The accused were carefully sequestered from the courtroom while Mrs. Edge-comb was present. She has yet had no opportunity for an in-court identification, and may or may not be able to do so.