Kirby v. Illinois
Encyclopedia
Kirby v. Illinois, 406 U.S. 682 (1972), was a case decided by the Supreme Court of the United States
that held that the Sixth Amendment
right to counsel
did not attach during a pre-indictment identification.
Shard was brought to the police station, and upon seeing Kirby and Bean seated at a table identified them as the men who robbed him. Kirby and Bean did not have counsel present, and they had not been advised of their rights. Kirby and Bean were indicted six weeks later for the robbery of Shard, where they were appointed counsel. A pretrial motion by Kirby to exclude the police station identification was denied. A jury convicted both defendants of robbery. Kirby's conviction was affirmed on appeal, where the Illinois appellate court held that the Supreme Court precedents United States v. Wade
and Gilbert v. California
did not require exclusion of the identification because it was made before the indictment. The Supreme Court granted certiorari to determine if Kirby had a right to counsel at that pre-indictment showup identification.
, 287 U.S. 45, held that the Sixth Amendment right to counsel only attaches during the criminal prosecution. A pre-indictment showup, however, could not be considered within the formal realm of the criminal proceeding, because it was a routine police procedure and not a situation where the suspect is faced with "the prosecutorial forces of organized society."
The plurality observed that other protections were available to criminal suspects at the pre-indictment identification stage, and that identifications could be excluded on a case by case basis if they were overly suggestive according to Stovall v. Denno
.
Brennan criticized the plurality's reliance on the abstract concept of the beginning of a criminal prosecution instead of examining the realities of the prejudice faced by an uncounseled criminal defendant. Brennan also rejected the idea that Stovall provided a different standard of protection - the events in Stovall occurred before Wade and Gilbert were decided, so Wade and Gilbert were simply not applied to the facts of Stovall retroactively.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
that held that the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
right to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
did not attach during a pre-indictment identification.
Factual background
On February 21, 1968 in Chicago, Willie Shard reported to police that he was robbed by two men that had taken his wallet. The wallet contained his Social Security card and traveler's checks. On February 22, 1968, police stopped Thomas Kirby and Ralph Bean and asked for identification. Kirby produced a Social Security card bearing the name Willie Shard, and police notices he also carried traveler's checks. Kirby said he won them in a game, but he and Bean were arrested and taken to the police station.Shard was brought to the police station, and upon seeing Kirby and Bean seated at a table identified them as the men who robbed him. Kirby and Bean did not have counsel present, and they had not been advised of their rights. Kirby and Bean were indicted six weeks later for the robbery of Shard, where they were appointed counsel. A pretrial motion by Kirby to exclude the police station identification was denied. A jury convicted both defendants of robbery. Kirby's conviction was affirmed on appeal, where the Illinois appellate court held that the Supreme Court precedents United States v. Wade
United States v. Wade
United States v. Wade, 388 U.S. 218 was a case decided by the Supreme Court of the United States that held that a criminal defendant has a Sixth Amendment right to counsel at a lineup held after indictment.-Factual background:...
and Gilbert v. California
Gilbert v. California
Gilbert v. California, 388 U.S. 263 , was an important decision of the Supreme Court of the United States, which was argued February 15–16, 1967, and decided June 12, 1967....
did not require exclusion of the identification because it was made before the indictment. The Supreme Court granted certiorari to determine if Kirby had a right to counsel at that pre-indictment showup identification.
Plurality opinion
In a plurality opinion joined by Chief Justice Burger and Justices Blackmun and Rehnquist, Justice Stewart held that Kirby did not have a Sixth Amendment right to counsel at the showup because it occurred before the beginning of the criminal prosecution. The Court observed that Powell v. AlabamaPowell v. Alabama
Powell v. Alabama was a United States Supreme Court decision which determined that in a capital trial, the defendant must be given access to counsel upon his or her own request as part of due process.-Background of the case:...
, 287 U.S. 45, held that the Sixth Amendment right to counsel only attaches during the criminal prosecution. A pre-indictment showup, however, could not be considered within the formal realm of the criminal proceeding, because it was a routine police procedure and not a situation where the suspect is faced with "the prosecutorial forces of organized society."
The plurality observed that other protections were available to criminal suspects at the pre-indictment identification stage, and that identifications could be excluded on a case by case basis if they were overly suggestive according to Stovall v. Denno
Stovall v. Denno
Stovall v. Denno, 388 U.S. 293 , was a case decided by the Supreme Court of the United States that held that a pretrial identification not covered by the Sixth Amendment right to counsel should be excluded if it was so unnecessarily suggestive as to violate due process.-Factual background:Dr. Paul...
.
Burger's concurrence
Chief Justice Burger's concurrence asserted that a criminal prosecution only begins once charges are formally filed against a defendant, and because that had not yet happened by the time of the identification here, Kirby had no constitutional right to counsel.Powell's concurrence
Justice Powell concurred because he did not want to extend the exclusionary rule of the Gilbert-Wade doctrine.Brennan's dissent
In a dissent joined by Justices Douglas and Marshall, Justice Brennan argued that Gilbert and Wade compelled a right to counsel during the pre-indictment lineup. Brennan focused on the reasoning of Wade, noting that a pre-indictment identification without counsel seriously compromised a defendant's ability to effectively defend himself. For the same reasons that a post-indictment lineup presented risks of suggestivity and unfairness, so too did a pre-indictment showup. A pre-indictment showup was also as difficult for a defendant to reconstruct at trial as a post-indictment lineup.Brennan criticized the plurality's reliance on the abstract concept of the beginning of a criminal prosecution instead of examining the realities of the prejudice faced by an uncounseled criminal defendant. Brennan also rejected the idea that Stovall provided a different standard of protection - the events in Stovall occurred before Wade and Gilbert were decided, so Wade and Gilbert were simply not applied to the facts of Stovall retroactively.