Lexis Nexis - Case Brief

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Law School Case Brief

Kirby v. Illinois - 406 U.S. 682, 92 S. Ct. 1877 (1972)


A person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The right attaches at the time of arraignment, and it exists also at the time of a preliminary hearing.


Defendant had been arrested in connection with an unrelated criminal offense and was taken to the police station. The victim of a robbery was at the police station and identified defendant as the robber. At the time of the identification, no lawyer was present, defendant had not asked for legal assistance, and defendant had not been advised of any right to the presence of counsel. After the identification, defendant was indicted for the robbery and was arrested. At trial, the victim testified as to the police station identification and also made an in-court identification of defendant. Defendant was convicted of robbery, and the state appellate court affirmed, holding that the constitutional rule requiring the exclusion of evidence derived from out-of-court identification procedures conducted in the absence of counsel did not apply to preindictment identifications. The Court granted certiorari.


Did the constitutional right to counsel apply to pre-indictment identifications?




The Court held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court identifications in the absence of counsel did not apply to identification testimony based upon a police station show-up which took place before the accused had been indicted or otherwise formally charged with any criminal offense. According to the Court, because defendant was identified before he was arrested on the robbery charge, the pre-indictment identification was admissible, even though counsel was not present.

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