Law School Case Brief
United States v. Wade - 388 U.S. 218, 87 S. Ct. 1926 (1967)
The proper test to be applied for the exclusion of witnesses' in-court identification, where an accused's counsel was not present at a lineup identification, is whether, granting the establishment of the primary illegality, the identification evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
After defendant Wade had been indicted and arrested for robbery of a federally insured bank, an FBI agent arranged to have two bank employees observe a lineup of the accused and five or six other prisoners without notice to Wade's counsel. To mimic the bank robber, those in the lineup were required to wear strips of tape on their faces and to say, "Put the money in the bag," like the robber. The bank employees identified Wade as the robber. At Wade's trial in the United States District Court for the Eastern District of Texas, both employees identified Wade on direct examination. The pretrial lineup identification was then elicited from them on cross-examination. Defense counsel's motion to strike the courtroom identifications was denied, and Wade was convicted. On appeal, the United States Court of Appeals for the Fifth Circuit reversed and ordered a new trial, excluding the courtroom identifications on the ground that holding the lineup in the absence of Wade's counsel violated his Sixth Amendment right to counsel. Certiorari was granted.
Was Wade denied of the right to counsel?
The Supreme Court of the United States remanded the action to the court of appeals to enter a new judgment vacating respondent's conviction, until a hearing could determine whether the in-court identifications had independent origins. The post-indictment lineup was a critical stage of the proceedings, so Wade was entitled to have his attorney present. Based on the record, the Court could not determine whether the courtroom identifications should be excluded. Evidence had to be presented as to whether the in-court identifications were based on personal observations or the lineup.
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