In People v. Hawkins, 55 N.Y.2d 474, 487 (1982), the New York Court of Appeals held that, absent the initiation of formal judicial proceedings, a post-arrest investigatory lineup does not trigger a Sixth Amendment right to counsel.Summary of this case from Huggins v. Girdick
Argued February 10, 1982 and February 12, 1982
Decided April 7, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOHN CARRO, J., JEROME W. MARKS, J., HOWARD GOLDFLUSS, J.
Brent K. Olsson and William E. Hellerstein for appellant in the first above-entitled action.
Robert M. Morgenthau, District Attorney ( Joyce P. Adolfsen and Robert M. Pitler of counsel), for respondent in the first above-entitled action. Eric A. Seiff for appellant in the second above-entitled action.
Mario Merola, District Attorney ( Kevin B. Hurley and Steven R. Kartagener of counsel), for respondent in the second above-entitled action. Shirley Werner and William E. Hellerstein for appellant in the third above-entitled action.
Robert M. Morgenthau, District Attorney ( David H. Steiner and Robert M. Pitler of counsel), for respondent in the third above-entitled action. G. Clark Cummings for appellant in the fourth above-entitled action.
Mario Merola, District Attorney ( Robin Dolsky and David H. Fromm of counsel), for respondent in the fourth above-entitled action.
These four appeals present the common question whether a suspect has a right to counsel at an investigatory lineup. In each case, we are urged by the defendant to interpret our State Constitution as providing this right at lineups conducted before the commencement of formal adversarial proceedings against a defendant.
In People v Laffosse, the defendant was convicted of robbery in the second degree for his part in the robbery of an off-duty police officer by three males. Laffosse was apprehended after the officer had selected his picture from a photo array. Once at the station house, the defendant was advised of his Miranda rights and he then agreed to talk to a detective. During the questioning he requested an attorney, but he and the police were unsuccessful in locating the particular attorney he desired; Laffosse then refused the offer of the police to procure a Legal Aid attorney to represent him. Shortly thereafter, he was informed that he was to be placed in a lineup and, once again, Laffosse refused an offer by the police to obtain the services of a Legal Aid attorney, this time stating that he would not need a lawyer until he went to court. Laffosse subsequently was identified at the lineup by his victim.
In People v Johnson, the defendant was convicted of two counts of murder in the second degree arising from a shooting which occurred during an aborted robbery attempt. Johnson was arrested on the day following the incident, and once at the station house he received preinterrogation warnings, but made no request for counsel. Several hours passed before the police were able to secure the presence of the eyewitnesses to the shooting for the purpose of conducting a lineup. Just before the lineup was about to be held, defendant refused to stand in the lineup and, for the first time, requested the presence of an attorney. Johnson was informed that he had no choice, and the lineup at which he was identified proceeded without counsel.
In People v Hawkins, the defendant was convicted of rape in the first degree, sodomy in the first degree, robbery in the first degree and burglary in the third degree. Hawkins, a stranger to his victim, gained entrance to her apartment by requesting the use of a pen and paper in order to write a message to another tenant in the building. Once inside the apartment, Hawkins committed the several crimes for which he now stands convicted. Immediately after Hawkins left, his victim went to the police and was able to select defendant's picture from a photo array. Several months later Hawkins was arrested by an officer who had arrested him on a prior occasion for an unrelated drug offense. The arresting officer was aware that the drug charge was still pending against the defendant at the time of his arrest on the rape, sodomy, robbery and burglary charges. Once at the station house he consented to appear in a lineup, without asking for the assistance of counsel. As in the other cases, defendant was then identified by the victim.
In the final case, People v Diaz, the defendant was convicted of sodomy in the first degree, assault in the second degree and attempted sexual abuse in the first degree emanating from his separate attacks on two young boys. The defendant's identity was discovered when, following the second episode, the police discovered at the scene of the crime a bail bond receipt issued to Diaz following his arraignment on the previous day on charges unrelated to the attacks on the two boys. After the second boy selected his picture in a photo array, Diaz was arrested and placed in a lineup at the station house. Diaz was not represented by counsel at the lineup, and the police did not contact the Legal Aid attorney who represented him at the arraignment on the prior unrelated charges. Both complainants identified Diaz in the lineup as the man who had attacked them.
In each of these four cases the defendant moved to suppress the corporeal identification on the ground that he had been deprived of his right to the assistance of counsel at his lineup. Each lineup in these four cases was conducted before an accusatory instrument had been filed and before an adversary criminal proceeding had commenced. Suppression was denied in each case, and the subsequent convictions were later affirmed at the Appellate Division. We also affirm.
Initially, we observe that defendants present no cognizable claim under the United States Constitution to a right to counsel at their lineups, since these lineups occurred prior to the initiation of formal prosecutorial proceedings (see Kirby v Illinois, 406 U.S. 682). The Supreme Court in United States v Wade ( 388 U.S. 218) held that a person accused of a crime by Federal or State officials is entitled under the Sixth and Fourteenth Amendments to have his attorney present at pretrial lineups. In Kirby v Illinois ( supra), however, the court limited that holding and refused to extend this principle to provide a right to counsel at lineups held prior to the initiation of formal prosecutorial proceedings. In reaching this conclusion, the court observed that 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 ( Kirby v Illinois, supra, at p 688). The court went on to indicate that a formal charge, preliminary hearing, indictment, information or arraignment may mark the initiation of such adversary judicial proceedings ( supra, at p 689; Brewer v Williams, 430 U.S. 387).
Significantly, the court noted that "[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law" ( Kirby v Illinois, supra, at p 689).
In addition, the plurality opinion in Kirby also noted that the Fifth Amendment protection against self incrimination is not implicated at a preindictment lineup, nor does the Fifth Amendment provide the protection of counsel at this stage. The privilege "`"protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature"'" ( Kirby v Illinois, supra, at p 687, citing United States v Wade, 388 U.S. 218, 221, supra). The court explained its conclusion that the Fifth Amendment provides no right to counsel at this stage by noting that the doctrine of Miranda v Arizona ( 384 U.S. 436) is inapplicable in the realm of corporeal identifications. The court stated that "the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self incrimination, upon the theory that custodial interrogation is inherently coercive" ( Kirby v Illinois, supra, at p 688). It is now firmly established that the Miranda rule evolved solely as a procedural safeguard to protect the accused's privilege against compulsory self incrimination ( Michigan v Tucker, 417 U.S. 433, 438-439). Accordingly, although Miranda extended the protections of counsel to an event occurring before the attachment of the Sixth Amendment right to counsel, it did so only in the limited area of custodial interrogations and has no applicability to lineups.
Miranda v Arizona ( supra) provides, among other things, that the defendant must be permitted to have an attorney present during custodial interrogations.
It follows, therefore, that the defendants in the four cases here presented to us had no right to counsel at their lineups by virtue of the United States Constitution. Each lineup occurred before the initiation of formal judicial proceedings and, accordingly, defendants' Sixth and Fourteenth Amendment right to counsel had not yet attached. Nor did defendants have any right to counsel under the Fifth and Fourteenth Amendments, since the Miranda warnings and protections apply only to custodial interrogations.
Nevertheless, defendants press their contention that the lineup identifications must be suppressed, arguing that our State Constitution should be so interpreted as providing a right to counsel at investigatory lineups.
On several occasions in the custodial interrogation context this court has extended the protections of counsel afforded to a defendant under our State Constitution beyond those afforded by the United States Constitution. The lifeblood of the New York rule is that once the right to counsel has indelibly attached, the defendant can effectively waive the protections of counsel only if counsel is present.
Recently, this court has had two opportunities to trace the development of the independent New York rule; once in People v Skinner ( 52 N.Y.2d 24, 28-30) and again in People v Kazmarick ( 52 N.Y.2d 322, 326-327). As we have noted, the New York rule has developed along two lines. In the first line, it has been held that a waiver of the protections of counsel by a person against whom formal criminal proceedings have been commenced is ineffective unless made in the presence of counsel (e.g., People v Samuels, 49 N.Y.2d 218; People v Settles, 46 N.Y.2d 154). In the second line, it has been ruled that the nonwaivability rule is applicable to a suspect who is represented by an attorney (e.g., People v Rogers, 48 N.Y.2d 167; People v Hobson, 39 N.Y.2d 479; People v Arthur, 22 N.Y.2d 325). This nonwaivability rule was extended in People v Cunningham ( 49 N.Y.2d 203), where we found custodial interrogations of an unrepresented individual to be impermissible after that individual has requested the assistance of counsel. Additionally, in People v Bartolomeo ( 53 N.Y.2d 225) the court held that if the police are aware that a person whom they seek to question has other unrelated charges then pending against him, and that person is in fact represented by counsel in connection with those charges, the individual must be treated as if he is actually represented by counsel on the charges then under investigation. Finally, in People v Skinner ( supra), we specified that an individual who had obtained counsel specifically on the matter under investigation may not be interrogated on the very same subject in a noncustodial setting after the individual's attorney has requested the police not to question the suspect in his absence.
If the suspect is not, in fact, represented by counsel in connection with the prior charge, then the police are not barred from questioning the suspect on the new matter ( People v Kazmarick, supra).
Defendants Laffosse and Johnson, who stood in lineups without the assistance of counsel which they had previously requested, now contend that their corporeal identifications should have been suppressed by parallel reasoning under the authority of this court's decision in People v Cunningham ( supra). Defendants Hawkins and Diaz claim that they had an indelible right to counsel applicable at their lineups by virtue of our decision in People v Bartolomeo ( supra), since the police were aware that unrelated charges were then pending against these defendants at the time of their lineups and, in fact, defendants were actually represented by counsel in connection with those prior pending charges. The fundamental error in these arguments is that they misconstrue the nature of New York's counsel rule and ignore the reasons for its development.
Much like the Supreme Court's decision in Miranda, our decisions developing the independent New York counsel rules have arisen simply out of a concern for protecting the individual during interrogations. This court has repeatedly stressed that "[a]bsent the advice of an attorney, the average person, unschooled in legal intricacies, might very well unwittingly surrender [his privilege against compulsory self incrimination] when confronted with the coercive power of the State and its agents" ( People v Settles, supra, at p 161, citing People v Hobson, 39 N.Y.2d 479, 485, supra). Thus, our indelible right to counsel rule has developed to ensure that an individual's protection against self incrimination is not rendered illusory during pretrial interrogation.
Although we have found the assistance of counsel to be of importance during interrogations, we have also noted that counsel plays a much more limited role at identification confrontations (see People v Hobson, 39 N.Y.2d 479, 485, supra). During interrogations, counsel may take an active role on behalf of his client, both in advising a suspect on whether to remain silent and in counseling a suspect on whether to answer particular questions once the right to remain silent has been waived ( People v Settles, supra, at p 165). In contrast, during a lineup counsel plays the relatively passive role of an observer (see People v Blake, 35 N.Y.2d 331, 337). Counsel may not actively advise his client during the lineup itself. Indeed, we have gone so far as to state that "the need for and right to a lawyer at an identification lineup is insignificant compared to the need in an ensuing interrogation" ( People v Hobson, supra, at p 485).
To be sure, the assistance of counsel is not completely valueless at investigatory lineups (see People v Blake, supra). But that is not the constitutional test of whether it is required. Nor does its value to a suspect provide the full practical and reasonable picture concerning its effect on the other side of the criminal process equation — law enforcement and protection of the community and, indeed, society itself. Before a right to counsel is extended to this investigatory stage, consideration must be given to the serious detriments that emanate from the sought-after requirement of counsel at investigatory lineups. A primary policy consideration is that lineups should be conducted as close in time to the occurrence of the incident under investigation as possible. First, the recollections of a witness may fade as time passes (see People v Blake, supra, at p 337). Second, a prompt identification confrontation will benefit the suspect, both because it may diminish the possibility of a mistaken identification and, further, because it may also permit the release of an innocent suspect with a minimum of delay (see People v Blake, supra, at p 337). Finally, prompt identification confrontations may assist the police in determining whether to continue their search of the vicinity of the crime (see United States v Sanchez, 422 F.2d 1198, 1200). These necessary advantages often may be lost if the lineup is required to be delayed.
In evaluating the benefits provided by counsel at investigatory lineups, it is important to remember that should a question arise concerning the suggestiveness of the lineup, the resolution of this issue will not come down to a credibility contest between the accused and the police. First, fears about such a credibility contest cynically and improperly assume that the police will misrepresent the lineup scenario. More importantly, however, it must not be forgotten that with each lineup identification there will be an eyewitness who can be examined and cross-examined at the Wade hearing and at the trial as to whether any improper conduct was resorted to. In this sense, lineups are fundamentally different from interrogations and thus the protective devices surrounding each may be different.
Another important consideration is that a defendant has no constitutional right to refuse to stand in a lineup. He does have a constitutional right, however, to refuse to answer questions. Where the waiver of a constitutional right is involved, the need for counsel's presence takes on greater importance.
We conclude that the limited benefits provided by counsel at investigatory lineups are far outweighed by the policy considerations militating against requiring counsel at this stage of the investigatory process. The Constitution does not expressly or even impliedly require it. Accordingly, we find no basis in our State Constitution for requiring counsel at investigatory lineups.
The right to the assistance of counsel at corporeal identifications therefore arises only after the initiation of formal prosecutorial proceedings ( Kirby v Illinois, supra). After the accused has been formally charged by indictment, information or complaint, his Sixth and Fourteenth Amendment right to counsel will attach, and a lineup conducted "without notice to and in the absence of his counsel" will be held to violate that right ( Kirby v Illinois, supra, at p 683, citing Gilbert v California, 388 U.S. 263, 272). In contrast, the police have no obligation to secure counsel for a suspect who is merely being placed in an investigatory lineup, even when the suspect requests that counsel be provided.
In People v Samuels ( supra) it was held that the right to counsel attaches upon the filing of a complaint, since by statute a criminal action commences with the filing of an accusatory instrument (CPL 1.20, subd 17), which includes a felony complaint (CPL 1.20, subds 1, 8).
Although we conclude that the State has no obligation to supply counsel at investigatory lineups, we have previously noted that if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings ( People v Blake, supra, at p 338). That does not mean, however, that the police must notify counsel of an impending investigatory lineup or that counsel is entitled to a lengthy adjournment at this stage of the investigatory process. In view of the limited benefits which counsel provides at this stage, the police need not suspend the lineup in anticipation of the arrival of counsel if this would cause unreasonable delay. Pertinent to this consideration is whether the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation.
It follows that since the defendants in each of the present appeals were placed in lineups prior to the initiation of formal prosecutorial proceedings, they were deprived of no rights guaranteed by our Federal or State Constitutions by the absence of counsel at this stage. Furthermore, we have considered defendants' remaining contentions and find them to be without merit.
In evaluating the need for counsel at investigatory lineups, we must be mindful of the fact that an identification made at an unduly suggestive lineup may not be introduced into evidence ( Kirby v Illinois, supra, at p 691). Thus, the cassandran fear of numerous misidentifications, expressed by the dissent, must be tempered with the notion that adequate constitutional and evidentiary safeguards already attend the conduct of an investigatory lineup. Indeed, as the dissenters note, the majority of State courts have embraced the Kirby rule, indicating that the weight of authority rests with the position the majority takes today. I further comment on the multiple nonjudicial sources employed in the dissent. While I, in no measure, intend disrespect to my dissenting colleagues, to the view they express, nor to academic sources generally, I am constrained to note that some of these proffered authorities do not realistically or legally justify the result for which they are advanced. Thus, no item by item response is warranted. Rather, I find confirmation and support for the majority viewpoint in the judicial decisions and analyses of our court and the Supreme Court of the United States.
Accordingly, in each of these four appeals, the order of the Appellate Division should be affirmed.
Because the majority's insistence on following the lead of the Supreme Court in Kirby v Illinois ( 406 U.S. 682) accords neither with logic nor with our own prior decisions on the right to counsel, I respectfully dissent.
The majority's conclusion that there is no right to counsel at an investigatory lineup makes irrelevant to their determination of the Laffosse case the question whether if there were such a right it could be waived out of the presence of counsel (cf. People v Yut Wai Tom, 53 N.Y.2d 44). I, therefore, do not discuss that issue.
Comment on the Kirby decision has made abundantly clear the illogic of its efforts to distinguish the Supreme Court's prior holding in United States v Wade ( 388 U.S. 218). The decision has been characterized as "wrong from every perspective" (Grano, Kirby, Biggers and Ash, Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich L Rev 717, 730), "perhaps the least defensible, from a technical point of view, of the Court's criminal law holdings during the term" (Young, Supreme Court Report, 58 ABAJ 1092), an exaltation of form over substance (Albert, Criminal Law — The Lineup's Lament, Kirby v Illinois, 22 De Paul L Rev 660, 675), and as one which "removes the protective effects of counsel's presence precisely when the danger of convicting an innocent defendant upon a mistaken identification is greatest" (Woocher, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stanford L Rev 969, 996), among other criticisms. It was reached, moreover, notwithstanding that the reasoning of Wade, though not its facts, dictated a contrary conclusion, as pre- Kirby scholarly comment had emphasized, and as pre- Kirby Federal and State court decisions had held.
(E.g.: Mueller, Right To Counsel At Police Identification Proceedings: A Problem In Effective Implementation of An Expanding Constitution, 29 U of Pitt L Rev 65, 78, n 81 ["Since the reason for the rule is to prevent unfairness and to protect the right to meaningful confrontation at trial should the suspect be identified, the right to counsel must be afforded at any police-sponsored identification proceeding not conducted pursuant to Constitutionally sufficient regulations. Any other conclusion would be absurd"]; Quinn, In the Wake of Wade: The Dimensions of Eyewitness Identification Cases, 42 U of Col L Rev 135, 143 ["Since the purpose of counsel's presence is to avert prejudice and assure meaningful cross-examination at trial on the issue of identification, it should make no difference that the lineup occurs prior to the filing of criminal charges"]; Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 410 ["a major departure from traditional sixth amendment functional reasoning"].)
(Albert, op. cit., 22 De Paul L Rev 660, 674, n 70; and Note on Kirby in 1975 Wn. U LQ 423, 436-437, nn. 74, 75; and n 5 to Kirby plurality opn [ 406 U.S. 682, 687] set forth the cases pro and con; see, also, Austin, Pretrial Right to Counsel, 26 Stanford L Rev 399, 409; and commentary to the ALI Model Code of Prearraignment Procedure, p 420, n 2, both of which confirm that prior to Kirby a substantial majority of courts had applied Wade to preindictment identification proceedings and required counsel at all lineups.)
Nor would we be blazing a new trail in refusing on State constitutional grounds to follow Kirby. Though the majority of State courts deciding the issue since Kirby was decided have followed its rule, notwithstanding its lack of logic and in many cases without discussing the merits of the question or with an expression of reluctance, other State courts have not felt so constrained. Thus, in Commonwealth v Richman ( 458 Pa. 167, 171), the Pennsylvania Supreme Court, "convinced that it would be artificial to attach conclusionary significance to the indictment," held that the "adversary judicial criminal proceedings" which triggered the right commenced with arrest, in People v Bustamante ( 30 Cal.3d 88, 100, 101-102) the Supreme Court of California held on the basis of the California State Constitution that "a California defendant's right to assistance of counsel includes the right to counsel at a pretrial lineup" but noted that "if conditions require immediate identification without even minimal delay, or if counsel cannot be present within a reasonable time, such exigent circumstances will justify proceeding without counsel", in People v Jackson ( 391 Mich. 323, 338), the Supreme Court of Michigan concluded "independent of any Federal constitutional mandate, that, both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification unless the circumstances justify the conduct of an identification procedure before the suspect can be given an opportunity to request and obtain counsel," and in Blue v State ( 558 P.2d 636, 642 [Alaska]), the Supreme Court of Alaska, stating that it was not bound by United States Supreme Court decisions when interpreting its own State Constitution, held that "In balancing the need for prompt investigation against a suspect's right to fair procedures * * * a suspect who is in custody is entitled to have counsel present at a pre-indictment lineup unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation." There is strong reason why we should do likewise and little of practical significance to justify the majority's conclusion.
(Note 1975 Wn. U LQ 423, 437-440, and nn. 76, 88.)
(See, also, Commonwealth v Taylor, 472 Pa. 1.)
(See, also, People v Dixon, 85 Mich. App. 271, mot for lv to app den 406 Mich. 906.)
The reason, of course, is the numerous instances in which innocent persons have been convicted on the basis of erroneous identification testimony. The Supreme Court in Wade underscored the problem: "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification" (388 US, supra, at p 228), as have we, in People v Caserta ( 19 N.Y.2d 18, 21): "One of the most stubborn problems in the administration of the criminal law is to establish identity by the testimony of witnesses to whom an accused was previously unknown, from quick observation under stress or when, as here, there was no particular reason to note the person's identity." Over 55 years ago Professor (later Justice) Felix Frankfurter pointed out that "The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials" (Frankfurter, The Case of Sacco and Vanzetti, p 30). Nor are such statements vague speculations; the documentation is exhaustive, explicit and vast.
(Borchard, Convicting the Innocent, xiii; Frank Frank, Not Guilty, pp 31, 61; Gardner, The Court of Last Resort, ch 8; Harris, A Treatise on the Law of Identification, pp 416-440; Houts, From Evidence to Proof, pp 10-13; Loftus, Eyewitness Testimony, pp 1, 7, 179; Reynolds, Courtroom, ch 8; Rolph, Personal Identity, pp 76-92; Sobel, Eyewitness Identification, ch 1; Wall, Eye-witness Identification in Criminal Cases, ch 1; Watson, Trial of Adolf Beck; Wigmore, Science of Judicial Proof [3d ed], § 251; Wilder Wentworth, Personal Identification, p 37; Williams, Proof of Guilt [3d ed], pp 110-113.)
The Borchard book dramatically illustrates the strength of the proof. Of 65 cases discussed by Professor Borchard in which innocent persons lost their lives or served prison terms, 29 were the result of mistaken eyewitness identifications, in one of which the same man, Adolf Beck, was twice convicted for crimes he did not commit, in another of which 17 separate victims swore that the innocent person was the perpetrator though he and the actual perpetrator looked not at all alike, and in 20 of which the resemblance was not close. Of equal significance in this respect is Justice FRANK O'CONNOR'S article "That's The Man": A Sobering Study of Eyewitness Identification and the Polygraph (49 St John's L Rev 1), not only because it details a number of cases of innocents convicted, but because it represents the considered views of one who has served as a Judge responsible for the trial of (and now appellate review of) criminal cases, and who also served for 10 years as the District Attorney of Queens County. Perhaps the crowning irony of the situation is that the decision in this case comes almost at the same time as the revelation, some 69 years too late, of proof positive of the innocence of Leo Frank, whose 1913 conviction of rape and murder is one of the most celebrated of the wrong man cases, resulting as it did in the hanging of Frank by a lynch mob.
(Borchard, op. cit., n 5, xiii; 1-3.)
( New York Times, March 8, 1982, p 11, col 1.)
(See, e.g., Golden, A Little Girl Is Dead.)
It is the demonstrated unreliability of identification testimony and the fear that additional innocent persons may be convicted, rather than, as suggested in footnote 4 of the majority opinion, a cynical and improper assumption of police misconduct, on which the right to lineup counsel is predicated. The Wade opinion is both an explicit disclaimer of any such assumption and an explication of the danger when counsel is not present. It also demonstrated that counsel has an important role at lineups which need not impede legitimate law enforcement and suggested the possible use of substitute counsel and legislative or other regulation of procedures as possible means of dealing with the practical and constitutional problems involved. Consideration of each of those questions is, therefore, in order.
(388 US, at p 235: "We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification.")
(388 US, at pp 235-236: "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.'".)
The dogma is that the role of counsel at a lineup is "passive", but this is true only in the relative sense that he cannot engage in the plenary activity that he would during a trial. That he can be much more than an observer who will later use the knowledge thus gained to cross-examine witnesses at the trial or himself bear witness at the trial to events at the lineup is evident from our recent decision in People v Yut Wai Tom ( 53 N.Y.2d 44). There defense counsel, though he did not stay to observe the actual lineup, arranged for defendant to be placed in different positions in the separate lineups that were to occur, for the removal of the jackets of the stand-ins because defendant was without a jacket, for the witnesses to view the lineup separately and for the wording of the questions to be addressed to them, and advised the defendant to assume the same pose that the stand-ins did and not to allow himself to be conspicuous ( id., at p 52). Without reviewing in detail the literature on counsel's role at a lineup, I note that the presence of counsel will reduce even unintentional biasing effects and that he can seek to enhance the fairness of the procedure by asking that witnesses be kept apart from one another both before and after lineups and that as to each witness a so-called blank lineup (without defendant in it) be held prior to that in which defendant appears, by making sure that disparities in size and physique are reduced and that none of the stand-ins are known to the witness, and by seeking, where law enforcement officials do not automatically do so, permission to have the procedure video taped. Moreover, although the officials in charge cannot be forced to accede to such requests, experience teaches that they often do, both because obviating objections to fairness more readily assures admissibility at trial of the resulting identification if there is one and because it is a necessary concomitant of every mistaken identification that the actual perpetrator remains free to commit new crimes.
(Eisenberg Feustel, Pretrial Identification: An Attempt to Articulate Constitutional Criteria, 58 Marq L Rev 659; Grano, op. cit., pp 747, 785; Lefcourt, The Blank Line-Up: An Aid to the Defense, 14 Crim L Bull 428; Levine Tapp, Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U of Pa L Rev 1079; Mueller, op. cit., p 74; Quinn, op. cit., p 149; Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance, 17 UCLA L Rev 339, 364.)
(Cf. People v Yut Wai Tom, 53 N.Y.2d 44, supra; and see Mueller, op. cit., p 75; The Rule of the Defense Lawyer at a Line-up in Light of the Wade, Gilbert and Stovall Decisions, 4 Crim L Bull 273, 288; Eisenberg Feustel, op. cit., p 677.)
No one suggests that law enforcement can never be adversely affected by the delay involved in obtaining the presence of counsel for defendant. It is for this reason that, balancing the interests of defendant and of the State, the California, Michigan and Alaska Supreme Courts have excepted the situation in which exigent circumstances do not permit giving the suspect to be viewed an opportunity to request and obtain counsel, but do require that when the police have probable cause to arrest and there is no other circumstance requiring immediate identification, an arrested person must be taken to the station house and provided with counsel before a lineup can be held ( Blue v State, 558 P.2d 636, 642 [Alaska], supra; People v Bustamante, 30 Cal.3d 88, 100, 101-102, supra; People v Jackson, 391 Mich. 323, 338, supra; People v Dixon, 85 Mich. App. 271, mot for lv to app den 406 Mich. 906). It is a wholly unacceptable balancing process, however, which, with no reference whatsoever to whether law enforcement will be harmed in any way if counsel be provided and without regard to his express request for counsel, simply because formal prosecutorial proceedings have not yet been begun, subjugates the right to lineup counsel of a suspect who already has counsel to "significant inconvenience to the witnesses" or the undermining of "the substantial advantages of a prompt identification confrontation" (majority opn, at p 487) and which, as to an unrepresented defendant, denies him the right to the protection of counsel. The fact is that in none of the cases before the court was there any balancing law enforcement reason for not requiring the presence of counsel at the lineup: In Laffosse, the lineup occurred more than 10 weeks after the crime and the complaining witness was in good health; in Hawkins, the elapsed time was seven months and there was no necessity for holding the lineup immediately after arrest; in Johnson, although the witnesses and stand-ins had been assembled before defendant requested counsel, it appears that defendant made his request as soon as he was told he was to be put in a lineup and it does not appear that counsel could not have been obtained or that had he been so informed before the presence of witnesses and stand-ins had been arranged there would have been any problem in obtaining their presence at a later held lineup; in Diaz, defendant was represented in an unrelated matter by a Legal Aid attorney and there is nothing to indicate that any substantial delay would have resulted from obtaining his presence or that there was any need to hold the lineup before doing so.
Nor can it realistically be argued that providing counsel will impose too great a burden on law enforcement. Inconvenience there may be but nothing to compare to the living hell imposed upon an accused person required to serve a prison sentence for a crime he did not commit. The Wade decision not only suggested use of substitute counsel and legislation or regulation as a means of meeting the practical problems (388 US, at pp 237, 239), but also quoted at length the model statute proposed in Murray, Criminal Lineup at Home and Abroad (1966 Utah L Rev 610, 627-628), which provides not only for counsel but for other safeguards. The Oklahoma Court of Criminal Appeals thereafter adopted a set of nine procedural rules governing lineups the first of which was to require that the suspect be advised of his right to counsel ( Thompson v State, 438 P.2d 287, 289 [Okla]). The American Law Institute's Model Code of Prearraignment Procedure recognized the right of "an attorney undertaking to act as counsel" for the suspect to be present at a precomplaint lineup (§ 160.3, subd ), although in deference to Kirby it did not apply to that situation the more stringent 48-hour notice to counsel rule that it proposed for postcomplaint identification (§ 160.3, subd ; see commentary, pp 422-424). New York has no such legislation and although some enforcement officers have adopted regulations or initiated a system of video taping lineups (see People v Blake, 35 N.Y.2d 331, 337-338), the presence of counsel is not part of present procedures, as the four cases now before us establish. Until it has been demonstrated that the presence of counsel at a prearraignment lineup in Alaska, California, Michigan, Pennsylvania and Oklahoma has presented some real problems for law enforcement in those States, or that the New York situation is so different from theirs as to make their system unworkable here, there is nothing to weigh in the constitutional balance against requiring counsel except speculation. Section 6 of article I of the Constitution of New York requires, in my view, that counsel be present at a corporeal identification procedure, whenever held, unless the People can demonstrate that exigent circumstances make the obtaining of counsel's presence a real and substantial detriment to the investigatory process.
Substitute counsel at prearraignment lineups have been used effectively in Pittsburgh (Note, 29 U of Pitt L Rev 65, 83; and see Model Code of Prearraignment Procedure, § 160.5, subd , par [c], and commentary, at pp 452-453).
Governor Dewey, himself a noted prosecutor, was sufficiently perturbed over the erroneous identification problem as a result of the conviction of Bertram A. Campbell for a crime he did not commit that he not only pardoned Campbell but also had his counsel propose the subject as one for study by the Judicial Council (Fourteenth Ann Report of N Y Judicial Council, 1948, pp 233, 235). After studying a number of possibilities including use of psychological tests, lie detector tests and the requirement of corroboration of identification evidence, the council concluded that the problem was better dealt with by regulation than by legislation ( id., at p 73; the study appears at pp 233-268). Other palliatives have been suggested, including special instructions to the jury (see United States v Telfaire, 469 F.2d 552, 558-559; Woocher, op. cit., at pp 1002-1005; Grano, op. cit., at pp 794-795; Loftus, Eyewitness Testimony, at pp 189-190).
There is, indeed, some empirical evidence to the contrary in Steele, Kirby v Illinois: Counsel At Lineups (9 Crim L Bull 49). Professor Steel noted (at p 57, n 38) that correspondence with nine metropolitan police departments about the impact of the Kirby decision showed that six made no change in previously devised Wade procedures and the other three indicated that they would do likewise except perhaps in emergency cases or late at night.
There is much in our prior decisions concerning the right to counsel, generally and at lineups, to support the rule that I urge we should adopt. With respect to the right to counsel we have "painted with broad strokes" ( People v Arthur, 22 N.Y.2d 325, 328) and noted our "special solicitude for this fundamental right" ( People v Cunningham, 49 N.Y.2d 203, 207) and "the right and need of an individual to have a competent advocate at his or her side in dealing with the State" ( People v Skinner, 52 N.Y.2d 24, 29). True, those cases involved confessions and the present cases concern prearraignment lineups, but People v Hobson ( 39 N.Y.2d 479) and People v Settles ( 46 N.Y.2d 154), both lineup cases, stand as equal monuments with Arthur and Cunningham to our recognition of the right. Thus, Hobson spoke of the need "to protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State. The right to the continued advice of a lawyer, already retained or assigned, is his real protection against an abuse of power by the organized State" (39 N.Y.2d, at p 485), and Settles of the fact that "the right of a criminal defendant to interpose an attorney between himself and the sometimes awesome power of the sovereign has long been a cherished principle" (46 N.Y.2d, at p 160).
One need not rely on such generalities, however, for just as Wade and Gilbert presaged a rule contrary to that adopted by the Supreme Court in Kirby so do our prior decisions with respect to the majority's acceptance of Kirby.
Thus, in People v Blake ( 35 N.Y.2d 331, supra) we recognized that "uncounseled prearraignment viewings before the filing of an accusatory instrument do not invariably require exclusion of the identification thus obtained" (at p 333), but held this court free, notwithstanding Kirby, "to evaluate independently the necessity of mandating, under the State Constitution as it interprets it, the presence of counsel at prearraignment viewings" (at p 336). Reasoning that although "the rules have developed largely in connection with interrogation * * * they extend logically to allowing such counsel to be present when the accused is subjected to a corporeal identification viewing" (at p 338), and relying upon "the precedents in this State providing a right of access to counsel even before formal initiation of the criminal action" (at p 339), we held that in the event of delay between arrest and the filing of an accusatory instrument "the prosecution would have the burden to explain and offer proof on the pretrial identification hearing, if one is had, why the opportunity to so have counsel at the viewing was not afforded" (at p 340). The rules laid down by Blake, with the explicit notation that they "will not impair the efficiency of law enforcement, especially in the light of the pragmatic exceptions noted" (at p 341), were stated in the following paragraph (at pp 340-341): "In summary, the presence of counsel at identification viewings is mandated after the filing of an accusatory instrument on pain of exclusion of the identification, except in narrowly-exigent circumstances. After arrest but before the filing of an accusatory instrument the presence of counsel is not mandated, but is desirable. Where the accused has counsel known to the law enforcement authorities or there is insufficiently explained delay which prevents him from obtaining counsel as he would on arraignment, and he has not waived the right to counsel, the circumstances may establish his right to counsel at the viewing, the breach of which should result in exclusion" (italics supplied).
The right thus established has been applied, though an accusatory instrument has not yet been filed, when an order directing defendant to appear in a lineup or providing for his removal from one place of detention to another for the purpose of his appearing in a lineup has been obtained and the police knew he was represented on an unrelated charge ( People v Coleman, 43 N.Y.2d 222; People v Lloyd Winston G., 45 N.Y.2d 962; see People v Samuels, 49 N.Y.2d 218). We have also characterized as a violation "in spirit at least, of the principles previously laid down by this court" the holding of a lineup without counsel after counsel had requested access to defendant ( People v Burwell, 26 N.Y.2d 331, 336).
I do not suggest that there is an absolute right to counsel at prearraignment lineup. Indeed, I recognize that in People v Gladman ( 41 N.Y.2d 123, 130), a case in which, as shown by the briefs, defendant's counsel conceded that Kirby limited the right to counsel to postarraignment lineups, but argued from the fact that arraignment followed immediately after lineup that the timing established defendant's right to lineup counsel, we stated in so many words that "there is no absolute right to counsel at a prearraignment lineup," that in People v Perez ( 42 N.Y.2d 971) we held that defendant's request that an attorney be obtained for lineup did not create a right to counsel, and that in People v Pickett ( 52 N.Y.2d 892) we ruled that a defendant in custody on an unrelated charge was not entitled to counsel at an investigatory prearraignment lineup on the new charge when the record contained no indication that defendant was then represented by counsel on either charge.
What I do suggest is that the rule established by our lineup decisions to date is that there is no absolute preclusion of counsel at lineup simply because the lineup is held prearraignment and that our prior decisions require law enforcement officials, aware that a defendant has counsel on an unrelated charge, to contact counsel prior to holding a lineup unless they can show that because of exigent circumstances the delay in obtaining counsel's presence would seriously prejudice the investigatory process. I would, moreover, because of the serious danger of misidentification involved in eyewitness identification whenever it occurs, extend the Blake rule to cover not only the case in which law enforcement authorities know that defendant has counsel but also in which they have reason to know that fact but fail to inquire further. I would also overrule Perez and hold that a suspect must be advised prior to a lineup that he has no right to refuse to participate in the lineup but does have a right to be represented by counsel and that a request for counsel, whether resulting from such advice or made independently, requires the presence of counsel at lineup unless exigent circumstances and resulting prejudice can be demonstrated by the People.
The rule that I urge finds full constitutional support in the reasoning of our decisions in cases governing the right to counsel during interrogation (e.g., People v Bartolomeo, 53 N.Y.2d 225 [knowledge that defendant was arrested seven days earlier on an unrelated charge obligates the authorities to inquire]; People v Cunningham, 49 N.Y.2d 203, supra [request for counsel establishes right to counsel]) and, the danger of convicting an innocent person being different in form but equally as great in result through misidentification as through statements involuntarily obtained, I find no reason in either our Constitution or the practical necessities of law enforcement to justify the lesser rule now adopted as to lineups. I would, therefore, hold Laffosse and Johnson presumptively entitled to counsel by reason of their requests for counsel, Hawkins entitled to counsel because, as the Trial Judge's finding affirmed by the Appellate Division establishes, the police officer knew Hawkins was represented in an unrelated drug case by counsel, and Diaz entitled to counsel because the police made no inquiry despite their discovery of a bail bond receipt issued to defendant the previous day. As already noted, in none of the cases does the record establish exigency nor, so far as appears, is there reason under the rule of People v Havelka ( 45 N.Y.2d 636) to remand for a hearing on that issue. In each case, therefore, with the possible exception of Laffosse, the lineup identification should have been suppressed and the conviction should now be reversed.
For the reason stated in footnote 1 above, I do not discuss the waiver issue involved in the Laffosse case.
Chief Judge COOKE and Judges JASEN and WACHTLER concur with Judge GABRIELLI; Judge MEYER dissents and votes to reverse in a separate opinion in which Judges JONES and FUCHSBERG concur.
In each case: Order affirmed.