Master Supreme Court held that a post-indictment corporeal lineup is a critical stage of the prosecution at which the Sixth Amendment guarantees the right to counsel. with this comprehensive case brief.
United States v. Wade is a cornerstone of modern identification law and a foundational Sixth Amendment case. Decided alongside Gilbert v. California and Stovall v. Denno, Wade addresses the acute risks of mistaken eyewitness identifications and imposes a prophylactic right to counsel at post-indictment corporeal lineups. The Court recognized that lineups, when conducted without safeguards, can be powerfully suggestive and may irreparably taint later trial testimony. Because cross-examination alone often cannot reconstruct what occurred in a lineup room, the Court elevated the presence of counsel to mitigate those risks.
For law students, Wade is essential for two reasons. First, it defines a post-indictment lineup as a critical stage of prosecution under the Sixth Amendment, triggering the right to counsel unless knowingly waived. Second, it establishes the suppression framework that governs both evidence of the lineup identification and subsequent in-court identifications. The prosecution must show by clear and convincing evidence that any in-court identification has an independent source untainted by the unconstitutional lineup. This structure has shaped suppression hearings and doctrinal development in the decades since, informing later rulings on pre-indictment procedures and photo arrays.
United States v. Wade, 388 U.S. 218 (1967)
Wade was indicted for bank robbery in federal court and was represented by appointed counsel. Without notifying his lawyer, federal agents arranged a post-indictment lineup that included Wade and several other men of similar build. Witnesses observed the lineup through a one-way mirror. Each participant was required to wear strips of tape on the face, mimicking the disguise used by the robber, and to speak words allegedly used during the robbery such as put the money in the bag. Two bank employees identified Wade at the lineup. At trial, the government elicited both testimony about the lineup identifications and in-court identifications of Wade by the witnesses. Defense counsel moved to strike the identification testimony, arguing constitutional violations. The trial court admitted the evidence, and Wade was convicted. The court of appeals reversed, and the Supreme Court granted review.
Whether a post-indictment corporeal lineup is a critical stage of the prosecution that triggers the Sixth Amendment right to counsel, and if the right is violated, what the proper remedy is for both evidence of the lineup identifications and any subsequent in-court identifications.
A post-indictment corporeal lineup is a critical stage of the prosecution, and the Sixth Amendment guarantees the accused the right to counsel at that lineup unless there is a knowing and intelligent waiver. Evidence of a lineup identification obtained in violation of that right is inadmissible at trial. An in-court identification following an uncounseled lineup is inadmissible unless the prosecution establishes by clear and convincing evidence that the in-court identification rests on an independent source untainted by the illegal lineup. Compelling a defendant to speak or to don items of clothing or disguise in a lineup does not violate the Fifth Amendment privilege against self-incrimination because those acts are not testimonial.
Yes. A post-indictment lineup is a critical stage at which the Sixth Amendment right to counsel attaches, and the lineup conducted without notice to or presence of counsel violated that right. Evidence of the out-of-court lineup identifications must be excluded. The case is remanded for a hearing to determine whether the witnesses in-court identifications had an independent source; if not, those identifications must be excluded and a new trial ordered.
The Court emphasized the unique dangers of eyewitness misidentification and the powerful influence a lineup can have on later identifications. A lineup can be tainted by subtle or overt suggestiveness, whether intentional or inadvertent, and once a witness has chosen a suspect in a suggestive lineup, that choice can crystallize into strong but mistaken confidence at trial. Cross-examination alone is an inadequate safeguard because it often cannot recreate what happened behind closed doors or expose nuances of police suggestion absent contemporaneous observation by defense counsel. Because an indictment initiates adversary judicial proceedings, the lineup thereafter is part of the prosecutorial process where the accused is confronted by the state in a setting rife with potential prejudice. Under the Sixth Amendment, the accused is entitled to counsel at such critical stages to ensure fairness and to facilitate effective cross-examination and procedural regularity. The presence of counsel at the lineup helps deter suggestive practices, creates an observer who can describe the lineup conditions to the court, and allows meaningful testing of identification reliability. As for remedy, the Court adopted a two-step approach. First, evidence of the uncounseled lineup identifications is per se inadmissible. Second, in-court identifications are admissible only if the government shows by clear and convincing evidence that they derive from an independent source, such as the witness observations at the time of the crime rather than the tainted lineup. Relevant factors include the witness opportunity to observe the perpetrator, the accuracy of any pre-lineup description, the witness level of certainty, any prior misidentifications, any failure to identify, the time between crime and lineup, and the conduct and composition of the lineup itself. The Court rejected a Fifth Amendment claim, reasoning that requiring Wade to speak lines or wear tape is not testimonial evidence but rather the exhibition of physical characteristics, akin to the blood draw approved in Schmerber.
Wade launched the modern framework for identification evidence, establishing that counsel is required at post-indictment corporeal lineups and that courts must scrutinize subsequent identifications through an independent source inquiry. Together with Gilbert v. California and Stovall v. Denno, Wade forms the foundational trilogy that structures suppression hearings, often referred to as Wade hearings. Later cases limited and complemented Wade: Kirby v. Illinois held there is no Sixth Amendment right to counsel at pre-indictment lineups; United States v. Ash held no right to counsel at post-indictment photo arrays; and due process cases such as Neil v. Biggers and Manson v. Brathwaite supply reliability tests for suggestive procedures. For law students, Wade is crucial on exams and in practice for spotting when the right to counsel attaches, distinguishing between corporeal versus photographic procedures, and applying the independent source and exclusion rules.
It attaches once adversary judicial proceedings have commenced, such as by indictment, information, or arraignment. After that point, a corporeal lineup is a critical stage, and the accused has a right to counsel unless the right is knowingly and intelligently waived.
No. Kirby v. Illinois held that the Sixth Amendment right to counsel does not attach to pre-indictment lineups. United States v. Ash held there is no Sixth Amendment right to counsel at post-indictment photo displays. However, both pre- and post-indictment identification procedures remain subject to due process scrutiny for impermissible suggestiveness and unreliability.
Evidence of the lineup identification is excluded. Any subsequent in-court identification by the same witness is inadmissible unless the prosecution proves by clear and convincing evidence that it has an independent source untainted by the illegal lineup. Courts conduct a Wade hearing to evaluate the independent source using factors such as the witness opportunity to view, accuracy of prior description, any misidentifications, certainty, time lapse, and lineup conditions.
No. The Fifth Amendment privilege protects against compelled testimonial communications. Under Wade, compelling the accused to utter words or don items used in the crime is a display of physical characteristics and not testimonial; it is therefore permissible.
Wade provides a Sixth Amendment counsel right at post-indictment corporeal lineups. Separately, due process challenges target procedures that are unnecessarily suggestive and conducive to irreparable misidentification. Even absent a Sixth Amendment violation, courts may suppress identifications under due process standards articulated in Stovall, Neil v. Biggers, and Manson v. Brathwaite if reliability is undermined.
The prosecution bears the burden and must prove by clear and convincing evidence that the in-court identification rests on observations independent of the tainted lineup. If the prosecution fails to meet this burden, the in-court identification must be excluded.
United States v. Wade reshaped criminal procedure by recognizing that post-indictment corporeal lineups are fraught with risks that demand the protection of counsel. By defining such lineups as a critical stage and fashioning an exclusionary remedy with an independent source test, the Court built a durable framework for assessing identification evidence and safeguarding fair trials.
For students and practitioners, Wade is indispensable. It teaches when the right to counsel attaches, how to litigate suppression of identification evidence, and how to differentiate Sixth Amendment protections from separate due process reliability analysis. Its principles remain central to pretrial practice, trial strategy, and appellate review in cases involving eyewitness identifications.