Kirby v. Illinois
406 U.S. 62, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)

  • The police stopped Kirby and Bean and asked for identification. In their wallets they both had some traveler’s checks issued to a guy named Shard.
    • Coincidentally, a guy named Shard just so happened to have reported getting mugged a few days earlier…
  • The police contacted Shard, who came down to the police station and identified Kriby and Bean as the men who robbed him (aka a show-up).
    • At this point Kirby and Bean had not been arrested, so they had not been advised of their rights and did not have a lawyer.
  • At trial, Shard made an in-court identification of Kirby and Bean as his assailants.
  • The Trial Court found Kirby and Bean guilty of robbery. They appealed.
    • Kirby argued that based on United States v. Wade (388 U.S. 218 (1967)) and Gilbert v. California (388 U.S. 263 (1967)), identifications made outside the presence of defense counsel were inadmissible.
      • Unless the prosecution could show an independent origin for the in-court identification.
  • The Appellate Court upheld the conviction. Kirby and Bean appealed.
    • The Appellate Court found that the per se exclusionary rule established by Wade did not apply to pre-indictment confrontations.
  • The US Supreme Court upheld the convictions.
    • The US Supreme Court found that, unlike in Wade and Gilbert, the defendants were not under arrest at the time of the identification.
    • Since the 6th Amendment right to counsel only attaches once an indictment is made, at the time of the identification, Kirby did not have a right to counsel. Therefore there is no violation of the 6th Amendment.
    • The Court did note that even if the 6th Amendment doesn’t apply, there still could be a theoretical due process argument to be made. But Kirby didn’t make it.
  • In a dissent it was argued that Wade and Gilbert were based on the idea that an identification could be faulty and therefore required the presence of counsel to ensure that it was not faulty. If true, what difference does it make if the person is technically under arrest or not? It’s the same exact issue!
    • Doesn’t this ruling imply that the police can get around the requirement for counsel to be present during a line-up by just doing all ­line-ups pre-indictment? Is that fair?