stand up in the courtroom. The transcript of the Paris trial fails to substantiate the occurrence of the event although it does reveal that counsel for Paris directed another subpoenaed witness to stand in the courtroom.
Relator subsequently was tried before a jury along with two other defendants. At the point in the Commonwealth's direct examination of the prosecutrix where relator's counsel expected that the prosecutrix would be asked to identify relator, said counsel requested a hearing outside the presence of the jury as to the basis for the prosecutrix's expected in-court identification. In support of the request, counsel stated to the State trial judge that the failure of the prosecutrix to identify relator at a lineup rendered it important to determine in what manner she came to identify the relator. Upon the representation of the Commonwealth that it would introduce no evidence of the lineup confrontation, the State trial judge denied the request for an independent hearing.
Relator's counsel then sought through cross-examination of the prosecutrix to develop the manner by which she came to identify relator. Counsel first asked the prosecutrix whether she recalled the lineup confrontation with the relator. Counsel then inquired as to the circumstances surrounding the confrontation at the preliminary hearing. In both instances the questions drew objections from the Commonwealth which the State trial judge sustained on the ground that the questioning exceeded the scope of cross-examination and raised matters properly to be presented as an affirmative defense. No further cross-examination upon the pretrial confrontations between the prosecutrix and the relator was conducted.
Relator contends that the aforementioned rulings of the State trial judge effectively foreclosed him from developing before either the judge or the jury the circumstances surrounding each of the confrontations occurring between the incident of June 14, 1967 and the prosecutrix's in-court identification which had a bearing upon her identification of the relator. Before considering the applicable law, it is well to note that, although counsel was not present at the lineup, relator did not seek to challenge that confrontation between the prosecutrix and the relator. The prosecutrix failed to identify relator at the lineup and this fact was favorable to the relator. Relator rather sought to challenge as unduly suggestive other confrontations subsequent to the lineup and prior to trial wherein the relator was exhibited before, and identified to, the prosecutrix as a defendant charged by the Commonwealth with the offense of raping the prosecutrix. Relator's counsel was present at these confrontations.
A pretrial identification confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification that it denies an accused due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Not merely a lineup but any pretrial confrontation must be scrutinized for its fairness. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). That a pretrial confrontation is unintentionally unfair or even accidental in its occurrence does not render it immune from constitutional infirmity. Mason v. United States, 134 U.S. App. D.C. 280, 414 F.2d 1176, 1180 (1969); United States v. Terry, 137 U.S. App. D.C. 267, 422 F.2d 704 (D.C. Cir. 1970).
The preliminary hearing is particularly fraught with the dangers of suggestibility, intentional or otherwise, for it is in this setting that an accused is frequently presented to the victim or witness as one whom the State suspects as being guilty of an offense and, as here, guilty of the very offense to which the victim has been subjected or which the witness has observed. See Mason v. United States, supra, and United States v. Terry, supra.
Where a proposed in-court identification is tainted by a prior constitutionally infirm pretrial confrontation, the proposed in-court identification is inadmissible in evidence. United States v. Wade, supra, 388 U.S. at 240, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. And, if the defendant makes a timely challenge to the prosecutor's proposed in-court identification, the court is bound to conduct a hearing outside the presence of the jury to determine whether a pretrial confrontation between the same eyewitness and the accused was constitutionally infirm and, if so, whether the incourt identification may still be admissible as having had an independent source. Gilbert v. California, 388 U.S. 263, 272, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Clemons v. United States, 133 U.S. App. D.C. 27, 408 F.2d 1230, 1237 (1968). Defense counsel did make a timely challenge to the proposed in-court identification of relator by the prosecutrix in the instant case. That the prosecution did not intend to introduce evidence of any of the pretrial confrontations was of no moment. United States v. Wade, supra, 388 U.S. at 240, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. The State trial judge erred in refusing to entertain defense counsel's request for a hearing outside the presence of the jury to determine the manner by which the prosecutrix came by her identification of the relator and whether, in the light of the same, her proposed in-court identification would be admissible.
Unfortunately, this error was further compounded when defense counsel was precluded from cross-examining the prosecutrix relative to her confrontations with the relator at the lineup, the preliminary hearing and the Paris trial. Defense counsel sought to attack the credibility of the prosecutrix's identification testimony by demonstrating both her inability to identify relator at the lineup and the subsequent suggestive influences of "show-ups" at the preliminary hearing and Paris trial.
The right of cross-examination secured by the Confrontation Clause of the Sixth Amendment is made applicable to the States by the Fourteenth Amendment. Roberts v. Russell, 392 U.S. 293, 294, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1967). Although the latitude to be afforded in cross-examination is within the sound discretion of the trial judge, the imposition of a restraint upon cross-examination may be so severe as effectively to deprive a defendant of the right altogether. United States v. Norman, 402 F.2d 73, 76 (9th Cir. 1968).
The particular importance of the right to cross-examine upon identification testimony was recognized by the Supreme Court in United States v. Wade, supra, where it stated 388 U.S. at 227, 87 S. Ct. at 1932:
"In sum, the principle of Powell v. Alabama [287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158] and succeeding cases requires that we scrutinized any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself."