Seitz, Chief Judge, and Hastie, Van Dusen, Aldisert, Adams, Gibbons, Max Rosenn, James Rosen, and Hunter, Circuit Judges. Adams, Circuit Judge (concurring). Seitz, Chief Judge, concurring with whom Max Rosenn, Circuit Judge, joins. Hastie, Circuit Judge, with whom Gibbons, Circuit Judge, joins (concurring in part and dissenting in part).
In United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1968), the Supreme Court applied a constitutional gloss to what theretofore had been an evidentiary rule and held that a postindictment lineup where the accused was exhibited to witnesses is a "critical stage" requiring the presence of counsel and that otherwise a presumption of impropriety obtains. In the absence of counsel, the prosecution must establish by clear and convincing evidence that any subsequent in-court identification was based upon observations other than the lineup identification. In United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), this court extended the Wade "critical stage" rule to those instances where the prosecution introduces as evidence of guilt a pre-trial photographic identification of the accused which takes place after an accused has been arrested and charged by some judicial officer with the crime. Today we re-examine this holding.
Convicted of armed robbery, Cleveland Reed was given a ten-year sentence, and appealed to the Delaware Supreme Court, where he contended that while he was in custody, the alleged robbery victim made an out-of-court identification of him, without the presence of his counsel. The details of this pre-trial photographic identification were introduced by the State as part of its case. Relying on Wade and Gilbert, he argued that this evidence was inadmissible. The Delaware Supreme Court refused to extend the reach of those cases to these circumstances and denied relief. Reed v. State of Delaware, 281 A.2d 142 (Del.Sup. 1971). When Reed sought relief by federal habeas corpus, the district court ruled that it was duly bound to apply the teaching of Zeiler, and granted the writ. 329 F. Supp. 15 (D.Del.1971). The State has appealed.
Because Delaware's appeal squarely meets the constitutional issue, we agreed to en banc consideration. In so doing, we recognize that the facts in this case would permit us to avoid meeting the substantive issue, deciding this case solely on the question of retroactivity. Indeed, such an approach would, in our view, admit of easy resolution.*fn1 But we are persuaded that the substantive issue is important enough to merit reconsideration of the important, underlying constitutional questions.*fn2 Thus, we today decide whether there should be continuing viability of the central issue therein stated:
The considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody.
Our anaylsis of Wade begins with the observation that this landmark case is not bottomed on the Fifth Amendment. Although Chief Justice Warren, and Justices Black, Douglas, and Fortas would have applied this additional constitutional dimension to the problem, the Court relied solely on Sixth Amendment considerations.*fn3 Indeed, throughout the Court's opinions in the Wade trilogy runs an unabated emphasis on its confrontation clause:
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.
The issue posed in Wade was ".. whether potential substantial prejudice to defendant's rights inheres in the particular confrontation." In focusing on the "confrontation compelled by the State between the accused and the victim or witnesses, " 388 U.S. at 228, 87 S. Ct. at 1933, the Court described lineups and showings as "either form of confrontation," 388 U.S. at 229, 87 S. Ct. at 1933 and emphasized the difficulty in "depicting what transpires at lineups and other forms of identification confrontations," 388 U.S. at 230, 87 S. Ct. at 1934. In discussing these problems it referred to "pre-trial confrontations for identification," 388 U.S. at 232, 87 S. Ct. at 1935, "suggestive influences in the secrecy of the confrontation," 388 U.S. at 235, 87 S. Ct. at 1936, "meaningful confrontations," 388 U.S. at 236, 87 S. Ct. at 1937, that "no argument is made . . . that notice to counsel would have prejudicially delayed the confrontations," 388 U.S. at 237, 87 S. Ct. at 1938.
Indeed, the Court suggested that the necessity for the constitutional rule would be removed if "legislative or other regulations, such as those of local police departments, [were instituted to] eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial," 388 U.S. at 239, 87 S. Ct. at 1938.
Thus, while the constitutional underpinnings relate to the broader base of right of confrontations at trial, the actual mischief sought to be avoided was the physical confrontation of an uncounseled defendant with his alleged victim and other witnesses. Influenced by the dictates of public policy, the Court promulgated a presumption of constructive impropriety or suggestiveness in police lineups and showups, characterizing them as sources of "[a] grave potential for prejudice, intentional or not." 388 U.S. at 236, 87 S. Ct. at 1937. This conclusion can be analogized to the presumption of constructive psychological or physical coercion in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1961), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1964), environing the statements taken by the police of those in custody. Because of such atmospheres, the Court has concluded that the potential for harm to the accused can be minimized by the presence of counsel.
In the various Supreme Court articulations of Sixth Amendment requirements of counsel, there appears one omnipresent characteristic common to the diverse fact situations -- the physical presence of the accused at the "critical stage": presence at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); presence at confrontation of witness, Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); presence at police interrogation after indictment, Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); presence at the police interrogation in custody, Escobedo v. Illinois, supra, and Miranda v. Arizona, supra ; presence at preliminary hearings or arraignments, Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961), White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963) and Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); presence at sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); presence at a juvenile hearing, In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); and presence at the lineups and showups, Wade and Gilbert.
No critical stage has been found to exist -- at pre-trial or trial -- requiring the assistance of counsel in a factual setting where the accused was not physically present and required or entitled to participate by action or inaction. This factual homology emanates not merely from the design of the Sixth Amendment, which created both the right of confrontation and the right to assistance of counsel, but also from a common rationale. "Critical stages" are those links in the prosecutorial chain of events in which the potential for incrimination inheres or at which the opportunity for effective defense must be seized or foregone. Whether his role be active or passive, the accused must, therefore, be present at all such stages, for neither the prosecution nor the defense can otherwise proceed. And to insure that each proceeds in fairness, "the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Wade, supra, 388 U.S. at 226, 87 S. Ct. at 1932. This tenet of Wade is manifestly inapposite to pretrial photographic displays, where no actual confrontation of the accused takes place. Because the accused is not present, there need be no concern that he must "stand alone."
Recurring through Wade is the Court's concern over the difficulty of reconstructing with fairness and accuracy what actually took place at the lineup or showup: "the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants' names are rarely recorded or divulged at trial." 388 U.S. at 230, 87 S. Ct. at 1934. "In short, the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaning-fully to attack the credibility of the witness' courtroom identification." 388 U.S. at 231-232, 87 S. Ct. at 1934-1935. Those who would evaluate this consideration as supportive of the Zeiler rule reason that a photographic identification procedure where the accused is not present is an argument of a fortiori proportions: the very absence of the accused or his counsel from the pre-trial proceedings makes it even more difficult for the accused to determine whether suggestive or improper techniques were employed.
Conceding there is logic and merit to this argument, we are nevertheless convinced that it is relatively simple to reconstruct identification by photographs in the presence of the judge and jury. Even on an appellate level, this court was able to determine in Zeiler that the photographic display to the witnesses in the second trial*fn4 was "deemed 'so unnecessarily suggestive and conducive to irreparable mistaken identification,' and so pointless for any purpose other than suggestion, as to violate due process" to the extent that held that it was "not a permissible conclusion" for the trial court to hold that the government established its burden of proving by clear and convincing evidence that the in-court testimony was not tainted. 427 F.2d 1308. Contrariwise in Zeiler II, after remand, we were able to reach the opposite conclusion in a review of a display of photographs involving other witnesses in the first trial.*fn5 447 F.2d 993 (3d Cir. 1971).
Indeed, Wade and Gilbert contain sufficient references suggesting that the court did not consider the photographic identification process as a procedure extremely difficult to reconstruct at trial. Wade spoke of "fingerprints, blood sample, clothing, hair, and the like," and said that the "variables in techniques [are] few enough." 388 U.S. at 227, 87 S. Ct. at 1932. Gilbert held that the taking of exemplars of handwriting was not a critical stage because "there is minimal risk that the absence of counsel might derogate from his right to a fair trial." 388 U.S. at 267, 87 S. Ct. at 1953. And as Judge Friendly observed in United States v. Bennett, 409 F.2d 888, 898-900 (2d Cir. 1969), cert. denied, Jessup v. United States, 396 U.S. 852, 90 S. Ct. 113, 24 L. Ed. 2d 101, rehearing denied, 396 U.S. 949, 90 S. Ct. 376, 24 L. Ed. 2d 256:
We turn now to the pervasive concern of the Court -- "the vagaries of eyewitness identification." We do not minimize the importance of imposing safeguards which the Court described as "peculiarly riddled with innumerable dangers and variable factors." 388 U.S. at 228, 87 S. Ct. at 1933. Indeed, exercising our supervisory power in United States v. Barber, 442 F.2d 517, 528 (3d Cir. 1971), we imposed mandatory jury instructions designed to protect the accused in the trials of federal crimes where factors not conducive to proper identification are not present. This court has always been alert to extend to one accused of crime the optimum of constitutional and procedural protections. We recognize that the exclusionary rule of Zeiler brings on collision course the public policy considerations of Wade and Gilbert and the equally respected consideration that evidence relevant to the truth-finding process should not arbitrarily be withheld from the fact finder; this is especially so where, as here, the evidence traditionally has been regarded as admissible and subject only to the rigorous tests of credibility. At a time when traditional rules of evidence are constantly being subjected to reexamination, and efforts are constantly being made to extend the reach of the exclusionary rule, the determination of whether certain evidence should be placed beyond or within the constitutional pale becomes a task of exquisite agony.
Seeking guidance, as we must, from the Supreme Court, we deem it significant that notwithstanding the formidable analysis of eye witness identification in Wade, 388 U.S. 218 at 228-239, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and official recognition of the possible untrustworthiness of eye witness identification, the Court has enunciated no constitutional inhibitions except those directly intertwined with the concept of confrontation. Insofar as constitutional parameters have been drawn, an eye witness completely unknown to the police prior to trial may walk into a courtroom and properly testify: "I saw the accused do the deed. I never saw him before or since. I only looked for a second. But I am absolutely, unshakenly positive that he is the man." Other than ...