United States v. Wade 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) Somebody wrapped their face up in tape and robbed a bank. The police arrested Wade on suspicion of being the robber. The police put Wade in a line-up with other people wearing tape, and he was identified by two bank employees. This was done after Wade had been assigned an attorney but the attorney was not notified of the line-up. At trial, the employees again positively identified Wade as the robber. The Trial Court convicted Wade of bank robbery. He appealed. Wade argued that the admission of the identifications was a violation of his 6th Amendment right to counsel because his attorney was not told about the line-up. Wade also unsuccessfully argued that being made to stand there and let people look at his face was a violation of his 5th Amendment right against self-incrimination. The Appellate Court overturned the conviction. The prosecutor appealed. The Appellate Court found that once an identification is made outside the presence of defense counsel, all futuer identifications (either in-court or out of court) of the defendant by the witness are inadmissible. The US Supreme Court reversed and remanded for a new trial. The US Supreme Court found that a defendant has a 6th Amendment right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings. In cases of a line-up, it is possible that the police will take some actions that will make it biased to the defendant (the police may lead the witness into choosing the suspect). Without a defense attorney present to examine the facts of the identification, they cannot adequately cross-examine the witness and thus cannot provide effective counsel. "Once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may for all practical purposes be determined there and then, before the trial." Btw, when fingerprinting or DNA sampling, the defense can always rebut with expert witnesses after the fact. But for line-ups, it is difficult to rebut at trial. Hence the need for counsel to make sure that it is done correctly. The Court found that an in-court identification by a witness to whom the accused was exhibited before trial in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that the error in its admission was harmless. Once a witness has identified a defendant in a line-up without counsel being present, there will always be a suspicion that there was a problem with the line-up. Therefore, even if they identify the defendant in court, you can never be sure if it is because they really know he did it, or because they just remember seeing him in the (faulty) line-up. So the prosecution has to show that they are making a good identification based on something outside the line-up. Aka the per se exclusionary rule. The Court remanded the case to see if there was any independent evidence outside of the line-up that could account for the in-court identification. If so, then the identification is admissible. Otherwise, it would be inadmissible. The Court noted that, in theory, if another procedure (like videotaping) was suggested, it might satisfy the constitutional requirements and excuse the failure to have a lawyer present. Basically, an in-court identification is "fruit of the poisonous tree" if there was an unconstitutional out-of-court identification. But, if there is an independent source that the prosecution can point to, then the in-court identification can be admissible. For example, if the witness, prior to the flawed line-up, worked with a police sketch artist and made a drawing that looked exactly like the suspect, that would be an independent source of evidence to prove the reliability of the in-court identification.