Right to Counsel

During identification

Although the Fifth Amendment right to counsel applies to interrogatories, it is not relevant to lineup identifications, which merely involve the observance of physical characteristics. However, the Sixth Amendment does attach to lineup identifications after the initiation of judicial proceedings, because a witness identification is very damaging evidence and there is a fear of coercion by law enforcement unless a lawyer is present.

It is important to note the "initiation of judicial proceedings" aspect to lineup identification. In Kirby v. Illinois, 406 U.S. 682, 689 (1972), the United States Supreme Court held that no right to counsel existed with respect to lineups that precede some formal act of charging a suspect. Specifically, the Court held that the Sixth Amendment would not apply until ''the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearings, indictment, information, or arraignment. . . . It is this point . . . that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable."

Furthermore . . .

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Page last updated: 2/17/2007
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