388 U.S. 218 (1967), argued 16 Feb. 1967, decided 12 June 1967 by vote of 5 to 4; Brennan for the Court; White, joined by Harlan and Stewart, dissented from the second part of the holding (see below) and would have upheld the conviction; Black dissented from the first part of the holding but would have upheld the conviction; Fortas, joined by Warren and Douglas, concurred in overturning the conviction, but dissented from the first part of the holding. Wade was indicted for bank robbery, and the FBI put him in a lineup without notifying his attorney. Everyone in the lineup was required to wear a mask and say “put the money in the bag.” The Supreme Court held that (1) putting defendants in a lineup and having them wear certain items and utter words used in the crime is not compelled self-incrimination because it is not testimonial evidence, but also that (2) lineups are a “critical stage” of the prosecution and defendants are entitled to have counsel present. The Court thought that prejudicial conditions, perhaps created unintentionally, existed at lineups for unrepresented defendants. Wade's conviction was overturned on that basis. This holding enlarged the right to counsel, already greatly expanded in Miranda v. Arizona (1966).
Many saw Wade as epitomizing the Warren Court's “softness” on crime. In the Crime Control and Safe Streets Act of 1968, Congress allowed use of lineup identification evidence obtained without counsel present in the federal courts. The Burger Court undermined Wade in Kirby v. Illinois (1972) by ruling that the right to counsel at lineups did not take effect until after indictment or its equivalent. In United States v. Ash (1973), it ruled that counsel was unnecessary when witnesses were shown photographs of the defendant.
Bradley C. Canon