Supreme Court of the United States
Kirby v. Illinois
Certiorari to the Appellate Court of Illinois, First District
No. 70-5061. Argued: November 11, 1971, and March 20-21, 1972 --- Decided: June 7, 1972
Petitioner and a companion were stopped for interrogation. When each produced, in the course of demonstrating identification, items bearing the name "Shard," they were arrested and taken to the police station. There, the arresting officers learned of a robbery of one "Shard" two days before. The officers sent for Shard, who immediately identified petitioner and his companion as the robbers. At the time of the confrontation petitioner and his companion were not advised of the right to counsel, nor did either ask for or receive legal assistance. Six weeks later, petitioner and his companion were indicted for the Shard robbery. At the trial, after a pretrial motion to suppress his testimony had been overruled, Shard testified as to his previous identification of petitioner and his companion, and again identified them as the robbers. The defendants were found guilty and petitioner's conviction was upheld on appeal, the appellate court holding that the per se exclusionary rule of United States v. Wade, 388 U.S. 218, and Gilbert v. California, 388 U.S. 263, did not apply to pre-indictment confrontations.
Held: The judgment is affirmed. Pp. 687-691.
121 Ill. App. 2d 323, 257 N.E. 2d 589, affirmed.
MR. JUSTICE STEWART, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST, concluded that a showup after arrest, but before the initiation of any adversary criminal proceeding (whether by way of formal charge, preliminary hearing, indictment, information, or arraignment), unlike the post-indictment confrontations involved in Gilbert and Wade, is not a criminal prosecution at which the accused, as a matter of absolute right, is entitled to counsel. Pp. 687-691.
MR. JUSTICE POWELL concurred in the result. P. 691.
STEWART, J., announced the Court's judgment and delivered an opinion in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined. BURGER, C.J., filed a concurring statement, post, p. 691. POWELL, J., filed a statement concurring in the result, post, p. 691. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 691. WHITE, J., filed a dissenting statement, post, p. 705.
Jerold S. Solovy argued the cause for petitioner on the reargument and Michael P. Seng argued the cause on the original argument. Messrs. Solovy and Seng were on the briefs for petitioner.
James B. Zagel, Assistant Attorney General of Illinois, reargued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and E. James Gildea, Assistant Attorney General.
Ronald M. George, Deputy Attorney General, argued the cause on the reargument for the State of California as amicus curiae urging affirmance. With him on the brief were Evelle J. Younger, Attorney General, and William E. James, Assistant Attorney General.