Kirby v. Illinois, 406 U.S. 682 (1972)

CERTIORARI TO THE APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT

Syllabus

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.