Petitioner was convicted and sentenced to death for murdering
one Dr. Behrendt. He had been arrested the day after the murder,
and, without being afforded time to retain counsel, was taken by
police officers, to one of whom he was handcuffed, to be viewed at
the hospital by Mrs. Behrendt, who had been seriously wounded by
her husband's assailant. After observing him and hearing him speak
as directed by an officer, Mrs. Behrendt identified petitioner as
the murderer. Mrs. Behrendt and the officers testified at
petitioner's trial as to the hospital identification, and she also
made an in-court identification of the petitioner. Following
affirmance of his conviction by the highest state court, petitioner
sought habeas corpus in the District Court, claiming that Mrs.
Behrendt's identification testimony violated his Fifth, Sixth, and
Fourteenth Amendment rights. The District Court after hearing
argument on an unrelated claim, dismissed the petition. The Court
of Appeals, en banc, vacated a panel decision reversing the
dismissal of the petition on constitutional grounds, and affirmed
the District Court.
Held:
1. The constitutional rule established in today's decisions in
United States v. Wade and
Gilbert v. California,
ante pp.
388 U. S. 218,
388 U. S. 263, has
application only to cases involving confrontations for
identification purposes conducted in the absence of counsel after
this date.
Cf. Linkletter v. Walker, 381 U.
S. 618;
Tehan v. Shott, 382 U.
S. 406;
Johnson v. New Jersey, 384 U.
S. 719. Pp.
388 U. S.
296-301.
2. Though the practice of showing suspects singly for purposes
of identification has been widely condemned, a violation of due
process of law in the conduct of a confrontation depends on the
totality of the surrounding circumstances. There was no due process
denial in the confrontation here, since Mrs. Behrendt was the only
person who could exonerate the suspect; she could not go to the
police station for the usual lineup, and there was no way of
knowing how long she would live. Pp.
388 U. S.
301-302.
355 F.2d 731, affirmed.
Page 388 U. S. 294
MR JUSTICE BRENNAN delivered the opinion of the Court.
This federal habeas corpus proceeding attacks collaterally a
state criminal conviction for the same alleged constitutional
errors in the admission of allegedly tainted identification
evidence that were before us on direct review of the convictions
involved in
United States v. Wade, ante, p.
388 U. S. 218, and
Gilbert v. California, ante, p.
388 U. S. 263.
This case therefore provides a vehicle for deciding the extent to
which the rules announced in
Wade and
Gilbert --
requiring the exclusion of identification evidence which is tainted
by exhibiting the accused to identifying witnesses before trial in
the absence of his counsel -- are to be applied retroactively.
See Linkletter v. Walker, 381 U.
S. 618;
Tehan v. Shott, 382 U.
S. 406;
Johnson v. New Jersey, 384 U.
S. 719. [
Footnote 1]
A further question is whether, in any event, on the facts of the
particular confrontation
Page 388 U. S. 295
involved in this case, petitioner was denied due process of law
in violation of the Fourteenth Amendment.
Cf. Davis v. North
Carolina, 384 U. S. 737.
Dr. Paul Behrendt was stabbed to death in the kitchen of his
home in Garden City, Long Island, about midnight August 23, 1961.
Dr. Behrendt's wife, also a physician, had followed her husband to
the kitchen and jumped at the assailant. He knocked her to the
floor and stabbed her 11 times. The police found a shirt on the
kitchen floor and keys in a pocket which they traced to petitioner.
They arrested him on the afternoon of August 24. An arraignment was
promptly held, but was postponed until petitioner could retain
counsel.
Mrs. Behrendt was hospitalized for major surgery to save her
life. The police, without affording petitioner time to retain
counsel, arranged with her surgeon to permit them to bring
petitioner to her hospital room about noon of August 25, the day
after the surgery. Petitioner was handcuffed to one of five police
officers who, with two members of the staff of the District
Attorney, brought him to the hospital room. Petitioner was the only
Negro in the room. Mrs. Behrendt identified him from her hospital
bed after being asked by an officer whether he "was the man" and
after petitioner repeated at the direction of an officer a "few
words for voice identification." None of the witnesses could recall
the words that were used. Mrs. Behrendt and the officers testified
at the trial to her identification of the petitioner in the
hospital room, and she also made an in-court identification of
petitioner in the courtroom.
Petitioner was convicted, and sentenced to death. The New York
Court of Appeals affirmed without opinion. 13 N.Y.2d 1094, 196
N.E.2d 65. Petitioner
pro se sought federal habeas corpus
in the District Court for the Southern District of New York. He
claimed that, among other constitutional rights allegedly denied
him
Page 388 U. S. 296
at his trial, the admission of Mrs. Behrendt's identification
testimony violated his rights under the Fifth, Sixth, and
Fourteenth Amendments because he had been compelled to submit to
the hospital room confrontation without the help of counsel and
under circumstances which unfairly focused the witness' attention
on him as the man believed by the police to be the guilty person.
The District Court dismissed the petition after hearing argument on
an unrelated claim of an alleged invalid search and seizure. On
appeal to the Court of Appeals for the Second Circuit, a panel of
that court initially reversed the dismissal after reaching the
issue of the admissibility of Mrs. Behrendt's identification
evidence and holding it inadmissible on the ground that the
hospital room identification violated petitioner's constitutional
right to the assistance of counsel. The Court of Appeals thereafter
heard the case en banc, vacated the panel decision, and affirmed
the District Court. 355 F.2d 731. We granted certiorari, 384 U.S.
1000, and set the case for argument with
Wade and
Gilbert. We hold that
Wade and
Gilbert
affect only those cases and all future cases which involve
confrontations for identification purposes conducted in the absence
of counsel after this date. The rulings of
Wade and
Gilbert are therefore inapplicable in the present case. We
think also that, on the facts of this case, petitioner was not
deprived of due process of law in violation of the Fourteenth
Amendment. The judgment of the Court of Appeals is, therefore,
affirmed.
I
Our recent discussions of the retroactivity of other
constitutional rules of criminal procedure make unnecessary any
detailed treatment of that question here.
Linkletter v. Walker,
supra; Tehan v. Shott, supra; Johnson v. New Jersey,
supra.
"These cases establish the principle that, in criminal
litigation concerning constitutional
Page 388 U. S. 297
claims, 'the Court may, in the interest of justice, make the
rule prospective . . . where the exigencies of the situation
require such an application.' . . ."
Johnson, supra, 384 U.S. at
384 U. S.
726-727. The criteria guiding resolution of the question
implicate (a) the purpose to be served by the new standards, (b)
the extent of the reliance by law enforcement authorities on the
old standards, and (c) the effect on the administration of justice
of a retroactive application of the new standards.
"[T]he retroactivity or nonretroactivity of a rule is not
automatically determined by the provision of the Constitution on
which the dictate is based. Each constitutional rule of criminal
procedure has its own distinct functions, its own background of
precedent, and its own impact on the administration of justice, and
the way in which these factors combine must inevitably vary with
the dictate involved."
Johnson, supra, at
384 U. S.
728.
Wade and
Gilbert fashion exclusionary rules to
deter law enforcement authorities from exhibiting an accused to
witnesses before trial for identification purposes without notice
to and in the absence of counsel. A conviction which rests on a
mistaken identification is a gross miscarriage of justice. The
Wade and
Gilbert rules are aimed at minimizing
that possibility by preventing the unfairness at the pretrial
confrontation that experience has proved can occur and assuring
meaningful examination of the identification witness' testimony at
trial. Does it follow that the rules should be applied
retroactively? We do not think so.
It is true that the right to the assistance of counsel has been
applied retroactively at stages of the prosecution where denial of
the right must almost invariably deny a fair trial, for example, at
the trial itself,
Gideon v. Wainwright, 372 U.
S. 335, or at some forms of arraignment,
Hamilton v.
Alabama, 368 U. S. 52, or on
appeal,
Douglas v. California, 372 U.
S. 353.
"The basic purpose
Page 388 U. S. 298
of a trial is the determination of truth, and it is self-evident
that to deny a lawyer's help through the technical intricacies of a
criminal trial or to deny a full opportunity to appeal a conviction
because the accused is poor is to impede that purpose and to infect
a criminal proceeding with the clear danger of convicting the
innocent."
Tehan v. Shott, supra, at
382 U. S. 416.
We have also retroactively applied rules of criminal procedure
fashioned to correct serious flaws in the factfinding process at
trial.
See, for example, Jackson v. Denno, 378 U.
S. 368. Although the
Wade and
Gilbert
rules also are aimed at avoiding unfairness at the trial by
enhancing the reliability of the factfinding process in the area of
identification evidence,
"the question whether a constitutional rule of criminal
procedure does or does not enhance the reliability of the
factfinding process at trial is necessarily a matter of
degree."
Johnson v. New Jersey, supra, at
384 U. S.
728-729. The extent to which a condemned practice
infects the integrity of the truth-determining process at trial is
a "question of probabilities." 384 U.S. at
384 U. S. 729.
Such probabilities must in turn be weighed against the prior
justified reliance upon the old standard and the impact of
retroactivity upon the administration of justice. We have outlined
in
Wade the dangers and unfairness inherent in
confrontations for identification. The possibility of unfairness at
that point is great, both because of the manner in which
confrontations are frequently conducted and because of the
likelihood that the accused will often be precluded from
reconstructing what occurred and thereby from obtaining a full
hearing on the identification issue at trial. The presence of
counsel will significantly promote fairness at the confrontation
and a full hearing at trial on the issue of identification. We
have, therefore, concluded that the confrontation is a "critical
stage," and that counsel is required at all confrontations. It must
be recognized, however, that, unlike
Page 388 U. S. 299
cases in which counsel is absent at trial or on appeal, it may
confidently be assumed that confrontations for identification can
be, and often have been, conducted in the absence of counsel with
scrupulous fairness and without prejudice to the accused at trial.
Therefore, while we feel that the exclusionary rules set forth in
Wade and
Gilbert are justified by the need to
assure the integrity and reliability of our system of justice, they
undoubtedly will affect cases in which no unfairness will be
present. Of course, we should also assume there have been
injustices in the past which could have been averted by having
counsel present at the confrontation for identification, just as
there are injustices when counsel is absent at trial. But the
certainty and frequency with which we can say in the confrontation
cases that no injustice occurred differs greatly enough from the
cases involving absence of counsel at trial or on appeal to justify
treating the situations as different in kind for the purpose of
retroactive application, especially in light of the strong
countervailing interests outlined below, and because it remains
open to all persons to allege and prove, as Stovall attempts to do
in this case, that the confrontation resulted in such unfairness
that it infringed his right to due process of law.
See Palmer
v. Peyton, 359 F.2d 199 (C.A.4th Cir.1966).
The unusual force of the countervailing considerations
strengthens our conclusion in favor of prospective application. The
law enforcement officials of the Federal Government and of all 50
States have heretofore proceeded on the premise that the
Constitution did not require the presence of counsel at pretrial
confrontations for identification. Today's rulings were not
foreshadowed in our cases; no court announced such a requirement
until
Wade was decided by the Court of Appeals for the
Fifth Circuit, 358 F.2d 557. The overwhelming majority of American
courts have always treated the evidence question
Page 388 U. S. 300
not as one of admissibility, but as one of credibility for the
jury. Wall, Eye-Witness Identification in Criminal Cases 38. Law
enforcement authorities fairly relied on this virtually unanimous
weight of authority, now no longer valid, in conducting pretrial
confrontations in the absence of counsel. It is, therefore, very
clear that retroactive application of
Wade and
Gilbert "would seriously disrupt the administration of our
criminal laws."
Johnson v. New Jersey, supra, at
384 U. S. 731.
In
Tehan v. Shott, supra, we thought it persuasive against
retroactive application of the no-comment rule of
Griffin v.
California, 380 U. S. 609,
that such application would have a serious impact on the six States
that allowed comment on an accused's failure to take the stand. We
said,
"To require all of those States now to void the conviction of
every person who did not testify at his trial would have an impact
upon the administration of their criminal law so devastating as to
need no elaboration."
382 U.S. at
382 U. S. 419.
That impact is insignificant compared to the impact to be expected
from retroactivity of the
Wade and
Gilbert rules.
At the very least, the processing of current criminal calendars
would be disrupted while hearings were conducted to determine
taint, if any, in identification evidence, and whether, in any
event, the admission of the evidence was harmless error. Doubtless,
too, inquiry would be handicapped by the unavailability of
witnesses and dim memories. We conclude, therefore, that the
Wade and
Gilbert rules should not be made
retroactive.
We also conclude that, for these purposes, no distinction is
justified between convictions now final, as in the instant case,
and convictions at various stages of trial and direct review. We
regard the factors of reliance and burden on the administration of
justice as entitled to such overriding significance as to make that
distinction
Page 388 U. S. 301
unsupportable. [
Footnote 2]
We recognize that Wade and Gilbert are, therefore, the only victims
of pretrial confrontations in the absence of their counsel to have
the benefit of the rules established in their cases. That they must
be given that benefit is, however, an unavoidable consequence of
the necessity that constitutional adjudications not stand as mere
dictum. Sound policies of decisionmaking, rooted in the command of
Article III of the Constitution that we resolve issues solely in
concrete cases or controversies, [
Footnote 3] and in the possible effect upon the incentive
of counsel to advance contentions requiring a change in the law,
[
Footnote 4] militate against
denying Wade and Gilbert the benefit of today's decisions. Inequity
arguably results from according the benefit of a new rule to the
parties in the case in which it is announced, but not to other
litigants similarly situated in the trial or appellate process who
have raised the same issue. [
Footnote 5] But we regard the fact that the parties
involved are chance beneficiaries as an insignificant cost for
adherence to sound principles of decisionmaking.
II
We turn now to the question whether petitioner, although not
entitled to the application of
Wade and
Gilbert
to his case, is entitled to relief on his claim that, in any event,
the confrontation conducted in this
Page 388 U. S. 302
case was so unnecessarily suggestive and conducive to
irreparable mistaken identification that he was denied due process
of law. This is a recognized ground of attack upon a conviction
independent of any right to counsel claim.
Palmer v.
Peyton, 359 F.2d 199 (C.A.4th Cir.1966). The practice of
showing suspects singly to persons for the purpose of
identification, and not as part of a lineup, has been widely
condemned. [
Footnote 6]
However, a claimed violation of due process of law in the conduct
of a confrontation depends on the totality of the circumstances
surrounding it, and the record in the present case reveals that the
showing of Stovall to Mrs. Behrendt in an immediate hospital
confrontation was imperative. The Court of Appeals, en banc,
stated, 355 F.2d at 735,
"Here was the only person in the world who could possibly
exonerate Stovall. Her words, and only her words, 'He is not the
man,' could have resulted in freedom for Stovall. The hospital was
not far distant from the courthouse and jail. No one knew how long
Mrs. Behrendt might live. Faced with the responsibility of
identifying the attacker, with the need for immediate action and
with the knowledge that Mrs. Behrendt could not visit the jail, the
police followed the only feasible procedure and took Stovall to the
hospital room. Under these circumstances, the usual police station
line-up, which Stovall now argues he should have had, was out of
the question."
The judgment of the Court of Appeals is affirmed.
It is so ordered.
MR. JUSTICE DOUGLAS is of the view that the deprivation of the
right to counsel in the setting of this case
Page 388 U. S. 303
should be given retroactive effect as it was in
Gideon v.
Wainwright, 372 U. S. 335, and
in
Douglas v. California, 372 U.
S. 353.
And see Linkletter v. Walker,
381 U. S. 618,
381 U. S. 640
(dissenting opinion);
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 736
(dissenting opinion).
MR. JUSTICE FORTAS would reverse and remand for a new trial on
the ground that the State's reference at trial to the improper
hospital identification violated petitioner's Fourteenth Amendment
rights and was prejudicial. He would not reach the question of
retroactivity of
Wade and
Gilbert.
[
Footnote 1]
Although respondent did not raise the bar of retroactivity, the
Attorney General of the State of New York, as
amicus
curiae, extensively briefed the issue of retroactivity and
petitioner, in his reply brief, addressed himself to this question.
Compare Mapp v. Ohio, 367 U. S. 643,
367 U. S. 646,
n. 3.
[
Footnote 2]
Schaefer, The Control of "Sunbursts": Techniques of Prospective
Overruling, 22 Record of N.Y.C.B.A. 394, 408-411 (1967).
[
Footnote 3]
Note, Prospective Overruling and Retroactive Application in the
Federal Courts, 71 Yale L.J. 907, 930-933 (1962).
[
Footnote 4]
See Mishkin, Foreword, The Supreme Court 1964 Term, 79
Harv.L.Rev. 56, 60-61 (1965).
[
Footnote 5]
See Mishkin,
n 4,
supra, at 61, n. 23; Bender, The Retroactive Effect of an
Overruling Constitutional Decision:
Mapp v. Ohio, 110
U.Pa.L.Rev. 650, 675-678 (1962); Schwartz, Retroactivity,
Reliability, and Due Process: A Reply to Professor Mishkin, 33
U.Chi.L.Rev. 719, 764 (1966).
[
Footnote 6]
See Wall, Eye-Witness Identification in Criminal Cases
26-40; Paul, Identification of Accused Persons, 12 Austl.L.J. 42,
44 (1938); Williams & Hammelmann, Identification Parades, Part
I, [1963] Crim.L.Rev. 479, 480-481; Frankfurter, The Case of Sacco
and Vanzetti 31-32.
MR. JUSTICE WHITE, whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join.
For the reasons stated in my separate opinion in
United
States v. Wade, ante, p.
388 U. S. 250,
I perceive no constitutional error in the identification procedure
to which the petitioner was subjected. I concur in the result and
in that portion of the Court's opinion which limits application of
the new Sixth Amendment rule.
MR. JUSTICE BLACK, dissenting.
In
United States v. Wade, ante, p.
388 U. S. 218, and
Gilbert v. California, ante p.
388 U. S. 263, the
Court holds that lineup identification testimony should be excluded
if it was obtained by exhibiting an accused to identifying
witnesses before trial in the absence of his counsel. I concurred
in part in those holdings as to out-of-court lineup identification
on the ground that the right to counsel is guaranteed in federal
courts by the Sixth Amendment and in state courts by the Sixth and
Fourteenth Amendments. The first question in this case is whether
other defendants, already in prison on
Page 388 U. S. 304
such unconstitutional evidence, shall be accorded the benefit of
the rule. In this case, the Court holds that the petitioner here,
convicted on such unconstitutional evidence, must remain in prison,
and that, besides Wade and Gilbert, who are "chance beneficiaries,"
no one can invoke the rule except defendants exhibited in lineups
in the future. I dissent from that holding. It keeps people serving
sentences who were convicted through the use of unconstitutional
evidence. This is sought to be justified on the ground that
retroactive application of the holding in
Gilbert and
Wade would somehow work a "burden on the administration of
justice," and would not serve the Court's purpose "to deter law
enforcement authorities." It seems to me that to deny this
petitioner and others like him the benefit of the new rule deprives
them of a constitutional trial and perpetrates a rank
discrimination against them. Once the Court determines what the
Constitution says, I do not believe it has the power, by weighing
"countervailing interests," to legislate a timetable by which the
Constitution's provisions shall become effective. For reasons
stated in my dissent in
Linkletter v. Walker, 381 U.
S. 618,
381 U. S. 640,
I would hold that the petitioner here and every other person in
jail under convictions based on unconstitutional evidence should be
given the advantage of today's newly announced constitutional
rules.
The Court goes on, however, to hold that, even though its new
constitutional rule about the Sixth Amendment's right to counsel
cannot help this petitioner, he is nevertheless entitled to a
consideration of his claim, "independent of any right to counsel
claim," that his identification by one of the victims of the
robbery was made under circumstances so "unfair" that he was denied
"due process of law" guaranteed by the Fourteenth Amendment.
Although the Court finds petitioner's claim without merit, I
dissent from its holding that a general
Page 388 U. S. 305
claim of "unfairness" at the lineup is "open to all persons to
allege and prove." The term "due process of law" is a direct
descendant of Magna Charta's promise of a trial according to the
"law of the land" as it has been established by the lawmaking
agency, constitutional or legislative. No one has ever been able to
point to a word in our constitutional history that shows the
Framers ever intended that the Due Process Clause of the Fifth or
Fourteenth Amendment was designed to mean any more than that
defendants charged with crimes should be entitled to a trial
governed by the laws, constitutional and statutory, that are in
existence at the time of the commission of the crime and the time
of the trial. The concept of due process under which the Court
purports to decide this question, however, is that this Court looks
at "the totality of the circumstances" of a particular case to
determine in its own judgment whether they comport with the Court's
notions of decency, fairness, and fundamental justice, and, if so,
declares they comport with the Constitution, and, if not, declares
they are forbidden by the Constitution.
See, e.g., Rochin v.
California, 342 U. S. 165.
Such a constitutional formula substitutes this Court's judgment of
what is right for what the Constitution declares shall be the
supreme law of the land. This due process notion proceeds as though
our written Constitution, designed to grant limited powers to
government, had neutralized its limitations by using the Due
Process Clause to authorize this Court to override its written
limiting language by substituting the Court's view of what powers
the Framers should have granted government. Once again, I dissent
from any such view of the Constitution. Where accepted, its result
is to make this Court not a Constitution-interpreter, but a
day-to-day Constitution-maker.
But even if the Due Process Clause could possibly be construed
as giving such latitudinarian powers to the
Page 388 U. S. 306
Court, I would still think the Court goes too far in holding
that the courts can look at the particular circumstances of each
identification lineup to determine at large whether they are too
"suggestive and conducive to irreparable mistaken identification"
to be constitutional. That result is to freeze as constitutional or
as unconstitutional the circumstances of each case, giving the
States and the Federal Government no permanent constitutional
standards. It also transfers to this Court power to determine what
the Constitution should say, instead of performance of its
undoubted constitutional power to determine what the Constitution
does say. And the result in this particular case is to put into a
constitutional mould a rule of evidence which I think is plainly
within the constitutional powers of the States in creating and
enforcing their own criminal laws. I must say with all deference
that for this Court to hold that the Due Process Clause gives it
power to bar state introduction of lineup testimony on its notion
of fairness, not because it violates some specific constitutional
prohibition, is an arbitrary, wholly capricious action.
I would not affirm this case, but would reverse and remand for
consideration of whether the out-of-court lineup identification of
petitioner was, under
Chapman v. California, 386 U. S.
18, harmless error. If it was not, petitioner is
entitled to a new trial because of a denial of the right to counsel
guaranteed by the Sixth Amendment which the Fourteenth Amendment
makes obligatory on the States.