US SUPREME COURT DECISIONS

After petitioner had been arrested for rape and related offenses, he was identified by the complaining witness as her assailant at the ensuing preliminary hearing, during which petitioner was not represented by counsel nor offered appointed counsel. The victim had been asked to make identification after being told that she was going to view a suspect, after being told his name and having heard it called as he was led before the bench, and after having heard the prosecutor recite the evidence believed to implicate petitioner. Subsequently, petitioner was indicted, and counsel was appointed, who moved to suppress the victim's identification of petitioner. The Illinois trial court denied the motion on the ground that the prosecution had shown an independent basis for the victim's identification. At trial, the victim testified on direct examination by the prosecution that she had identified petitioner as her assailant at the preliminary hearing, and there was certain other evidence linking petitioner to the crimes. He was convicted, and the Illinois Supreme Court affirmed. He then sought habeas corpus relief in Federal District Court on the ground that the admission of the identification testimony at trial violated his Sixth and Fourteenth Amendment rights, but the court denied relief again on the ground that the prosecution had shown an independent basis for the identification, and the Court of Appeals affirmed.

Held:

1. Petitioner's Sixth Amendment right to counsel was violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel. United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263. It is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case at the preliminary hearing, and if petitioner had been represented by counsel, some or all of this suggestiveness could have been avoided. And the prosecution could not properly buttress its case-in-chief by introducing evidence of a pretrial identification made in violation of petitioner's Sixth Amendment rights, even if it could prove that the pretrial identification had an independent source. Pp. 434 U. S. 224-232.

2. The case will be remanded, however, for a determination of whether chanrobles.com-red

Page 434 U. S. 221

the failure to exclude the evidence derived directly from the violation of petitioner's Sixth Amendment right to counsel was harmless constitutional error under Chapman v. California, 386 U. S. 18. P. 434 U. S. 232.

534 F.2d 331, reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, STEWART, WHITE, MARSHALL, and REHNQUIST, JJ., joined. REHNQUIST, J., filed a concurring opinion, post, p. 434 U. S. 232. BLACKMUN, J., filed an opinion concurring in the result, post, p. 434 U. S. 233. STEVENS, J., took no part in the consideration or decision of the case.