In 1967 two men robbed a bank in Eustace, Texas. One man, with two pieces of tape on his face, went into the bank, pointed a gun at the cashier and demanded the money. His partner waited outside in a stolen getaway car. Wade and his partner were indicted for the robbery and counsel was appointed. About two weeks later, a FBI agent caused the two men to be part of a lineup consisting of five or six other men at which the bank employees were asked to make an identification, and at which the two men were in fact identified. At trial the bank employees identified Wade as the robber. The employees were cross-examined about the nature of the previous lineup. The defense moved for acquittal, arguing that the lineup was a violation of the Fifth and Sixth Amendments. The trial court denied the motion, and Wade was convicted. The Fifth Circuit reversed Wade 's conviction, holding that the lineup in the absence of counsel was a violation of the Sixth Amendment. …show more content…
The Court noted that future regulation of pretrial stages with the adoption of police codes and other safeguards of fairness might render a stage not critical and vitiate the constitutional need for counsel. Regarding the case at hand, the Court held that violation of the counsel requirement did not necessitate reversal of the conviction. The conviction could be upheld if the prosecution could show by clear and convincing evidence that the in court identification of Wade as the robber was based on the witnesses ' observations of him during the crime. The Court vacated the decision of the Fifth Circuit and remanded to the trial court for further proceedings.
In response to Wade, police departments began to enact regulations to ensure the presence of defense counsel during lineups. In Kirby v. Illinois, the Supreme Court held that the absence of counsel at a pre-indictment lineup was not a violation of the Sixth Amendment. Because most lineups occur before indictment, Kirby has been seen as an effective overruling