United States v. Ash

413 U.S. 300 (1973)


A man with a stocking mask entered a bank and began waving a pistol. Seconds later, a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes. An informer told authorities that he had discussed the robbery with D. An FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of D, to four witnesses. All four made uncertain identifications of D's picture. D was not in custody and had not been charged. D and his co-defendant were eventually indicted and arrested. Almost three years after the crime, just before trial, and long after D had been incarcerated and appointed counsel, the prosecutor showed five color photos to four witnesses who had tentatively and previously identified D. D's counsel was not notified of this procedure. Three of the witnesses selected D's photo, but one was unable to make a selection. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both D and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point, the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of D. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. D was convicted on all counts. Bailey was acquitted. The U.S. Court of Appeals ruled that D's right to counsel had been violated when his attorney was not given the opportunity to be present at the post-indictment photographic displays. The Supreme Court granted review.