Charmaine Larkin-Sullivan CJ 370 Case Study # 4 Kirby v. Illinois Facts: On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler’s checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in Chicago. When asked for identification, the petitioner produced a wallet that contained three traveler’s checks and a Social Security card, all bearing the name of Willie Shard.

Papers with Shard’s name on them were also found in Bean’s possession. When asked to explain his possession of Shard’s property, the petitioner first said that the traveler’s checks were “play money,” and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station. Issue: Did the defendant have a right under the Sixth and Fourteenth Amendments to have his counsel present at his identification process which took place before he was formally charged with the crime?

Law Argument: The court held that since the defendant in the current case was not formally charged with a crime when the identification process took place, the rulings of Wade and Gilbert do not apply here. The court ruled that the defendant had no right to the presence of an attorney in the current case because the police was just conducting normal investigation to solve an unsolved crime. The court further held that if the identification was “unnecessarily suggestive and conducive to irreparable mistaken identification”, then the defendant could have claimed protection.

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But in the current case, the court found no such abuse of police power and the conviction was affirmed. Decision: The Trial Court found Kirby and Bean guilty of robbery. They appealed. Kirby argued that based on United States v. Wade and Gilbert v. California, identifications made outside the presence of defense counsel were inadmissible. Unless the prosecution could show an independent origin for the in-court identification. The Appellate Court upheld the conviction. Kirby and Bean appealed. The Appellate Court found that the per se exclusionary rule established by Wade did not apply to pre-indictment confrontations.

The US Supreme Court upheld the convictions. The US Supreme Court found that, unlike in Wade and Gilbert, the defendants were not under arrest at the time of the identification. Since the 6th Amendment right to counsel only attaches once an indictment is made, at the time of the identification, Kirby did not have a right to counsel. Therefore there is no violation of the 6th Amendment. The Court did note that even if the 6th Amendment doesn’t apply, there still could be a theoretical due process argument to be made. But Kirby didn’t make it.

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