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Kirby v. Illinois


    Citation. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411, 1972 U.S. LEXIS 49 (U.S. June 7, 1972)

    Brief Fact Summary. Willie Shard (“Mr. Shard”) had his wallet stolen while on the street in Chicago. Police arrested two men in connection with a separate offense and brought them to the police station. The police learned of the offense against Mr. Shard only upon arriving at the station. Whereupon, Mr. Shard was called to come down to the police station, and upon walking into the building, immediately identified the two men, without counsel present, and before any formal charges had been levied.

    Issue. Whether a per se exclusionary rule grounded in the Sixth and Fourteenth Amendment rights to counsel should be applied to identification testimony based upon a police station show up that took place before the defendant had been indicted or otherwise formally charged with any criminal offense?

    Concurrence. Two justices briefly concur in the plurality opinion only to indicate agreement in the holding itself.


    Discussion. A line of cases has held that the constitutional right to counsel only attaches once adversary proceedings have begun. The Due Process clause of the Fifth and Fourteenth Amendments of the United States Constitution (“Constitution”) adequately protect against unduly suggestive identification procedures, and as a result the per se exclusionary rule need not be imported into events taking place before the initiation of any formal prosecutorial conduct.

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