Student Review:

This article deals with the issue of the right to counsel at a lineup. It examines this issue in light of the dangers that
psychological studies and experiments have shown exist with regard to eyewitness identification. The article focuses its
discussion mainly on the cases of United States v. Wade, 388 U.S. 218 (1967), and Kirby v. Illinois, 406 U.S. 682
(1972), and various state court decisions interpreting these cases. The main argument of the article is that the state courts
which formulate their rules by simply following Kirby are not using the proper method to decide this issue, "especially in
light of psychological research into the dangers of eyewitness and lineup identification conducted since the Wade and
Kirby decisions."

The article discusses several areas which demonstrate that eyewitness testimony is not nearly as reliable as many jurors,
judges, and laypersons think. The power of suggestion, such as through exposure to new or false information, can affect
the way a person recalls. Jurors place an erroneous amount of weight on the confidence of the person making
identification, even though studies show little or know relation between that confidence and the accuracy of the
identification. Stress and passage of time can both negatively affect the accuracy of identification. Jurors tend to give to
much weight to identification in general and to identifications by police officers. Differences in race between the suspect
and the person making the identification may have a negative effect on the accuracy of identification.

The article argues that Kirby, using a plain language interpretation of the sixth amendment, was a "break" from Wade in
that it "read the ...right to counsel...in Wade as being limited to postindictment lineups..." The article identified two groups
of states, that have taken different approaches to this issue in the wake of Kirby. The article concludes that the states
should not follow Kirby in not giving consideration to the scientific evidence when determining whether or not there is a
right to counsel at a lineup. States should determine through independent examination, not following dubious federal
precedent, in determining the issue of right to counsel at lineups.

Article Summary by: Wade Jernigan
Wake Forest University School of Law 1996