At pre-indictment IDs (before charges are filed), does the suspect have the right to have an attorney present?

At pre-indictment IDs (before charges are filed), does the suspect have the right to have an attorney present?

• A. No, there is no right to counsel at pre-indictment IDs.
• B. Yes, the suspect has a right to an attorney at all IDs.
• C. Only for photo arrays.
• D. Only for show-ups.

Answer: (A)

The important idea is when the right to counsel kicks in. The Sixth Amendment right to counsel attaches during the prosecution after formal charges have been filed, not during routine police investigative steps. The Supreme Court in Kirby v. Illinois held that there is no right to counsel for pre-indictment identifications. So, at pre-indictment IDs, a suspect generally does not have an attorney present. After charges are filed, the Wade line of cases requires counsel for post-indictment lineups, but pre-indictment procedures like show-ups or photo arrays do not trigger that right.

The important idea is when the right to counsel kicks in. The Sixth Amendment right to counsel attaches during the prosecution after formal charges have been filed, not during routine police investigative steps. The Supreme Court in Kirby v. Illinois held that there is no right to counsel for pre-indictment identifications. So, at pre-indictment IDs, a suspect generally does not have an attorney present. After charges are filed, the Wade line of cases requires counsel for post-indictment lineups, but pre-indictment procedures like show-ups or photo arrays do not trigger that right.