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Right To Counsel May Attach At A Lineup That Occurs After Indictment But Before Arraignment


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U.S.A v. Reed

Second Circuit Court of Appeals 

2014 WL 2869938

Decided on: June 25, 2014

Right To Counsel At A Lineup After Indictment But Before Arraignment

Summary: Donnell Richardson, a drug dealer, hired Defendant Gregory Reed and two other co-defendants to frighten away his rivals. Reed entered a lobby armed, and killed Bernardo Garcia. A Grand Jury voted a true bill, charging Reed with murder, attempted murder, manslaughter, and criminal possession of a weapon. Police detained Reed and his assailant and placed them in a lineup where Reed explicitly requested that Defense Counsel be appointed; that request was denied. The following day, Reed appeared before a Judge and was arraigned.

An indictment was filed charging Defendants with Hobbs Act robbery, attempted Hobbs Act robbery, and causing the death of Bernardo Garcia. At trial, Defendant Reed moved to suppress the lineup identification claiming it was conducted in violation of his Sixth Amendment right to Counsel. The District Court denied that motion and Defendant was convicted on all counts. Defendant appealed to the Second Circuit Court Of Appeals

The Circuit Court held that when voting a true bill, the Grand Jury becomes obligated by statute to file an indictment, but the failure to do so immediately is not a jurisdictional defect in the indictment or the true bill itself. Any error in admitting the lineup identification of Reed would not require a reversal of the conviction and is harmless error. The Circuit Court Of Appeals affirmed.

 See Also: See Also: The Best Evidence Rule: Documentary Evidence May Be Supplanted By Testimony

Issue: Whether or not the right to counsel attaches at a lineup when the lineup occurs after the Grand Jury votes to indict, but before the indictment is filed with the Court at arraignment.

Holding:  The Court of Appeals for the Second Circuit held that the right to counsel may attach at a lineup when the lineup occurs after the Grand Jury voted to indict but before the indictment is filed with the Court. However, the Court declined to definitively decide this issue and instead found there is a nuance in New York law. The Circuit Court held that attachment of the right to counsel in this case does not depend solely on New York’s statutory definition of the ‘commencement’ of criminal proceedings. Analysis focuses instead on the substantive nature of a particular New York State criminal-procedural moment in light of the principles underlying the Sixth Amendment right to counsel to determine whether the State has formally committed itself to prosecute.

The admission of lineup identification in violation of Defendant’s Sixth Amendment right to counsel was harmless. The error would not cause reversal of Reed’s conviction if the State can show beyond a reasonable doubt that the error did not contribute to the verdict.

Facts: Donnell Richardson, a drug dealer, hired Defendant Gregory Reed and two other co-defendants to frighten away his rivals at an outside lobby of an apartment building. Richardson told the Defendants that whatever drugs or money they found they could keep. Reed entered the lobby armed, and killed Bernardo Garcia. A Grand Jury voted a true bill, charging Reed with murder, attempted murder, manslaughter, and criminal possession of a weapon. Police detained Reed and his assailant and placed them in a lineup where Reed explicitly requested that Defense Counsel be appointed; that request was denied.

The following day, Reed appeared before a Judge and was arraigned. At trial, defendant Reed moved to suppress the lineup identification, claiming it was conducted in violation of his Sixth Amendment right to Counsel. The District Court denied that motion Defendant was convicted on all counts. Reed was sentenced to life imprisonment and appealed.

Legal Analysis:  The Court Of Appeals for the Second Circuit held that the Sixth Amendment right to assistance of counsel in all criminal prosecutions is limited by its terms: it does not attach until a prosecution is commenced.  The U.S Supreme Court has pegged commencement of a prosecution to the initiation of criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Under New York Law, the filing of an accusatory instrument with a criminal court commences a criminal action.  Attachment of the right to counsel here does not depend solely on New York’s statutory definition of the ‘commencement’ of criminal proceedings. Analysis focuses on nature of a particular New York state criminal-procedural moment

Whether attachment of the right to counsel occurs upon the voting of a true bill by a Grand Jury is a close and subtle question of New York Criminal Procedure Law. A true bill is in effect, the same as an indictment; it is therefore arguable that the voting of a true bill by a New York Grand Jury renders a Defendant within the meaning of the Sixth Amendment. The voting of a true bill is a vote to indict, and, upon voting to indict a person, a Grand Jury must file an indictment with the court.

In Gilbert v. California, 388 U.S 263 1967, the Supreme Court enunciated a per se rule excusing any pre-trial lineup identification conducted in violation of the Sixth Amendment right to counsel. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup. It is therefor arguable that the voting of a true bill by a New York Grand Jury renders a Defendant ‘accused’ within the Sixth Amendment. The admission of lineup identification in this case may have been in error. However, the Court of Appeals for the Second Circuit will not remand for a new trial because the Court held that if such an error occurred, it was harmless given the overwhelming evidence presented at trial, and the Court declined to decide this issue definitively.


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