18.3: Kirby v. Illinois
PETITIONER RESPONDENT
Thomas Kirby Illinois
LOCATION
Maxwell Street Police Station
DOCKET NO. DECIDED BY
70-5061 Burger Court
LOWER COURT
State appellate court
CITATION
ARGUED
Nov 11, 1971
REARGUED
Mar 19 – 20, 1972
DECIDED
Jun 7, 1972
GRANTED
May 24, 1971
ADVOCATES
Michael P. Seng for petitioner
James B. Zagel for respondent
Jerold S. Solovy for petitioner on reargument
Facts of the case
William Shard reported to the Chicago police that two men stole his wallet. The wallet contained traveler’schecksand his social security card, among other things. The next day, two police officers stopped Thomas Kirby and his friend, Ralph Bean. When asked for identification, Kirby produced Shard’s wallet. The officers arrested Kirby and Bean and brought them to the Maxwell Street Police Station. Once there, the officers learned about Shard’s robbery and sent a car to pick up Shard and bring him to the station. Without an attorney present, police asked Shard if Kirby and Bean were his robbers. Shard instantly gave a positive identification. Kirby and Bean were not indicted until almost 6 weeks later. At trial, Kirby unsuccessfully attempted to suppress Shard’s identification. The jury found Kirby guilty and the Appellate Court of Illinois, First District affirmed.
Question
Does due process require that an accused be advised of his right to counsel before an identification that takes place before the accused has been charged formally?
Con c lusion
5–4 Decision
Plurality Opinion by Potter Stewart
| FOR | AGAINST |
|---|---|
|
Stewart Powell Blackmun Burger Rehnquist |
Douglas Brennan Marshall White |
No. Justice Potter Stewart, writing for a four justice plurality, delivered the judgment of the court. The plurality expressed that there is no constitutional right to counsel for an identification that takes place before the accused is indicted or formally charged. For this reason, the Exclusionary Rule does not apply, and the identification can be admitted at trial. Chief Justice Warren E. Burger concurred, emphasizing that the right to counsel does not attach until an accused is formally charged. Justice Lewis F. Powell concurred in the judgment, agreeing that the Exclusionary Rule does not apply.
Justice William J. Brennan dissented, arguing that prior Supreme Court Exclusionary Rule precedent just happened to cover post-indictment identifications, but the reasons for using the Rule are the same in preindictment cases. Justice William O. Douglas and Justice Thurgood Marshall joined in the dissent. Justice Byron R. White dissented, arguing that the Exclusionary Rule applies in this case.