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Kirby v. Illinois | 406 U.S. 682 (1972)

The line-up is a crucial part of TV crime shows; it’s where a victim or witness IDs the bad guy. In real life, the fact that the fact that an eyewitness identified the defendant during a pretrial identification procedure, such as a line-up or show-up, is a critically important part of the prosecution’s evidence in many criminal cases. In Wade versus United States and Gilbert versus California, the United States Supreme Court held that, once a defendant’s Sixth Amendment right to counsel has attached, the defendant has the right to the presence and assistance of a defense attorney at a pretrial identification procedure. But what if such a procedure occurs before the right to counsel has attached? The United States Supreme Court addressed this issue in Kirby versus Illinois.

Two men robbed Willie Shard. The next day, Chicago police officers arrested Thomas Kirby and Ralph Bean. The officers took Kirby and Bean to the police station, and brought Shard to a room in which Kirby and Bean were seated at a table. The officers asked Shard whether Kirby and Bean were the ones who had robbed him, and Shard responded that he was positive that they were. Before this show-up procedure, the officers didn’t ask whether Kirby and Bean wished to have an attorney present in the room before Shard entered and identified them.

A state grand jury indicted Kirby and Bean for robbery. Kirby and Bean moved to suppress evidence of Shard’s pretrial identification on the ground that their Sixth Amendment rights to counsel had been violated by the show-up procedure. The trial court denied the motion, and they had a joint jury trial. At trial, Shard not only identified both men, but also told jurors that he had positively identified them at the police station on the day after the robbery. The jury convicted Kirby and Bean, and they were sentenced to prison. On appeal, the Appellate Court of Illinois affirmed Kirby’s conviction. The Illinois Supreme Court denied review.

Kirby successfully petitioned the United States Supreme Court to review his case.

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