## Facts

- M.B., a juvenile, was accused of stealing money from a man’s wallet.
- Before any formal adversary proceedings began, police showed the man a photographic array.
- The man identified M.B. from the photographs.
- M.B. was not represented by counsel during the photo-array procedure.
- In the delinquency case, M.B. moved to suppress the out-of-court photo-array identification based on the absence of counsel.
- The trial court ruled the photo-array identification inadmissible, but allowed the man to identify M.B. in court.
- M.B. was adjudicated delinquent.
- On appeal, M.B. argued that the in-court identification should have been excluded because it was tainted by the earlier uncounseled photo array.

## Issues

1. Does the Sixth Amendment right to counsel apply to a police photo-array identification conducted before adversary judicial proceedings begin?
2. If a pretrial photo-array identification is excluded, must a later in-court identification also be excluded as tainted absent an independent basis for the in-court identification?

## Decision

- The Colorado Court of Appeals affirmed the delinquency adjudication.
- The court held that the right to counsel had not attached at the time of the pre-proceeding photo array.
- The court upheld admission of the in-court identification because it was sufficiently supported by an independent, reliable basis rather than by the earlier photo-array procedure.

## Legal Principles

- The Sixth Amendment right to counsel attaches after the start of formal adversary judicial proceedings; a pre-proceeding photo array is not, by itself, a stage that requires counsel.
- Even when a pretrial identification procedure is excluded, an in-court identification may be admitted if it rests on an origin independent of the excluded procedure and is reliable under the totality of the circumstances.
- In assessing whether an in-court identification is independently based and reliable, courts consider factors such as the witness’s opportunity to observe the offender, the witness’s attention, the accuracy of any prior description, the witness’s level of certainty, and the time between the event and the identification.

## Conclusion

In *In re M.B.*, the Colorado Court of Appeals upheld a juvenile delinquency adjudication, concluding that M.B. had no constitutional right to counsel at a photo-array identification conducted before adversary proceedings began and that the witness’s in-court identification was admissible because it rested on an independent, reliable basis despite suppression of the photo-array identification.


In re M.B., 513 P.2d 230 (1973)