## Facts

- Charles J. Ash, Jr. was indicted for robbing the American Trust & Security Company in Washington, D.C.
- Nearly three years after the robbery, an FBI agent and a prosecutor showed several witnesses a set of five color mug-shot photographs, including Ash’s photo, to confirm they could later identify him in court.
- Ash’s counsel was not notified of, and did not attend, the photographic display.
- Multiple witnesses later identified Ash in court, and he was convicted.
- Ash moved to suppress the identifications, arguing the post-indictment photo display was a “critical stage” requiring counsel under the Sixth Amendment.

## Issues

1. Whether the Sixth Amendment right to counsel applies to a post-indictment photographic identification procedure conducted outside the defendant’s presence.
2. Whether such a photographic display is a “critical stage” of the prosecution requiring counsel’s presence to protect the fairness of the proceedings.

## Decision

- The Supreme Court reversed the D.C. Circuit and remanded.
- The Court held that the Sixth Amendment does not grant an accused the right to have counsel present when the government conducts a post-indictment photographic display for witness identification.
- The Court reasoned that a “critical stage” is a pretrial event where the accused needs assistance to cope with legal problems or to confront the government as an adversary in a way that could prejudice the defense.
- Because Ash was not present at the photographic display, there was no immediate risk he would be misled, compelled to act, or overmatched in a direct confrontation with prosecutors.
- The Court distinguished post-indictment in-person lineups, where the accused is present and exposed to risks requiring counsel’s protection.
- Justice Stewart concurred in the judgment, agreeing that photographic displays are not a Sixth Amendment “critical stage.”
- Justice Brennan dissented (joined by Justices Douglas and Marshall), arguing photo arrays can be functionally equivalent to lineups in their potential to taint later identifications and therefore should require counsel.

## Legal Principles

- The Sixth Amendment right to counsel attaches at “critical stages” of the prosecution—events where counsel is needed to protect the accused in confronting the government or to avoid prejudice that cannot be cured at trial.
- A post-indictment photographic identification procedure conducted without the defendant present is not a “critical stage” requiring counsel’s presence.
- The lineup/photo-array distinction: post-indictment in-person lineups require counsel, but post-indictment photo arrays do not, under the Sixth Amendment.
- Risks of suggestive photographic identification practices are addressed primarily through traditional trial protections (cross-examination and calling identifying officials as witnesses) and exclusion under due process standards for undue suggestiveness.

## Conclusion

The Court held that counsel’s presence is not constitutionally required at post-indictment photographic identification procedures because the defendant is not personally confronted by the prosecution at that event, and challenges to suggestiveness can be handled through trial processes and due process limits on unreliable identifications.


United States v. Ash, 413 U.S. 300 (1973)