## Facts

- A bank in Eustace, Texas, was robbed by an armed man who wore small strips of tape on each side of his face and directed employees to put money in a bag while an accomplice waited outside.
- Billy Joe Wade was indicted in federal court for bank robbery and conspiracy; he was arrested and later appointed counsel.
- After counsel was appointed and without notifying or securing the presence of Wade’s attorney, an FBI agent arranged a lineup including Wade and several other prisoners.
- Lineup participants wore tape on their faces and were required to speak words used during the robbery.
- Two bank employees identified Wade at the lineup and later identified him again at trial; the lineup identification was elicited during cross-examination.

## Issues

1. Whether compelling Wade to appear in a lineup, wear tape, and speak certain words violated the Fifth Amendment privilege against self-incrimination.
2. Whether a post-indictment lineup is a Sixth Amendment “critical stage” requiring the assistance of counsel.
3. If the lineup violated the Sixth Amendment, whether in-court identifications must be excluded automatically or may be admitted upon proof of an independent source.

## Decision

- The Supreme Court held there was no Fifth Amendment violation because the lineup required physical/identifying displays rather than compelled testimonial evidence.
- The Court held the post-indictment lineup was a “critical stage” at which Wade had a Sixth Amendment right to counsel; conducting it without notice to counsel violated that right.
- The Court rejected automatic exclusion of the witnesses’ in-court identifications.
- The Court vacated the judgment ordering blanket exclusion and remanded for a determination whether the in-court identifications were based on an independent origin, shown by clear and convincing evidence.

## Legal Principles

- The Fifth Amendment privilege against self-incrimination protects against compelled testimonial or communicative evidence, not compelled exhibition of physical characteristics such as appearance or voice for identification.
- After indictment, a lineup is a “critical stage” of the prosecution because it is a pretrial confrontation with substantial risk of unfairness and may significantly affect the trial’s outcome; counsel’s presence is required to detect and later challenge suggestive procedures.
- When an uncounseled post-indictment lineup violates the Sixth Amendment, an in-court identification is admissible only if the government proves by clear and convincing evidence that it has an independent origin untainted by the unlawful lineup.

## Conclusion

The Court required counsel at post-indictment lineups, treated compelled lineup participation as non-testimonial for Fifth Amendment purposes, and permitted in-court identifications only when the prosecution proves they rest on an independent, untainted source.


United States v. Wade, 388 U.S. 218 (1967)