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The Right to Counsel in Pretrial Custodial Identification Proceedings, People V. Bustamante, 634 P.2D 927 (Cal.)

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The Right to Counsel in Pretrial Custodial Identification Proceedings, People V. Bustamante, 634 P.2D 927 (Cal.) Washington University Law Review Volume 61 Issue 1 January 1983 The Right to Counsel in Pretrial Custodial Identification Proceedings, People v. Bustamante, 634 P.2d 927 (Cal.) Jay S. Silverstein Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Criminal Procedure Commons Recommended Citation Jay S. Silverstein, The Right to Counsel in Pretrial Custodial Identification Proceedings, People v. Bustamante, 634 P.2d 927 (Cal.), 61 WASH. U. L. Q. 287 (1983). Available at: https://openscholarship.wustl.edu/law_lawreview/vol61/iss1/8 This Case Comment is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. THE RIGHT TO COUNSEL IN PRETRIAL CUSTODIAL IDENTIFICATION PROCEEDINGS People v. Bustamante, 30 Cal. 3d 88, 634 P.2d 927, 177 Cal. Rptr. 576 (1981) In People v. Bustamante,I the California Supreme Court relied on the state constitution2 to extend an accused's right to counsel to preindict- ment 3 custodial lineups.' Police officers arrested defendant on suspicion of robbery5 and other crimes. 6 While defendant was in custody, a witness to the robbery pos- itively identified him in a preindictment lineup. The witness reaffirmed his identification at trial. Although defendant had requested counsel 1. 30 Cal. 3d 88, 634 P.2d 927, 177 Cal. Rptr. 576 (1981). 2. CAL. CONST. art. I, § 15 states: The defendant in a criminal cause has the right to a speedy public trial, to compel at- tendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel. A series of recent California cases have interpreted this provision of the California Constitution independently of United States Supreme Court decisions interpreting parallel provisions of the federal constitution. See, e.g., People v. Chavez, 26 Cal. 3d 334, 605 P.2d 401, 161 Cal. Rptr. 762 (1980). 3. For purposes of this Comment, the term "preindictment" encompasses the period prior to the filing of an information for felony prosecutions and the filing of a formal complaint in misde- meanor prosecutions. The California Supreme Court in Bustamante similarly defined "preindict- ment." 30 Cal. 3d at 91 n.1, 634 P.2d at 929, 177 Cal. Rptr. at 578. For statutes defining the use of an indictment or complaint, see, e.g., CAL. PENAL CODE §§ 737, 740 (Deering 1982); FED. R. CRuM. P. 3, 7. See also infra note 54. 4. Lineups, showups, and photograph displays are the custodial identification procedures most frequently used in criminal investigations and prosecutions. In lineups and showups the police present the suspect to the witness in person. See infra note 31 for a brief discussion of lineup and showup procedures. The photograph display procedure entails a presentation by the police of an array or "lineup" of several photographs from which the witness identifies the suspect. For a discussion of the dangers and constitutional safeguards of the various identification procedures, see Grano, Kirby, Biggers & Ash, Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 MICH. L. REV. 717 (1974). For current developments in case law on the right to counsel at pretrial identification proceedings, see N. SOBEL, EYEWITNESS IDENTIFICATION (1981); Note, The Right to Counsel- Attachment Before CriminalJudicial Proceeding 47 FORDHAM L. REV. 810 (1979). 5. Defendant's appeal to the California Supreme Court focused solely on his robbery con- viction. 30 Cal. 3d at 94, 634 P.2d at 930, 177 Cal. Rptr. at 579. 6, The State ultimately charged defendant with robbery, burglary, theft of a gun, receipt of stolen property, possession of a firearm, possession of cocaine, and possession of concentrated cannabis. Id at 93, 634 P.2d at 930, 177 Cal. Rptr. at 579. Washington University Open Scholarship 288 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 61:287 prior to the lineup, none was provided until sometime after the identifi- cation proceeding.7 At trial, the defense moved to exclude the witness's in-court identifi- cation testimony from evidence, contending that it was based on a cus- todial lineup during which the State violated defendant's right to counsel." The trial court denied the motion and the jury subsequently convicted defendant.' The defendant appealed the conviction ° on the ground that the trial court erred in admitting the identification testi- mony."1 In a plurality decision, the California Supreme Court12 re- versed the conviction and held: Under the California Constitution, an 3 accused has a right to assistance of counsel at a preindictment lineup.' The sixth amendment to the United States Constitution, ratified in 1791, guarantees criminal defendants the right to assistance of counsel in federal prosecutions. 4 In Gideon v. Wainwright, 5 the United States 7. Id at 93, 634 P.2d at 930, 177 Cal. Rptr. at 579. The facts do not specify the point at which the defendant first received counsel's assistance. 8. Id at 93, 634 P.2d at 930, 177 Cal. Rptr. at 579. Prior to trial, the defense moved to challenge the witness' lineup identification on the same grounds. The trial court denied the mo- tion. Id The victim of the crime identified the defendant at the preliminary hearing, and re- peated this identification at trial. The defendant did not object to the victim's identification testimony, however, because there were no due process violations at the preliminary hearing iden- tification. Id 9. Id In addition to the robbery conviction, the jury convicted defendant of receiving stolen property, being an ex-felon in possession of a firearm, possessing cocaine, and possessing concen- trated cannabis. The jury acquitted defendant on the charges of burglary and theft of a stolen gun. Id 10. People v. Bustamante, 110 Cal. App. 3d 981, 168 Cal. Rptr. 298 (1980). 11. The absence of counsel at a police lineup conducted after June 12, 1967, is reversible error. Any suspect participating in a custodial lineup after the Supreme Court decisions of United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), is entitled to counsel as a matter of right. See also infra note 33 and accompanying text. 12. The California Supreme Court sat en banc. 13. 30 Cal. 3d at 101-02, 634 P.2d at 935-36, 177 Cal. Rptr. at 584-85. 14. In 1789 Congress passed the sixth amendment with almost no debate. Rachow, The Right to Counsel- English and American Precedents, 11 WM. & MARY Q. 1, 21-26 (1954). The sixth amendment reads in part: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been commit- ted, which district shall have previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense. U.S. CONsT. amend. VI, § 1. Historically, the right to counsel was a procedural right available to defendants in selected crim- inal and capital cases in England. See generally Note, An HistoricalArgumentfor the Right to Counsel During Police Interrogation, 73 YALE L.J. 1000, 1018 n.99 (1964). Historians and coin- https://openscholarship.wustl.edu/law_lawreview/vol61/iss1/8 Number 1] PRETRIAL CUSTODIAL IDENTIFICATION 289 Supreme Court extended the specific guarantees of the sixth amend- ment to the states through the due process clause of the fourteenth amendment.' 6 In addition to the sixth and fourteenth amendment safe- guards, criminal defendants at the state level are guaranteed the right mentators on English law agree that a defendant prosecuted in a criminal trial for a felony or a lesser wrong could receive legal assistance at pleadings of exception and at other intervals during trial. Case law, statutes, and Yearbooks do not clearly define the stages of the criminal trial at which the assistance of counsel attached. The criminal defendant's right to counsel was preserved in common law England as an absolute right. In sixteenth century England, however, courts began to limit the assignment of counsel by establishing a distinction between fact and law on issues in a criminal trial. Courts began to restrict the right to assistance of counsel to defendants pleading matters of law and denied advice of counsel on issues or demonstrations of fact. Frequently courts narrowly construed what consti- tuted questions of law, further limiting an accused's right to counsel. Jaeger, The Right to Counsel During Police Interrogatiox The Aftermath of Escobedo, 53 CALIF. L. REv. 337, 347 n.57 (1965). English courts denied defendants accused of treason the assistance of counsel. The use of wit- nesses to introduce and illustrate factual issues developed concurrently with the right to counsel. The courts maintained that witness confrontations and accusations of treasonous conduct were matters of fact, not law, and thus the defendant was not entitled to counsel. See Russet's Case, 9 How. St. Tr. 577 (1683); Raleigh's Case, 1 How. St. Tr. 236 (1603). For a history of the develop- ment of the right to counsel in common law England, see generally 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 244-72 (1883); 3 W.
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