Constitutional Criminal Procedure Outline, Professional Responsibility Outline with California Distinctions. It seems to me that to deny this petitioner and others like him the benefit of the new rule deprives them of a constitutional trial and perpetrates a rank discrimination against them. Johnson v. New Jersey, supra, at 731. Gideon v. Wainwright, 372 U.S. 335, or at some forms of arraignment. This federal habeas corpus proceeding attacks collaterally a state criminal conviction for the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us on direct review of the convictions involved in United States v. Wade, ante, p. 218, and Gilbert v. California, ante, p. 263.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS . The judgment of the Court of Appeals is affirmed. In brief summary, the court felt that evidence as to the... 489 U.S. 288 (1989), 87-5259, Teague v. exhibiting the accused to identifying witnesses in the absence of his The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. Then click here. The woman was in serious condition and could not leave the hospital.

Once the Court determines what the Constitution says, I do not believe it has the power, by weighing "countervailing interests," to legislate a timetable by which the Constitution's provisions shall become effective.

907, 930-933 (1962). This case therefore provides a vehicle for deciding the extent to which the rules announced in Wade and Gilbert— requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel—are to be applied retroactively. See, e. g., Rochin v. California, 342 U.S. 165. See Linkletter v. Walker, 381 U.S. 618; Tehan v. Shott, 382 U.S. 406; Johnson v. New Jersey, 384 U.S. 719.1 A further question is whether in any event, on the facts of the particular confrontation involved in this case, petitioner was denied due process of law in violation of the Fourteenth Amendment. process rights because the record revealed that the hospital where the exigencies of the situation require such an application' . [1] A further question is whether in any event, on the facts of the particular confrontation *295 involved in this case, petitioner was denied due process of law in violation of the Fourteenth Amendment.

HOLDING: No. Hamilton v. Alabama, 368 U.S. 52, or on appeal, Douglas v. California, 372 U.S. 353. We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conductive to irreparable mistaken identification that he was denied due process of law.

1966). 254 .

MR. JUSTICE FORTAS would reverse and remand for a new trial on the ground that the State's reference at trial to the improper hospital identification violated petitioner's Fourteenth Amendment rights and was prejudicial. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue.5 But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making. H. Richard Uviller argued the cause and filed a brief for the New York State District Attorneys' Association, as amicus curiae, urging affirmance. "The basic purpose *298 of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent." 92 Nbr.

Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. Petitioner was convicted and sentenced to death for murdering one Dr. Behrendt. 2d 1199, 1967 U.S. LEXIS 1087, Rochin v. California , 342 U.S. 165 ( 1952 ), Hamilton v. Alabama , 368 U.S. 52 ( 1961 ), Gideon v. Wainwright , 372 U.S. 335 ( 1963 ), Douglas v. California , 372 U.S. 353 ( 1963 ), Griffin v. California , 380 U.S. 609 ( 1965 ), Linkletter v. Walker , 381 U.S. 618 ( 1965 ), Tehan v. United States Ex Rel. Palmer v. Peyton, 359 F.2d 199 (C. A. The Court goes on, however, to hold that even though its new constitutional rule about the Sixth Amendment's right to counsel cannot help this petitioner, he is nevertheless entitled to a consideration of his claim, "independent of any right to counsel claim," that his identification by one of the victims of the robbery was made under circumstances so "unfair" that he was denied "due process of law" guaranteed by the Fourteenth Amendment. This case therefore provides a vehicle for deciding the extent to which the rules announced in Wade and Gilbert— requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel—are to be applied retroactively. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive. Johnson, supra, 384 U. S., at 726-727.

That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules.

We granted certiorari, 384 U.S. 1000, and set the case for argument with Wade and Gilbert. Johnson, supra, at 728.

Cf. Gideon v. Wainwright, 372 U.S. 335, or at some forms of arraignment. Select the category of case law. He claimed that among other constitutional rights allegedly denied him *296 at his trial, the admission of Mrs. Behrendt's identification testimony violated his rights under the Fifth, Sixth, and Fourteenth Amendments because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances which unfairly focused the witness' attention on him as the man believed by the police to be the guilty person. Where accepted, its result is to make this Court not a Constitution-interpreter, but a day-to-day Constitution-maker. We have also retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial. These cases are derived from class notes and laws change over time. Stovall v. Denno, 388 U.S. 293 (1967) Stovall v. Denno.

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Media for Stovall v. Denno. In Tehan v. Shott, supra, we thought it persuasive against retroactive application of the no-comment rule of Griffin v. California, 380 U.S. 609, that such application would have a serious impact on the six States that allowed comment on an accused's failure to take the stand.

The woman was in serious condition and could not leave the hospital. I concur in the result and in that portion of the Court's opinion which limits application of the new Sixth Amendment rule. In Tehan v. Shott, supra, we thought it persuasive against retroactive application of the no-comment rule of Griffin v. California, 380 U.S. 609, that such application would have a serious impact on the six States that allowed comment on an accused's failure to take the stand. Linkletter v. Walker, supra; Tehan v. Shott, supra; Johnson v. New Jersey, supra. required the exclusion of identification evidence obtained by Mrs. Behrendt identified him from her hospital bed after being asked by an officer whether he "was the man" and after petitioner repeated at the direction of an officer a "few words for voice identification." Johnson v. New Jersey, supra, at 728-729. The If it was not, petitioner is entitled to a new trial because of a denial of the right to counsel guaranteed by the Sixth Amendment which the Fourteenth Amendment makes obligatory on the States.

The concept of due process under which the Court purports to decide this question, however, is that this Court looks at "the totality of the circumstances" of a particular case to determine in its own judgment whether they comport with the Court's notions of decency, fairness, and fundamental justice, and, if so, declares they comport with the Constitution, and, if not, declares they are forbidden by the Constitution.

The rulings of Wade and Gilbert are therefore inapplicable in the present case.

388 U.S. 293 . It is, therefore, very clear that retroactive application of Wade and Gilbert "would seriously disrupt the administration of our criminal laws." irreparable mistaken identification that it violated defendant's due It seems to me that to deny this petitioner and others like him the benefit of the new rule deprives them of a constitutional trial and perpetrates a rank discrimination against them. 565 U.S. 228 (2012), 10-8974, Perry v. New Hampshire.

"These cases establish the principle that in criminal litigation concerning constitutional *297 claims, `the Court may in the interest of justice make the rule prospective . Once again I dissent from any such view of the Constitution. 4th Cir. 382 U. S., at 419.

The New York Court of Appeals affirmed without opinion.

None of the witnesses could recall the words that were used.

In United States v. Wade, ante, p. 218, and Gilbert v. California, ante, p. 263, the Court holds that lineup identification testimony should be excluded if it was obtained by exhibiting an accused to identifying witnesses before trial in the absence of his counsel.

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