D.C. Circuit Holds Compelling Suspect to Unlock Cellphone With Thumbprint Is ‘Testimonial’ Act and Violates Fifth Amendment Privilege Against Self-Incrimination
by Anthony W. Accurso
The U.S. Court of Appeals for the D.C. Circuit held that a defendant being compelled to provide a thumbprint constitutes a testimonial act where it is used to establish ownership of a cellphone and its contents.
Background
Jeffrey Brown, Markus Maly, and Peter Schwartz were charged with multiple counts relating to their participation in the events that took place at the Capitol Building in Washington, D.C., on January 6, 2021. (Note: The sole focus of this opinion summary is on Schwartz’s Fifth Amendment argument with respect to his cellphone.) Specifically, the Government provided evidence that Schwartz deployed pepper spray against officers and threw a chair at one of them.
Schwartz was arrested on February 4, the same day FBI agents executed a search warrant of his one-bedroom apartment in Pennsylvania. During the search, Agent Michael Nealon found a black cellphone on the bedroom dresser. He then approached Schwartz, who was detained in the back of an FBI vehicle, and asked for the password to the phone. Schwartz provided three options, which Nealon tried, but none unlocked the device.
Nealon returned to the vehicle and was “able to obtain Mr. Schwartz’s thumbprint to open the phone.” He, however, did not “recall precisely how that was done” and did not “remember the conversation” he had with Schwartz. He later testified that his “ordinary practice” was to ask whether the person in custody “wishe[d] to have any numbers accessed so that they c[ould] be provided” for use at the jail.
Nealon brought the unlocked phone inside, and another FBI agent photographed information on it, including text messages. The agents did not conduct a forensic search of the phone at that time. Seven months later, they applied for a warrant to search the phone, and their affidavit was based on the photos obtained after Schwartz unlocked the device with his thumbprint during his arrest.
According to the Government, when Schwartz was initially questioned by police, he was advised of his Miranda rights and agreed to speak to agents without an attorney present. At some point, and agents “could not recall” whether that point occurred before or after Schwartz opened the cellphone, Schwartz requested an attorney. Due to this uncertainty, the Government, during a suppression hearing regarding the phone, conceded that Schwartz had been compelled to open the device.
Schwartz and his co-defendants were charged with multiple counts, including obstruction of an official proceeding under 18 U.S.C. § 1512(c)(2) and assaulting, resisting, or impeding certain officers using a dangerous weapon under 18 U.S.C. § 111(a)(1), (b). Schwartz moved to suppress the contents of his cellphone, but the U.S. District Court for the District of Columbia denied his motion. It reasoned that the Fifth Amendment privilege against compelled self-incrimination does not apply when “‘the Government merely compels some physical act, i.e., where the individual is not called upon to make use of the contents of his mind.’” Quoting In re Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523 (D.D.C. 2018)). The defendants were convicted and timely appealed.
Discussion
The Court began by dismissing the § 1512(c)(2) charge against Schwartz in light of the U.S. Supreme Court’s decision in Fischer v. United States, 603 U.S. 480 (2024) (holding “the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding, or attempted to do so”).
In addressing the issue of Schwartz’s suppression motion, the Court began by noting that the Fifth Amendment to the U.S. Constitution provides that “[n]o person shall be compelled in any criminal case to be a witness against himself.” To fall within the Fifth Amendment’s protection, “a communication must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt County, 542 U.S. 177 (2004).
Here, the Government conceded that Schwartz was compelled to unlock the cellphone, so the Court turned to whether compelling Schwartz to use his thumbprint to unlock the device was testimonial and incriminating. Similarly, the Court resolved the incriminating prong of the analysis quickly because the parties agreed that unlocking the cellphone was incriminating because its contents identified Schwartz as the probable owner and person with access to and control over the inculpatory messages within the phone. See Kastigar v. United States, 406 U.S. 441 (1972) (The Fifth Amendment “protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”).
The Court then turned to the final prong of the analysis, viz., “whether disclosing to police Schwartz’s way of opening the cellphone and his ability to do so was testimonial.” It stated that testimonial communications are those that, “explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201 (1988). The compelled biometric unlock of a cellphone arises at the intersection of the Fifth Amendment’s “physical-trait” and “act-of-production precedents,” the Court noted. See United States v. Payne, 99 F.4th 495 (9th Cir. 2024).
The Court stated that communications do not have to be verbal or written to qualify as testimonial. Schmerber v. California, 384 U.S. 757 (1966). Whether a communication is testimonial frequently “depend[s] on the facts and circumstances of [a] particular case.” Fisher v. United States, 425 U.S. 391 (1976). However, “the use of an individual’s physical traits by police is not [generally] considered testimonial.” Schmerber (“involuntary furnishing of a blood sample” not testimonial); see United States v. Wade, 388 U.S. 218 (1967) (submitting to fingerprinting); Gilbert v. California, 388 U.S. 263 (1967) (providing a handwriting exemplar); United States v. Dionisio, 410 U.S. 1 (1973) (providing a voice exemplar); Wade (standing in a police lineup); Holt v. United States, 218 U.S. 245 (1910) (donning particular clothing). The Court explained that the Fifth Amendment privilege isn’t implicated in the foregoing cases because the suspect wasn’t required “to disclose any knowledge he might have, or to speak of his guilt.” Quoting Doe.
Notably, there are instances where physical traits can be testimonial, according to the Court. The classic example is the lie detector test, which “may actually be directed to eliciting responses which are essentially testimonial.” Schmerber. The Schmerber Court explained that compelling a suspect to submit to a test “in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.”
Such physiological changes that occur during a lie detector test (for example, increased heart rate or respiration) “are testimonial because they are manifestations of testimonial thoughts in the defendant’s mind,” according to the Court. That is, the physical responses reflect the person’s “knowledge” and the “thoughts of his mind,” the Court explained. Doe. It distinguished lie detector tests from the other methods of observing a person’s physical traits as follows: “standing in a police lineup or providing a blood sample or handwriting exemplar—when instructed to do so—communicates only that the subject knows how to comply with orders. But those acts are not manifestations of any testimonial thoughts.”
Although being compelled to place one’s thumb on a cellphone may seem similar to submitting to fingerprinting, the Court stated that it is actually more akin to responding to a lie detector test or obeying a command to provide a password. It reasoned: “When Schwartz was ordered to open the cellphone, his act of unlocking the phone represented the thoughts ‘I know how to open the phone,’ ‘I have control over and access to this phone,’ and ‘the print of this specific finger is the password to this phone.’” The Court stated that if he had been compelled to verbally disclose whether he could unlock the phone or verbally provide the password, that would undoubtedly constitute testimonial communications. “The compelled opening of the cellphone that occurred here is no different,” according to the Court. Thus, the Court concluded that under physical-trait case law, Schwartz’s compelled unlocking of the cellphone was testimonial.
Again, “[b]ecause the FBI directed Schwartz to open the phone, the government compelled Schwartz to disclose his knowledge of how the phone could be opened, and specifically his understanding that his thumb would unlock the device, and those disclosures revealed his ownership or control over the phone and the messages it contained,” the Court stated.
The Court concluded that the compelled unlocking of the cellphone violated Schwartz’s Fifth Amendment privilege against compelled self-incrimination, “both the message communicated by that action and any evidence obtained from that communication must be suppressed.” See Kastigar. Thus, the Court held that the District Court erred in denying the motion to suppress.
Accordingly, the Court remanded Schwartz’s case to the District Court to determine whether its error was harmless with respect to any counts and for resentencing. See: United States v. Brown, 2025 U.S. App. LEXIS 1219 (2025).
Writer’s note: On January 20, 2025, President Trump pardoned Schwartz along with more than 1,500 other individuals who were either pardoned or had their sentence commuted for “offenses related to events that occurred at or near the United States Capitol on January 6, 2021.”
Editor’s note: Anyone interested in the topic of compelled biometric unlocking of cellphones as testimonial for purposes of the Fifth Amendment is encouraged to read the Court’s full opinion, which discusses the physical-trait doctrine in greater detail and discusses the act-of-production doctrine that also supports the Court’s conclusion that Schwartz’s compelled unlocking of the cellphone was testimonial.
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Related legal cases
United States v. Brown
| Year | 2025 |
|---|---|
| Cite | 2025 U.S. App. LEXIS 1219 (2025) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
United States v. Payne
| Year | 2024 |
|---|---|
| Cite | 99 F.4th 495 (9th Cir. 2024) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Appeals Court Edition | F.4th |
Kastigar v. U.S.
| Year | 1972 |
|---|---|
| Cite | 406 U.S. 441 (U.S. Supreme Court 1972) |
406 U.S. 441; 92 S. Ct. 1653; 32 L. Ed. 2d 212
CHARLES JOSEPH KASTIGAR ET AL. v. UNITED STATES
No. 70-117
January 11, 1972, Argued
May 22, 1972, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
DISPOSITION: 440 F.2d 954, affirmed.
SYLLABUS:
The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U. S. C. § 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required. In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. Pp. 443-462.
COUNSEL: Hugh R. Manes argued the cause and filed briefs for petitioners.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Assistant Attorney General Rehnquist, Jerome M. Feit, and Sidney M. Glazer.
Briefs of amici curiae urging reversal were filed by Melvin L. Wulf, Fred Okrand, A. L. Wirin, and Laurence R. Sperber for the American Civil Liberties Union et al.; by Benjamin Dreyfus for the National Lawyers Guild; and by Morton Stavis and Arthur Kinoy for the Center for Constitutional Rights.
JUDGES: Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Blackmun, JJ., joined. Douglas, J., post, p. 462, and Marshall, J., post, p. 467, filed dissenting opinions. Brennan and Rehnquist, JJ., took no part in the consideration or decision of the case.
OPINION: [*442] [***215] [**1655] MR. JUSTICE POWELL delivered the opinion of the Court.
[***HR1A] [1A]
This case presents the question whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.
Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, 1971. The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U. S. C. §§ 6002-6003. Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity.
Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired. n1 The Court of [*443] Appeals for the Ninth Circuit affirmed. Stewart v. United States, 440 F.2d 954 (CA9 1971). This Court granted certiorari to resolve the important question whether testimony may be [***216] compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ("use and derivative use" immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates ("transactional" immunity). 402 U.S. 971 (1971).
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n1 The contempt order was issued pursuant to 28 U. S. C. § 1826.
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I
[***HR2] [2]
The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence. n2 The power with respect to courts was established by statute in England as early as 1562, n3 and Lord Bacon observed in 1612 that all subjects owed the King their "knowledge and discovery." n4 While it is not clear when grand juries first resorted to compulsory process to secure the attendance and testimony of witnesses, the general common-law principle that "the public has a right to every man's evidence" was considered an "indubitable certainty" that "cannot be denied" by 1742. n5 The [**1656] power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment [*444] requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. The first Congress recognized the testimonial duty in the Judiciary Act of 1789, which provided for compulsory attendance of witnesses in the federal courts. n6 MR. JUSTICE WHITE noted the importance of this essential power of government in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U.S. 52, 93-94 (1964):
HN1 "Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U.S. 273. Such testimony constitutes one of the Government's primary sources of information."
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n2 For a concise history of testimonial compulsion prior to the adoption of our Constitution, see 8 J. Wigmore, Evidence § 2190 (J. McNaughton rev. 1961). See Ullmann v. United States, 350 U.S. 422, 439 n. 15 (1956); Blair v. United States, 250 U.S. 273 (1919).
n3 Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562).
n4 Countess of Shrewsbury's Case, 2 How. St. Tr. 769, 778 (1612).
n5 See the parliamentary debate on the Bill to Indemnify Evidence, particularly the remarks of the Duke of Argyle and Lord Chancellor Hardwicke, reported in 12 T. Hansard, Parliamentary History of England 675, 693 (1812). See also Piemonte v. United States, 367 U.S. 556, 559 n. 2 (1961); Ullmann v. United States, supra, at 439 n. 15; Brown v. Walker, 161 U.S. 591, 600 (1896).
n6 1 Stat. 73, 88-89.
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[***HR3] [3]
[***HR4] [4]
But HN2 the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, n7 the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, n8 and marks [***217] an important advance in the development of our liberty. n9 It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; n10 and it [*445] protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. n11 This Court has been zealous to safeguard the values that underlie the privilege. n12
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n7 See Blair v. United States, supra, at 281; 8 Wigmore, supra, n. 2, §§ 2192, 2197.
n8 See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964).
n9 See Ullmann v. United States, 350 U.S., at 426; E. Griswold, The Fifth Amendment Today 7 (1955).
n10 Murphy v. Waterfront Comm'n, supra, at 94 (WHITE, J., concurring); McCarthy v. Arndstein, 266 U.S. 34, 40 (1924); United States v. Saline Bank, 1 Pet. 100 (1828); cf. Gardner v. Broderick, 392 U.S. 273 (1968).
n11 Hoffman v. United States, 341 U.S. 479, 486 (1951); Blau v. United States, 340 U.S. 159 (1950); Mason v. United States, 244 U.S. 362, 365 (1917).
n12 See, e. g., Miranda v. Arizona, 384 U.S. 436, 443-444 (1966); Boyd v. United States, 116 U.S. 616, 635 (1886).
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Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, n13 are not incompatible [*446] [***218] with [**1657] these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, n14 [*447] and their primary use has been to investigate such offenses. n15 Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century. n16 Indeed, prior to the enactment of the statute under consideration in [**1658] this case, there were in force over 50 federal immunity statutes. n17 In addition, every State in the Union, as well as the District of Columbia and Puerto Rico, has one or more such statutes. n18 The commentators, n19 and this Court on several occasions, n20 have characterized immunity statutes as essential to the effective enforcement of various criminal statutes. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, 350 U.S. 422 (1956), such statutes have "become part of our constitutional fabric." n21 Id., at 438.
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n13 Soon after the privilege against compulsory self-incrimination became firmly established in law, it was recognized that the privilege did not apply when immunity, or "indemnity," in the English usage, had been granted. See L. Levy, Origins of the Fifth Amendment 328, 495 (1968). Parliament enacted an immunity statute in 1710 directed against illegal gambling, 9 Anne, c. 14, §§ 3-4, which became the model for an identical immunity statute enacted in 1774 by the Colonial Legislature of New York. Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York 621, 623 (1894). These statutes provided that the loser could sue the winner, who was compelled to answer the loser's charges. After the winner responded and returned his ill-gotten gains, he was "acquitted, indemnified [immunized] and discharged from any further or other Punishment, Forfeiture or Penalty, which he . . . may have incurred by the playing for, and winning such Money . . . ." 9 Anne, c. 14, § 4 (1710); Law of Mar. 9, 1774, c. 1651, 5 Colonial Laws of New York, at 623.
Another notable instance of the early use of immunity legislation is the 1725 impeachment trial of Lord Chancellor Macclesfield. The Lord Chancellor was accused by the House of Commons of the sale of public offices and appointments. In order to compel the testimony of Masters in Chancery who had allegedly purchased their offices from the Lord Chancellor, and who could incriminate themselves by so testifying, Parliament enacted a statute granting immunity to persons then holding office as Masters in Chancery. Lord Chancellor Macclesfield's Trial, 16 How. St. Tr. 767, 1147 (1725). See 8 Wigmore, supra, n. 2, § 2281, at 492. See also Bishop Atterbury's Trial, 16 How. St. Tr. 323, 604-605 (1723). The legislatures in colonial Pennsylvania and New York enacted immunity legislation in the 18th century. See, e. g., Resolution of Jan. 6, 1758, in Votes and Proceedings of the House of Representatives of the Province of Pennsylvania (1682-1776), 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 353-354; Law of Mar. 9, 1774, c. 1651, id., at 621, 623; Law of Mar. 9, 1774, c. 1655, id., at 639, 641-642. See generally L. Levy, Origins of the Fifth Amendment 359, 384-385, 389, 402-403 (1968). Federal immunity statutes have existed since 1857. Act of Jan. 24, 1857, 11 Stat. 155. For a history of the various federal immunity statutes, see Comment, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 Yale L. J. 1568 (1963); Wendel, Compulsory Immunity Legislation and the Fifth Amendment Privilege: New Developments and New Confusion, 10 St. Louis U. L. Rev. 327 (1966); and National Commission on Reform of Federal Criminal Laws, Working Papers, 1406-1411 (1970).
n14 See, e. g., Resolution of Jan. 6, 1758, n. 13, supra, 6 Pennsylvania Archives (8th series) 4679 (C. Hoban ed. 1935); Law of Mar. 24, 1772, c. 1542, 5 Colonial Laws of New York 351, 354; Law of Mar. 9, 1774, c. 1655, id., at 639, 642. Bishop Atterbury's Trial, supra, for which the House of Commons passed immunity legislation, was a prosecution for treasonable conspiracy. See id., at 604-605; 8 Wigmore, supra, n. 2, § 2281, at 492 n. 2. Lord Chancellor Macclesfield's Trial, supra, for which Parliament passed immunity legislation, was a prosecution for political bribery involving the sale of public offices and appointments. See id., at 1147. The first federal immunity statute was enacted to facilitate an investigation of charges of corruption and vote buying in the House of Representatives. See Comment, n. 13, supra, 72 Yale L. J., at 1571.
n15 See 8 Wigmore, supra, n. 2, § 2281, at 492. MR. JUSTICE WHITE noted in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U.S., at 92, that immunity statutes "have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, extortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering." Id., at 94-95. See n. 14, supra.
n16 See Comment, n. 13, supra, 72 Yale L. J., at 1576.
n17 For a listing of these statutes, see National Commission on Reform of Federal Criminal Laws, Working Papers, 1444-1445 (1970).
n18 For a listing of these statutes, see 8 Wigmore, supra, n. 2, § 2281, at 495 n. 11.
n19 See, e. g., 8 J. Wigmore, Evidence § 2281, at 501 (3d ed. 1940); 8 Wigmore, supra, n. 2, § 2281, at 496.
n20 See Hale v. Henkel, 201 U.S. 43, 70 (1906); Brown v. Walker, 161 U.S., at 610.
n21 This statement was made with specific reference to the Compulsory Testimony Act of 1893, 27 Stat. 443, the model for almost all federal immunity statutes prior to the enactment of the statute under consideration in this case. See Murphy v. Waterfront Comm'n, 378 U.S., at 95 (WHITE, J., concurring).
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[*448] II
[***219]
[***HR5] [5]
Petitioners contend, first, that the Fifth Amendment's privilege against compulsory self-incrimination, which is that "no person . . . shall be compelled in any criminal case to be a witness against himself," deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U.S. 591 (1896), and Ullmann v. United States, supra, HN3 decision
U.S. v. Wade
| Year | 1967 |
|---|---|
| Cite | 388 U.S. 218 (U.S. Supreme Court 1967) |
388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149
UNITED STATES v. BILLY JOE WADE
No. 334
February 16, 1967, Argued
June 12, 1967, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
DISPOSITION: 358 F.2d 557, vacated and remanded.
SYLLABUS:
Several weeks after respondent's indictment for robbery of a federally insured bank and for conspiracy, respondent, without notice to his appointed counsel, was placed in a lineup in which each person wore strips of tape on his face, as the robber allegedly had done, and on direction repeated words like those the robber allegedly had used. Two bank employees identified respondent as the robber. At the trial when asked if the robber was in the courtroom, they identified respondent. The prior lineup identifications were elicited on cross-examination. Urging that the conduct of the lineup violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, respondent filed a motion for judgment of acquittal or, alternatively, to strike the courtroom identifications. The trial court denied the motions and respondent was convicted. The Court of Appeals reversed, holding that though there was no Fifth Amendment deprivation the absence of counsel at the lineup denied respondent his right to counsel under the Sixth Amendment and required the grant of a new trial at which the in-court identifications of those who had made lineup identifications would be excluded. Held:
1. Neither the lineup itself nor anything required therein violated respondent's Fifth Amendment privilege against self-incrimination since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by that Amendment. Pp. 221-223.
2. The Sixth Amendment guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. Pp. 223-227.
3. The post-indictment lineup (unlike such preparatory steps as analyzing fingerprints and blood samples) was a critical prosecutive stage at which respondent was entitled to the aid of counsel. Pp. 227-239.
(a) There is a great possibility of unfairness to the accused at that point, (1) because of the manner in which confrontations for identification are frequently conducted, (2) because of dangers inherent in eyewitness identification and suggestibility inherent in the context of the confrontations, and (3) because of the likelihood that the accused will often be precluded from reconstructing what occurred and thereby obtaining a full hearing on the identification issue at trial. Pp. 229-235.
(b) This case illustrates the potential for improper influence on witnesses through the lineup procedure, since the bank employees were allowed to see respondent in the custody of FBI agents before the lineup began. Pp. 233-234.
(c) The presence of counsel at the lineup will significantly promote fairness at the confrontation and a full hearing at trial on the issue of identification. Pp. 236-238.
4. In-court identification by a witness to whom the accused was exhibited before trial in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that error in its admission was harmless. Since it is not clear that the Court of Appeals applied the prescribed rule of exclusion, and since the nature of the in-court identifications here was not an issue in the trial and cannot be determined on the record, the case must be remanded to the District Court for resolution of these issues. Pp. 239-243.
COUNSEL: Beatrice Rosenberg argued the cause for the United States. With her on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Nathan Lewin and Ronald L. Gainer.
Weldon Holcomb argued the cause and filed a brief for respondent.
JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas
OPINION: [*219] [***1153] [**1928] MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for [*220] identification purposes without notice to and in the absence of the accused's appointed counsel.
The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank's money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself. Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade's lawyer, arranged to have the two bank employees observe a lineup [**1929] made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like "put the money in the bag," the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.
At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. At the close of testimony, Wade's counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials' courtroom identifications on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted. The [*221] Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding [***1154] that, though the lineup did not violate Wade's Fifth Amendment rights, "the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights . . . ." 358 F.2d 557, 560. We granted certiorari, 385 U.S. 811, and set the case for oral argument with No. 223, Gilbert v. California, post, p. 263, and No. 254, Stovall v. Denno, post, p. 293, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
I.
Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that HN1the privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . ." Schmerber v. California, 384 U.S. 757, 761. We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U.S. 245, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court [*222] rejected the claim as "an extravagant extension of the Fifth Amendment," Mr. Justice Holmes saying for the Court:
"The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." 218 U.S., at 252-253.
The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, "we need not consider how far a court would go in compelling [**1930] a man to exhibit himself." Id., at 253. n1
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n1 Holt was decided before Weeks v. United States, 232 U.S. 383, fashioned the rule excluding illegally obtained evidence in a federal prosecution. The Court therefore followed Adams v. New York, 192 U.S. 585, in holding that, in any event, "when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent." 218 U.S., at 253.
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We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, [***1155] not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to use his voice as an identifying [*223] physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 761, that HN3the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused's "communications" in whatever form, vocal or physical, and "compulsion which makes a suspect or accused the source of 'real or physical evidence,'" Schmerber, supra, at 764. We recognized that "both federal and state courts have usually held that . . . [the privilege] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Id., at 764. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.
Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no such evidence as part of its case, and what came out about the lineup proceedings on Wade's cross-examination of the bank employees involved no violation of Wade's privilege.
II.
The fact that the lineup involved no violation of Wade's privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that "no issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented." 384 U.S., at 766. In contrast, in this case it is urged that the assistance of counsel at the lineup was indispensable [*224] to protect Wade's most basic right as a criminal defendant -- his right to a fair trial at which the witnesses against him might be meaningfully cross-examined.
The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in "matters of law," and eschewing any responsibility for "matters of fact." n2 The constitutions in at least 11 of the 13 States expressly or impliedly abolished [**1931] this distinction. Powell v. Alabama, 287 U.S. 45, 60-65; Note, 73 Yale L. J. 1000, 1030-1033 (1964). "Though the colonial provisions about counsel were in accord [***1156] on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed." 73 Yale L. J., supra, at 1033-1034. This background is reflected in the scope given by our decisions to the Sixth Amendment's guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. n3 The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to "critical" stages of the proceedings. The guarantee reads: HN4"In all criminal [*225] prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful "defence."
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n2 See Powell v. Alabama, 287 U.S. 45, 60-65; Beaney, Right to Counsel in American Courts 8-26.
n3 See Note, 73 Yale L. J. 1000, 1040-1042 (1964); Comment, 53 Calif. L. Rev. 337, 347-348 (1965).
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As early as Powell v. Alabama, supra, we recognized that HN5the period from arraignment to trial was "perhaps the most critical period of the proceedings . . . ," id., at 57, during which the accused "requires the guiding hand of counsel . . . ," id., at 69, if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment -- for example, that provided by Alabama -- where certain rights might be sacrificed or lost: "What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted . . . ." Hamilton v. Alabama, 368 U.S. 52, 54. See White v. Maryland, 373 U.S. 59. The principle was also applied in Massiah v. United States, 377 U.S. 201, where we held that incriminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant's lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. New York, 360 U.S. 315, 326, that "anything less . . . might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.'" 377 U.S., at 204.
In Escobedo v. Illinois, 378 U.S. 478, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see h
