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 *220identification 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 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 *221Court 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 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 the 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 *222rejected the claim as “an extravagant extension of the Fifth Amendment,” Mr. Justice Holmes saying for the Court:

“[T]he 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 a man to exhibit himself.” Id., at 253.1

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, 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 *223physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 761, that the 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 “[n]o 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 *224to 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.” 2 The constitutions in at least 11 of the 13 States expressly or impliedly abolished 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 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.3 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: “In all criminal *225prosecutions, 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.”

As early as Powell v. Alabama, supra, we recognized that the 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 “[a]nything 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 his lawyer. We again noted the necessity of counsel’s pres*226ence if the accused was to have a fair opportunity to present a defense at the trial itself:

“The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the ‘right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination’.... ‘One can imagine a cynical prosecutor saying: “Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.” ’ ” 378 U. S., at 487-488.

Finally in Miranda v. Arizona, 384 U. S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.

Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions “no more than reflect a constitutional principle established as long ago as Powell v. Alabama . . . .” Massiah v. United States, supra, at 205. It is central to that principle that in addition to counsel’s presence at trial,4 the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.5 The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the *227Sixth Amendment — the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. Texas, 380 U. S. 400.

In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.

III.

The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at *228trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.

IV.

But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.6 Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commenta*229tor has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — ■ perhaps it is responsible for more such errors than all other factors combined.” Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways.7 And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” 8

The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.9 But *230as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. “Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on . . . .” Miranda v. Arizona, supra, at 448. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers;10 in any event, the participants’ names are rarely recorded or divulged at trial.11 The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim’s understandable outrage may excite vengeful or spiteful motives.12 In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.13 Improper in*231fluences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers.14 Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain;15 the jury’s choice is between the accused’s unsupported version and that of the police officers present.16 In short, the accused’s *232inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.

What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:

“In a Canadian case . . . the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were forty or over.” 17

Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal *233numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness,18 that the other participants in a lineup were grossly dissimilar in appearance to the suspect,19 that only the suspect was required to wear distinctive clothing which the culprit allegedly wore,20 that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail,21 that the suspect is pointed out before or during a lineup,22 and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.23

The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identi*234fying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade “standing in the hall” within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who “resembled the person that we identified as the one that had entered the bank.” 24

The lineup in Gilbert, supra, was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other’s presence, a procedure said to be fraught with dangers of suggestion.25 And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32.

The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the *235secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, “[T]he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not 'come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way . . . .” Identification Parades, Part I, [1963] Crim. L. Rev. 479, 483.

Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no *236effective appeal from the judgment there rendered by the witness — “that’s the man.”

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial,26 there can be *237little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid [of counsel] ... as at the trial itself.” Powell v. Alabama, 287 U. S. 45, 57. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.” See Carnley v. Cochran, 369 U. S. 506. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay.27 And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the *238basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. Arizona concerning presence of counsel during custodial interrogation, 384 U. S., at 480-481:

“[A]n attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath — to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.”

In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration, of taint in the prosecution’s identification evidence.28 That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice.29

*239Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as “critical.”30 But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today “in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.” Miranda v. Arizona, supra, at 467.

V.

We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is *240to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U. S. 52, 79, n. 18.31 Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified.32 See Nardone v. United States, 308 U. S. 338, 341. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses’ identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself — realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark *241in an attempt to discover and reveal unfairness, whde bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification. Since counsel’s presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.

We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U. S. 471, 488, “ ‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt 221 (1959).” See also Hoffa v. United States, 385 U. S. 293, 309. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.33

*242We doubt that the Court of Appeals applied the prop'er test for exclusion of the in-court identification of the two witnesses. The court stated that “it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,” and that the testimony of the two witnesses “may well have been colored by the illegal procedure [and] was prejudicial.” 358 F. 2d, at 560. Moreover, the court was persuaded, in part, by the “compulsory verbal responses made by Wade at the instance of the Special Agent.” Ibid. This implies the erroneous holding that Wade’s privilege against self-incrimination was violated so that the denial of counsel required exclusion.

On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. California, 386 U. S. 18, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U. S. 233, 245-246.

*243The judgment of the Court of Appeals is vacated and the case is remanded 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.

It is so ordered.

The Chief Justice joins the opinion of the Court except for Part I, from which he dissents for the reasons expressed in the opinion of Mr. Justice Foutas.

Mr. Justice Douglas joins the opinion of the Court except for Part I. On that phase of the case he adheres to the dissenting views in Schmerber v. California, 384 U. S. 757, 772-779, since he believes that compulsory lineup violates the privilege against self-incrimination contained in the Fifth Amendment.

Mr. Justice Clark,

concurring.

With reference to the lineup point involved in this case I cannot, for the life of me, see why a lineup is not a critical stage of the prosecution. Identification of the suspect — a’prerequisite to establishment of guilt — occurs at this stage, and with Miranda v. Arizona, 384 U. S. 436 (1966), on the books, the requirement of the presence of counsel arises, unless waived by the suspect. I dissented in Miranda but I am bound by it now, as we all are. Schmerber v. California, 384 U. S. 757 (1966), precludes petitioner’s claim of self-incrimination. I therefore join the opinion of the Court.

Mr. Justice Black,

dissenting in part and concurring in part.

On March 23, 1965, respondent Wade was indicted for robbing a bank; on April 2, he was arrested; and on April 26, the court appointed a lawyer to represent him. *244Fifteen days later, while Wade was still in custody, an FBI agent took him and several other prisoners into a room at the courthouse, directed each to participate in a lineup wearing strips of tape on his face and to speak the words used by the robber at the bank. This was all done in order to let the bank employee witnesses look at Wade for identification purposes. Wade’s lawyer was not notified of or present at the lineup to protect his client’s interests. At Wade’s trial, two bank employees identified him in the courtroom. Wade objected to this testimony, when, on cross-examination, his counsel elicited from these witnesses the fact that they had seen Wade in the lineup. He contended that by forcing him to participate in the lineup, wear strips of tape on his face, and repeat the words used by the robber, all without counsel, the Government had (1) compelled him to be a witness against himself in violation of the Fifth Amendment, and (2) deprived him of the assistance of counsel for his defense in violation of the Sixth Amendment.

The Court in Part I of its opinion rejects Wade’s Fifth Amendment contention. From that I dissent. In Parts II-IV of its opinion, the Court sustains Wade’s claim of denial of right to counsel in the out-of-court lineup, and in that I concur. In Part V, the Court remands the case to the District Court to consider whether the courtroom identification of Wade was the fruit of the illegal lineup, and, if it was, to grant him a new trial unless the court concludes that the courtroom identification was harmless error. I would reverse the Court of Appeals’ reversal of Wade’s conviction, but I would not remand for further proceedings. Since the prosecution did not use the out-of-court lineup identification against Wade at his trial, I believe the conviction should be affirmed.

*245I.

In rejecting Wade’s claim that his privilege against self-incrimination was violated by compelling him to appear in the lineup wearing the tape and uttering the words given him by the police, the Court relies on the recent holding in Schmerber v. California, 384 U. S. 757. In that case the Court held that taking blood from a man’s body against his will in order to convict him of a crime did not compel him to be a witness against himself. I dissented from that holding, 384 U. S., at 773, and still dissent. The Court’s reason for its holding was that the sample of Schmerber’s blood taken in order to convict him of crime was neither “testimonial” nor “communicative” evidence. I think it was both. It seems quite plain to me that the Fifth Amendment’s Self-incrimination Clause was designed to bar the Government from forcing any person to supply proof of his own crime, precisely what Schmerber was forced to do when he was forced to supply his blood. The Government simply took his blood against his will and over his counsel’s protest for the purpose of convicting him of crime. So here, having Wade in its custody awaiting trial to see if he could or would be convicted of crime, the Government forced him to stand in a lineup, wear strips on his face, and speak certain words, in order to make it possible for government witnesses to identify him as a criminal. Had Wade been compelled to utter these or any other words in open court, it is plain that he would have been entitled to a new trial because of having been compelled to be a witness against himself. Being forced by the Government to help convict himself and to supply evidence against himself by talking outside the courtroom is equally violative of his constitutional right not to be compelled to be a witness against himself. Consequently, because of this violation of the Fifth Amend*246ment, and not because of my own personal view that the Government's conduct was “unfair,” “prejudicial,” or “improper,” I would prohibit the prosecution’s use of lineup identification at trial.

II.

I agree with the Court, in large part because of the reasons it gives, that failure to notify Wade’s counsel that Wade was to be put in a lineup by government officers and to be forced to talk and wear tape on his face denied Wade the right to counsel in violation of the Sixth Amendment. Once again, my reason for this conclusion is solely the Sixth Amendment’s guarantee that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As this Court’s opinion points out, “[t]he plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful 'defence.’ ” And I agree with the Court that a lineup is a “critical stage” of the criminal proceedings against an accused, because it is a stage at which the Government makes use of his custody to obtain crucial evidence against him. Besides counsel’s presence at the lineup being necessary to protect the defendant’s specific constitutional rights to confrontation and the assistance of counsel at the trial itself, the assistance of counsel at the lineup is also necessary to protect the defendant’s in-custody assertion of his privilege against self-incrimination, Miranda v. Arizona, 384 U. S. 436, for, contrary to the Court, I believe that counsel may advise the defendant not to participate in the lineup or to participate only under certain conditions.

I agree with the Court that counsel’s presence at the lineup is necessary to protect the accused’s right to a “fair trial,” only if by “fair trial” the Court means a trial in accordance with the “Law of the Land” as specifically set out in the Constitution. But there are *247implications in the Court’s opinion that by a “fair trial” the Court means a trial which a majority of this Court deems to be “fair” and that a lineup is a “critical stage” only because the Court, now assessing the “innumerable dangers” which inhere in it, thinks it is such. That these implications are justified is evidenced by the Court’s suggestion that “ [legislative or other regulations . . . which eliminate the risks of abuse ... at lineup proceedings . . . may also remove the basis for regarding the stage as ‘critical.’ ” And it is clear from the Court’s opinion in Gilbert v. California, post, p. 263, that it is willing to make the Sixth Amendment’s guarantee of right to counsel dependent on the Court’s own view of whether a particular stage of the proceedings — though “critical” in the sense of the prosecution’s gathering of evidence — is “critical” to the Court’s own view of a “fair trial.” I am wholly unwilling to make the specific constitutional right of counsel dependent on judges’ vague and transitory notions of fairness and their equally transitory, though thought to be empirical, assessment of the “risk that. . . counsel’s absence . . . might derogate from ... [a defendant’s] right to a fair trial.” Ante, at 228. See Pointer v. Texas, 380 U. S. 400, 412 (concurring opinion of Goldberg, J.).

III.

I would reverse Wade’s conviction without further ado had the prosecution at trial made use of his lineup identification either in place of courtroom identification or to bolster in a harmful manner crucial courtroom identification. But the prosecution here did neither of these things. After prosecution witnesses under oath identified Wade in the courtroom, it was the defense, and not the prosecution, which brought out the prior lineup identification. While stating that “a per se rule of exclusion of courtroom identification would be unjustified,” the Court, nevertheless, remands this case for “a *248hearing to determine whether the in-court identifications had an independent source,” or were the tainted fruits of the invalidly conducted lineup. From this holding I dissent.

In the first place, even if this Court has power to establish such a rule of evidence, I think the rule fashioned by the Court is unsound. The “tainted fruit” determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a courtroom identification due to memory not based on the lineup? What kind of “clear and convincing evidence” can the prosecution offer to prove upon what particular events memories resulting in an in-court identification rest? How long will trials be delayed while judges turn psychologists to probe the subconscious minds of witnesses? All these questions are posed but not answered by the Court’s opinion. In my view, the Fifth and Sixth. Amendments are satisfied if the prosecution is precluded from using lineup identification as either an alternative to or corroboration of courtroom identification. If the prosecution does neither and its witnesses under oath identify the defendant in the courtroom, then I can find no justification for stopping the trial in midstream to hold a lengthy “tainted fruit” hearing. The fact of and circumstances surrounding a prior lineup identification might be used by the defense to impeach the credibility of the in-court identifications, but not to exclude them completely.

But more important, there is no constitutional provision upon which I can rely that directly or by implication gives this Court power to establish what amounts to a constitutional rule of evidence to govern, not only the Federal Government, but the States in their trial of state *249crimes under state laws in state courts. See Gilbert v. California, supra. The Constitution deliberately reposed in the States very broad power to create and to try crimes according to their own rules and policies. Spencer v. Texas, 385 U. S. 554. Before being deprived of this power, the least that they can ask is that we should be able to point to a federal constitutional provision that either by express language or by necessary implication grants us the power to fashion this novel rule of evidence to govern their criminal trials. Cf. Berger v. New York, ante, p. 70 (Black, J., dissenting). Neither Nardone v. United States, 308 U. S. 338, nor Wong Sun v. United States, 371 U. S. 471, both federal cases and both decided “in other contexts,” supports what the Court demands of the States today.

Perhaps the Court presumes to write this constitutional rule of evidence on the basis of the Fourteenth Amendment's Due Process Clause. This is not the time or place to consider that claim. Suffice it for me to say briefly that I find no such authority in the Due Process Clause. It undoubtedly provides that a person must be tried in accordance with the “Law of the Land.” Consequently, it violates due process to try a person in a way prohibited by the Fourth, Fifth, or Sixth Amendments of our written Constitution. But I have never been able to subscribe to the dogma that the Due Process Clause empowers this Court to declare any law, including a rule of evidence, unconstitutional which it believes is contrary to tradition, decency, fundamental justice, or any of the other wide-meaning words used by judges to claim power under the Due Process Clause. See, e. g., Rochin v. California, 342 U. S. 165. I have an abiding idea that if the Framers had wanted to let judges write the Constitution on any such day-to-day beliefs of theirs, they would have said so instead of so carefully defining their grants and prohibitions in a written constitution. *250With no more authority than the Due Process Clause I am wholly unwilling to tell the state or federal courts that the United States Constitution forbids them to allow courtroom identification without the prosecution’s first proving that the identification does not rest in whole or in part on an illegal lineup. Should I do so, I would feel that we are deciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in it. That to me would be “judicial activism” at its worst. I would leave the States and Federal Government free to decide their own rules of evidence. That, I believe, is their constitutional prerogative.

I would affirm Wade’s conviction.

Mr. Justice White,

whom Mr. Justice Harlan and Mr. Justice Stewart join,

dissenting in part and concurring in part.

The Court has again propounded a broad constitutional rule barring use of a wide spectrum of relevant and probative evidence, solely because a step in its ascertainment or discovery occurs outside the presence of defense counsel. This was the approach of the Court in Miranda v. Arizona, 384 U. S. 436. I objected then to what I thought was an uncritical and doctrinaire approach without satisfactory factual foundation. I have much the same view of the present ruling and therefore dissent from the judgment and from Parts II, IV, and V of the Court’s opinion.

The Court’s opinion is far-reaching. It proceeds first by creating a new per se rule of constitutional law: a criminal suspect cannot be subjected to a pretrial identification process in the absence of his counsel without violating the Sixth Amendment. If he is, the State may not buttress a later courtroom identification of the witness by any reference to the previous identification. Furthermore, the courtroom identification is not admis*251sible at all unless the State can establish by clear and convincing proof that the testimony is not the fruit of the earlier identification made in the absence of defendant’s counsel — admittedly a heavy burden for the State and probably an impossible one. To all intents and purposes, courtroom identifications are barred if pretrial identifications have occurred without counsel being present.

The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information. It matters not how well the witness knows the suspect, whether the witness is the suspect’s mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime. The kidnap victim who has lived for days with his abductor is in the same category as the witness who has had only a fleeting glimpse of the criminal. Neither may identify the suspect without defendant’s counsel being present. The same strictures apply regardless of the number of other witnesses who positively identify the defendant and regardless of the corroborative evidence showing that it was the defendant who had committed the crime.

The premise for the Court’s rule is not the general unreliability of eyewitness identifications nor the difficulties inherent in observation, recall, and recognition. The Court assumes a narrower evil as the basis for its rule — improper police suggestion which contributes to erroneous identifications. The Court apparently believes that improper police procedures are so widespread that a broad prophylactic rule must be laid down, requiring the presence of counsel at all pretrial identifications, in *252order to detect recurring instances of police misconduct.1 I do not share this pervasive distrust of all official investigations. None of the materials the Court relies upon supports it.2 Certainly, I would bow to solid fact, but the Court quite obviously does not have before it any reliable, comprehensive survey of current police practices on which to base its new rule. Until it does, the Court should avoid excluding relevant evidence from state criminal trials. Cf. Washington v. Texas, ante, p. 14.

The Court goes beyond assuming that a great majority of the country’s police departments are following improper practices at pretrial identifications. To find the lineup a “critical” stage of the proceeding and to exclude identifications made in the absence of counsel, the Court must also assume that police “suggestion,” if it occurs at all, leads to erroneous rather than accurate identifications and that reprehensible police conduct will have an unavoidable and largely undiscoverable impact on the trial. This in turn assumes that there is now no adequate source from which defense counsel can learn about the circumstances of the pretrial identification in order to place before the jury all of the considerations which should enter into an appraisal of courtroom identification *253evidence. But these are treacherous and unsupported assumptions,3 resting as they do on the notion that the defendant will not be aware, that the police and the witnesses will forget or prevaricate, that defense counsel will be unable to bring out the truth and that neither jury, judge, nor appellate court is a sufficient safeguard against unacceptable police conduct occurring at a pretrial identification procedure. I am unable to share the Court’s view of the willingness of the police and the ordinary citizen-witness to dissemble, either with respect to the identification of the defendant or with respect to the circumstances surrounding a pretrial identification.

There are several striking aspects to the Court’s holding. First, the rule does not bar courtroom identifications where there have been no previous identifications in the presence of the police, although when identified in the courtroom, the defendant is known to be in custody and charged with the commission of a crime. Second, the Court seems to say that if suitable legislative standards were adopted for the conduct of pretrial identifications, thereby lessening the hazards in such con*254frontations, it would not insist on the presence of counsel. But if this is true, why does not the Court simply fashion what it deems to be constitutionally acceptable procedures for the authorities to follow? Certainly the Court is correct in suggesting that the new rule will be wholly inapplicable where police departments themselves have established suitable safeguards.

Third, courtroom identification may be barred, absent counsel at a prior identification, regardless of the extent of counsel’s information concerning the circumstances of the previous confrontation between witness and defendant — apparently even if there were recordings or sound-movies of the events as they occurred. But if the rule is premised on the defendant’s right to have his counsel know, there seems little basis for not accepting other means to inform. A disinterested observer, recordings, photographs — any one of them would seem adequate to furnish the basis for a meaningful cross-examination of the eyewitness who identifies the defendant in the courtroom.

I share the Court’s view that the criminal trial, at the very least, should aim at truthful factfinding, including accurate eyewitness identifications. I doubt, however, on the basis of our present information, that the tragic mistakes which have occurred in criminal trials are as much the product of improper police conduct as they are the consequence of. the difficulties inherent in eyewitness testimony and in resolving evidentiary conflicts by court or jury. I doubt that the Court’s new rule will obviate these difficulties, or that the situation will be measurably improved by inserting defense counsel into the investigative processes of police departments everywhere.

But, it may be asked, what possible state interest militates against requiring the presence of defense counsel at lineups? After all, the argument goes, he may do some good, he may upgrade the quality of identification evidence in state courts and he can scarcely do any *255harm. Even if true, this is a feeble foundation for fastening an ironclad constitutional rule upon state criminal procedures. Absent some reliably established constitutional violation, the processes by which the States enforce their criminal laws are their own prerogative. The States do have an interest in conducting their own affairs, an interest which cannot be displaced simply by saying that there are no valid arguments with respect to the merits of a federal rule emanating from this Court.

Beyond this, however, requiring counsel at pretrial identifications as an invariable rule trenches on other valid state interests. One of them is its concern with the prompt and efficient enforcement of its criminal laws. Identifications frequently take place after arrest but before an indictment is returned or an information is filed. The police may have arrested a suspect on probable cause but may still have the wrong man. Both the suspect and the State have every interest in a prompt identification at that stage, the suspect in order to secure his immediate release and the State because prompt and early identification enhances accurate identification and because it must know whether it is on the right investigative track. Unavoidably, however, the absolute rule requiring the presence of counsel will cause significant delay and it may very well result in no pretrial identification at all. Counsel must be appointed and a time arranged convenient for him and the witnesses. Meanwhile, it may be necessary to file charges against the suspect who may then be released on bail, in the federal system very often on his own recognizance, with neither the State nor the defendant having the benefit of a properly conducted identification procedure.

Nor do I think the witnesses themselves can be ignored. They will now be required to be present at the convenience of counsel rather than their own. Many may be much less willing to participate if the identifica*256tion stage is transformed into an adversary proceeding not under the control of a judge. Others may fear for their own safety if their identity is known at an early date, especially when there is no way of knowing until the lineup occurs whether or not' the police really have the right man.4

Finally, I think the Court’s new rule is vulnerable in terms of its own unimpeachable purpose of increasing the reliability of identification testimony.

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.5 To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must *257be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present- the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.6 Our interest in not con*258victing the innocent permits counsel to put the State to its proof, to put the State’s -case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe7 but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

I would not extend this system, at least as it presently operates, to police investigations and would not require counsel’s presence at pretrial identification procedures. Counsel’s interest is in not having his client placed at the scene of the crime, regardless of his whereabouts. Some counsel may advise their clients to refuse to make any *259movements or to speak any words in a lineup or even to appear in one. To that extent the impact on truthful factfinding is quite obvious. Others will not only observe what occurs and develop possibilities for later cross-examination but will hover over witnesses and begin their cross-examination then, menacing truthful fact-finding as thoroughly as the Court fears the police now do. Certainly there is an implicit invitation to counsel to suggest rules for the lineup and to manage and produce it as best he can. I therefore doubt that the Court’s new rule, at least absent some clearly defined limits on counsel’s role, will measurably contribute to more reliable pretrial identifications. My fears are that it will have precisely the opposite result. It may well produce fewer convictions, but that is hardly a proper measure of its long-run acceptability. In my view, the State is entitled to investigate and develop its case outside the presence of defense counsel. This includes the right to have private conversations with identification witnesses, just as defense counsel may have his own consultations with these and other witnesses without having the prosecutor present.

Whether today’s judgment would be an acceptable exercise of supervisory power over federal courts is another question. But as a constitutional matter, the judgment in this case is erroneous and although I concur in Parts I and III of the Court’s opinion I respectfully register this dissent.

Mr. Justice Fortas,

with whom The Chief Justice and Mr. Justice Douglas join, concurring in part and dissenting in part.

1. I agree with the Court that the exhibition of the person of the accused at a lineup is not itself a violation of the privilege against self-incrimination. In itself, it is no more subject to constitutional objection *260than the exhibition of the person of the accused in the courtroom for identification purposes. It is an incident of the State’s power to arrest, and a reasonable and justifiable aspect of the State’s custody resulting from arrest. It does not require that the accused take affirmative, volitional action, but only that, having been duly arrested he may be seen for identification purposes. It is, however, a “critical stage” in the prosecution, and I agree with the Court that the opportunity to have counsel present must be made available.

2. In my view, however, the accused may not be compelled in a lineup to speak the words uttered by the person who committed the crime. I am confident that it could not be compelled in court. It cannot be compelled in a lineup. It is more than passive, mute assistance to the eyes of the victim or of witnesses. It is the kind of volitional act — the kind of forced cooperation by the accused — which is within the historical perimeter of the privilege against compelled self-incrimination.

Our history and tradition teach and command that an accused may stand mute. The privilege means just that; not less than that. According to the Court, an accused may be jailed — indefinitely—until he is willing to say, for an identifying audience, whatever was said in the course of the commission of the crime. Presumably this would include, “Your money or your life” — or perhaps, words of assault in a rape case. This is intolerable under our constitutional system.

I completely agree that the accused must be advised of and given the right to counsel before a lineup — and I join in that part of the Court’s opinion; but this is an empty right unless we mean to insist upon the accused’s fundamental constitutional immunities. One of these is that the accused may not be compelled to speak. To compel him to speak would violate the priv*261ilege against self-incrimination, which is incorporated in the Fifth Amendment.

This great privilege is not merely a shield for the accused. It is also a prescription of technique designed to guide the State’s investigation. History teaches us that self-accusation is an unreliable instrument of detection, apt to inculpate the innocent-but-weak and to enable the guilty to escape. But this is not the end of the story. The privilege historically goes to the roots of democratic and religious principle. It prevents the debasement of the citizen which would result from compelling him to “accuse” himself before the power of the state. The roots of the privilege are deeper than the rack and the screw used to extort confessions. They go to the nature of a free man and to his relationship to the state.

An accused cannot be compelled to utter the words spoken by the criminal in the course of the crime. I thoroughly disagree with the Court’s statement that such compulsion does not violate the Fifth Amendment. The Court relies upon Schmerber v. California, 384 U. S. 757 (1966), to support this. I dissented in Schmerber, but if it were controlling here, I should, of course, acknowledge its binding effect unless we were prepared to overrule it. But Schmerber, which authorized the forced extraction of blood from the veins of an unwilling human being, did not compel the person actively to cooperate — to accuse himself by a volitional act which differs only in degree from compelling him to act out the crime, which, I assume, would be rebuffed by the Court. It is the latter feature which places the compelled utterance by the accused squarely within the history and noble purpose of the Fifth Amendment’s commandment.

To permit Schmerber to apply in any respect beyond its holding is, in my opinion, indefensible. To permit *262its insidious doctrine to extend beyond the invasion of the body, which it permits, to compulsion of the will of a man, is to deny and defy a precious part of our historical faith and to discard one of the most profoundly cherished instruments by which we have established the freedom and dignity of the individual. We should not so alter the balance between the rights of the individual and of the state, achieved over centuries of conflict.

3. While the Court holds that the accused must be advised of and given the right to counsel at the lineup, it makes the privilege meaningless in this important respect. Unless counsel has been waived or, being present, has not objected to the accused's utterance of words used in the course of committing the crime, to compel such an utterance is constitutional error.*

Accordingly, while I join the Court in requiring vacating of the judgment below for a determination as to whether the identification of respondent was based upon factors independent of the lineup, I would do so not only because of the failure to offer counsel before the lineup but also because, of the violation of respondent’s Fifth Amendment rights.

Mr. Justice Stewart

announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join.

In United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, this Court held “that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel and calls in question the admissibility at trial- of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert v. California, supra, at 272. Those cases further held that no “in-court identifications” are admissible in evidence if their “source” is a lineup conducted in violation of this constitutional standard. “Only a per se exclusionary rule as to such testimony can be an effective sanction,” the Court said, “£o assure that law *684enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Id., at 273. In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.

On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler’s checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in „ Chicago.1 When asked for identification, the petitioner produced a wallet that contained three traveler’s checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard’s name on them were also found in Bean’s possession. When asked to explain his possession of Shard’s property, the petitioner first said that the traveler’s checks were “play money,” and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.

Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. A police car was then dispatched to Shard’s place of employment, where it picked up Shard and brought him to the police station. Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had *685robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.

More than six weeks later, the petitioner and Bean were indicted for the robbery of Willie Shard. Upon arraignment, counsel was appointed to represent them, and they pleaded not guilty. A pretrial motion to suppress Shard’s identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimony he described his identification of the two men at the police station on February 22,2 and identified them again in the courtroom as the men *686who had robbed him on February 20.3 He was cross-examined at length regarding the circumstances of his identification of the two defendants. Cf. Pointer v. Texas, 380 U. S. 400. The jury found both defendants guilty, and the petitioner’s conviction was affirmed on appeal. People v. Kirby, 121 Ill. App. 2d 323, 257 N. E. 2d 589.4 The Illinois appellate court held that the admission of Shard’s testimony was not error, relying upon an earlier decision of the Illinois Supreme Court, People v. Palmer, 41 Ill. 2d 571, 244 N. E. 2d 173, holding that the Wade-Gilbert per se exclusionary rule is not applicable to pre-indictment confrontations.

*687We granted certiorari, limited to this question. 402 U. S. 995.5

I

We note at the outset that the constitutional privilege against compulsory self-incrimination is in no way implicated here. The Court emphatically rejected the claimed applicability of that constitutional guarantee in Wade itself:

“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 the 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. . . ” 388 U. S., at 221.

“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 *688to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. . . .” Id., at 222.

It follows that the doctrine of Miranda v. Arizona, 384 U. S. 436, has no applicability whatever to the issue before us; for the Miranda decision was based exclusively upon the Fifth and Fourteenth Amendment privilege against compulsory self-incrimination, upon the theory that custodial interrogation is inherently coercive.

The Wade-Gilbert exclusionary rule, by contrast, stems from a quite different constitutional guarantee — the guarantee of the right to counsel contained in the Sixth and Fourteenth Amendments. Unless all semblance of principled constitutional adjudication is to be abandoned, therefore, it is to the decisions construing that guarantee that we must look in determining the present controversy.

In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458; Hamilton v. Alabama, 368 U. S. 52; Gideon v. Wainwright, 372 U. S. 335; White v. Maryland, 373 U. S. 59; Massiah v. United States, 377 U. S. 201; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Coleman v. Alabama, 399 U. S. 1.

This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment,6 and the Court *689has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

The only seeming deviation from this long line of constitutional decisions was Escobedo v. Illinois, 378 U. S. 478. But Escobedo is not apposite here for two distinct reasons. First, the Court in retrospect perceived that the “prime purpose” of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, “to guarantee full effectuation of the privilege against self-incrimination . . . .” Johnson v. New Jersey, 384 U. S. 719, 729. Secondly, and perhaps even more important for purely practical purposes, the Court has limited the holding of Escobedo to its own facts, Johnson v. New Jersey, supra, at 733-734, and those facts are not remotely akin to the facts of the case before us.

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecu-torial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. *690It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.7 See Powell v. Alabama, 287 U. S., at 66—71; Massiah v. United States, 377 U. S. 201; Spano v. New York, 360 U. S. 315, 324 (Douglas, J., concurring).

In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: “The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,’ and that a post-indictment lineup is such a 'critical stage.’ ” (Emphasis supplied.) Simmons v. United States, 390 U. S. 377, 382-383. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.

II

What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to “scrutinize any pretrial con*691frontation . . . 388 U. S., at 227. The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U. S. 293; Foster v. California, 394 U. S. 440.8 When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.

The judgment is affirmed.

Mr. Chief Justice Burger,

concurring.

I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a “criminal prosecution.” Therefore, I join in the plurality opinion and in the judgment. Cf. Coleman v. Alabama, 399 U. S. 1, 21 (dissenting opinion).

Mr. Justice Powell,

concurring in the result.

As I would not extend the Wade-Gilbert per se exclusionary rule, I concur in the result reached by the Court.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

After petitioner and Ralph Bean were arrested, police officers brought Willie Shard, the robbery victim, to a room in a police station where petitioner and Bean were seated at a table with two other police officers. Shard testified at trial that the officers who brought him to the *692room asked him if petitioner and Bean were the robbers and that he indicated they were. The prosecutor asked him, “And you positively identified them at the police station, is that correct?” Shard answered, “Yes.” Consequently, the question in this case is whether, under Gilbert v. California, 388 U. S. 263 (1967), it was constitutional error to admit Shard’s testimony that he identified petitioner at the pretrial station-house showup when that showup was conducted by the police without advising petitioner that he might have counsel present. Gilbert held, in the context of a post-indictment lineup, that “[o]nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Id., at 273. I would apply Gilbert and the principles of its companion case, United States v. Wade, 388 U. S. 218 (1967), and reverse.1

In Wade, after concluding that the lineup conducted in that case did not violate the accused’s right against self-incrimination, id., at 221-223,2 the Court addressed *693the argument “that the assistance of counsel at the lineup was indispensable 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,” id., at 223-224. The Court began by emphasizing that the Sixth Amendment guarantee “encompasses counsel’s assistance whenever necessary to assure a meaningful 'defence.’ ” Id., at 225. After reviewing Powell v. Alabama, 287 U. S. 45 (1932); Hamilton v. Alabama, 368 U. S. 52 (1961); and Massiah v. United States, 377 U. S. 201 (1964), the Court, 388 U. S., at 225, focused upon two cases that involved the right against self-incrimination:

“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 his lawyer. We again noted the necessity of counsel’s presence if the accused was to have a fair opportunity to present a defense at the trial itself United States v. Wade, 388 U. S., at 225-226.3

*694“[I]n Miranda v. Arizona, 384 U. S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.” Id., at 226.

The Court then pointed out that "nothing decided or said in the opinions in [Escobedo and Miranda] links the right to counsel only to protection of Fifth Amendment rights.” Ibid. To the contrary, the Court said, those decisions simply reflected the constitutional

“principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment . . . .” Id., at 226-227.

This analysis led to the Court’s formulation of the controlling principle for pretrial confrontations:

“In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Id., at 227 (emphasis in original).

*695It was that constitutional principle that the Court applied in Wade to pretrial confrontations for identification purposes. The Court first met the Government’s contention that a confrontation for identification is “a mere preparatory step in the gathering of the prosecution’s evidence,” much like the scientific examination of fingerprints and blood samples. The Court responded that in the latter instances “the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” The accused thus has no right to have counsel present at such examinations: “they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.” Id., at 227-228.

In contrast, the Court said, “the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” Id., at 228. Most importantly, “the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” Id., at 231-232. The Court’s analysis of pretrial confrontations for identification purposes produced the following conclusion:

“Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-ex-*696animation which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — 'that's the man.’ ” Id., at 235-236.

The Court then applied that conclusion to the specific facts of the case. “Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 236-237.

While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that Wade did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words “criminal prosecutions” in the Sixth Amendment. Counsel is required at those confrontations because “the *697dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification,” id., at 235,4 mean that protection must be afforded to the “most basic right [of] a criminal defendant — his right to a fair trial at which the witnesses against him might be meaningfully cross-examined,” id., at 224. Indeed, the Court expressly stated that “[legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical.’ ” Id., at 239; see id., at 239 n. 30; Gilbert v. California, 388 U. S., at 273. Hence, “the initiation of adversary judicial criminal proceedings,” ante, at 689, is completely irrelevant to whether counsel is necessary at a pretrial confrontation for identification in order to safeguard the accused’s constitutional rights to confrontation and the effective assistance of counsel at his trial.

In view of Wade, it is plain, and the plurality today does not attempt to dispute it, that there inhere in a con*698frontation for identification conducted after arrest5 the identical hazards to a fair trial that inhere in such a confrontation conducted “after the onset of formal pros-ecutorial proceedings.” Id., at 690. The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of “a routine police investigation,” ibid., and thus not “the starting point of our whole system of adversary criminal justice,” id., at 689.6 An arrest, according to the plurality, does not face the accused “with the prosecutorial forces of organized society,” nor immerse him “in the intricacies of substantive and procedural criminal law.” Those consequences ensue, says the plurality, only with “[tjhe initiation of judicial criminal proceedings,” “[f]or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.” Ibid 7 If these propositions do not amount to *699“mere formalism,” ibid., it is difficult to know how to characterize them.8 An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not “a mere preparatory step in the gathering of the prosecution’s evidence.” Wade, supra, at 227. A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those “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.” Id., at 224.

The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken *700identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard’s understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed the robbers. “It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.” Id., at 234. The State had no case without Shard’s identification testimony,9 and safeguards against that consequence were therefore of critical importance. Shard’s testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers on trial in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation, quoted by the Court in Wade, 388 U. S., at 229, that “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.” Williams & Hammelmann, Identification Parades, Part I, [1963] Crim. L. Rev. 479, 482.

The plurality today “decline[s] to depart from [the] rationale” of Wade and Gilbert. Ante, at 690. The plurality discovers that “rationale” not by consulting those decisions themselves, which would seem to be the appropriate course, but by reading one sentence in Simmons v. United States, 390 U. S. 377, 382-383 (1968), where no right-to-counsel claim was either asserted or considered. The “rationale” the plurality discovers is, appar*701ently, that a post-indictment confrontation for identification is part of the prosecution. The plurality might have discovered a different “rationale” by reading one sentence in Foster v. California, 394 U. S. 440, 442 (1969), a case decided after Simmons, where the Court explained that in Wade and Gilbert “this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a 'critical stage’ in the prosecution, at which the accused must be given the opportunity to be represented by counsel.” In Foster, moreover, although the Court mentioned that the lineups took place after the accused’s arrest, it did not say whether they were also after the information was filed against him.10 Instead, the Court simply pointed out that under Stovall v. Denno, 388 U. S. 293 (1967), Wade and Gilbert were “applicable only to lineups conducted after those cases were decided.” 394 U. S., at 442. Similarly, in Coleman v. Alabama, 399 U. S. 1 (1970), another case involving a pre-Wade lineup, no member of the Court saw any significance in whether the accused had been formally charged with a crime before the lineup was held.11

*702The plurality might also have discovered a different “rationale” for Wade and Gilbert had it examined Stovall v. Denno, supra, decided the same day. In Stovall, the confrontation for identification took place one day after the accused's arrest. Although the accused was first brought to an arraignment, it “was postponed until [he] could retain counsel.” 388 U. S., at 295. Hence, in the plurality’s terms today, the confrontation was held “before the commencement of any prosecution.” Ante, at 690.12 Yet in that circumstance the Court in Stovall *703stated that the accused raised “the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us” in Wade and Gilbert. The Court therefore found that the case “provide[d] 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.” 388 U. S., at 294. Indeed, the Court’s explicit holding was “that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case.” Id., at 296. Hence, the accused in Stovall did not receive the benefit of the new exclusionary rules because they were not applied retroactively; he was not denied their benefit because his confrontation took place before he had “been formally charged with a criminal offense.” Ante, at 691. Moreover, in the course of its retroactivity discussion, 388 U. S., at 296-301, the Court repeated the phrase “pretrial confrontations for identification” or its equivalent no less than 10 times. Not once did the Court so much as hint that Wade and Gilbert applied only to confrontations after the accused “had been indicted or otherwise formally charged with [a] criminal offense.” Ante, at 684. In fact, at one point the Court summarized Wade as holding “that the confrontation [for identification] is a 'critical stage,’ and that counsel *704is required at all confrontations.” 388 U. S., at 298 (emphasis added).

Wade and Gilbert, of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance.13 In short, it is fair to conclude that rather than “declin[ing] to depart from [the] rationale” of Wade and Gilbert, ante, at 690, the plurality today, albeit purporting to be engaged in “principled constitutional adjudication,” id., at 688, refuses even to recognize that “rationale.” For my part, I do not agree that we “extend” Wade and Gilbert, id., at 684, by holding that the principles of those cases apply to confrontations for identification conducted after arrest.14 Because Shard testified at trial *705about his identification of petitioner at the police station showup, the exclusionary rule of Gilbert, 388 U. S., at 272-274, requires reversal.

Mr. Justice White,

dissenting.

United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), govern this case and compel reversal of the judgment below.

Mr. Justice Blackmun

delivered the opinion of the Court.

In this case the Court is called upon to decide whether *301the Sixth Amendment1 grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.2 We granted certiorari *302to resolve the conflict and to decide this important constitutional question. 407 U. S. 909 (1972). We reverse and remand.

I

On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers’ drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes.

A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash’s picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a co-defendant, John L. Bailey, in five counts related to this *303bank robbery, in violation of D. C. Code Ann. § 22-2901 and 18 U. S. C. §2113 (a).

Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment3 identification provides the basis for respondent Ash’s claim that he was denied the right to counsel at a “critical stage” of the prosecution.

No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.4 The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by “clear and convincing” evidence that in-court identifications would be “based on observation of *304the suspect other than the intervening observation.” App. 63-64.

At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey’s counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey’s counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey’s counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor’s request and over the objection of defense counsel.5

*305McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer.

The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years.

The five-member majority of the Court of Appeals held that Ash’s right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court’s lineup cases, United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), and on Stovall v. Denno, 388 U. S. 293 (1967).

The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. The majority refrained from deciding whether the in-court identifications could have independent bases, id., at 14-15 and nn. 20, 21, 461 F. 2d, at 105-106 and nn. 20, 21, but-expressed doubt that the identifications at the trial had independent origins.

Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage” requiring counsel, and criticized the majority’s suggestion that the in-court identifications were tainted by defects in the photographic identifications. Id., at 14-43, 461 F. 2d, at 106-134.

*306II

The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification.

In Powell v. Alabama, 287 U. S. 45, 60-66 (1932), the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that “in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes.” Id., at 64-65. The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule.

Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but *307the accused felon, in theory at least,6 could consult counsel only on legal questions that the accused proposed to the court. See Powell v. Alabama, 287 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355.

A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland’s well-known observations in Powell bear repeating here:

“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 287 U. S., at 69.

The Court frequently has interpreted the Sixth Amend*308ment to assure that the “guiding hand of counsel” is available to those in need of its assistance. See, for example, Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), and Argersinger v. Hamlin, 407 U. S. 25, 31 (1972).

Another factor contributing to the colonial recognition of the accused’s right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development:

“'[Ejarly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe’s inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court.” E. Heller, The Sixth Amendment 20-21 (1951) (footnote omitted).

*309Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938), spoke of this equalizing effect of the Sixth Amendment’s counsel guarantee:

“It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”

This historical background suggests that the core purpose of the counsel guarantee was to assure “Assistance” at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.7 Later developments have led this Court *310to recognize that “Assistance” would be less than meaningful if it were limited to the formal trial itself.

This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In Wade, the Court explained the process of expanding the counsel guarantee to these confrontations:

“When the Bill of Rights was adopted, there were no organized police forces as we know them today. 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' *311stages of the proceedings.” 388 U. S., at 224 (footnote omitted).

The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself.

Recent cases demonstrate the historical method of this expansion. In Hamilton v. Alabama, 368 U. S. 52 (1961), and in White v. Maryland, 373 U. S. 59 (1963), the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In Massiah v. United States, 377 U. S. 201 (1964), the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. Alabama, 399 U. S. 1 (1970), the accused was confronted by his adversary at a “critical stage” preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary.

The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in Wade:

“The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that's the man.' ” 388 U. S., at 235-236.

*312Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused’s right to the “Assistance of Counsel” has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. 368 U. S., at 54-55; 373 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the prosecution. 377 U. S., at 205. Cf. Miranda v. Arizona, 384 U. S. 436, 466 (1966). In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under Alabama law, the accused required “Assistance” at that hearing. 399 U. S., at 9.

The function of counsel in rendering “Assistance” continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused’s memory might be dimmed by “emotional tension,” that the accused’s credibility at *313trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United States v. Wade, 388 U. S., at 230-231. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.

This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals.

Ill

Although the Court of Appeals’ majority recognized the argument that “a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone,” the court concluded that “other forms of prejudice,” mentioned and recognized in Wade, could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, 461 F. 2d, at 101. These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.8

*314We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the “Assistance of Counsel” to preserve the adversary process by compensating for advantages of the prosecuting authorities.

The above discussion of Wade has. shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed , to render “Assistance” in counterbalancing any “overreaching” by the prosecution.

After the Court in Wade held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the prosecution. The Government had argued in Wade that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the “gathering of the prosecution’s evidence,” such as, for *315particular example, the taking of fingerprints or blood samples. 388 U. S., at 227.

The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not “critical.” Referring to fingerprints, hair, clothing, and other blood samples, the Court explained:

“Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts.” 388 U. S., at 227-228.

The structure of Wade, viewed in light of the careful limitation of the Court’s language to “confrontations,” 9 *316makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be “critical.” The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a “critical” confrontation:

“Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as ‘critical.’ ” 388 U. S., at 239 (footnote omitted).

See, however, id., at 262 n. (opinion of Fortas, J.).

The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under Wade, however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United States v. Bennett, 409 F. 2d 888 (1969), recognized that the “criticality” test of Wade, if applied outside the confrontation context, would result in drastic expansion of the right to counsel:

“None of the classical analyses of the assistance to be given by counsel, Justice Sutherland’s in Powell v. Alabama . . . and Justice Black’s in Johnson v. *317Zerbst . . . and Gideon v. Wainwright . . . suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant’s absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution’s interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense’s interviews, notably with alibi witnesses.” Id., at 899-900.

We now undertake the threshhold analysis that must be addressed.

IV

A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial.

Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor’s trial-preparation interviews with witnesses. Although pho*318tography is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 17th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself.

That adversary mechanism remains as effective for a photographic display as for other parts of pretrial interviews.10 No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the prosecution.11 Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of *319a picture of the defendant would be useful to the prosecution.12 In this very case, for example, the initial tender of the photographic display was by Bailey’s counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,13 it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment’s counsel guarantee.

The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.14 This Court has *320recognized that improved procedures can minimize the dangers of suggestion. Simmons v. United States, 390 U. S. 377, 386 n. 6 (1968). Commentators have also proposed more accurate techniques.15

Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,16 who, as so often has been said, may “strike hard blows” but not “foul ones.” Berger v. United States, 295 U. S. 78, 88 (1935); Brady v. Maryland, 373 U. S. 83, 87-88 (1963). If that safeguard fails, review remains available under due process standards. See Giglio v. United States, 405 U. S. 150 (1972); Mooney v. Holohan, 294 U. S. 103, 112 (1935); Miller v. Pate, 386 U. S. 1 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973). These same safeguards apply to misuse of photographs. See Simmons v. United States, 390 U. S., at 384.

*321We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required.

We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in Simmons v. United States, 390 U. S., at 384, the Court of Appeals, expressing the view that additional findings would be necessary, refused to decide the issue. 149 U. S. App. D. C., at 7, 461 F. 2d, at 98. We decline to consider this question on this record in the first instance. It remains open, of course, on the Court of Appeals’ remand to the District Court.

Reversed and remanded.

Mr. Justice Stewart,

concurring in the judgment.

The issue in the present case is whether, under the Sixth Amendment, a person who has been indicted is entitled to have a lawyer present when prosecution witnesses are shown the person’s photograph and asked if they can identify him.

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” This Court’s decisions make it clear that a defendant is entitled to the assistance of counsel not only at the trial itself, but at all “critical stages” of his “prosecution.” See Coleman v. Alabama, 399 U. S. 1; United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Hamilton v. Alabama, 368 U. S. 52. The requirement *322that there be a “prosecution,” means that this constitutional “right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against [an accused]. . . “It is this point . . . that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Kirby v. Illinois, 406 U. S. 682, 688, 690 (plurality opinion). Since the photographic identification in the present case occurred after the accused had been indicted, and thus clearly after adversary judicial proceedings had been initiated, the only question is whether that procedure was such a “critical stage” that the Constitution required the presence of counsel.

In United States v. Wade, supra, the Court determined that a pretrial proceeding is a “critical stage” if “the presence of . . . counsel is necessary to preserve the defendant’s . . . right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 388 U. S., at 227. Pretrial proceedings are “critical,” then, if the presence of counsel is essential “to protect the fairness of the trial itself.” Schneckloth v. Bustamonte, 412 U. S. 218, 239; cf. Coleman v. Alabama, 399 U. S. 1, 27-28 (Stewart, J., dissenting).

The Court held in Wade that a post-indictment, pretrial lineup at which the accused was exhibited to identifying witnesses was such a critical stage, because of the substantial possibility that the accused’s right to a fair trial would otherwise be irretrievably lost. The hazard of unfair suggestive influence at a lineup, which, because of the nature of the proceeding, could seldom be reconstructed at trial, left little doubt, the Court thought, “that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” 388 U. S., at 237.

*323The Court stressed in Wade that the danger of mistaken identification at trial was appreciably heightened by the “degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id., at 228. There are numerous and subtle possibilities for such improper suggestion in the dynamic context of a lineup. Judge Wilkey, dissenting in the present case, accurately described a lineup as:

“a little drama, stretching over an appreciable span of time. The accused is there in the flesh, three-dimensional and always full-length. Further, he isn’t merely there, he acts. He walks on stage, he blinks in the glare of lights, he turns and twists, often muttering asides to those sharing the spotlight. He can be required to utter significant words, to turn a profile or back, to walk back and forth, to doff one costume and don another. All the while the potentially identifying witness is watching, a prosecuting attorney and a police detective at his elbow, ready to record the witness’ every word and reaction.” 149 U. S. App. D. C. 1, 17, 461 F. 2d 92, 108.

With no attorney for the accused present at this “little drama,” defense counsel at trial could seldom convincingly discredit a witness’ courtroom identification by showing it to be based on an impermissibly suggestive lineup. In addition to the problems posed by the fluid nature of a lineup, the Court in Wade pointed out that neither the witnesses nor the lineup participants were likely to be alert for suggestive influences or schooled in their detection. “In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” 388 U. S., at 231-232.

*324The Court held, therefore, that counsel was required at a lineup, primarily as an observer, to ensure that defense counsel could effectively confront the prosecution’s evidence at trial. Attuned to the possibilities of suggestive influences, a lawyer could see any unfairness at a lineup, question the witnesses about it at trial, and effectively reconstruct what had gone on for the benefit of the jury or trial judge.*

A photographic identification is quite different from a lineup, for there are substantially fewer possibilities of impermissible suggestion when photographs are used, and those unfair influences can be readily reconstructed at trial. It is true that the defendant’s photograph may be markedly different from the others displayed, but this unfairness can be demonstrated at trial from an actual comparison of the photographs used or from the witness’ description of the display. Similarly, it is possible that the photographs could be arranged in a suggestive manner, or that by comment or gesture the prosecuting authorities might single out the defendant’s picture. But these are the kinds of overt influence that a witness can easily recount and that would serve to impeach the identification testimony. In short, there are few possibilities for unfair suggestiveness — and those rather blatant and easily reconstructed. Accordingly, an accused would not be foreclosed from an effective cross-examination of an identification witness simply because his counsel was *325not present at the photographic display. For this reason, a photographic display cannot fairly be considered a “critical stage” of the prosecution. As the Court of Appeals for the Third Circuit aptly concluded:

“If . . . the identification is not in a live lineup at which defendant may be forced to act, speak or dress in a suggestive way, where the possibilities for suggestion are multiplied, where the ability to reconstruct the events is minimized, and where the effect of a positive identification is likely to be permanent, but at a viewing of immobile photographs easily reconstructible, far less subject to subtle suggestion, and far less indelible in its effect when the witness is later brought face to face with the accused, there is even less reason to denominate the procedure a critical stage at which counsel must be present.” United States ex rel. Reed v. Anderson, 461 F. 2d 739, 745.

Preparing witnesses for trial by checking their identification testimony against a photographic display is little different, in my view, from the prosecutor’s other interviews with the victim or other witnesses before trial. See United States v. Bennett, 409 F. 2d 888, 900. While these procedures can be improperly conducted, the possibility of irretrievable prejudice is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses. The presence of defense counsel at such pretrial preparatory sessions is neither appropriate nor necessary under our adversary system of justice “to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade, supra, at 227.

*326Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

The Court holds today that a pretrial display of photographs to the witnesses of a crime for the purpose of identifying the accused, unlike a lineup, does not constitute a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel. In my view, today’s decision is wholly unsupportable in terms of such considerations as logic, consistency, and, indeed, fairness. As a result, I must reluctantly conclude that today’s decision marks simply another 1 step towards the complete evisceration of the fundamental constitutional principles established by this Court, only six years ago, in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). I dissent.

I

On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. in Washington, D. C. The robbery lasted only about three or four minutes and, on the day of the crime, none of the four witnesses was able to give the police a description of the robbers’ facial characteristics. Some five months later, on February 3, 1966, an FBI agent showed each of the four witnesses a group of black and white mug shots of the faces of five black males, including respondent, all of generally the same age, height, and weight. Respondent’s photograph was included because of information received from a Government informant charged with other crimes.2 None of the wit*327nesses was able to make a “positive” identification of respondent.3

On April 1, 1966, an indictment was returned charging respondent and a codefendant in five counts relating to the robbery of the American Security and Trust Co. Trial was finally set for May 8, 1968, almost three years after the crime and more than two years after the return of the indictment. During the entire two-year period between indictment and trial, although one of the witnesses expressly sought an opportunity to see respondent in person, the Government never attempted to arrange a corporeal lineup for the purposes of identification. Rather, less than %¿¡. hours before trial, the FBI agent, accompanied by the prosecutor, showed five color photographs to the witnesses, three of whom identified the picture of respondent.

At trial, all four witnesses made in-court identifications of respondent, but only one of these witnesses was “positive” of her identification. The fact that three of the witnesses had previously identified respondent from the color photographs, and the photographs themselves, were also admitted into evidence. The only other evi*328dence implicating respondent in the crime was the testimony of the Government informant.4 On the basis of this evidence, respondent was convicted on all counts of the indictment.

On appeal, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed respondent's conviction. 149 U. S. App. D. C. 1, 461 F. 2d 92 (1972). Noting that “the dangers of mistaken identification from uncounseled lineup identifications . . . are applicable in large measure to photographic as well as corporeal identifications,” 5 the Court of Appeals reasoned that this Court’s decisions in Wade, Gilbert, and Stovall, compelled the conclusion that a pretrial photographic identification, like a lineup, is a “critical” stage of the prosecution at which the accused is constitutionally entitled to the attendance of counsel. Accordingly, the Court of Appeals held that respondent was denied his Sixth Amendment right to “the Assistance of Counsel for his defence” when his attorney was not given an opportunity to attend the display of the color photographs on the very eve of trial.6 In my view, both the reasoning and conclusion of the Court of Appeals were unimpeach-ably correct, and I would therefore affirm.

II

In June 1967, this Court decided a trilogy of “lineup” cases which brought into sharp focus the problems of *329pretrial identification. See United States v. Wade, supra; Gilbert v. California, supra; Stovall v. Denno, supra. In essence, those decisions held (1) that a pretrial lineup is a “critical stage” in the criminal process at which the accused is constitutionally entitled to the presence of counsel; (2) that evidence of an identification of the accused at such an uncounseled lineup is per se inadmissible; and (3) that evidence of a subsequent in-court identification of the accused is likewise inadmissible unless the Government can demonstrate by clear and convincing evidence that the in-court identification was based upon observations of the accused independent of the prior uncounseled lineup identification. The considerations relied upon by the Court in reaching these conclusions are clearly applicable to photographic as well as corporeal identifications. Those considerations bear repeating here in some detail, for they touch upon the very heart of our criminal justice system — the right of an accused to a fair trial, including the effective “Assistance of Counsel for his defence.”

At the outset, the Court noted that “identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” United States v. Wade, supra, at 228. Indeed, “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. Apart from “the dangers inherent in eyewitness identification,” id., at 235, such as unreliable memory or perception, the Court pointed out that “[a] major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Id., at 228. The Court recognized that the dangers of suggestion are not necessarily due to “police *330procedures intentionally designed to prejudice an accused.” Id., at 235. On the contrary, “[suggestion can be created intentionally or unintentionally in many subtle ways.” Id., at 229. And the “ 'fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense . . . involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way Id., at 235, quoting Williams & Hammelmann, Identification Parades-I, [1963] Crim. L. Rev. 479, 483.

The Court also expressed concern over the possibility that a mistaken identification at a pretrial lineup might itself be conclusive on the question of identity, thereby resulting in the conviction of an innocent man. The Court observed that “ 'once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482.

Moreover, “the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial.” United States v. Wade, supra, at 230. For “as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups . . . .” Ibid. Although the accused is present at such corporeal identifications, he is hardly in a position to detect many of the more subtle “improper influences” that might infect the identification.7 In addition, the Court empha*331sized that “neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And, if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.” Ibid. As a result, “even though cross-examination is a precious safeguard to a fair trial, it cannot [in this context] be viewed as an absolute assurance of accuracy and reliability.” Id., at 235.

With these considerations in mind, the Court reasoned that “the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.” Id., at 231-232. And “[ijnsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. Thus, noting that “presence of counsel [at the lineup] can often avert prejudice and assure a meaningful confrontation at trial,” the Court concluded that a pretrial corporeal identification is “a critical stage of the prosecution at which [the accused is] ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 236, 237, quoting Powell v. Alabama, 287 U. S. 45, 57 (1932).

*332Ill

As the Court of Appeals recognized, “the dangers of mistaken identification ... set forth in Wade are applicable in large measure to photographic as well as corporeal identifications.” 149 U. S. App. D. C., at 9, 461 F. 2d, at 100. To the extent that misidentification may be attributable to a witness’ faulty memory or perception, or inadequate opportunity for detailed observation during the crime, the risks are obviously as great at a photographic display as at a lineup.8 But “[b]ecause of the inherent limitations of photography, which presents its subject in two dimensions rather than the three dimensions of reality, ... a photographic identification, even when properly obtained, is clearly inferior to a properly obtained corporeal identification.” P. Wall, Eye-Witness Identification in Criminal Cases 70 (1965). Indeed, noting “the hazards of initial identification by photograph,” we have expressly recognized that “a corporeal identification ... is normally more accurate” than a photographic identification. Simmons v. United States, 390 U. S. 377, 384, 386 n. 6 (1968).9 Thus, in this sense at *333least, the dangers of misidentification are even greater at a photographic display than at a lineup.

Moreover, as in the lineup situation, the possibilities for impermissible suggestion in the context of a photographic display are manifold. See id., at 383. Such suggestion, intentional or unintentional, may derive from three possible sources. First, the photographs themselves might tend to suggest which of the pictures is that of the suspect. For example, differences in age, pose, or other physical characteristics of the persons represented, and variations in the mounting, background, lighting, or markings of the photographs all might have the effect of singling out the accused.10

Second, impermissible suggestion may inhere in the manner in which the photographs are displayed to the witness. The danger of misidentification is, of course, “increased if the police display to the witness . . . the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Ibid. And, if the photographs are arranged in an asymmetrical pattern, or if they are displayed in a time sequence that tends to emphasize a particular photograph, “any identification of the photograph which stands out from the rest is no more reliable than an identification of a single photograph, exhibited alone.” P. Wall, supra, at 81.

Third, gestures or comments of the prosecutor at the time of the display may lead an otherwise uncertain *334witness to select the “correct” photograph. For example, the prosecutor might “indicate to the witness that [he has] other evidence that one of the persons pictured committed the crime,”11 and might even point to a particular photograph and ask whether the person pictured “looks familiar.” More subtly, the prosecutor’s inflection, facial expressions, physical motions, and myriad other almost imperceptible means of communication might tend, intentionally or unintentionally, to compromise the witness’ objectivity. Thus, as is the case with lineups, “[i]mproper photographic identification procedures, ... by exerting a suggestive influence upon' the witnesses, can often lead to an erroneous identification . . . .” P. Wall, supra, at 89.12 And “ [r] egardless of how the initial misidentification comes about, the wit*335ness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen . . . Simmons v. United States, supra, at 383-384.13 As a result, “ 'the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.’ ” United States v. Wade, supra, at 229, quoting Williams & Hammelmann, supra, at 482.

Moreover, as with lineups, the defense can “seldom reconstruct” at trial the mode and manner of photographic identification. It is true, of course, that the photographs used at the pretrial display might be preserved for examination at trial. But “it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel.” 149 U. S. App. D. C., at 9-10, 461 F. 2d, at 100-101. Cf. United States v. Wade, supra, at 239 and n. 30. Indeed, in reality, preservation of the photographs affords little protection to the unrepresented accused. For, although retention of the photographs may mitigate the dangers of misidentification due to the suggestiveness of the photographs themselves, it cannot in any sense reveal to defense counsel the more subtle, and therefore more dangerous, suggestiveness that might derive from the manner in which the photographs were displayed or any accompanying comments or gestures. Moreover, the accused cannot rely upon the witnesses themselves to expose these latter sources of suggestion, for the witnesses are not “apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect” since the witnesses are hardly “likely to be schooled in the detection of suggestive influences.” Id., at 230.

*336Finally, and unlike the lineup situation, the accused himself is not even present at the photographic identification, thereby reducing the likelihood that irregularities in the procedures will ever come to light. Indeed, in Wade, the Government itself observed: 14

“When the defendant is present — as he is during a lineup — he may personally observe the circumstances, report them to his attorney, and (if he chooses to take the stand) testify about them at trial. ... [I]n the absence of an accused, on the other hand, there is no one present to verify the fairness of the interview or to report any irregularities. If the prosecution were tempted to engage in ‘sloppy or biased or fraudulent’ conduct ... , it would be far more likely to do so when the accused is absent than when he himself is being ‘used.’ ”

Thus, the difficulties of reconstructing at trial an un-counseled photographic display are at least equal to, and possibly greater than, those involved in reconstructing an uncounseled lineup.15 And, as the Government ar*337gued in Wade, in terms of the need for counsel, “[t]here is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.” 16 For, in both situations “the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the [pretrial identification] may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” United States v. Wade, supra, at 231-232. As *338a result, both photographic and corporeal identifications create grave dangers that an innocent defendant might be convicted simply because of his inability to expose a tainted identification. This being so, considerations of logic, consistency, and, indeed, fairness compel the conclusion that a pretrial photographic identification, like a pretrial corporeal identification, is a “critical stage of the prosecution at which [the accused is] 'as much entitled to such aid [of counsel] ... as at the trial itself.' ” Id., at 237, quoting Powell v. Alabama, 287 U. S., at 57.

IV

Ironically, the Court does not seriously challenge the proposition that presence of counsel at a pretrial photographic display is essential to preserve the accused’s right to a fair trial on the issue of identification. Rather, in what I can only characterize a triumph of form over substance, the Court seeks to justify its result by en-grafting a wholly unprecedented — and wholly unsupportable — limitation on the Sixth Amendment right of “the accused ... to have the Assistance of Counsel for his defence.” Although apparently conceding that the right to counsel attaches, not only at the trial itself, but at all “critical stages” of the prosecution, see ante, at 309-311, the Court holds today that, in order to be deemed “critical,” the particular “stage of the prosecution” under consideration must, at the very least, involve the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” According to the Court a pretrial photographic identification does not, of course, meet these criteria.

In support of this rather crabbed view of the Sixth Amendment, the Court cites our decisions in Coleman v. Alabama, 399 U. S. 1 (1970), Massiah v. United States, 377 U. S. 201 (1964), White v. Maryland, 373 U. S. 59 *339(1963), and Hamilton v. Alabama, 368 U. S. 52 (1961). Admittedly, each of these decisions guaranteed the assistance of counsel in pretrial proceedings at least arguably involving the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused required the “guiding hand of counsel.” 17 Moreover, as the Court points out, these decisions are consistent with the view that the Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). But, contrary to the Court’s assumption, this is merely one facet of the Sixth Amendment guarantee, and the decisions relied upon by the Court represent, not the boundaries of the right to counsel, but mere applications of a far broader and more reasoned understanding of the Sixth Amendment than that espoused today.

The fundamental premise underlying all of this Court’s decisions holding the right to counsel applicable at “critical” pretrial proceedings, is that a “stage” of the prosecution must be deemed “critical” for the purposes of the Sixth Amendment if it is one at which the presence of counsel is necessary “to protect the fairness of the trial itself.” Schneckloth v. Bustamonte, 412 U. S., 218, 239 (1973) (emphasis added). Thus, in Hamilton v. Ala *340 bama, supra, for example, we made clear that an arraignment under Alabama law is a “critical stage” of the prosecution, not only because the accused at such an arraignment requires “the guiding hand of counsel,” but, more broadly, because “[w]hat happens there may affect the whole trial!” Id., at 54. Indeed, to exclude counsel from a pretrial proceeding at which his presence might be necessary to assure the fairness of the subsequent trial would, in practical effect, render the Sixth Amendment guarantee virtually meaningless, for it would “deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.' ” Massiah v. United States, supra, at 204, quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring); see Escobedo v. Illinois, 378 U. S. 478, 484-485 (1964).

This established conception of the Sixth Amendment guarantee is, of course, in no sense dependent upon the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” On the contrary, in Powell v. Alabama, 287 U. S. 45 (1932), the seminal decision in this area, we explicitly held the right to counsel applicable at a stage of the pretrial proceedings involving none of the three criteria set forth by the Court today. In Powell, the defendants in a state felony prosecution were not appointed counsel until the very eve of trial. This Court held, in no uncertain terms, that such an appointment could not satisfy the demands of the Sixth Amendment, for “ '[i]t is vain ... to guarantee [the accused] counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.' ” Id., at 59. In other words, Powell made clear that, in order to preserve the accused’s right to a fair trial and to “effective and substantial” 18 assist-*341anee of counsel at that trial, the Sixth Amendment guarantee necessarily encompasses a reasonable period of time before trial during which counsel might prepare the defense. Yet it can hardly be said that this preparatory period of research and investigation involves the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.”

Moreover, despite the Court’s efforts to rewrite Wade so as to suggest a precedential basis for its own analysis,19 the rationale of Wade lends no support whatever to today’s decision. In Wade, after concluding that compelled participation in a lineup does not violate the accused’s right against self-incrimination,20 the Court addressed the argument “that the assistance of counsel at the lineup was indispensable 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.” 388 U. S., at 223-224. The Court then surveyed the history of the Sixth Amendment, and specifically concluded that that Amendment guarantees “counsel’s assistance whenever necessary to assure a meaningful ‘defence.’” Id., at 225 (emphasis added). *342Then, after examining this Court's prior decisions concerning the applicability of the counsel guarantee,21 the Court stressed once again that a pretrial proceeding is a “critical stage” of the prosecution if “the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Id., at 227.

The Court next addressed the Government’s contention that a lineup is “a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like.” Id., at 227. If the Court in Wade had even the remotest intention of embracing the wooden interpretation of the Sixth Amendment ascribed to it today, it could have rejected the Government’s contention simply by pointing out the obvious fact that such “systematized or scientific analyzing” does not in any sense involve the physical “presence of the accused,” at a “trial-like confrontation” with the Government, at which the accused requires the “guiding hand of counsel.” But the Court offered not even the slightest hint of such *343an approach. Instead, the Court reasoned that, in light of the scientific nature of such analyses,

“the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.” Id., at 227-228 (emphasis added).

Finally, after discussing the dangers of misidentification arising out of lineup procedures and the difficulty of reconstructing the lineup at trial, the Court noted that “[i]nsofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.” Id., at 235. The Court therefore concluded that “[s]ince it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ ” Id., at 286-237.

Thus, contrary to the suggestion of the Court, the conclusion in Wade that a pretrial lineup is a “critical stage” of the prosecution did not in any sense turn on *344the fact that a lineup involves the physical “presence of the accused” at a “trial-like confrontation” with the Government. And that conclusion most certainly did not turn on the notion that presence of counsel was necessary so that counsel could offer legal advice or “guidance” to the accused at the lineup. On the contrary, Wade envisioned counsel’s function at the lineup to be primarily that of a trained observer, able to detect the existence of any suggestive influences and capable of understanding the legal implications of the events that transpire. Having witnessed the proceedings, counsel would then be in a position effectively to reconstruct at trial any unfairness that occurred at the lineup, thereby preserving the accused’s fundamental right to a fair trial on the issue of identification.

There is something ironic about the Court’s conclusion today that a pretrial lineup identification is a “critical stage” of the prosecution because counsel’s presence can help to compensate for the accused’s deficiencies as an observer, but that a pretrial photographic identification is not a “critical stage” of the prosecution because the accused is not able to observe at all. In my view, there simply is no meaningful difference, in terms of the need for attendance of counsel, between corporeal and photographic identifications. And applying established and well-reasoned Sixth Amendment principles, I can only conclude that a pretrial photographic display, like a pretrial lineup, is a “critical stage” of the prosecution at which the accused is constitutionally entitled to the presence of counsel.

Mr. Justice Brennan

delivered the opinion of the Court.

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. 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 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 con*295frontation involved in this case, petitioner was denied due process of law in violation of the Fourteenth Amendment. Cf. Davis v. North Carolina, 384 U. S. 737.

Dr. Paul Behrendt was stabbed to death in the kitchen of his home in Garden City, Long Island, about midnight August 23, 1961. Dr. Behrendt’s wife, also a physician, had followed her husband to the kitchen and jumped at the assailant. He knocked her to the floor and stabbed her 11 times. The police found a shirt on the kitchen floor and keys in a pocket which they traced to petitioner. They arrested him on the afternoon of August 24. An arraignment was promptly held but was postponed until petitioner could retain counsel.

Mrs. Behrendt was hospitalized for major surgery to save her life. The police, without affording petitioner time to retain counsel, arranged with her surgeon to permit them to bring petitioner to her hospital room about noon of August 25, the day after the surgery. Petitioner was handcuffed to one of five police officers who, with two members of the staff of the District Attorney, brought him to the hospital room. Petitioner was the only Negro in the room. 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.” None of the witnesses could recall the words that were used. Mrs. Behrendt and the officers testified at the trial to her identification of the petitioner in the hospital room, and she also made an in-court identification of petitioner in the courtroom.

Petitioner was convicted and sentenced to death. The New York Court of Appeals affirmed without opinion. 13 N. Y. 2d 1094, 196 N. E. 2d 65. Petitioner pro se sought federal ^habeas corpus in the District Court for the Southern District of New York. He claimed that among other constitutional rights allegedly denied him *296at 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. The District Court dismissed the petition after hearing argument on an unrelated claim of an alleged invalid search and seizure. On appeal to the Court of Appeals for the Second Circuit a panel of that court initially reversed the dismissal after reaching the issue of the admissibility of Mrs. Behrendt’s identification evidence and holding it inadmissible on the ground that the hospital room identification violated petitioner’s constitutional right to the assistance of counsel. The Court of Appeals thereafter heard the case en banc, vacated the panel decision, and affirmed the District Court. 355 F. 2d 731. We granted certiorari, 384 U. S. 1000, and set the case for argument with Wade and Gilbert. We hold that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case. We think also that on the facts of this ease petitioner was not deprived of due process of law in violation of the Fourteenth Amendment. The judgment of the Court of Appeals is, therefore, affirmed.

I.

Our recent discussions of the retroactivity of other constitutional rules of criminal procedure make unnecessary any detailed treatment of that question here. Linkletter v. Walker, supra; Tehan v. Shott, supra; Johnson v. Neto Jersey, supra. “These cases establish the principle that in criminal litigation concerning constitutional *297claims, ‘the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application’. . . .” Johnson, supra, 384 U. S., at 726-727. The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. “[T'Jhe retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.” Johnson, supra, at 728.

Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel. A conviction which rests on a mistaken identification is a gross miscarriage of justice. The Wade and Gilbert rules are aimed at minimizing that possibility by preventing the unfairness at the pretrial confrontation that experience has proved can occur and assuring meaningful examination of the identification witness’ testimony at trial. Does it follow that the rules should be applied retroactively? We do not think so.

It is true that the right to the assistance of counsel has been applied retroactively at stages of the prosecution where denial of the right must almost invariably deny a fair trial, for example, at the trial itself, Gideon v. Wainwright, 372 U. S. 335, or at some forms of arraignment, Hamilton v. Alabama, 368 U. S. 52, or on appeal, Douglas v. California, 372 U. S. 353. “The basic pur*298pose 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.” Tehan v. Shott, supra, at 416. We have also retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial. See for example Jackson v. Denno, 378 U. S. 368. Although the Wade and Gilbert rules also are aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification, evidence, “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.” Johnson v. New Jersey, supra, at 728-729. The extent to which a condemned practice infects the integrity of the truth-determining process at trial is a “question of probabilities.” 384 U. S., at 729. Such probabilities must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice.

We have outlined in Wade the dangers and unfairness inherent in confrontations for identification. The possibility of unfairness at that point is great, both because of the manner in which confrontations are frequently conducted, and because of the likelihood that the accused will often be precluded from reconstructing what occurred and thereby from obtaining a full hearing on the identification issue at trial. The presence of counsel will significantly promote fairness at the confrontation and a full hearing at trial on the issue of identification. We have, therefore, concluded that the confrontation is a “critical stage,” and that counsel is required at all confrontations. It must be recognized, however, that, unlike *299cases in which counsel is absent at trial or on appeal, it may confidently be assumed that confrontations for identification can be and often have been conducted in the absence of counsel with scrupulous fairness and without prejudice to the accused at trial. Therefore, while we feel that the exclusionary rules set forth in Wade and Gilbert are justified by the need to assure the integrity and reliability of our system of justice, they undoubtedly will affect cases in which no unfairness will be present. Of course, we should also assume there have been injustices in the past which could have been averted by having counsel present at the confrontation for identification, just as there are injustices when counsel is absent at trial. But the certainty and frequency with which we can say in the confrontation cases that no injustice occurred differs greatly enough from the cases involving absence of counsel at trial or on appeal to justify treating the situations as different in kind for the purpose of retroactive application, especially in light of the strong countervailing interests outlined below, and because it remains open to all persons to allege and prove, as Stovall attempts to do in this case, that the confrontation resulted in such unfairness that it infringed his right to due process of law. See Palmer v. Peyton, 359 F. 2d 199 (C. A. 4th Cir. 1966).

The unusual force of the countervailing considerations strengthens our conclusion in favor of prospective application. 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. Today’s rulings were not foreshadowed in our cases; no court announced such a requirement until Wade was decided by the Court of Appeals for the Fifth Circuit, 358 F. 2d 557. The overwhelming majority of American courts have always treated the evidence ques*300tion not as one of admissibility but as one of credibility for the jury. Wall, Eye-Witness Identification in Criminal Cases 38. Law enforcement authorities fairly relied on this virtually unanimous weight of authority, now no longer valid, in conducting pretrial confrontations in the absence of counsel. It is, therefore, very clear that retroactive application of Wade and Gilbert “would seriously disrupt the administration of our criminal laws.” Johnson v. New Jersey, supra, at 731. 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. We said, “To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration.” 382 U. S., at 419. That impact is insignificant compared to the impact to be expected from retroactivity of the Wade and Gilbert rules. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive.

We also conclude that, for these purposes, no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. We regard the factors of reliance and burden on the administration of justice as entitled to such overriding significance as to make that distinction *301unsupportable.2 We recognize that Wade and Gilbert are, therefore, the only victims of pretrial confrontations in the absence of their counsel to have the benefit of the rules established in their cases. That they must be given that benefit is, however, an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies,3 and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law,4 militate against denying Wade and Gilbert the benefit of today’s decisions. 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.

II.

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 *302case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 369 F. 2d 199 (C. A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.6 However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F. 2d, at 735,

“Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, ‘He is not the man’ could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.”

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Mr. Justice Douglas is of the view that the deprivation of the right to counsel in the setting of this case *303should be given retroactive effect as it was in Gideon v. Wainwright, 372 U. S. 335, and in Douglas v. California, 372 U. S. 353. And see Linkletter v. Walker, 381 U. S. 618, 640 (dissenting opinion); Johnson v. New Jersey, 384 U. S. 719, 736 (dissenting opinion).

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. He would not reach the question of retroactivity of. Wade and Gilbert.

Mr. Justice White,

whom Mr. Justice Harlan and Mr. Justice Stewart join.

For the reasons stated in my separate opinion in United States v. Wade, ante, p. 250, I perceive no constitutional error in the identification procedure to which the petitioner was subjected. I concur in the result and in that portion of the Court’s opinion which limits application of the new Sixth Amendment rule.

Mr. Justice Black,

dissenting.

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. I concurred in part in those holdings as to out-of-court lineup identification on the ground that the right to counsel is guaranteed in federal courts by the Sixth Amendment and in state courts by the Sixth and Fourteenth Amendments. The first question in this case is whether other defendants, already in prison on *304such unconstitutional evidence, shall be accorded the benefit of the rule. In this case the Court holds that the petitioner here, convicted on such unconstitutional evidence, must remain in prison, and that besides Wade and Gilbert, who are “chance beneficiaries,” no one can invoke the rule except defendants exhibited in lineups in the future. I dissent from that holding. It keeps people serving sentences who were convicted through the use of unconstitutional evidence. This is sought to be justified on the ground that retroactive application of the holding in Gilbert and Wade would somehow work a “burden on the administration of justice” and would not serve the Court’s purpose “to deter law enforcement authorities.” 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. 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. For reasons stated in my dissent in Linkletter v. Walker, 381 U. S. 618, 640, I would hold that the petitioner here and every other person in jail under convictions based on unconstitutional evidence should be given the advantage of today’s newly announced constitutional rules.

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. Although the Court finds petitioner’s claim without merit, I dissent from its holding that a general *305claim of “unfairness” at the lineup is “open to all persons to allege and prove.” The term “due process of law” is a direct descendant of Magna Charta’s promise of a trial according to the “law of the land” as it has been established by the lawmaking agency, constitutional or legislative. No one has ever been able to point to a word in our constitutional history that shows the Framers ever intended that the Due Process Clause of the Fifth or Fourteenth Amendment was designed to mean any more than that defendants charged with crimes should be entitled to a, trial governed by the laws, constitutional and statutory, that are in existence at the time of the commission of the crime and the time of the trial. 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. See, e. g., Rochin v. California, 342 U. S. 165. Such a constitutional formula substitutes this Court’s judgment of what is right for what the Constitution declares shall be the supreme law of the land. This due process notion proceeds as though our written Constitution, designed to grant limited powers to government, had neutralized its limitations by using the Due Process Clause to authorize this Court to override its written limiting language by substituting the Court’s view of what powers the Framers should have granted government. Once again I dissent from any such view of the Constitution. Where accepted, its result is to make this Court not a Constitution-interpreter, but a day-to-day Constitution-maker.

But even if the Due Process Clause could possibly be construed as giving such latitudinarian powers to the *306Court, I would still think the Court goes too far in holding that the courts can look at the particular circumstances of each identification lineup to determine at large whether they are too “suggestive and conducive to irreparable mistaken identification” to be constitutional. That result is to freeze as constitutional or as unconstitutional the circumstances of each case, giving the States and the Federal Government no permanent constitutional standards. It also transfers to this Court power to determine what the Constitution should say, instead of performance of its undoubted constitutional power to determine what the Constitution does say. And the result in this particular case is to put into a constitutional mould a rule of evidence which I think is plainly within the constitutional powers of the States in creating and enforcing their own criminal laws. I must say with all deference that for this Court to hold that the Due Process Clause gives it power to bar state introduction of lineup testimony on its notion of fairness, not because it violates some specific constitutional prohibition, is an arbitrary, wholly capricious action.

I would not affirm this case but would reverse and remand for consideration of whether the out-of-court lineup identification of petitioner was, under Chapman v. California, 386 U. S. 18, harmless error. 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.

Me. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue as to whether the Due Process Clause of the Fourteenth Amendment compels the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrihl identification evidence obtained by a police procedure that was both suggestive and unnecessary. This Court’s decisions in Stovall v. Denno, 388 U. S. 293 (1967), and Neil v. Biggers, 409 U. S. 188 (1972), are particularly implicated.

I

Jimmy D. Glover, a full-time trooper of the Connecticut State Police, in 1970 was assigned to the Narcotics Division in an undercover capacity. On May 5 of that year, about *1007:45 p. m., e. d. t., and while there was still daylight, Glover and Henry Alton Brown, an informant, went to an apartment building at 201 Westland, in Hartford, for the purpose of purchasing narcotics from “Dickie Boy” Cicero, a known narcotics dealer. Cicero, it was thought, lived on the third floor of that apartment building. Tr. 45-46, 68.1 Glover and Brown entered the building, observed by backup Officers D’Onofrio and Gaffey, and proceeded by stairs to the third floor. Glover knocked at the door of one of the two apartments served by the stairway.2 The area was illuminated by natural light from a window in the third floor hallway. Id., at 27-28. The door was opened 12 to 18 inches in response to the knock. Glover observed a man standing at the door and, behind him, a woman. Brown identified himself. Glover then asked for “two things” of narcotics. Id., at 29. The man at the door held out his hand, and Glover gave him two $10 bills. The door closed. Soon the man returned and handed Glover two glassine bags.3 While the door was open, Glover stood within two feet of the person from whom he made the purchase and observed his face. Five to seven minutes elapsed from the *101time the door first opened until it closed the second time. Id., at 30-33.

Glover and Brown then left the building. This was about eight minutes after their arrival. Glover drove to headquarters where he described the seller to D’Onofrio and Gaffey. Glover at that time did not know the identity of the seller. Id., at 36. He described him as being “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build. He was wearing at the time blue pants and a plaid shirt.” Id., at 36-37. D’Onofrio, suspecting from this description that respondent might be the seller, obtained a photograph of respondent from the Records Division of the Hartford Police Department. He left it at Glover’s office. D’Onofrio was not acquainted with respondent personally, but did know him by sight and had seen him “[s]everal times” prior to May 5. Id., at 63-65. Glover, when alone, viewed the photograph for the first time upon his return to headquarters on May 7; he identified the person shown as the one from whom he had purchased the narcotics. Id., at 36-38.

The toxicological report on the contents of the glassine bags revealed the presence of heroin. The report was dated July 16, 1970. Id., at 75-76.

Respondent was arrested on July 27 while visiting at the apartment of a Mrs. Ramsey on the third floor of 201 West-land. This was the apartment at which the narcotics sale had taken place on May 5.4

Respondent was charged, in a two-count information, with possession and sale of heroin, in violation of Conn. Gen. Stat. (Rev. of 1958, as amended in 1969), §§ 19-481a and 19-480a *102(1977).5 At his trial in January 1971, the photograph from which Glover had identified respondent was received in evidence without objection on the part of the defense. Tr. 38. Glover also testified that, although he had not seen respondent in the eight months that had elapsed since the sale, “there [was] no doubt whatsoever” in his mind that the person shown on the photograph was respondent. Id., at 41-42. Glover also made a positive in-court identification without objection. Id., at 37-38.

No explanation was offered by the prosecution for the failure to utilize a photographic array or to conduct a lineup.

Respondent, who took the stand in his own defense, testified that on May 5, the day in question, he had been ill at his Albany Avenue apartment (“a lot of back pains, muscle spasms ... a bad heart . . . high blood pressure . . . neuralgia in my face, and sinus,” id., at 106), and that at no time on that particular day had he been at 201 Westland. Id., at 106, 113-114. His wife testified that she recalled, after her husband had refreshed her memory, that he was home all day on May 5. Id., at 164-166. Doctor Wesley M. Vietzke, an internist and assistant professor of medicine at the University of Connecticut, testified that respondent had consulted him on April 15, 1970, and that he took a medical history from him, heard his complaints about his back and facial pain, and discovered that he had high blood pressure. Id., at 129-131. The physician found respondent, subjectively, “in great discomfort.” Id., at 135. Respondent in fact underwent surgery for a herniated disc at L5 and SI on August 17. Id., at 157.

The jury found respondent guilty on both counts of the information. He received a. sentence of not less than six nor *103more than nine years. His conviction was affirmed per curiam by the Supreme Court of Connecticut. State v. Brathwaite, 164 Conn. 617, 325 A. 2d 284 (1973). That court noted the absence of an objection to Glover’s in-court identification and concluded that respondent “has not shown that substantial injustice resulted from the admission of this evidence.” Id., at 619, 325 A. 2d, at 285. Under Connecticut law, substantial injustice must be shown before a claim of error not made or passed on by the trial court will be considered on appeal. Ibid.

Fourteen months later, respondent filed a petition for ha-beas corpus in the United States District Court for the District of Connecticut. He alleged that the admission of the identification testimony at his state trial deprived him of due process of law to which he was entitled under the Fourteenth Amendment. The District Court, by an unreported written opinion based on the court’s review of the state trial transcript,6 dismissed respondent’s petition. On appeal, the United States Court of Appeals for the Second Circuit reversed, with instructions to issue the writ unless the State gave notice of a desire to retry respondent and the new trial occurred within a reasonable time to be fixed by the District Judge.7 527 F. 2d 363 (1975).

In brief summary, the court felt that evidence as to the photograph should have been excluded, regardless of relia*104bility, because the examination of the single photograph was unnecessary and suggestive. And, in the court's view, the evidence was unreliable in any event. We granted certiorari. 425 U. S. 957 (1976).

II

Stovall v. Denno, supra, decided in 1967, concerned a petitioner who had been convicted in a New York court of murder. He was arrested the day following the crime and was taken by the police to a hospital where the victim’s wife, also wounded in the assault, was a patient. After observing Stovall and hearing him speak, she identified him as the murderer. She later made an in-court identification. On federal habeas, Stovall claimed the identification testimony violated his Fifth, Sixth, and Fourteenth Amendment rights. The District Court dismissed the petition, and the Court of Appeals, en banc, affirmed. This Court also affirmed. On the identification issue, the Court reviewed the practice of showing a suspect singly for purposes of identification, and the claim that this was so unnecessarily suggestive and conducive to irreparable mistaken identification that it constituted a denial of due process of law. The Court noted that the practice “has been widely condemned,” 388 U. S., at 302, but it concluded that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” Ibid. In that case, showing Stovall to.the victim’s spouse “was imperative.” The Court then quoted the observations of the Court of Appeals, 355 F. 2d 731, 735 (CA2 1966), to the effect that the spouse was the only person who could possibly exonerate the accused; that the hospital was not far from the courthouse and jail; that no one knew how long she might live; that she was not able to visit the jail; and that taking Stovall to the hospital room was the only feasible procedure, and, under the circumstances, “ 'the usual police station line-up . . . was out of the question.’ ” 388 U. S., at 302.

*105 Neil v. Biggers, supra, decided in 1972, concerned a respondent who had been convicted in a Tennessee court of rape, on evidence consisting in part of the victim’s visual and voice identification of Biggers at a station-house showup seven months after the crime. The victim had been in her assailant’s presence for some time and had directly observed him indoors and under a full moon outdoors. She testified that she had “no doubt” that Biggers was her assailant. She previously had given the police a description of the assailant. She had made no identification of others presented at previous showups, lineups, or through photographs. On federal habeas, the District Court held that the confrontation was so suggestive as to violate due process. The Court of Appeals affirmed. This Court reversed on that issue, and held that the evidence properly had been allowed to go to the jury. The Court reviewed Stovall and certain later cases where it had considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures, namely, Simmons v. United States, 390 U. S. 377 (1968); Foster v. California, 394 U. S. 440 (1969); and Coleman v. Alabama, 399 U. S. 1 (1970).8 The Court concluded that *106general guidelines emerged from these cases “as to the relationship between suggestiveness and misidentification.” The “admission of evidence of a showup without more does not violate due process.” 409 U. S., at 198. The Court expressed concern about the lapse of seven months between the crime and the confrontation and observed that this “would be a seriously negative factor in most cases.” Id., at 201. The “central question,” however, was “whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.” Id., at 199. Applying that test, the Court found “no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.” Id., at 201.

Biggers well might be seen to provide an unambiguous answer to the question before us: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.9 In one passage, *107however, the Court observed that the challenged procedure occurred pre-Stovall and that a strict rule would make little sense with regard to a confrontation that preceded the Court’s first indication that a suggestive procedure might lead to the exclusion of evidence. Id., at 199. One perhaps might argue that, by implication, the Court suggested that a different rule could apply post-Stóvall. The question before us, then, is simply whether the Biggers analysis applies to post-Stovall confrontations as well to those pre-Stovall.

Ill

In the present case the District Court observed that the “sole evidence tying Brathwaite to the possession and sale of the heroin consisted in his identifications by the police undercover agent, Jimmy Glover.” App. to Pet. for Cert. 6a. On the constitutional issue, the court stated that the first inquiry was whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification. If so, the second inquiry is whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id., at 9a. Biggers and Simmons were cited. The court noted that in the Second Circuit, its controlling court, it was clear that “this type of identification procedure [display of a single photograph] is impermissibly *108suggestive,” and turned to the second inquiry. App. to Pet. for Cert. 9a. The factors Biggers specified for consideration were recited and applied. The court concluded that there was no substantial likelihood of irreparable misidentification. It referred to the facts: Glover was within two feet of the seller. The duration of the confrontation was at least a “couple of minutes.” There was natural light from a window or skylight and there was adequate light to see clearly in the hall. Glover “certainly was paying attention to" identify the seller.” Id., at 10a. He was a trained police officer who realized that later he would have to find and arrest the person with whom he was dealing. He gave a detailed description to D’Onofrio. The reliability of this description was supported by the fact that it enabled D’Onofrio to pick out a single photograph that was thereafter positively identified by Glover. Only two days elapsed between the crime and the photographic identification. Despite the fact that another eight months passed before the in-court identification, Glover had “no doubt” that Brathwaite was the person who had sold him heroin.

The Court of Appeals confirmed that the exhibition of the single photograph to Glover was “impermissibly suggestive,” 527 F. 2d, at 366, and felt that, in addition, “it was unnecessarily so.” Id., at 367. There was no emergency and little urgency. The court said that prior to the decision in Biggers, except in cases of harmless error, “a conviction secured as the result of admitting an identification obtained by impermissibly suggestive and unnecessary measures could not stand.” Ibid. It noted what it felt might be opposing inferences to be drawn from passages in Biggers, but concluded that the case preserved the principle “requiring the exclusion of identifications resulting from 'unnecessarily suggestive confrontation’ ” in post-Stovall situations. 527 F. 2d, at 368. The court also concluded that for -post-Stovall identifications, Biggers had not changed the existing rule. Thus: “Evidence of an identification unnecessarily obtained by impermissibly *109suggestive means must be excluded under Stovall .... No rules less stringent than these can force police administrators and prosecutors to adopt procedures that will give fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. Finally, the court said, even if this conclusion were wrong, the writ, nevertheless, should issue. It took judicial notice that on May 5, 1970, sunset at Hartford was at 7:53 p. m. It characterized Glover’s duty as an undercover agent as one “to cause arrests to be made,” and his description of the suspect as one that “could have applied to hundreds of Hartford black males.” Ibid. The in-court identification had “little meaning,” for Brathwaite was at the counsel table. The fact that respondent was arrested in the very apartment where the sale was made was subject to a “not implausible” explanation from the respondent, “although evidently not credited by the jury.” And the court was troubled by “the long and unexplained delay” in the arrest. It was too great a danger that the respondent was convicted because he was a man D’Onofrio had previously observed near the scene, was thought to be a likely offender, and was arrested when he was known to be in Mrs. Ramsey’s apartment, rather than because Glover “really remembered him as the seller.” Id., at 371-372.

IY

Petitioner at the outset acknowledges that “the procedure in the instant case was suggestive [because only one photograph was used] and unnecessary” [because there was no emergency or exigent circumstance]. Brief for Petitioner 10; Tr. of Oral Arg. 7. The respondent, in agreement with the Court of Appeals, proposes a per se rule of exclusion that he claims is dictated by the demands of the Fourteenth Amendment’s guarantee of due process. He rightly observes that this is the first case in which this Court has had occasion to rule upon strictly post-Stovall out-of-court identification evidence of the challenged kind.

*110Since the decision in Biggers, the Courts of Appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan. L. Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.10 The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors, and the stated “fair assurance against the awful risks of misidentification.” 527 F. 2d, at 371. See Smith v. Coiner, 473 F. 2d 877, 882 (CA4), cert. denied sub nom. Wallace v. Smith, 414 U. S. 1115 (1973).

The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other, is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 407-408 (CA7) (opinion by Judge, now Mr. Justice, Stevens), cert. denied, 421 U. S. 1016 (1975); Stanley v. Cox, 486 F. 2d 48 *111(CA4 1973), cert. denied sub nom. Stanley v. Slayton, 416 U. S. 958 (1974).11

Mr. Justice Stevens,

in writing for the Seventh Circuit in Kirby, supra, observed: “There is surprising unanimity among scholars in regarding such a rule [the per se approach] as essential to avoid serious risk of miscarriage of justice.” 510 F. 2d, at 405. He pointed out that well-known federal judges have taken the position that “evidence of, or derived from, a showup identification should be inadmissible unless the prosecutor can justify his failure to use a more reliable identification procedure.” Id., at 406. Indeed, the ALI Model Code of Pre-Arraignment Procedure §§ 160.1 and 160.2 (1975) (hereafter Model Code) frowns upon the use of a showup or the display of only a single photograph.

The respondent here stresses the same theme and the need for deterrence of improper identification practice, a factor he regards as pre-eminent. Photographic identification, it is said, continues to be needlessly employed. He notes that the legislative regulation “the Court had hoped [United States v.] Wade[, 388 U. S. 218, 239 (1967),] would engender,” Brief for Respondent 15, has not been forthcoming. He argues that a totality rule cannot be expected to have a significant deterrent impact; only a strict rule of exclusion will have direct and immediate impact on law enforcement agents. Identification evidence is so convincing to the jury that sweeping exclusionary rules are required. Fairness of the trial is threatened by suggestive confrontation evidence, and thus, it is said, an exclusionary rule has an established constitutional predicate.

There are, of course, several interests to be considered and taken into account. The driving force behind United States v. Wade, 388 U. S. 218 (1967), Gilbert v. California, 388 *112U. S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court’s concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness’ recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. It must be observed that both approaches before us are responsive to this concern. The per se rule, however, goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, keeps evidence from the jury that is reliable and relevant.

The second factor is deterrence. Although the per se approach has the more significant deterrent effect, the totality approach also has an influence on police behavior. The police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.12

The third factor is the effect on the administration of justice. Here the per se approach suffers serious drawbacks. Since it denies the trier reliable evidence, it may result, on occasion, in the guilty going free. Also, because of its rigidity, the per se approach may make error by the trial judge more likely than the totality approach. And in those cases in which the admission of identification evidence is error under the per se approach but not under the totality approach— *113cases in which the identification is reliable despite an unnecessarily suggestive identification procedure — reversal is a Draconian sanction.13 Certainly, inflexible rules of exclusion that may frustrate rather than promote justice have not been viewed recently by this Court with unlimited enthusiasm. See, for example, the several opinions in Brewer v. Williams, 430 U. S. 387 (1977). See also United States v. Janis, 428 U. S. 433 (1976).

It is true, as has been noted, that the Court in Biggers referred to the pr e-Stovall character of the confrontation in that case. 409 U. S., at 199. But that observation was only one factor in the judgmental process. It does not translate into a holding that post-Stovall confrontation evidence automatically is to be excluded.

The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U. S. 783, 790 (1977); Rochin v. California, 342 U. S. 165, 170-172 (1952). Stovall, with its reference to “the totality of the circumstances,” 388 U. S., at 302, ,and Biggers, with its continuing stress on the same totality, 409 U. S., at 199, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leventhal, although speaking pre-Biggers and of a pr e-Wade situation, correctly has described Stovall as protecting an evidentiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.14

*114We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U. S., at 199-200. These include the opportunity of the witness to view the. criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

V

We turn, then, to the facts of this case and apply the analysis:

1. The opportunity to view. Glover testified that for two to three minutes he stood at the apartment door, within two feet of the respondent. The door opened twice, and each time the man stood at the door. The moments passed, the conversation took place, and payment was made. Glover looked directly at his vendor. It was near sunset, to be sure, but the sun had not yet set, so it was not dark or even dusk or twilight. Natural light from outside entered the hallway through a window. There was natural light, as well, from inside the apartment.

*1152. The degree of attention. Glover was not a casual or passing observer, as is so often the case with eyewitness identification. Trooper Glover was a trained police officer on duty — and specialized and dangerous duty — when he called at the third floor of 201 Westland in Hartford on May 5, 1970. Glover himself was a Negro and unlikely to perceive only general features of “hundreds of Hartford black males,” as the Court of Appeals stated. 527 F. 2d, at 371. It is true that Glover’s duty was that of ferreting out narcotics offenders and that he would be expected in his work to produce results. But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for hé knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.

3. The accuracy of the description. Glover’s description was given to D’Onofrio within minutes after the transaction. It included the vendor’s race, his height, his build, the color and style of his hair, and the high cheekbone facial feature. It also included clothing the vendor wore. No claim has been made that respondent did not possess the physical characteristics so described. D’Onofrio reacted positively at once. Two days later, when Glover was alone, he viewed the photograph D’Onofrio produced and identified its subject as the narcotics seller.

4. The witness’ level of certainty. There is no dispute that the photograph in question was that of respondent. Glover, in response to a question whether the photograph was that of the person from whom he made the purchase, testified: “There is no question whatsoever.” Tr. 38. This positive assurance was repeated. Id., at 41-42.

5. The time between the crime and the confrontation. Glover’s description of his vendor was given to D’Onofrio *116within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.

These indicators of Glover’s ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself. Although identifications arising from single-photograph displays may be viewed in general with suspicion, see Simmons v. United States, 390 U. S., at 383, we find in the instant case little pressure on the witness to acquiesce in the suggestion that such a display entails. D’Onofrio had left the photograph at Glover’s office and was not present when Glover first viewed it two days after the event. There thus was little urgency and Glover could view the photograph at his leisure. And since Glover examined the photograph alone, there was no coercive pressure to make an identification arising from the presence of another. The identification was made in circumstances allowing care and reflection.

Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment.15

Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Id., at 384. Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.

*117Of course, it would have been better had D’Onofrio presented Glover with a photographic array including “so far as practicable ... a reasonable number of persons similar to any person then suspected whose likeness is included in the array.” Model Code § 160.2 (2). The use of that procedure would have enhanced the force of the identification at trial and would have avoided the risk that the evidence would be excluded as unreliable. But we are not disposed to view D’Onofrio’s failure as one of constitutional dimension to be enforced by a rigorous and unbending exclusionary rule. The defect, if there be one, goes to weight and not to substance.16

We conclude that the criteria laid down in Biggers are to be applied in determining the admissibility of evidence offered by the prosecution concerning a post-Stovall identification, and that those criteria are satisfactorily met and complied with here.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Stevens,

concurring.

While I join the Court’s opinion, I would emphasize two points.

First, as I indicated in my opinion in United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 405-406 (CA7 1975), the arguments in favor of fashioning new rules to minimize the danger of convicting the innocent on the basis of unreliable eyewitness testimony carry substantial 'force. Nevertheless, *118for the reasons stated in that opinion, as well as those stated by the Court today, I am persuaded that this rulemaking function can be performed “more effectively by the legislative process than by a somewhat clumsy judicial fiat,” id., at 408, and that the Federal Constitution does not foreclose experimentation by the States in the development of such rules.

Second, in evaluating the admissibility of particular identification testimony it is sometimes difficult to put other evidence of guilt entirely to one side.* Mb. Justice Blackmun’s opinion for the Court carefully avoids this pitfall and correctly relies only on appropriate indicia of the reliability of the identification itself. Although I consider the factual question in this case extremely close, I am persuaded that the Court has resolved it properly.

Mb. Justice Marshall, with whom Mb. Justice Brennan joins,

dissenting.

Today’s decision can come as no surprise to those who have been watching the Court dismantle the protections against mistaken eyewitness testimony erected a decade ago in United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Stovall v. Denno, 388 U. S. 293 (1967). But it is still distressing to see the Court virtually ignore the teaching of experience embodied in those decisions and blindly uphold the conviction of a defendant who may well be innocent.

*119I

The magnitude of the Court’s error can be seen by analyzing the cases in the Wade trilogy and the decisions following it. The foundation of the Wade trilogy was the Court’s recognition of the “high incidence of miscarriage of justice” resulting from the admission of mistaken eyewitness identification evidence at criminal trials. United States v. Wade, supra, at 228. Relying on numerous studies made over many years by such scholars as Professor Wigmore and Mr. Justice Frankfurter, the Court concluded that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” Ibid. It is, of course, impossible to control one source of such errors — the faulty perceptions and unreliable memories of witnesses — except through vigorously contested trials conducted by diligent counsel and judges. The Court in the Wade cases acted, however, to minimize the more preventable threat posed to accurate identification by “the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Ibid.

The Court did so in Wade and Gilbert v. California by prohibiting the admission at trial of evidence of pretrial confrontations at which an accused was not represented by counsel. Further protection was afforded by holding that an in-court identification following an uncounseled lineup was allowable only if the prosecution could clearly and convincingly demonstrate that it was not tainted by the constitutional violation. Only in this way, the Court held, could confrontations fraught with the danger of misidentification be made fairer, and could Sixth Amendment rights to assistance of counsel and confrontation of witnesses at trial be effectively preserved. The crux of the Wade decisions, however, was the unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification *120testimony. This, combined with the fact that juries unfortunately are often unduly receptive to such evidence,1 is the fundamental fact of judicial experience ignored by the Court today.

Stovall v. Denno, while holding that the Wade prophylactic rules were not retroactive, was decided at the same time and reflects the same concerns about the reliability of identification testimony. Stovall recognized that, regardless of Sixth Amendment principles, “the conduct of a confrontation” may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny due process of law. 388 U. S., at 301-302. The pretrial confrontation in Stovall was plainly suggestive,2 and evidence of it was introduced at trial along with the witness’ in-court identification. The Court ruled that there had been no violation of due process, however, because the unusual necessity for the procedure 3 outweighed the danger of suggestion.

Stovall thus established a due proceess right of criminal suspects to be free from confrontations that, under all the circumstances, are unnecessarily suggestive. The right was enforceable by exclusion at trial of evidence of the constitutionally invalid identification. Comparison with Wade and Gilbert confirms this interpretation. Where their Sixth *121Amendment holding did not apply, Stovall found an analogous Fourteenth Amendment right to a lineup conducted in a fundamentally fair manner. This interpretation is reinforced by the Court’s statement that “a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” 388 U. S., at 302 (emphasis added). Significantly, several years later, Stovall was viewed in precisely the same way, even as the Court limited Wade and Gilbert to post-indictment confrontations: “The Due Process Clause . . . forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U. S. 293; Foster v. California, 394 U. S. 440.” Kirby v. Illinois, 406 U. S. 682, 691 (1972) (emphasis added).4

The development of due process protections against mistaken identification evidence, begun in Stovall, was continued in Simmons v. United States, 390 U. S. 377 (1968). There, the Court developed a different rule to deal with the admission of in-court identification testimony that the accused claimed had been fatally tainted by a previous suggestive confrontation. In Simmons, the exclusionary effect of Stovall had already been accomplished, since the prosecution made no use of the suggestive confrontation. Simmons, therefore, did not deal with the constitutionality of the pretrial identification procedure. The only question was the impact of the *122Due Process Clause on an in-court identification that was not itself unnecessarily suggestive. Simmons held that due process was violated by the later identification if the pretrial procedure had been “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentifi-cation.” 390 U. S., at 384. This test focused, not on the necessity for the challenged pretrial procedure, but on the degree of suggestiveness that it entailed. In applying this test, the Court understandably considered' the circumstances surrounding the witnesses’ initial opportunity to view the crime. Finding that any suggestion in the pretrial confrontation had not affected the fairness of the in-court identification, Simmons rejected petitioner’s due process attack on his conviction.

Again, comparison with the Wade cases is instructive. The inquiry mandated by Simmons is similar to the independent-source test used in Wade where an in-court identification is sought following an uncounseled lineup. In both cases, the issue is whether the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime, or whether he is merely remembering the person he picked out in a pretrial procedure. Accordingly, in both situations, the relevant inquiry includes factors bearing on the accuracy of the witness’ identification, including his opportunity to view the crime.

Thus, Stovall and Simmons established two different due process tests for two very different situations. Where the prosecution sought to use evidence of a questionable pretrial identification, Stovall required its exclusion, because due process had been violated by the confrontation, unless the necessity for the unduly suggestive procedure outweighed its potential for generating an irreparably mistaken identification. The Simmons test, on the other hand, was directed to ascertaining due process violations in the introduction of in-court identification testimony that the defendant claimed was tainted by pretrial procedures. In the latter situation, a *123court could consider the reliability of the identification under all the circumstances.5

This distinction between Stovall and Simmons was preserved in two succeeding cases. Foster v. California, 394 U. S. 440 (1969), like Stovall, involved both unduly suggestive pretrial procedures, evidence of which was introduced at trial, and a tainted in-court identification. Accordingly, Foster applied the Stovall test, 394 U. S., at 442, and held that the police “procedure so undermined the reliability of the eyewitness identification as to violate due process.” Id., at 443 (emphasis added). In contrast, in Coleman v. Alabama, 399 U. S. 1 (1970), where the witness’ pretrial identification was not used to bolster his in-court identification, the plurality opinion applied the test enunciated in Simmons. It concluded that an in-court identification did not violate due process because it did not stem from an allegedly suggestive lineup.

The Court inexplicably seemed to erase the distinction between Stovall and Simmons situations in Neil v. Biggers, 409 U. S. 188 (1972). In Biggers there was a pretrial confrontation that was clearly both suggestive and unnecessary.6 Evidence of this, together with an in-court identification, was admitted at trial. Biggers was, in short, a case plainly cast in the Stovall mold. Yet the Court, without explanation or apparent recognition of the distinction, applied the Simmons *124test. The Court stated: “[T]he primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U. S., at 384. ... It is the likelihood of misidentification which violates a defendant's right to due process . . . 409 U. S., at 198. While this statement accurately describes the lesson of Simmons, it plainly ignores the teaching of Stovall and Foster that an unnecessarily suggestive pretrial confrontation itself violates due process.

But the Court did not simply disregard the due process analysis of Stovall. It went on to take the Simmons standard for assessing the constitutionality of an in-court identification— “ 'a very substantial likelihood of irreparable misidentification' ” — and transform it into the “standard for the admissibility of testimony concerning [an] out-of-court identification.” 409 U. S., at 198. It did so by déleting the word “irreparable” from the Simmons formulation. This metamorphosis could be accomplished, however, only by ignoring the fact that Stovall, fortified only months earlier by Kirby v. Illinois, see supra, at 121, had established a test for precisely the same situation that focused on the need for the suggestive procedure. It is not surprising that commentators almost unanimously mourned the demise of Stovall in the Biggers decision.7

II

Apparently, the Court does not consider Biggers controlling in this case. I entirely agree, since I believe that Biggers *125was wrongly decided. The Court, however, concludes that Biggers is distinguishable because it, like the identification decisions that preceded it, involved a pre-Stovall confrontation, and because a paragraph in Biggers itself, 409 U. S., at 198-199, seems to distinguish between pre- and post-Stovall confrontations. Accordingly, in determining the admissibility of the post-Stovall identification in this case, the Court considers two alternatives, a per se exclusionary rule and a totality-of-the-circumstances approach. Ante, at 110-111. The Court weighs three factors in deciding that the totality approach, which is essentially the test used in Biggers, should be applied. Ante, at 111-113. In my view, the Court wrongly evaluates the impact of these factors.

First, the Court acknowledges that one of the factors, deterrence of police use of unnecessarily suggestive identification procedures, favors the per se rule. Indeed, it does so heavily, for such a rule would make it unquestionably clear to the police they must never use a suggestive procedure when a fairer alternative is available. I have no doubt that conduct would quickly conform to the rule.

Second, the Court gives passing consideration to the dangers of eyewitness identification recognized in the Wade trilogy. It concludes, however, that the grave risk of error does not justify adoption of the per se approach because that would too often result in exclusion of relevant evidence. In my view, this conclusion totally ignores the lessons of Wade. The dangers of mistaken identification are, as Stovall held, simply too great to permit unnecessarily suggestive identifications. Neither Biggers nor the Court’s opinion today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the dangers of identification testimony.8 While the Court is “content to *126rely on the good sense and judgment of American juries,” ante, at 116, the impetus for Stovall and Wade was repeated miscarriages of justice resulting from juries’ willingness to credit inaccurate eyewitness testimony.

Finally, the Court errs in its assessment of the relative impact of the two approaches on the administration of justice. The Court relies most heavily on this factor, finding that “reversal is a Draconian sanction” in cases where the identification is reliable despite an unnecessarily suggestive procedure used to obtain it. Relying on little more than a strong distaste for “inflexible rules of exclusion,” the Court rejects the per se test. Ante, at 113. In so doing, the Court disregards two significant distinctions between the per se rule advocated in this case and the exclusionary remedies for certain other constitutional violations.

First, the per se rule here is not “inflexible.” Where -evidence is suppressed, for example, as the fruit of an unlawful search, it may well be forever lost to the prosecution. Identification evidence, however, can by its very nature be readily and effectively reproduced. The in-court identification, permitted under Wade and Simmons if it has a source independent of an uncounseled or suggestive procedure, is one example. Similarly, when a prosecuting attorney learns that there has been a suggestive confrontation, he can easily arrange another *127lineup conducted under scrupulously fair conditions. Since the same factors are evaluated in applying both the Court’s totality test and the Wade-Simmons independent-source inquiry, any identification which is “reliable” under the Court’s test will support admission of evidence concerning such a fairly conducted lineup. The evidence of an additional, properly conducted confrontation will be more persuasive to a jury, thereby increasing the chance of a justified conviction where a reliable identification was tainted by a suggestive confrontation. At the same time, however, the effect of an unnecessarily suggestive identification — which has no value whatsoever in the law enforcement process — will be completely eliminated.

Second, other exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truth-seeking function of the trial and discourages police use of needlessly inaccurate and ineffective investigatory methods.

Indeed, impermissibly suggestive identifications are not merely worthless law enforcement tools. They pose a grave threat to society at large in a more direct way than most governmental disobedience of the law, see Olmstead v. United States, 277 U. S. 438, 471; 485 (1928) (Brandéis, J., dissenting). For if the police and the public erroneously conclude, on the basis of an unnecessarily suggestive confrontation, that the right man has been caught and convicted, the real outlaw must still remain at large. Law enforcement has failed in its primary function and has left society unprotected from the depredations of an active criminal.

*128For these reasons, I conclude that adoption of the per se rule would enhance, rather than detract from, the effective administration of justice. In my view, the Court’s totality test will allow seriously unreliable and misleading evidence to be put before juries. Equally important, it will allow dangerous criminals to remain on the streets while citizens assume that police action has given them protection. According to my calculus, all three of the factors upon which the Court relies point to acceptance of the per se approach.

Even more disturbing than the Court’s reliance on the totality test, however, is the analysis it uses, which suggests a reinterpretation of the concept of due process of law in criminal cases. The decision suggests that due process violations in identification procedures may not be measured by whether the government employed procedures violating standards of fundamental fairness. By relying on the probable accuracy of a challenged identification, instead of the necessity for its use, the Court seems to be ascertaining whether the defendant was probably guilty. Until today, I had thought that “Equal justice under law” meant that the existence of constitutional violations did not depend on the race, sex, religion, nationality, or likely guilt of the accused. The Due Process Clause requires adherence to the same high standard of fundamental fairness in dealing with every criminal defendant, whatever his personal characteristics and irrespective of the strength of the State’s case against him. Strong evidence that the defendant is guilty should be relevant only to the determination whether an error of constitutional magnitude was nevertheless harmless beyond a reasonable doubt. See Chapman v. California, 386 U. S. 18 (1967). By importing the question of guilt into the initial determination of whether there was a constitutional violation, the apparent effect of the Court’s decision is to undermine the protection afforded by the Due Process Clause. “It is therefore important to note that the state courts remain free, in interpreting state constitutions, to *129guard against the evil clearly identified by this case.” Oregon v. Mathiason, 429 U. S. 492, 499 (1977) (Marshall, J., dissenting) .9

III

Despite my strong disagreement with the Court over the proper standards to be applied in this case, I am pleased that its application of the totality test does recognize the continuing vitality of Stovall. In assessing the reliability of the identification, the Court mandates weighing “the corrupting effect of the suggestive identification itself” against the “indicators of [a witness'] ability to make an accurate identification.” Ante, at 114, 116. The Court holds, as Neil v. Biggers failed to, that a due process identification inquiry must take account of the suggestiveness of a confrontation and the likelihood that it led to misidentification, as recognized in Stovall and Wade. Thus, even if a witness did have an otherwise adequate opportunity to view a criminal, the later use of a highly suggestive identification procedure can render his testimony inadmissible. Indeed, it is my view that, assuming applicability of the totality test enunciated by the Court, the facts of the present case require that result.

I consider first the opportunity that Officer Glover had to view the suspect. Careful review of the record shows that he could see the heroin seller only for the time it took to speak three sentences of four or five short words, to hand over some money, Tr. 29-30, and later after the door reopened, to receive the drugs in return, id., at 30, 31-32. The entire face-to-face transaction could have taken as little as 15 or 20 seconds. But during this time, Glover’s attention was not focused exclusively on the seller’s face. He observed that the door *130was opened 12 to 18 inches, id., at 29, that there was a window in the room behind the door, id., at 33, and, most importantly, that there was a woman standing behind the man, id., at 29, 30. Glover was, of course, also concentrating on the details of the transaction — he must have looked away from the seller’s face to hand him the money and receive the drugs. The observation during the conversation thus may have been as brief as 5 or 10 seconds.

As the Court notes, Glover was a police officer trained in and attentive to the need for making accurate identifications. Nevertheless, both common sense and scholarly study indicate that while a trained observer such as a police officer “is somewhat less likely to make an erroneous identification than the average untrained observer, the mere fact that he has been so trained is no guarantee that he is correct in a specific case. His identification testimony should be scrutinized just as carefully as that of the normal witness.” Wall, supra, n. 1, at 14; see also Levine & Tapp, supra, n. 8, at 1088. Moreover, “identifications made by policemen in highly competitive activities, such as undercover narcotic agents . . . , should be scrutinized with special care.” Wall, supra, n. 1, at 14. Yet it is just such a searching inquiry that the Court fails to make here.

Another factor on which the Court relies — the witness’ degree of certainty in making the identification — is worthless as an indicator that he is correct.10 Even if Glover had been unsure initially about his identification of respondent’s picture, by the time he was called at trial to present a key piece of evidence for the State that paid his salary, it is impossible to imagine his responding negatively to such questions as “is there any doubt in your mind whatsoever” that the identification was correct. Tr. 34, 41-42. As the Court noted in Wade: “ 'It is a matter of common experience that, once a *131witness has picked out the accused at the [pretrial confrontar tion], he is not likely to go back on his word later on.’ ” 388 U. S., at 229, quoting Williams & Hammelmann, Identification Parades — I, Crim. L. Rev. 479, 482 (1963).

Next, the Court finds that because the identification procedure took place two days after the crime, its reliability is enhanced. While such temporal proximity makes the identification more reliable than one occurring months later, the fact is that the greatest memory loss occurs within hours after an event. After that, the dropoff continues much more slowly.11 Thus, the reliability of an identification is increased only if it was made within several hours of the crime. If the time gap is any greater, reliability necessarily decreases.

Finally, the Court makes much of the fact that Glover gave a description of the seller to D’Onofrio shortly after the incident. Despite the Court’s assertion that because “Glover himself was a Negro and unlikely to perceive only general features of ‘hundreds of Hartford black males/ as the Court of Appeals stated,” ante, at 115, the description given by Glover was actually no more than a general summary of the seller’s appearance. See ante, at 101. We may discount entirely the seller’s clothing, for that was of no significance later in the proceeding. Indeed, to the extent that Glover noticed clothes, his attention was diverted from the seller’s face. Otherwise, Glover merely described vaguely the seller’s height, skin color, hairstyle, and build. He did say that the *132seller had “high cheekbones,” but there is no other mention of facial features, nor even an estimate of age. Conspicuously absent is any indication that the seller was a native of the West Indies, certainly something which a member of the black community could immediately recognize from both appearance and accent.12

From all of this, I must conclude that the evidence of Glover’s ability to make an accurate identification is far weaker than the Court finds it. In contrast, the procedure used to identify respondent was both extraordinarily suggestive and strongly conducive to error. In dismissing “the corrupting effect of the suggestive identification” procedure here, ante, at 116, the Court virtually grants the police license to convict the innocent. By displaying a single photograph of respondent to the witness Glover under the circumstances in this record almost everything that could have been done wrong was done wrong.

In the first place, there was no need to use a photograph at all. Because photos are static, two-dimensional, and often outdated, they are “clearly inferior in reliability” to corporeal procedures. Wall, supra, n. 1, at 70; People v. Gould, 54 Cal. 2d 621, 631, 354 P. 2d 865, 870 (1960). While the use of photographs is justifiable and often essential where the police have no knowledge of an offender’s identity, the poor reliability of photos makes their use inexcusable where any other means of identification is available. Here, since Detective D’Onofrio believed that he knew the seller’s identity, see ante, at 101,115, further investigation without resort to a photographic showup was easily possible. With little inconvenience, a corporeal *133lineup including Brathwaite might have been arranged.13 Properly conducted, such a procedure would have gone far to remove any doubt about the fairness and accuracy of the identification.14

Worse still than the failure to use an easily available corporeal identification was the display to Glover of only a single picture, rather than a photo array. With good reason, such single-suspect procedures have “been widely condemned.” Stovall v. Denno, 388 U. S., at 302. They give no assurance that the witness can identify the criminal from'among a number of persons of similar appearance, surely the strongest evidence that there was no misidentification. In Simmons v. United States, our first decision involving photographic identification, we recognized the danger that a witness seeing a suggestively displayed picture will “retain in his memory the image of the photograph rather than of the person actually seen.” 390 U. .S., at 383-384. “Subsequent identification of the accused then shows nothing except that the picture was a good likeness.” Williams & Hammelmann, supra, n. 1, at 484. As Simmons warned, the danger of error is at its greatest when “the police display to the witness only the picture of a single individual . . . [and] is also heightened if the police indicate to the witness that they have other evidence that . . . the perso[n] pictured committed the crime.” 390 U. S., at 383. *134See also ALI, Model Code' of Pre-Arraignment Procedure §§ 160.2 (2), (5) (1975).

The use of a single picture (or the display of a single live suspect, for that matter) is a grave error, of course, because it dramatically suggests to the witness that the person shown must be the culprit. Why else would the police choose the person? And it is deeply ingrained in human nature to agree with the expressed opinions of others — particularly others who should be more knowledgeable — when making a difficult decision.15 In this case, moreover, the pressure was not limited to that inherent in the display of a single photograph. Glover, the identifying witness, was a state police officer on special assignment. He knew that D’Onofrio, an experienced Hartford narcotics detective, presumably familiar with local drug operations, believed respondent to be the seller. There was at work, then, both loyalty to another police officer and deference to a better-informed colleague.16 Finally, of course, there was Glover’s knowledge that without an identifi*135cation and arrest, government funds used to buy heroin had been wasted.

The Court discounts this overwhelming evidence of suggestiveness, however. It reasons that because D’Onofrio was not present when Glover viewed the photograph, there was “little pressure on the witness to acquiesce in the suggestion.” Ante, at 116. That conclusion blinks psychological reality.17 There is no doubt in my mind that even in D’Onofrio’s absence, a clear and powerful message was telegraphed to Glover as he looked at respondent’s photograph. He was emphatically told that “this is the man,” and he responded by identifying respondent then and at trial “whether or not he was in fact 'the man.’ ” Foster v. California, 394 U. S., at 443.18

I must conclude that this record presents compelling evidence that there was “a very substantial likelihood of mis-identification” of respondent Brathwaite. The suggestive *136display of respondent’s photograph to the witness Glover likely erased any independent memory that Glover had retained of the seller from his barely adequate opportunity to observe the criminal.

IV

Since I agree with the distinguished panel of the Court of Appeals that the legal standard of Stovall should govern this case, but that even if it does not, the facts here reveal a substantial likelihood of misidentification in violation of respondent’s right to due process of law, I would affirm the grant of habeas corpus relief. Accordingly, I dissent from the Court’s reinstatement of respondent’s conviction.