per se exclusionary rule in Illinois

1985Moreover, only a per se exclusionary rule as to such testimony and evidence can be an efficacious sanction to assure that law enforcement authorities will respect an accused's constitutional right to assistance of counsel at all critical stages after adversarial judicial proceedings have been commenced against him. ( Moore v. Illinois (1977), 434 U.S. 220, 231-32 , 54 L.Ed.2d 424, 435-36 , 98 S.Ct. 458, 466 ; Gilbert v. California (1967), 388 U.S. 263, 272-74 , 18 L.Ed.2d 1178, 1186-87 , 87 S.Ct. 1951, 1956-57 .) Thus, in the present case, the State was not entitled to show that the testimony

1985Moreover, only a per se exclusionary rule as to such testimony and evidence can be an efficacious sanction to assure that law enforcement authorities will respect an accused's constitutional right to assistance of counsel at all critical stages after adversarial judicial proceedings have been commenced against him. ( Moore v. Illinois (1977), 434 U.S. 220, 231-32 , 54 L.Ed.2d 424, 435-36 , 98 S.Ct. 458, 466 ; Gilbert v. California (1967), 388 U.S. 263, 272-74 , 18 L.Ed.2d 1178, 1186-87 , 87 S.Ct. 1951, 1956-57 .) Thus, in the present case, the State was not entitled to show that the testimony

2026As defendant’s alleged pretrial confrontation with Martin in the courthouse bullpen amounted to an uncounseled identification, defendant argues, Martin’s subsequent in-court identification and testimony should have been barred pursuant to the per se exclusionary rule established in Wade, 388 U.S. at 224-25 , Saltys, 465 F. 2d at 1026-27 , and Moore, 434 U.S. at 231 .

1985Moreover, only a per se exclusionary rule as to such testimony and evidence can be an efficacious sanction to assure that law enforcement authorities will respect an accused's constitutional right to assistance of counsel at all critical stages after adversarial judicial proceedings have been commenced against him. ( Moore v. Illinois (1977), 434 U.S. 220, 231-32 , 54 L.Ed.2d 424, 435-36 , 98 S.Ct. 458, 466 ; Gilbert v. California (1967), 388 U.S. 263, 272-74 , 18 L.Ed.2d 1178, 1186-87 , 87 S.Ct. 1951, 1956-57 .) Thus, in the present case, the State was not entitled to show that the testimony

1972The U.S. Supreme Court in Kirby v. Illinois 32 L.Ed.2d 411 , 92 S.Ct. 1877 , 40 United States Law Week 4607, affirmed, and declined to impose a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever, and held that the per se exclusionary rule of Wade and Gilbert, supra, did not apply to confrontations before the “initiation of adversary judicial criminal proceedings — whether by formal charge, preliminary hearing, indictment, information or arraignment”.

1972The U.S. Supreme Court in Kirby v. Illinois 32 L.Ed.2d 411 , 92 S.Ct. 1877 , 40 United States Law Week 4607, affirmed, and declined to impose a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever, and held that the per se exclusionary rule of Wade and Gilbert, supra, did not apply to confrontations before the “initiation of adversary judicial criminal proceedings — whether by formal charge, preliminary hearing, indictment, information or arraignment”.

2026Brathwaite, 432 U.S. at 112-13 ; Biggers, 409 U.S. at 198-99 . ¶ 63 Instead of mandating a per se exclusionary rule, due process requires courts to assess, on a case-by-case basis, whether the police acted improperly and whether that conduct created a “substantial likelihood of misidentification.” Biggers, 409 - 14 - U.S. at 201; Perry, 565 U.S. at 239 ; see Brathwaite, 432 U.S. at 116 .

2026As defendant’s alleged pretrial confrontation with Martin in the courthouse bullpen amounted to an uncounseled identification, defendant argues, Martin’s subsequent in-court identification and testimony should have been barred pursuant to the per se exclusionary rule established in Wade, 388 U.S. at 224-25 , Saltys, 465 F. 2d at 1026-27 , and Moore, 434 U.S. at 231 .

2026Brathwaite, 432 U.S. at 112-13 ; Biggers, 409 U.S. at 198-99 . ¶ 63 Instead of mandating a per se exclusionary rule, due process requires courts to assess, on a case-by-case basis, whether the police acted improperly and whether that conduct created a “substantial likelihood of misidentification.” Biggers, 409 - 14 - U.S. at 201; Perry, 565 U.S. at 239 ; see Brathwaite, 432 U.S. at 116 .

2026As defendant’s alleged pretrial confrontation with Martin in the courthouse bullpen amounted to an uncounseled identification, defendant argues, Martin’s subsequent in-court identification and testimony should have been barred pursuant to the per se exclusionary rule established in Wade, 388 U.S. at 224-25 , Saltys, 465 F. 2d at 1026-27 , and Moore, 434 U.S. at 231 .

1985Under the circumstances, a question arises as to whether we are able to declare a belief that the violation of defendants' sixth amendment right to assistance of counsel was harmless beyond a reasonable doubt. ( Chapman v. California (1967), 386 U.S. 18, 24 , 17 L.Ed.2d *253 705, 710-11, 87 S.Ct. 824, 828 ; Moore v. Illinois (1977), 434 U.S. 220, 232 , 54 L.Ed.2d 424, 436 , 98 S.Ct. 458, 466 ; Gilbert v. California (1967), 388 U.S. 263, 274 , 18 L.Ed.2d 1168 , 1187, 87 S.Ct. 1951, 1957 .) We conclude that we cannot make such a declaration.

1985Under the circumstances, a question arises as to whether we are able to declare a belief that the violation of defendants' sixth amendment right to assistance of counsel was harmless beyond a reasonable doubt. ( Chapman v. California (1967), 386 U.S. 18, 24 , 17 L.Ed.2d *253 705, 710-11, 87 S.Ct. 824, 828 ; Moore v. Illinois (1977), 434 U.S. 220, 232 , 54 L.Ed.2d 424, 436 , 98 S.Ct. 458, 466 ; Gilbert v. California (1967), 388 U.S. 263, 274 , 18 L.Ed.2d 1168 , 1187, 87 S.Ct. 1951, 1957 .) We conclude that we cannot make such a declaration.

1980App. 3d 468, 477-78 , 375 N.E.2d 513 .) Although the testimony regarding the lineup identifications in the absence of a defense attorney may here be subject to the per se exclusionary rule, the in-court identifications of defendant, having been based upon origins independent of the lineup, do not require reversal on appeal.

1978App. 3d 784, 786 , 365 N.E.2d 367 .) While testimony concerning identifications made at the uncounseled lineup was subject to the per se exclusionary rule enunciated in Gilbert v. California (1967), 388 U.S. 263, 273 , 18 L.