SULLIVAN, J. I dissent.
The majority hold that because the victim, Mrs. Ward, did not view the lineup in corpore but only through the medium of photographs, the lineup was only “simulated” and not a “true” lineup at all. Therefore, they [281]conclude, Wade-Gilbert rules governing lineup confrontations per se are inapplicable, and the present case is indistinguishable from others holding that the showing of individual photographs or “mugshots” after arrest is not subject to Wade-Gilbert restrictions.
I disagree with this reasoning and conclusion on two grounds: First, the record clearly demonstrates that the photographic identification procedure in question was undertaken with the conscious purpose of evading the requirements of Wade and Gilbert; the opinion of the majority therefore stands as an explicit sanction of that evasion and an invitation to dispose of those requirements entirely by replacing corporeal lineups with photographic lineups. Second, even if we disregard the evasive conduct of the police in this case as the majority have done, I am of the view that it is improper to resort to photographip identification procedures after arrest when, as in the instant case, the authorities have failed to demonstrate the need to utilize such an inherently less reliable method rather than a corporeal lineup with full constitutional protections.
I
The record in this case establishes beyond the suggestion of doubt—indeed, establishes out of the mouth of the officer in charge himself—that a photographic lineup procedure was utilized rather than a corporeal lineup solely because the officer realized that defendant had a right to the presence of counsel at a corporeal lineup and, for reasons sufficient to himself, wished to proceed with the identification without the presence of defendant’s counsel.1
All other requisites, of a properly conducted corporeal lineup were present. The witness was on the scene and available to attend a lineup; indeed she had been at the police station for more than four hours when the lineup was finally arranged—not so that she could view it, but rather so that such viewing could be avoided. Defendant was also present; he was under arrest held in custody in the same building. Other lineup participants were available, as were adequate lineup facilities. There was only one missing element: defendant’s counsel.
If, as we may assume, the officer in charge was desirous of proceeding with the identification with dispatch, he indeed had several courses of action open [282]to him. He could have asked defendant if the latter would waive counsel at a lineup ; this according to his own testimony, the officer did not do. If no waiver was forthcoming, the officer could have made, some effort to learn whether defendant had retained counsel who would be able to be present at a lineup within a reasonable time; this, again according to his own testimony, he did not do. If no waiver was forthcoming and defendant’s counsel was not reasonably available, the officer could have made some effort to determine whether a member of the public defender’s office could be made available; this he did not do. Rather the officer chose a more ingenious solution to his problem: he conducted a lineup which, in his opinion and that of the majority of this court, was not really a lineup at all,2 and therefore was not subject to the rules of Wade and Gilbert.
[283]I find it inconceivable that this court would approve such a practice in these circumstances. Whatever we may think of a case where a photographic lineup has been utilized after police have made some reasonable effort to secure counsel, or a case where such a lineup has been utilized because for some reason the witness was unable to physically view the suspect, surely it must be recognized that this case involves a deliberate and conscious evasion of the rules of Wade and Gilbert. I view with great apprehension the prospect that law enforcement officers henceforth will decide that they can safely hold all their lineups without the bothersome presence of counsel if they utilize what will soon be known simply as a “Lawrence lineup.”
What we said in a related context in People v. Fowler (1969) 1 Cal.3d 335, at page 344 [82 Cal.Rptr. 363, 461 P.2d 643], seems especially apt here: “We cannot reasonably suppose that the high court . . . would announce a rule so susceptible of emasculation by avoidance.” The majority seem to have summoned up the requisite powers of supposition.
II
Even if we ignore the taint of evasive conduct present in this case and consider the photographic identification procedure apart from the motivation which brought it about, I believe that fidelity to the principles of Wade and Gilbert as well as adherence to prior decisions of this court require us to conclude that it is improper to resort to photographic identification procedures after arrest when, as here, the People have not established the need for such an inherently less reliable means in the place of a corporeal lineup with full constitutional protections.
At the outset it should be emphasized that, as we said in People v. Gould [284](1960) 54 Cal.2d 621, 631 [7 Cal.Rptr. 273, 354 P.2d 865], “Identification from a still photograph is substantially less reliable than identification of an individual seen in person.” (See also 3 Wigmore, Evidence (3d ed. 1940) § 786a, pp. 165-166; Wall, Eye-Witness Identification in Criminal Cases, ch. III.) This is so “[b]ecause of the inherent limitations of photography, which presents its subjects in two dimensions rather than the three dimensions of reality, and which presents a ‘frozen’ image, often not too similar to the image of the living, moving subject. . . (Wall, supra, at p. 70.) As a result, the dangers of misidentification inherent in pretrial extrajudicial confrontations generally are augmented when such a confrontation occurs through the medium of photography, and the likelihood of irreparable3 misidentification is enhanced.
In spite of these risks, however, it is clear that photographic identification procedures can play an effective and proper role in law enforcement—■ notably when the identity of the suspect is unknown or there is no prisoner in custody. As the United States Supreme Court said in Simmons v. United States (1968) 390 U.S. 377, at page 384 [19 L.Ed.2d 1247, 1253, 88 S.Ct. 967], “Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Accordingly, in Simmons the court held that it would not prohibit the use of photographic identification techniques per se but would consider each case on its own facts and set aside convictions based upon in-trial identification following pretrial photographic identification “only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (390 U.S. at p. 384 [19 L.Ed.2d at p. 1253].)
Turning its attention to the case before it the court in Simmons was careful to emphasize that it was “not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance.” (Italics added.) (390 U.S. at p. 384 [19 L.Ed.2d at p. 1253].) The court went on: “A serious felony had been committed. The perpetrators were still at large. [285]The inconclusive clues which law enforcement officials possessed led to Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they were on the right track, so that they could properly deploy their forces in Chicago and, if necessary, alert officials in other cities. The justification for this method of procedure was hardly less compelling than that which we found to justify the ‘one-man lineup’ in Stovall v. Derma, supra [388 U.S. 293 (18 L.Ed.2d 1199, 87 S.Ct. 1967)].” (Italics added.) (390 U.S. at pp. 384-385 [19 L.Ed.2d at pp. 1253-1254].)4
However, a distinction must be drawn between the use of photographic identification techniques in circumstances such as those in Simmons (i.e., where the perpetrator of the crime is still at large and speedy action is required) and the use of such techniques in circumstances where a suspect is in custody and witnesses are available to view him in a lineup. Here it is much more difficult to justify resort to the inherently less reliable technique. As a thoughtful commentator has put it: “[Witnesses should be asked to examine photographs only when a proper corporeal identification is impossible (as where no suspect has yet been found) or difficult. In any other case, the use of photographs is improper, for it constitutes the unnecessary employment of an identification procedure clearly inferior in reliability to one which is available.” (Wall, supra, at p. 70.)5
Recent decisions of this court, although couched in language of “attachment” of the right to counsel,6 nevertheless offer support for the distinc[286]tion here urged. Thus in People v. Fowler, supra, 1 Cal.3d 335—wherein this court first interpreted and applied the Wade-Gilbert rules—we declined to express any specific opinion as to the extent to which those rules would be applied to pretrial confrontations occurring out of the context of a formal lineup, but we did indicate that we would scrutinize such nonlineup confrontations and balance “the need for a prompt nonlineup identification in light of the circumstances, against the need for and ability of counsel to help avoid erroneous identification.” (1 Cal.3d at p. 345, fn. 16.) In People v. Martin (1970) 2 Cal.3d 822 [87 Cal.Rptr. 709, 471 P.2d 29], applying this rationale to disapprove a one-to-one viewing of the suspect by the witness, we concluded that the need for identification outside the context of a formal lineup was slight when the suspect was in custody at the police station and the witness was present to view him. “Nothing has been shown which would indicate that a formal lineup with full constitutional protections was rendered impractical by the circumstances. Indeed, it appears that at least two persons of defendant’s general physical characteristics were available for this purpose.” (2 Cal.3d at p. 829.)
In view of all of the foregoing I am of the view that the following analysis should be utilized in cases such as that at bench: The formal corporeal lineup with full constitutional protections is the most practically efficient and accurate means of extrajudicial identification presently available to us. (Cf. United States v. Wade, supra, 388 U.S. 218, 239, fn. 30 [18 L.Ed.2d 1149, 1164, 87 S.Ct. 1926], where the “scientific method” of pretrial identification suggested by Wigmore is discussed.) As such it should be the archetype of extrajudicial identification procedures. The utilization of any less rehable identification technique should be proscribed absent adequate justification. Such justification will in most cases take the form of the unavoidable absence of" one of the elements requisite to a formal lineup. Thus, in a case like Simmons v. United States, where the perpetrator of a crime remains at large and speedy identification is necessary to his capture, the suspect himself is absent. Another case might be imagined where the witness would not be available to attend a formal lineup (e.g., Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct 1967]). Another example of immense practical significance is the case where counsel is found after reasonable efforts to be unavailable to attend a lineup within a reasonable time. (See People V. Keim (1970) 8 Cal.App.3d 776 [87 Cal.Rptr. 597].) In each of these cases ample justification might be shown in order to warrant some means of extrajudicial identification (photographic or otherwise) other than a corporeal lineup.
[287]In a case such as that at bench, however, where there is absolutely no justification for extrajudicial identification outside the context of a formal lineup with full constitutional protections, such identification should not be permitted, and the witness who participates in the nonlineup procedure should be foreclosed from making an in-court identification.
In summary, I am of the view that it was error to admit the in-court identification of defendant by the victim Mrs. Ward because (1) the pretrial photographic identification procedure which preceded that in-court identification was utilized with the conscious purpose of evading the requirements of Wade and Gilbert, and (2) the People have failed to show any justification for their use of an inherently less reliable means of pretrial identification in preference to the more reliable corporeal lineup procedure with full constitutional protections.
I would reverse the judgment.
Peters, J., and Tobriner, J., concurred.
Appellant’s petition for a rehearing was denied March 31, 1971. Peters, J., Tobriner, J., and Sullivan, J., were of the opinion that the petition should be granted.
The officer, when asked at trial what was the reason for his action, replied: “Well, I really don’t know for sure whether there was any particular reason. I know that when I had talked to Mr. Lawrence earlier in the morning he had requested that he wanted to have an attorney. I, rather than have to go back again and talk to him to see if he would stand in the line-up without an attorney present and everything, I asked Officer Jarvis if he would take pictures of a line-up and bring them over so we could show them to the witnesses.” (Italics added.)
The officer’s view involved him and others in semantic difficulties at trial—difficulties which the majority purport to overcome by means of the term “simulated lineup.” The following colloquy is representative:
“Q [by defense counsel]: And Mrs. Ward was at the police station at the time the line-up was held; is that correct?
“A. [by Officer Duncan]: At the time the line-up picture was taken; there was no line-up held, so to speak.
“Q: Well, at the time these pictures were taken, she was present at the police station?
“A: At the police station, yes.
“Q: And she had been there for some time prior to that time?
“A: Yes.
“Q: Now, prior to asking for the lineup, had you made an effort to find out if there had been an attorney in to see Mr. Lawrence?
“A. There was no line-up. There was some line-up photographs taken. There was no line-up.
“Q: Well, I am sorry that I am clumsy with the way I asked the question. But prior to the time you asked someone over to the jail to assemble a group of men including the defendant Lawrence and take a photograph of them, prior to your doing that, did you determine whether Mr. Lawrence had been seen by a lawyer or had a lawyer?
“A: He had told me previously in the morning that he was trying to contact one. That’s all I know. ...
“Q: . . . You didn’t attempt to find out whether in fact a lawyer had been in to see him before you ordered this picture taken; is that correct?
“A: No.
“Q: It is true at about 10:00 o’clock in the morning that day you were talking to the defendant, isn’t that right, when he told you that he was going to try and get a lawyer?
“A: I can’t tell you the exact time. It was earlier in the morning.
“Q: Sometime that morning. And at that time you—he told you that he didn’t want to discuss it, anything with you without a lawyer, didn’t he?
“A: That is correct.
“Q: And didn’t you make the statement to him at that time: ‘Well, you wouldn’t stand in a line-up without a lawyer then, would you?’
“A: No, I did not make the statement to him.
“Q: Is there some—you were quarreling with me when I was misstating the thing [283]about a line-up because you contend that this is not what you mean by a line-up when merely five people’s pictures are taken in a group for identification purposes.
“A: What do you mean I was quarreling with you?
“Q: Well, when I would say ‘line-up,’ you would keep saying there was no line-up held.
“A: Well, there was no line-up held.
“Q: In other words, you regard this as not a line-up?
“A: I regard a line-up as a group of men put in the line-up room and viewed by witnesses and victims.
“Q: Well now, is that the reason that Mrs. Ward was not taken to the line-up room when these pictures were taken?
“Mr. Lux [the prosecutor]: I would object to that as irrelevant; why she was taken or not, your Honor. The issue as to the legality of her identification-is at issue, not why he did something or why he didn’t.
“The Court: Well, I think we are getting into a matter of semantics. No matter what you call it, it’s a line-up; whether you take a picture of it or a witness is there.” (Italics added.)
In Wade the court was careful to express its realization that as a practical matter a witness’s first identification of a suspect as the guilty party is not likely to be altered through judicial confrontation because the witness is reluctant to admit error. (388 U.S. at p. 229 [18 L.Ed.2d at p. 1158].) This problem is also augmented when photography is used as the medium of extrajudicial confrontation. “[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification [extrajudicial or judicial] of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph.” (Fn. omitted.) (Wall, supra, at p. 68.)
Even in England, where courts are quite scrupulous in insisting upon fair identification procedures, the use of photographic identification techniques to apprehend a suspect still at large is permitted and approved. (See Wall, supra, pp. 70-71, and cases there cited.)
The view of the English courts on this matter is shown by the case of Haslam (1925) 19 Crim.App. 59. There witnesses had been shown photographs of the defendant, who was in custody, before being called upon to make a corporeal identification of him. The court said: “It is not suggested that the photographs were shown to the witnesses that the police might obtain a clue to the direction in which enquiries might usefully be made, or to the person whom it would be proper to arrest. The appellant had already been arrested, and the effect of what was done was to give the witnesses— or certainly three of them—an opportunity of studying a photograph of the appellant before they were called on to identify him. That course is indefensible. It cannot be right that when a witness, or a possible witness, is being called on merely to identify a person who is already arrested, that witness, before the identification, should be shown a photograph of the accused person. One can see that sometimes it will happen that when a person has been shown a photograph to assist in the arrest of a wrongdoer not yet arrested he may later give evidence of identification. That is a different thing from what happened here. In that case the person is asked to identify the accused person, notwithstanding the fact that he has previously seen a photograph. A person who has seen a photograph of the accused person may identify him simply because he has seen a photograph of him.”
The majority, by framing its decision in terms of whether or not Wade-Gilbert rights “attach” to photographic identifications, successfully misses the point. The ques[286]tion here is not whether the full protection of Wade and Gilbert shall or shall not apply to non-corporeal confrontations; the question is whether law enforcement officials shall be permitted to substitute a less reliable identification technique for a more reliable one without justification.