author: Mr. Justice Stewart Mr. Chief Justice Burger, Mr. Justice Powell, Mr. Justice Brennan, Mr. Justice White,

text:
    KIRBY v. ILLINOIS
    No. 70-5061.
    Argued November 11, 1971
    Reargued March 20-21, 1972
    Decided June 7, 1972
    Stewart, J., announced the Court’s judgment and delivered an opinion in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined. Burger, C. J., filed a concurring statement, post, p. 691. Powell, J., filed a statement concurring in the result, post, p. 691. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 691. White, J., filed a dissenting statement, post, p. 705.

      Jerold S. Solovy argued the cause for petitioner on the reargument and Michael P. Seng argued the cause on the original argument. Messrs. Solovy and Seng were on the briefs for petitioner.

      James B. Zagel, Assistant Attorney General of Illinois, reargued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and E. James Oildea, Assistant Attorney General.

      Ronald M. George, Deputy Attorney General, argued the causé on the reargument for the State of California as amicus curiae urging affirmance. With him on the brief were Evelle J. Younger, Attorney General, and William E. James, Assistant Attorney General.
   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 enforcement 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. 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 robbed 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, and identified them again in the courtroom as the men who had robbed him on February 20. 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. 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.

We granted certiorari, limited to this question. 402 U. S. 995.

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 to 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, and the Court has 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. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. 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 confrontation . . . 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. 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 room 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.

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, 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,” 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.
“[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).

It 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-animation 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 dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification,” id., at 235, 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 confrontation for identification conducted after arrest 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. 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 If these propositions do not amount to “mere formalism,” ibid., it is difficult to know how to characterize them. 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 identification. 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, 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, apparently, 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. 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.

The 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. Yet in that circumstance the Court in Stovall stated 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 is 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. 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. Because Shard testified at trial about 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.

       The officers stopped the petitioner and his companion because they thought the petitioner was a man named Hampton, who was “wanted” in connection with an unrelated criminal offense. The legitimacy of this stop and the subsequent arrest is not before us.

       “Q. All right. Now, Willie, calling your attention to February 22, 1968, did you receive a call from the police asking you to come down to the station?
      “A. Yes, I did.

      “Q. When you went down there, what if anything, happened, Willie?
      “A. Well, I seen the two men was down there who robbed me.

      “Q. Who took you to the police station?
      “A. The policeman picked me up.

      “MR. POMARO: Q. When you went to the police station did you see the two defendants?
      “A. Yes, I did.
      “Q. Do you see them in Court today?
      “A. Yes, sir.
      “Q. Point them out, please?
      “A. Yes, that one there and the other one. (Indicating.)
      “MR. POMARO: Indicating for the record the defendants Bean and Kirby.
      “Q. And you positively identified them at the police station, is that correct?
      “A. Yes.
      “Q. Did any police officer make any suggestion to you whatsoever?

      “THE WITNESS: No, they didn’t.”

       “Q. Willie, when you looked back, when you were walking down the street and first saw the defendants, when you looked back, did you see them then?
      “A. Yes, I seen them.
      “Q. Did you get a good look at them then?
      “A. Yes, I did.
      “Q. All right. Now, when they grabbed you and took your money, did you see them then?
      “A. Yes, I did.
      “Q. Did you get a good look at them then?
      “A. Yes.
      “Q. Both of them?
      “A. Correct.
      “Q. When they walked away did you see them then?
      “A. Yes.
      “Q. Did you look at them, Willie?

        “A. Yes.
      “Q. Did you get a good look at them?

        “A. Yes.
      “Q. Are those the same two fellows? Look at them, Willie.

        “A. Correct.
      “Q. Are those the same two that robbed you?
      “A. Yes.
      “Q. You are sure, Willie?

        “A. Yes.”

       Bean's conviction was reversed. People v. Bean, 121 Ill. App 2d 332, 257 N. E. 2d 562.

       The issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts. Compare State v. Fields, 104 Ariz. 486, 455 P. 2d 964; Perkins v. State, 228 So. 2d 382 (Fla.); Buchanan v. Commonwealth, 210 Va. 664, 173 S. E. 2d 792; State v. Walters, 457 S. W. 2d 817 (Mo.), with United States v. Greene, 139 U. S. App. D. C. 9, 429 F. 2d 193; Rivers v. United States, 400 F. 2d 935 (CA5); United States v. Phillips, 427 F. 2d 1035 (CA9); Commonwealth v. Guillory, 356 Mass. 591, 254 N. E. 2d 427; People v. Fowler, 1 Cal. 3d 335, 461 P. 2d 643; Palmer v. State, 5 Md. App. 691, 249 A. 2d 482; People v. Hutton, 21 Mich. App. 312, 175 N. W. 2d 860; Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738; In re Holley, 107 R. I. 615, 268 A. 2d 723; Hayes v. State, 46 Wis. 2d 93, 175 N. W. 2d 625.

       “[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.” Powell v. Alabama, 287 U. S. 45, 57.

       “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U. S. Const., Amdt. VI.

       In view of our limited grant of certiorari, we do not consider whether there might have been a deprivation of due process in the particularized circumstances of this ease. That question remains open for inquiry in a federal habeas corpus proceeding.

       There is no room here for the application of the harmless-error doctrine. Because the admission of Shard’s testimony about his showup identification thus requires reversal, there is no need for me to consider whether a remand would otherwise be necessary to afford the State an opportunity to demonstrate that Shard’s in-court identification of petitioner, if that is what it was, see ante, at 686 n. 3, had an independent source. See United States v. Wade, 388 U. S. 218, 239-242 (1967); Gilbert v. California, 388 U. S. 263, 272 (1967).

       The plurality asserts that in view of that holding in Wade, “the doctrine of Miranda v. Arizona, 384 U. S. 436, has no applicability whatever to the issue before us.” Ante, at 688. That assertion is necessary for the plurality because Miranda requires the presence of counsel before “the time that, adversary judicial proceedings have been initiated against” the accused. Ibid. The assertion is nonetheless erroneous, for Wade specifically relied upon Miranda in establishing the constitutional principle that controls the applicability of the Sixth Amendment guarantee of the right to counsel at pretrial confrontations. See 388 U. S., at 226-227.

       The plurality asserts that ‘‘Escobedo is not apposite here.” Ante, at 689. It was, of course, “apposite” in Wade. Hence, to say that Johnson v. New Jersey, 384 U. S. 719, 733-734 (1966), a case decided before Wade, “limited the holding of Escobedo to its own facts,” ante, at 689, even if true, is to say nothing at all that is relevant to the present case. The plurality also utilizes Johnson for the proposition “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 ....”’ Ibid. In view of Wade’s specific reliance upon Escobedo and Miranda, that, obviously, is no distinction either. Moreover, it implies that the purpose of Wade was “to vindicate the constitutional right to counsel as such.” That was not the purpose of Wade, as my extended summary of the opinion demonstrates.

       The plurality refers to “occasions during the course of a criminal investigation when the police do abuse identification procedures” and asserts that “[s]uch abuses are not beyond the reach of the Constitution.” Ante, at 690. The constitutional principles established in Wade, however, are not addressed solely to police “abuses,” as Wade explicitly pointed out:
      “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 secrecy 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.” 388 U. S., at 234-235.

       This case does not require me to consider confrontations that take place before custody, see, e. g., Bratten v. Delaware, 307 F. Supp. 643 (Del. 1969); People v. Cesarz, 44 Ill. 2d 180, 255 N. E. 2d 1 (1969); State v. Moore, 111 N. J. Super. 528, 269 A. 2d 534 (1970), nor accidental confrontations not arranged by the police, see, e. g., United States v. Pollack, 427 F. 2d 1168 (CA5 1970); State v. Bibbs, 461 S. W. 2d 755 (Mo. 1970), nor on-the-scene encounters shortly after the crime, see, e. g., Russell v. United States, 133 U. S. App. D. C. 77, 408 F. 2d 1280 (1969); United States v. Davis, 399 F. 2d 948 (CA2 1968).

       Cf. Miranda v. Arizona, 384 U. S. 436, 477 (1966) (emphasis added):
      “The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.”

       The plurality concludes that “[i]t is this point,, therefore, that marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Ante, at 690. This Court has taken the contrary position with respect to the speedy-trial guarantee of the Sixth Amendment: “Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest.” “In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, which transformed the appellees into ‘accused’ defendants who are subject to the speedy trial protections of the Sixth Amendment.” United States v. Marion, 404 U. S. 307, 321, 325 (1971).

       As the California Supreme Court pointed out, with an eye toward the real world, “the establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches could only lead to a situation wherein substantially all lineups would be conducted prior to indictment or information.” People v. Fowler, 1 Cal. 3d 335, 344, 461 P. 2d 643, 650 (1969).

       Bean took the stand and testified that he and petitioner found Shard's traveler’s checks and Social Security card two hours before their arrest strewn upon the ground in an alley.

       In fact, the lineups in Foster took place before the information was filed. The crime occurred on January 26, 1966. After the accused was arrested, he was exhibited to the witness in two lineups, both conducted within two weeks of January 25. The information was not filed until March 17. Foster v. California, No. 47, O. T. 1968, Brief for Respondent 3-8.

       In fact, the lineup in Coleman took place before the accused were formally charged. The crime occurred on July 24, 1966. The accused were arrested on September 29, and the lineup was held on October 1. The preliminary hearing was not until October 14, and the indictments were not returned until November 11. Coleman v. Alabama, No. 72, O. T. 1969, Brief for Petitioners 5-7; App. 84; see 399 U. S., at 26 (Stewart, J., joined by Burger, C. J., dissenting).
      On those facts, the plurality opinion adverted to the timing of the lineup only to the extent of pointing out that it was held “about two months after the assault and seven months before petitioners’ trial” Id., at 3 (Brennan, J., joined by Douglas, White, and Marshall, JJ.). The plurality opinion then simply noted that “[p]etitioners concede that since the lineup occurred before [Wade and Gilbert] were decided . . . , they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel.” Id., at 3-4.
      Mr. Justice Black in his concurring opinion took no notice at all of when the lineup was conducted. Instead, reiterating his view that Wade “should be held fully retroactive,” he insisted “that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama’s failure to provide such counsel violated petitioners’ rights under the Sixth and Fourteenth Amendments.” Id., at 13. Nor did Mr. Justice Harlan refer to the timing of the lineup in expressing his “dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police ‘lineup’ identification.” Mr. Justice Harlan’s summary of Wade, like that of the prevailing opinion, did not limit its "rationale” to post-charge confrontations: “The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source ‘independent’ of the tainted pretrial viewing.” Id., at 21.

       The chain of events in Stovall was as follows: The crime occurred on the night of August 23, 1961. The accused was arrested on the afternoon of August 24 and appeared for arraignment on the morning of August 25. The arraignment was postponed until August 31 so that he could retain counsel. The confrontation with the witness took place about noon on August 25. At the arraignment on August 31, the committing magistrate appointed counsel for the accused and set the felony examination for September 1. That examination was never held, for on August 31 the indictment was returned. Stovall v. Denno, No. 254, O. T. 1966, Brief for Respondent 34.

       The Wade dissenters found no such limitation: “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.” United States v. Wade, 388 U. S., at 251 (White, J., joined- by Harlan and Stewart, JJ., dissenting in part and concurring in part).

       The plurality rather surprisingly asserts that “[t]he issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts.” Ante, at 687 n. 5 (emphasis added). As the plurality’s citations reveal, there are decisions from five States, including Illinois, that have refused to apply Wade and Gilbert to pre-indictment confrontations for identification. Ranged against those five, however, are decisions from at least 13 States. See People v. Fowler, 1 Cal. 3d 335, 461 P. 2d 643 (1969); State v. Singleton, 253 La. 18, 215 So. 2d 838 (1968); Commonwealth v. Guillory, 356 Mass. 591, 254 N. E. 2d 427 (1970); Palmer v. State, 5 Md. App. 691, 249 A. 2d 482 (1969); People v. Hutton, 21 Mich. App. 312, 175 N. W. 2d 860 (1970); Thompson v. State, 85 Nev. 134, 451 P. 2d 704 (1969); State v. Wright, 274 N. C. 84, 161 S. E. 2d 581 (1968); State v. Isaacs, 24 Ohio App. 2d 115, 265 N. E. 2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738 (1970); In re Holley, 107 R. I. 615, 268 A. 2d 723 (1970); Martinez
        v. State, 437 S. W. 2d 842 (Tex. Ct. Crim. App. 1969); State v. Hicks, 76 Wash. 2d 80, 455 P. 2d 943 (1969); Hayes v. State, 46 Wis. 2d 93, 175 N. W. 2d 625 (1970).
      In addition, every United States Court of Appeals that has confronted the question has applied Wade and Gilbert to pre-indictment confrontations. See United States v. Greene, 139 U. S. App. D. C. 9, 429 F. 2d 193 (1970); Cooper v. Picard, 428 F. 2d 1351 (CA1 1970); United States v. Ayers, 426 F. 2d 524 (CA2 1970); Government of Virgin Islands v. Callwood, 440 F. 2d 1206 (CA3 1971); Rivers v. United States, 400 F. 2d 935 (CA5 1968); United States v. Broadhead, 413 F. 2d 1351 (CA7 1969); United States v. Phillips, 427 F. 2d 1035 (CA9 1970); Wilson v. Gaffney, 454 F. 2d 142 (CA10 1972). As Chief Judge Lewis, speaking for the Court of Appeals for the Tenth Circuit, put it in the last-cited case:
      “In both Wade and Gilbert the lineups were conducted after indictments had been returned; in the case at bar, the lineup occurred before petitioner had been formally charged. But surely the assistance of counsel, now established as an absolute post-indictment right does not arise or attach because of the return of an indictment. The confrontation of a lineup . . . cannot have a constitutional distinction based upon the lodging of a formal charge. Every reason set forth by the Supreme Court in Wade ... for the assistance of counsel post-indictment has equal or more impact when projected against a pre-indictment atmosphere. We hold that petitioner had a right to counsel at the lineup here considered.” Id., at 144.


source: Caselaw Access Project

license: Public Domain

text:
    BRUNETTE MACHINE WORKS, LTD. v. KOCKUM INDUSTRIES, INC.
    No. 70-314.
    Argued March 23, 1972
    Decided June 7, 1972
    Marshall, J., delivered the opinion for a unanimous Court.
    /. Pierre Kolisch argued the cause and filed briefs for petitioner.

      Harry M. Cross, Jr., argued the cause and filed a brief for respondent.

      Martin J. Adelman filed a brief for I.T.L. Industries Limited as amicus curiae urging reversal.

      Curtis F. Prangley, Ronald A. Sandler, and J. Terry Stratman filed a brief for Amerace Esna Corp. as amicus curiae urging affirmance.
   Mr. Justice Marshall delivered the opinion of the Court.

Section 1391 (d) of the United States Judicial Code provides that “[a]n alien may be sued in any district.” Section 1400 (b) provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” We are asked to decide which provision of Title 28 governs the venue of an action for patent infringement against an alien defendant.

Respondent Kockum Industries, Inc., an Alabama corporation doing business in Oregon, holds a United States patent on a machine that removes bark from logs. Kockum claims that petitioner Brunette Machine Works, Ltd., a Canadian corporation, has infringed that patent by assisting two American manufacturers to make and sell similar machines. Kockum obtained service of process on Brunette in Oregon, under that State’s long-arm statute, Ore. Rev. Stat. § 14.035, and filed this action for patent infringement in the United States District Court for the District of Oregon. The District Court dismissed the complaint on the ground of improper venue, accepting Brunette’s contention that § 1400 (b) is the exclusive provision governing venue in patent infringement litigation, and that its requirements were not satisfied here. The Court of Appeals reversed, holding that § 1391 (d) applies to patent infringement suits as to all others, and hence that Brunette is subject to suit as an alien in any district. 442 F. 2d 420 (1971). We granted certiorari to resolve a conflict in the circuits on this question. 404 U. S. 982 (1971). We affirm.

I

Section 1391 (d), providing that an alien may be sued in any district, appeared for the first time in the Judicial Code of 1948, but its roots go back to the beginning of the Republic. The first restrictions on venue in the federal courts were set forth in the Judiciary Act of 1789:

“[N]o civil suit shall be brought before either [district or circuit] courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ . . . 1 Stat. 79.

Because this limitation on the place where federal cases might be tried applied in terms only to suits against “an inhabitant of the United States,” suits against aliens were left unrestricted, and could be tried in any district, subject only to the requirements of service of process.

The original venue provisions remained essentially unchanged until 1875, when Congress substantially revised the Judiciary Act and greatly expanded the scope of federal jurisdiction. 18 Stat. 470. In describing the class of cases subject to venue restrictions, the 1875 statute dropped the phrase “suit . . . against an inhabitant of the United States” and substituted “suit . . . against any person.” This Court held, however, that the change was stylistic and not substantive, and that Congress did not thereby bring suits against aliens within the scope of the venue laws. In re Hohorst, 150 U. S. 653 (1893).

The Court offered two reasons in Hohorst for concluding that suits against aliens remained outside the scope of the venue laws. First, no contemporary significance appears to have attached to the relevant change in language in 1875. Second, and perhaps more important, to hold the venue statutes applicable to suits against aliens would be in effect to oust the federal courts of jurisdiction in most cases, because the general venue provisions were framed with reference to the defendant’s place of residence or citizenship, and an alien defendant is by definition a citizen of no district. The Hohorst Court reasoned that it should not lightly be assumed that Congress intended that result, in light of the fact that the venue provisions are designed, not to keep suits out of the federal courts, but merely to allocate suits to the most appropriate or convenient federal forum.

The reasoning of Hohorst with respect to suits against aliens- continues to- have force today. It remains true today that to hold the venue statutes applicable here would in effect oust the federal courts of a jurisdiction clearly conferred on them by Congress. Moreover, in the 79 years since Hohorst was decided, Congress has never given the slightest indication that it is dissatisfied with the longstanding judicial view that the 1789 language continues to color the venue statutes, with the result that suits against aliens are outside the scope of all the venue laws.

II

Petitioner argues that by enacting 28 U. S. C. § 1400 (b), Congress indicated a legislative intent to reject that rule in patent cases, and regulate the venue of suits against aliens in that limited class of cases. There is support for petitioner’s argument in the broad language of prior decisions of this Court. Twice before, the Court has refused to apply venue provisions of general applicability to patent infringement cases. In Stonite Prods. Co. v. Lloyd Co., 315 U. S. 561 (1942), the Court declared that what is now § 1400 (b) is “the exclusive provision controlling venue in patent infringement proceedings.” Id., at 563. Stonite held that venue in patent cases is not affected by what is now § 1392 (a), which relaxes certain restrictive venue rules in cases involving multiple defendants. Similarly, in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222 (1957), the Court asserted that “28 U. S. C. § 1400 (b) is the sole and exclusive provision controlling venue in patent infringement actions,” emphasizing its character as “a special venue statute applicable, specifically, to all defendants in a particular type of actions,” id., at 228, 229 (emphasis in original). Fourco held that venue in patent cases is not affected by § 1391 (c), which expands for general venue purposes the definition of the residence of a corporation.

The analysis in each case rested heavily on the legislative history of § 1400 (b). Prior to 1893, patent infringement cases had been widely, though not universally, regarded as subject to the general federal venue statutes. Chaffee v. Hayward, 20 How. 208, 215-216 (1858). This Court cast doubt on that proposition, however, i-n the Hohorst case, supra. We have already noted that Hohorst held the general venue limitations inapplicable to a suit against an alien defendant. In further support of the decision, however, the Court noted that the suit was based on a claim for patent infringement; the venue restrictions, said the Court, were intended to apply only to that part of the federal jurisdiction that was concurrent with state court jurisdiction, and not to patent suits, which are entrusted exclusively to the federal courts.

The apparent effect of the decision was to hold that patent infringement suits could be tried in any district, even when the defendant was not an alien. After Ho-horst, there was great confusion on this point in the lower courts. Congress responded promptly, creating a special new venue statute for the occasion: patent infringement claims were to be heard only in the district where the defendant was an inhabitant, or the district where he committed acts of infringement and also maintained a regular and established place of business. 29 Stat. 695 (1897), now codified as 28 U. S. C. § 1400 (b). The new provision was of course more restrictive than the law as it was left by Hohorst, but it was rather less restrictive than the general venue provision then applicable to claims arising under federal law. Over the objections of some legislators, who could see no reason for treating patent suits differently from any other federal-question litigation, Congress took the opportunity to establish for patent infringement suits a special and separate venue statute. Thus it is fair to say, as the Court did in Stonite and Fourco, that in 1897 Congress placed patent infringement cases in a class by themselves, outside the scope of general venue legislation.

But that analysis sheds no light on the present case. For it totally misconceives the origin and purpose of § 1391 (d) to characterize that statute as an appendage to the general venue statutes, analogous to the provisions at issue in Stonite and Fourco. Section 1391 (d) is not derived from the general venue statutes that § 1400 (b) was intended to replace. Section 1391 (d) reflects, rather, the longstanding rule that suits against alien defendants are outside those statutes. Since the general venue statutes did not reach suits against alien defendants, there is no reason to suppose the new substitute in patent cases was intended to do so. Indeed, the only glimmer of evidence of legislative intent points in the other direction. We have no reliable indication of what Congress thought about the matter in 1875, when it dropped the language that expressly excluded suits against alien defendants from the general venue statutes, or in 1897, when it enacted the special patent venue statute. But in 1948, Congress was apparently quite content to leave suits against alien defendants exempt from the venue statutes, in patent cases as in all others. In that year, Congress codified as § 1391 (d) the rule exempting suits against aliens from the federal venue statutes. The Reviser’s Notes, which provide the principal guide to interpretation of the 1948 Judicial Code, explain the intent to codify a rule that commands the “weight of authority,” citing a pair of district court cases. These cases hold that the general venue laws do not control in a suit against an alien defendant, nor does the special patent venue law. Sandusky Foundry & Machine Co. v. De-Lavaud, 251 F. 631 (ND Ohio 1918); Keating v. Pennsylvania Co., 245 F. 155 (ND Ohio 1917).

Ill

We conclude that in § 1391 (d) Congress was stating a principle of broad and overriding application, and not merely making an adjustment in the general venue statute, as this Court found Congress had done in Stonite and Fourco. The principle of § 1391 (d) cannot be confined in its application to cases that would otherwise fall under the general venue statutes. For § 1391 (d) is properly regarded, not as a venue restriction at all, but rather as a declaration of the long-established rule that suits against aliens are wholly outside the operation of all the federal venue laws, general and special.

That rule, which has prevailed throughout the history of the federal courts, controls this case. Since respondent Brunette is an alien corporation, it cannot rely on § 1400 (b) as a shield against suit in the District of Oregon. The judgment of the Court of Appeals is

Affirmed.

       Respondent’s suit against one of those manufacturers, an Oregon corporation, is now pending on appeal to the Court of Appeals for the Ninth Circuit. Kockum Industries, Inc. v. Salem Equipment, Inc., No. 25870.

       Petitioner does not “reside” in Oregon, because the residence of a corporation for purposes of § 1400 (b) is its place of incorporation. Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222 (1957), discussed infra, at 711 and n. 10. And while the alleged infringement occurred in Oregon, petitioner apparently has no regular place of business there.

       Compare the decision of the Court of Appeals for the Ninth Circuit below with Coulter Electronics, Inc. v. A. B. Lars Ljungberg & Co., 376 F. 2d 743 (CA7), cert. denied, 389 U. S. 859 (1967). Several district courts in other circuits have adopted the view taken by the Court of Appeals for the Ninth Circuit in this case, see Chas. Pfizer & Co. v. Laboratori Pro-Ter Prodotti Therapeutici, 278 F. Supp. 148 (SDNY 1967); Olin Mathieson Chemical Corp. v. Molins Organizations, Ltd., 261 F. Supp. 436 (ED Va. 1966).

       The provision for venue wherever the defendant “shall be found” is deceptively broad. The grant of federal jurisdiction at that time consisted almost exclusively of suits between parties of diverse citizenship. Unlike the present statute, however, which provides for jurisdiction over suits “between . . . citizens of different States,” 28 U. S. C. § 1332 (a) (1), the 1789 statute provided for jurisdiction over suits “between a citizen of the State where the suit is brought, and a citizen of another State.” 1 Stat. 78. Thus the litigants were effectively confined to the district of residence of one of them, by the jurisdictional grant though not by the venue statutes. This restriction was eliminated in 1875, when a number of important changes were made in the Judiciary Act, see n. 5, infra, and the relevant clause of the grant of diversity jurisdiction was rephrased in its present form, 18 Stat. 470.

       The jurisdiction of the federal courts was extended to include suits “arising under the Constitution or laws of the United States,” i. e., the federal-question jurisdiction now found in 28 U. S. C. § 1331 (a). And the diversity jurisdiction was rephrased, see n. 4, supra.

        In re Hohorst, 150 U. S. 653, 661 (1893), citing In re Louisville Underwriters, 134 U. S. 488, 492 (1890), and Shaw v. Quincy Mining Co., 145 U. S. 444, 448 (1892), for the proposition that the substitution “has been assumed to be an immaterial change.”

       In 1875, the restrictions on venue in the federal courts were those imposed by the 1789 statute quoted in text: suit could be brought where the defendant was an inhabitant, or where he could be found. In 1887, however, Congress eliminated the provision authorizing suit wherever the defendant could be found: federal-question cases could be brought only where the defendant was an “inhabitant,” and diversity cases only where either the plaintiff or the defendant resides. 24 Stat. 552. A suit against an alien was not regarded as a true diversity suit, and hence it was necessary to satisfy the requirements of federal-question venue, i. e., residence of the defendant. Hohorst, supra, at 660.
      Today the general venue provisions for federal-question and diversity cases appear in 28 U. S. C. §§ 1391 (a) and (b); they follow the 1887 statute, except that Congress has added a provision for venue where “the claim arose,” see n. 8, infra.

       There have been, and perhaps there still are, occasional gaps in the venue laws, i. e., cases in which the federal courts have jurisdiction but there is no district in which venue' is proper. One such gap arose in connection with cases involving multiple plaintiffs and defendants. Venue was fixed at the residence of the defendant, or in diversity cases at the residence of the plaintiff as well. When there were multiple plaintiffs or defendants, the district of residence for venue purposes was the district where all plaintiffs or all defendants reside. Smith v. Lyon, 133 U. S. 315 (1890). If they resided in different districts then there was no proper venue. In 1966 Congress acted to close the gap with a provision authorizing suit where “the claim arose,” 80 Stat. 1111, which in most cases provides a proper venue even in multiple-party situations. The development supports the view that Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap.

       Section 1392 (a), originally 11 Stat. 272 (1858), affords some relief in a very small class of cases that fall in the gap described in n. 8, supra. When multiple defendants reside in different districts within the same State, the suit may be brought in any one of them.

       Section 1391 (c), enacted 62 Stat. 935 (1948), provides:
      “A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”

       See supra, at 709-710.

       See Stonite Prods. Co. v. Lloyd Co., 315 U. S. 561, 564-565 (1942); conflicting decisions collected at 29 Cong. Rec. 1901 (1897).

       Venue in a federal-question case was at that time proper only where the defendant was an inhabitant, 24 Stat. 552 (1887), as corrected, 25 Stat. 434 (1888). Thus, the new statute gave patent claimants an advantage by authorizing as an additional venue alternative any district where the defendant maintained a regular place of business, and committed acts of infringement. Ironically, changes in the general venue law have left the patent venue statute far behind. Since 1948, the general venue law has authorized suit against a corporate defendant not only where he maintains a “regular and established place of business,” as in § 1400 (b), but also where he is “doing business.” 62 Stat. 935, now §1391 (c). And since 1966, the general venue law has authorized suit where “the claim arose,” see n. 8, supra.

         See 29 Cong. Rec. 1901 (remarks of Cong. Payne).