author: Justice Stewart Justice Brennan,

text:
    WATKINS v. SOWDERS, WARDEN
    No. 79-5949.
    Argued November 10, 1980
    Decided January 13, 1981

    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, Rehnquist, and SteveNS, JJ., joined. BreNNAN, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 349.

      Frank W. Heft, Jr., argued the cause for petitioners in both cases. With him on the briefs was Daniel T. Goyette.

      Victor Fox, Assistant Attorney General of Kentucky, argued the cause for respondent in both cases. With him on the brief were Steven L. Beshear, Attorney General, and Joseph R. Johnson and Penny R. Warren, Assistant Attorneys General.

      Together with No. 79-5951, Summitt v. Sowders, Warden, also on certiorari to the same court.

   Justice Stewart

delivered the opinion of the Court.

These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness’ identification of him was arrived at improperly.

I

A

John Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said “[t]his is a hold-up.” Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.

That night Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted a lineup consisting of three men, one of whom was Watkins. Smith identified Watkins as the gunman. That same day, the police took Watkins to Goeing’s hospital bed, and Goeing identified Watkins as the man who had shot him. Watkins was then charged with first-degree robbery and first-degree assault.

At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing’s assailant but were not asked by the prosecution about the lineup or the showup. Watkins’ counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because “at that time there was some question as to whether or not Mr. Goeing was going to survive the incident.” Watkins’ counsel cross-examined the officer about both the showup and the lineup and through him introduced pictures of the lineup. For the defense, Watkins’ counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.

On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S. W. 2d 482, 483 (1977), the court said “ ‘[ajlthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant’s conviction.’ ” Watkins v. Commonwealth, 565 S. W. 2d 630, 631 (1978). The court found that the identification procedures “fail[edj to raise any impermissible suggestiveness” and that Watkins “was in no way prejudiced.” Ibid.

Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, “although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction.” The court also found that admission of neither the lineup nor the showup evidence at the state trial had violated constitutional standards.

The Court of Appeals for the Sixth Circuit affirmed the District Court’s judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U. S. 293, as authority for holding that “[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case.” Summitt v. Bordenkircher, 608 F. 2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.

B

James Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that “after a short time she pointed to the defendant’s picture and said: ‘This is the man that raped me. There’s no doubt about it, this is Jimbo, the man that raped me.’ ” In addition to the officer, the prosecutrix and her stepfather as witnesses for the prosecution described the pros-ecutrix’s examination of the police photographs, and the pros-ecutrix testified that Summitt was the man who had raped her. There was extensive cross-examination.

The Supreme Court of Kentucky found “no error in the trial court’s refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure.” Summitt v. Commonwealth, 550 S. W. 2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F. 2d 247.

We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U. S. 926.

II

The issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure. The issue here, rather, is whether such a hearing is required by the Due Process Clause of the Fourteenth Amendment.

In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a postindictment lineup, e. g., United States v. Wade, 388 U. S. 218, and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e. g., Stovall v. Denno, 388 U. S. 293. The petitioners then analogize their cases to Jackson v. Denno, 378 U. S. 368, in which this Court enunciated a defendant's right “to have a fair hearing and a reliable determination on the issue of voluntariness,” id., at 377, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unre-viewable discretion to decide whether a confession was or was not voluntary.

The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.

Even if it be assumed that Jackson v. Denno did establish the per se rule asserted, the petitioners’ argument must fail, because Jackson v. Denno is not analogous to the cases now before us. The Court in Jackson did reject the usual presumption that a jury can be relied upon to determine issues according to the trial judge’s instructions, but the Court did so because of the peculiar problems the issue of the volun-tariness of a confession presents. The Court pointed out that, while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the “ 'strongly felt attitude of our society that important human' values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.’ ” Id., at 385, quoting Blackburn v. Alabama, 361 U. S. 199, 206-207. The Court concluded in Jackson that a jury “may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession .... Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the [jury’s] implicit findings become suspect.” Id., at 382.

Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U. S. 98, 113-114; United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Court’s opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal’s statement that,

“ ‘[w]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’' — of the adversary process.
“ ‘Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.’ ” 432 U. S., at 114, n. 14, quoting Clemons v. United States, 133 U. S. App. D. C. 27, 48, 408 F. 2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).

The petitioners argue, however, that cross-examination is inadequate in cases such as these. They assert that the presence of the jury deterred their lawyers from cross-examining the witnesses vigorously and fully as to the possible improprieties of the pretrial identifications in these cases. The petitioners point to no specific instances in the trial when their counsel were thus deterred, and the record reveals that the cross-examination on the identity issues was, if not always effective, both active and extended. Nonetheless, the petitioners rely on a passage from United States v. Wade, supra, which referred to

“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 in an attempt to discover and reveal unfairness, while bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification.” 388 U. S., at 240-241.

The petitioners, however, attribute undue significance to this passage. The “predicament” described in Wade was no more than part of the Court’s demonstration that, if identification stemming from an improperly conducted lineup was to be excluded, a courtroom identification based on such a lineup logically had to be excluded as well.

A “predicament,” if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth. We decline in these cases to hold that the Due Process Clause of the Fourteenth Amendment inevitably requires the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.

A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.

Accordingly, the judgments are

Affirmed.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

The Court holds that the Due Process Clause of the Fourteenth Amendment did not require that the trial judge in each of the instant cases hold a “fair hearing,” Jackson v. Denno, 378 U. S. 368, 377 (1964), to decide the admissibility of eyewitness identification evidence, and that a remand is not now required to accord such a hearing. While freely conceding that a “judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary,” ante, at 349, the Court holds that the Constitution does not require “a per se rule compelling such a procedure in every case,” ibid. I dissent. In my view, the Due Process Clause mandates such a hearing whenever a defendant, as both petitioners did at their respective trials below, has proffered some evidence that pretrial police procedures directed at identificatiop were impermissibly suggestive. The flaw in the Court’s reasoning lies in its statement that identification evidence does not implicate the “special considerations” on which Jackson v. Denno relied to “justify a departure from the presumption that juries will follow instructions.” Ante, at 347. Surely jury instructions can ordinarily no more cure the erroneous admission of powerful identification evidence than they can cure the erroneous admission of a confession. Accordingly, the separate judicial determination of admissibility required by Jackson for confessions is equally applicable for eyewitness identification evidence. Because the record before us is inadequate to conclude that in each case the identification evidence was properly admitted, see Jackson v. Denno, supra, at 376-377, I would remand these cases for further proceedings.

At least since United States v. Wade, 388 U. S. 218 (1967), the Court has recognized the inherently suspect qualities of eyewitness identification evidence. Two particular attributes of such evidence have significance for' the instant cases. First, eyewitness identification evidence is notoriously unreliable:

“The vagaries of eyewitness identification are well-known ; the annals of criminal law are rife with instances of mistaken identification. 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).” Id., at 228 (footnote omitted).

Manson v. Brathwaite, 432 U. S. 98, 111-112 (1977), emphasized this troublesome characteristic of such evidence:

“The driving force behind United States v. Wade, 388 U. S. 218 (1967), Gilbert v. California, 388 U. 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.”

Accordingly, to guard against the “dangers inherent in eyewitness identification,” United States v. Wade, supra, at 235, the Court has required the presence of counsel at postindietment lineups, 388 U. S., at 236-237, and has held inadmissible identification evidence tainted by suggestive confrontation procedures and lacking adequate indicia of reliability, Manson v. Brathwaite, supra, at 114. “Thus, Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability.” 432 U. S., at 112. An important thrust of our eyewitness identification evidence cases from Wade to Manson, therefore, has been to prevent impairment of the jury’s decisionmaking process by the introduction of unreliable identification evidence.

Second, despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the defendant commit the crime.

“[E]yewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all. All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’ ”

The powerful impact that much eyewitness identification evidence has on juries, regardless of its reliability, virtually mandates that, when such evidence is inadmissible, the jury should know nothing about the evidence. See Manson v. Brathwaite, supra, at 112. For certainly the resulting prejudice to the defendant cannot be erased by jury instructions. See generally E. Loftus, Eyewitness Testimony 189-190 (1979); P. Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases 149-150 (1976). The Court’s contrary conclusion cavalierly dismisses the inherent unreliability of identification evidence and its effect on juries — two attributes of confession evidence that led the Court to mandate a “fair hearing” safeguard in Jackson v. Denno.

Any purported distinction between the instant cases and Jackson is plainly specious. In Jackson, this Court invalidated a New York State procedure whereby the jury was instructed first to determine the voluntariness of a defendant’s confession and then to disregard the confession if it concluded that the confession was involuntary. Jackson struck down this practice and required first that the voluntariness of a confession be determined by the judge before its admission in evidence, and second that the jury not be allowed to consider an inadmissible confession. Jackson refused to rely on the curative effect of jury instructions where the trial judge had not applied “ ‘the exclusionary rules before permitting evidence to be submitted to the jury.’ ” 378 U. S., at 382, n. 10, quoting Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 327 (1954).

For purposes of the instant cases, three factors central to our decision in Jackson are apposite. First, Jackson stated, as the Court today notes, ante, at 347, “that the Fourteenth Amendment forbids the use of involuntary confessions . . . because of the probable unreliability of confessions that are obtained in a manner deemed coercive.” 378 U. S., at 385-386. Second, Jackson stated, as the Court today further notes, ante, at 347, that involuntary confessions are inadmissible “because of the ‘strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.’ ” 378 U. S., at 386. Third, because of the sensitive nature of confession evidence, Jackson found that instructions were not adequate to assure that the jury would ignore involuntary confession evidence:

“Under the New York procedure, the fact of a defendant’s confession is solidly implanted in the jury’s mind, for it has not only heard the confession, but it has also been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false.[] If it finds the confession involuntary, does the jury — indeed, can it — then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession.” Id., at 388 (footnote omitted).

Similar considerations plainly require a hearing in the case of identification evidence. First, there can be little doubt that identification evidence is as potentially unreliable as confession evidence. See supra, at 350-352. Second, suggestive confrontation procedures which, in the totality of the circumstances, create “ ‘a very substantial likelihood of irreparable misidentification,’ ” Manson v. Brathwaite, 432 U. S., at 116, quoting Simmons v. United States, 390 U. S. 377, 384 (1968), are as impermissible a police practice as the securing of a custodial confession determined, in the totality of the circumstances, to be involuntary, see United States v. Washington, 431 U. S. 181, 188 (1977); cf. North Carolina v. Butler, 441 U. S. 369, 374-375 (1979) (waiver). See also Manson v. Brathwaite, supra, at 112; Foster v. California, 394 U. S. 440, 442-443 (1969); United States v. Wade, 388 U. S., at 228-229, 232-235; Stovall v. Denno, 388 U. S. 293, 302 (1967). And third, because of the extraordinary impact of much eyewitness identification evidence, juries hearing such evidence will be no more able fully to ignore it upon instruction of the trial judge than will juries hearing confession evidence. To expect a jury to engage in the collective mental gymnastic of segregating and ignoring such testimony upon instruction is utterly unrealistic. The Court’s bald assertion, therefore, that jury instructions are adequate to protect the accused, is as untrue for identification evidence as it is for involuntary confessions.

Nor can it be assumed, as the Court has, that cross-examination will protect the accused in this circumstance. That is no more true here than it was in Jackson, where the defendant was also allowed to cross-examine on the question of voluntariness. Cross-examination, of course, affects the weight and credibility given by the jury to evidence, but cross-examination is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors’ minds. It is an ineffective tool because all of the scientific evidence suggests that much eyewitness identification testimony has an unduly powerful effect on jurors. Thus, the jury is likely to give the erroneously admitted evidence substantial weight, however skillful the cross-examination. See generally E. Loftus, Eyewitness Testimony 9 (1979). Cross-examination is also a wrong tool in the sense that jury instructions are the means normally employed to cure the erroneous introduction of evidence. At best, cross-examination might diminish the weight the jury accords to the admissible evidence. The likelihood is, however, that the jury would continue to give the improperly admitted evidence substantial weight, even if properly instructed to disregard it.

It is clear beyond peradventure, I submit, that because of the dangers to a just result inherent in identification evidence — its unreliability and its unusual impact on the jury— a “fair hearing and a reliable determination” of admissibility, Jackson v. Denno, 378 U. S., at 377, are constitutionally mandated. The Due Process Clause obviously precludes the jury from convicting on unreliable identification evidence. Manson v. Brathwaite, supra. But the only way to be sure that the jury will not rest its verdict on improper identification evidence, as a practical matter, is by not permitting the jury to hear it in the first place. A Jackson v. Denno hearing would expediently accomplish that purpose. I believe that the Due Process Clause requires no less.

A large and distinguished group shares my view. The lower federal courts with virtual unanimity have encouraged the type of hearing sought by petitioners. As already noted, the Court too states that “[a] judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable [and i]n some circumstances . . . constitutionally necessary.” Ante, at 349. I should think it follows from this congruence of opinion on the desirability of such a judicial hearing that evolving standards of justice mandate such a hearing whenever a defendant proffers sufficient evidence to raise a colorable claim that police confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F. 2d 18, 22 (CA3 1976).

In the instant cases, the suggestiveness of the confrontation procedures was clearly shown, and equally clearly cross-examination in front of the jury was inadequate to test the reliability of the evidence because of the undoubted inhibiting effect on cross-examination from fear that rigorous questioning of hostile witnesses would strengthen the eyewitnesses’ testimony and impress it upon the jury. See United States v. Wade, 388 U. S., at 240-241. In any event, the record is inadequate to decide that petitioners could not have succeeded in foreclosing admission of the evidence if they had been afforded a hearing out of the jury’s presence in the first place. Accordingly, I would remand for such further proceedings as are necessary to give these petitioners “a fair hearing and a reliable determination,” Jackson v. Denno, 378 U. S., at 377, that the identification evidence in each trial was not erroneously admitted.

       The opinion of the District Court is unreported.

         E. g., United States v. Mitchell, 540 F. 2d 1163 (CA3 1976); United States v. Cranson, 453 F. 2d 123 (CA4 1971); Haskins v. United States, 433 F. 2d 836 (CA10 1970); United States v. Ranciglio, 429 F. 2d 228 (CA8 1970); United States v. Allison, 414 F. 2d 407 (CA9 1969); United States v. Broadhead, 413 F. 2d 1351 (CA7 1969); Clemons v. United States, 133 U. S. App. D. C. 27, 408 F. 2d 1230 (1968) (en banc). The Court of Appeals for the Fifth Circuit has left the matter to the discretion of the district courts. United States v. Smith, 546 F. 2d 1275 (1977). At least two Federal Courts of Appeals have commended hearings outside the presence of the jury to state courts, Nassar v. Vinzant, 519 F. 2d 798 (CA1 1975); United States ex rel. Phipps v. Follette, 428 F. 2d 912 (CA2 1970), and at least one has held that due process may in some circumstances require a hearing outside the presence of a jury to decide the admissibility of identification evidence. United States ex rel. Fisher v. Driber, 546 F. 2d 18 (CA3 1976).

       See Pinto v. Pierce, 389 U. S. 31, 32:
      “This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances. . . . [Bjecause a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury. ... In this case, however, the confession was held voluntary and admitted as evidence suitable for consideration by the jury.”

       As Professor Wigmore put it, “[cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974).

       The special nature of eyewitness identification evidence has produced an enormous reservoir of scholarly writings, many based on solid empirical research. For a bibliography of that literature, see E. Loftus, Eyewitness Testimony 237-247 (1979).

       “ [Suggestibility inherent in the context of the pretrial identification” is a factor that has led the Court to require the presence of counsel at postindictment lineups. United States v. Wade, 388 U. S., at 235. If counsel is not present at such a lineup, the identification may not be introduced into evidence at trial and an in-court identification may be made only if the prosecutor establishes “by clear and convincing evidence that the in-court identification [was] based upon observatio[n] ... of the suspect other than the lineup identification.” Id., at 240.

       “[JJuries unfortunately are often unduly receptive to [identification] evidence . . . Manson v. Brathwaite, 432 U. S. 98, 120 (1977) (Marshall, J., dissenting) (footnote omitted). See Loftus, supra, at 8-19; P. Wall, Eyewitness Identification in Criminal Cases 19-23 (1965) ; Hammelmann & Williams, Identification Parades — II, 1963 Crim. L. Rev. 545, 550. See generally A. Yarmey, The Psychology of Eyewitness Testimony (1979).

       Loftus, supra, at 19 (emphasis supplied). Professor Loftus exhaustively canvasses statistical and psychological evidence which persuasively supports her conclusion that eyewitness identification evidence is “overwhelmingly influential.” Id., at 9.

       Professor Loftus, ibid, (emphasis in original), observes that “[j]urors have been known to accept eyewitness testimony pointing to guilt even when it is far outweighed by evidence of innocence.”
      Wall, supra, at 19 (footnotes omitted) (emphasis supplied), concludes: “[Tjuries are unduly receptive to identification evidence and are not sufficiently aware of its dangers. It has been said that ‘positive recognition by well intended uninterested persons is commonly accepted unless the alibi is convincing/ and that evidence of identification, however untrustworthy, is ‘taken by the average juryman as absolute proof.’ ”

       Distinguishing Jackson from the instant cases on the basis that the jury there was first instructed to determine voluntariness is not persuasive. That consideration goes to the weight given the evidence by the jury. Jackson itself recognized that the lingering effect of the involuntary confession might be decisive in the jury’s deliberations. Such an effect is no less likely to be decisive in the case of powerful eyewitness identification evidence that a jury has been instructed to ignore. In both instances, peculiarly powerful evidence must leave an indelible impact on a juror’s mind. See n. 7, infra.

       The Court in Jackson noted:
      “ ‘Due Process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed.’ ” 378 U. S., at 382-383, n. 10, quoting E. Morgan, Some Problems of Proof Under the Anglo-American System of Litigation 104-105 (1956).

       Of course, police misbehavior is not always so lacking in subtlety that involuntary confessions are invariably wrenched from an accused by force. Thus, indirect methods of interrogation which seek to elicit a statement from a custodial suspect may also warrant a conclusion of involuntariness. See Rhode Island v. Innis, 446 U. S. 291, 301 (1980) (interrogation includes actions which “the police should know are reasonably likely to elicit an incriminating response”); cf. Brewer v. Williams, 430 U. S. 387 (1977) (Sixth Amendment violation).

       See n. 6, supra.

       In both of these cases, the • eyewitnesses were also the victims of the crimes. Not only does that dual status affect the reliability of the identification, but it also is likely to make the testimony more powerful and thus less curable by jury instructions. Clearly, this is not a case where 14 reliable identifications were properly received in evidence, but a 15th by a nonvictim witness was subject to suggestive confrontation procedures and was unreliable, thereby raising the possibility that the error was harmless beyond a reasonable doubt.

       In Manson v. Brathwaite, 432 IT. S., at 116, the Court stated:
      “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.”

       In Jackson v. Denno, the Court was concerned that the jury not hear a defendant’s confession until a trial judge had made a preliminary determination of voluntariness. The Court assumed that were this not done, a deleterious impact on the jury’s deliberations would operate:
      “[I]t is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence.” 378 U. S., at 387.

       The Court errs in any event in deciding these eases on the premise that petitioners request a per se rule requiring a hearing out of the jury’s presence in every case. In the first place, petitioners rely substantially on authority which does not go that far. Brief for Petitioners 43-45. Clearly, they have sought reversal of their convictions on the basis that they were entitled to such a hearing. Moreover, there is no question here that they raised a colorable claim that the confrontation procedures were impermissibly suggestive. See, e. g., United States ex rel. Fisher v. Driber, 546 F. 2d 18, 22 (CA3 1976); United States v. Cranson, 453 F. 2d 123, 127 (CA4 1971), cert. denied, 406 U. S. 909 (1972).
      If the Court’s result is out of concern for not adding another layer of complexity to criminal litigation, that is understandable, but not sufficient to supplant an accused’s constitutional right. Moreover, a rule requiring the defendant to proffer some minimum quantum of evidence showing the suggestiveness of the confrontation procedures would eliminate frivolous requests. See, e. g., United States ex rel. Fisher v. Driber, supra, at 22.

        United States ex rel. Fisher v. Driber, supra, at 22 (requiring hearing outside presence of jury where motion for such hearing is not frivolous); United States v. Smith, 546 F. 2d 1275, 1279 (CA5 1977) (evi-dentiary hearing not required where no critical facts in dispute); United States v. Mitchell, 540 F. 2d 1163, 1166 (CA3 1976) (defendant could have “requested a hearing outside the presence of the jury in accordance with Neil v. Biggers”), cert. denied, 429 U. S. 1099 (1977); Nassar v. Vinzant, 519 F. 2d 798, 802, n. 4 (CA1) (commending hearing out of jury’s presence), cert, denied, 423 U. S. 898 (1975); United States v. Cranson, supra, at 125-126 (“evidentiary hearing outside the jury’s presence is required” upon motion to suppress); Haskins v. United States, 433 F. 2d 836, 838 (CA10 1970) (requiring hearing outside of jury’s presence); United States v. Ranciglio, 429 F. 2d 228, 230 (CA8) (“trial court, out of the hearing and presence of the jury, conducted a hearing as required in Wade”), cert. denied, 400 U. S. 959 (1970); United States ex rel. Phipps v. Follette, 428 F. 2d 912, 913, n. 1 (CA2) (“commend[ing] . . . practice” of hearing out of jury’s presence), cert. denied, 400 U. S. 908 (1970); United States v. Allison, 414 F. 2d 407, 410 (CA9) (requiring hearing outside of jury’s presence), cert. denied, 396 U. S. 968 (1969); United States v. Broadhead, 413 F. 2d 1351, 1359 (CA7 1969) (pretrial hearing approved), cert. denied, 396 U. S. 1017 (1970); Clemons v. United States, 133 U. S. App. D. C. 27, 34, 408 F. 2d 1230, 1237 (1968) (en banc) (requiring hearing outside of jury’s presence or disclosure of prosecutor’s evidence), cert. denied, 394 U. S. 964 (1969). Even the Court of Appeals deciding these eases stated that it had “no doubt that” a hearing out of the jury’s presence “is the preferable procedure.” Summitt v. Bordenkircher, 608 F. 2d 247, 250 (CA6 1979).
      In addition, the Commonwealth of Kentucky, where petitioners were tried and convicted, appears to require a hearing out of the presence of the jury, upon defendant’s motion, for confession and for search evidence. See Ky. Rule Crim. Proc. 9.78. In addition, Moore v. Commonwealth, 569 S. W. 2d 150, 153 (Ky. 1978), decided after petitioners were convicted, held that the trial court’s refusal to hold a suppression hearing to determine the admissibility of identification evidence constituted error. Previous Kentucky appellate decisions had reached a similar conclusion. E. g., Francis v. Commonwealth, 468 S. W. 2d 287 (App. 1971).

       See, e. g., Harper v. Virginia Board of Elections, 383 U. S. 663, 669 (1966) (equal protection); Trap v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion of Warren, C. J.) (Eighth Amendment).

       It is no answer to say, as the Court does, that the record does not reflect that petitioners’ respective counsel were deterred by the presence of the jury, for the simple reason that a cold record cannot reflect questions not asked.


source: Caselaw Access Project

author: Justice White

license: Public Domain

text:
    UNITED STATES v. MORRISON
    No. 79-395.
    Argued December 10, 1980
    Decided January 13, 1981

      White, J., delivered the opinion for a unanimous Court.

      Peter Buscemi argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Sidney M. Glazer, and Joel Gershowitz.

      Salvatore J. Cucinotta, by appointment of the Court, 449 U. S. 812, argued the cause and filed a brief for respondent.

         Sheldon Portman filed a brief for the National Legal Aid and Defender Association as amicus curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

Hazel Morrison, respondent here, was indicted on two counts of distributing heroin in violation of 21 U. S. C. § 841 (a)(1). She retained private counsel to represent her in the impending criminal proceedings. Thereafter, two agents of the Drug Enforcement Agency, aware that she had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation. They met and conversed with her without the knowledge or permission of her counsel. Furthermore, in the course of the conversation, the agents disparaged respondent’s counsel, stating that respondent should think about the type of representation she could expect for the $200 retainer she had paid him and suggesting that she could be better represented by the public defender. In addition, the agents indicated that respondent would gain various benefits if she cooperated but would face a stiff jail term if she did not. Respondent declined to cooperate and immediately notified her attorney. The agents visited respondent again in the absence of counsel, but at no time did respondent agree to cooperate with them, incriminate herself, or supply any information pertinent to her case. Contrary to the agents’ advice, respondent continued to rely upon the services of the attorney whom she had retained.

Respondent subsequently moved to dismiss the indictment with prejudice on the ground that the conduct of the agents had violated her Sixth Amendment right to counsel. The motion contained no allegation that the claimed violation had prejudiced the quality or effectiveness of respondent’s legal representation; nor did it assert that the behavior of the agents had induced her to plead guilty, had resulted in the prosecution having a stronger case against her, or had any other adverse impact on her legal position. The motion was based solely upon the egregious behavior of the agents, which was described as having “interfered” in some unspecified way ■with respondent’s right to counsel. This interference, unaccompanied by any allegation of adverse effect, was urged as a sufficient basis for the requested disposition.

The District Court denied the motion and respondent, pursuant to a prior agreement with the Government, entered a conditional plea of guilty to one count of the indictment. On appeal to the Court of Appeals for the Third Circuit, the judgment of the District Court was reversed. The appellate court concluded that respondent’s Sixth Amendment right to counsel had been violated and that whether or not any tangible effect upon respondent’s representation had been demonstrated or alleged, the appropriate remedy was dismissal of the indictment with prejudice. 602 F. 2d 529 (1979). We granted the United States’ petition for certiorari to consider whether this extraordinary relief was appropriate in the absence of some adverse consequence to the representation respondent received or to the fairness of the proceedings leading to her conviction. 448 U. S. 906. We reverse.

The United States initially urges that absent some showing of prejudice, there could be no Sixth Amendment violation to be remedied. Because we agree with the United States, however, that the dismissal of the indictment was error in any event, we shall assume, without deciding, that the Sixth Amendment was violated in the circumstances of this case.

The Sixth Amendment provides that an accused shall enjoy the right “to have the Assistance of Counsel for his defense.” This right, fundamental to our system of justice, is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U. S. 335, 344 (1963); Glasser v. United States, 315 U. S. 60, 69-70, 75-76 (1942); Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938). Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel's assistance to the defendant ineffective. Moore v. Illinois, 434 U. S. 220 (1977); Geders v. United States, 425 U. S. 80 (1976); Herring v. New York, 422 U. S. 853 (1975); Gilbert v. California, 388 U. S. 263 (1967) ; United States v. Wade, 388 U. S. 218 (1967); Massiah v. United States, 377 U. S. 201 (1964).

At the same time and without detracting from the fundamental importance of the right to counsel in criminal cases, we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. Our relevant cases reflect this approach. In Gideon v. Wainwright, supra, the defendant was totally denied the assistance of counsel at his criminal trial. In Geders v. United States, supra, Herring v. New York, supra, and Powell v. Alabama, 287 U. S. 45 (1932), judicial action before or during trial prevented counsel from being fully effective. In Black v. United States, 385 U. S. 26 (1966), and O’Brien v. United States, 386 U. S. 345 (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer. None of these deprivations, however, resulted in the dismissal of the indictment. Rather, the conviction in each case was reversed and the Government was free to proceed with a new trial. Similarly, when before trial but after the institution of adversary proceedings, the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. Gilbert v. California, supra; United States v. Wade, supra; Massiah v. United States, supra. In addition, certain violations of the right to counsel may be disregarded as harmless error. Compare Moore v. Illinois, supra, at 232, with Chapman v. California, 386 U. S. 18, 23, and n. 8 (1967).

Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial.

More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.

Here, respondent has demonstrated no prejudice of any kind, either transitory or permanent, to the ability of her counsel to provide adequate representation in these criminal proceedings. There is no effect of a constitutional dimension which needs to be purged to make certain that respondent has been effectively represented and not unfairly convicted. The Sixth Amendment violation, if any, accordingly provides no justification for interfering with the criminal proceedings against respondent Morrison, much less the drastic relief granted by the Court of Appeals.

In arriving at this conclusion, we do not condone the egregious behavior of the Government agents. Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings. We simply conclude that the solution provided by the Court of Appeals is inappropriate where the violation, which we assume has occurred, has had no adverse impact upon the criminal proceedings.

The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for proceedings consistent with this opinion.

So ordered.

       A second count was dismissed as required by the plea agreement. The plea was conditioned on respondent’s right to appeal the District Court’s denial of the motion to dismiss. The Third Circuit has approved this procedure. United States v. Moskow, 588 F. 2d 882 (1978); United States v. Zudick, 523 F. 2d 848 (1975). We express no view on the propriety of such conditional pleas.

       There is no claim here that there was continuing prejudice which, because it could not be remedied by a new trial or suppression of evidence, called for more drastic treatment. Cf. United States v. Marion, 404 U. S. 307, 325-326 (1971). Indeed, there being no claim of any discernible taint, even the traditional remedies were beside the point. The Court of Appeals seemed to reason that because there was no injury claimed and because other remedies would not be fruitful, dismissal of the indictment was appropriate. But as the dissent below indicated, it is odd to reserve the most drastic remedy for those situations where there has been no discernible injury or other impact.
      The Court of Appeals also thought dismissal was appropriate to deter deliberate infringements of the right to counsel. But this proves too much, for it would warrant dismissal, not just in this case, but in any case where there has been a knowing violation. Furthermore, we note that the record before us does not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter further lawlessness.

       This is clear from United States v. Blue, 384 U. S. 251, 255 (1966):
      “Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. . . . Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.” (Footnote omitted.)

       The position we have adopted finds substantial support in the Courts of Appeals. United States v. Jimenez, 626 F. 2d 39, 41-42 (CA7 1980); United States v. Artuso, 618 F. 2d 192, 196-197 (CA2 1980); United States v. Glover, 596 F. 2d 857, 861-864 (CA9 1979); United States v. Crow Dog, 532 F. 2d 1182, 1196-1197 (CA8 1976); United States v. Acosta, 526 F. 2d 670, 674 (CA5 1976); but see United States v. McCord, 166 U. S. App. D. C. 1, 15-18, 509 F. 2d 334, 348-351 (1974) (en banc) (dicta). The Supreme Judicial Court of Massachusetts has adopted a contrary view. See Commonwealth v. Manning, 373 Mass. 438, 367 N. E. 2d 635 (1977).


author: Justice Marshall Justice Rehnquist,

text:
    FIRESTONE TIRE & RUBBER CO. v. RISJORD
    No. 79-1420.
    Argued November 12, 1980
    Decided January 13, 1981

      Marshall, J., delivered the opinion of the Court, in which Brennan, Stewart, White, BlacKMUN, Powell, and Stevens, JJ., joined. Rehnquist, J., filed an opinion concurring in the result, in which Burger, C. J., joined, post, p. 380.

      Harvey M. Grossman argued the cause for petitioner. With him on the briefs was William Freivogel.

      John R. Gibson argued the cause for respondent. With him on the briefs were Martin J. Purcell and Morris J. Nunn

        Solicitor General McCree, Deputy Solicitor General Frey, and Edwin S. Kneedler filed a brief for the United States as amicus curiae.

   Justice Marshall

delivered the opinion of the Court.

This case presents the question whether a party may take an appeal, pursuant to 28 U. S. C. § 1291, from a district court order denying a motion to disqualify counsel for the opposing party in a civil case. The United States Court of Appeals for the Eighth Circuit held that such orders are not appealable, but made its decision prospective only and therefore reached the merits of the challenged order. We hold that orders denying motions to disqualify counsel are not appealable final decisions under § 1291, and we therefore vacate the judgment of the Court of Appeals and remand with instructions that the appeal be dismissed for lack of jurisdiction.

I

Respondent is lead counsel for the plaintiffs in four product-liability suits seeking damages from petitioner and other manufacturers of multipiece truck tire rims for injuries caused by alleged defects in their products. The complaints charge petitioner and the other defendants with various negligent, willful, or intentional failures to correct or to warn of the supposed defects in the rims. Plaintiffs seek both compensatory and exemplary damages. App. 6-72.

Petitioner was at all relevant times insured by Home Insurance Co. (Home) under a contract providing that Home would be responsible only for some types of liability beyond a minimum “deductible” amount. Home was also an occasional client of respondent's law firm. Based on these facts, petitioner in May 1979 filed a motion to disqualify respondent from further representation of the plaintiffs. Petitioner argued that respondent had a clear conflict of interest because his representation of Home would give him an incentive to structure plaintiffs’ claims for relief in such a way as to enable the insurer to avoid any liability. This in turn, petitioner argued, could increase its own potential liability. Home had in fact advised petitioner in the course of the litigation that its policy would cover neither an award of compensatory damages for willful or intentional acts nor any award of exemplary or punitive damages. The District Court entered a pretrial order requiring that respondent terminate his representation of the plaintiffs unless both the plaintiffs and Home consented to his continuing representation. Id., at 157, 160.

In accordance with the District Court’s order, respondent filed an affidavit in which he stated that he had infprmedboth the plaintiffs and Home of the potential conflict and that neither had any objection to his continuing representation of them both. He filed supporting affidavits executed by the plaintiffs and by a representative of Home. Because he had satisfied the requirements of the pretrial order, respondent was able to continue his representation of the plaintiffs. Petitioner objected to the District Court’s decision to permit respondent to continue his representation if he met the stated conditions, and therefore filed a notice of appeal pursuant to 28 U. S. C. § 1291.

Although it did not hear oral argument on the appeal, the Eighth Circuit decided the case en banc and affirmed the trial court’s order permitting petitioner to continue representing the plaintiffs. In re Multi-Piece Rim Products Liability, 612 E. 2d 377 (1980). Before considering the merits of the appeal, the court reconsidered and overruled its prior decisions holding that orders denying disqualification motions were immediately appealable under § 1291. The Court of Appeals reasoned that such orders did not fall within the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), which allows some appeals prior to final judgment. Because it was overruling prior cases, the court stated that it would reach the merits of the challenged order “[i]n fairness to the appellant in the instant case,” but held that in the future, appellate review of such orders would have to await final judgment on the merits of the main proceeding. 612 F. 2d, at 378-379. We granted certiorari, 446 U. S. 934 (1980), to resolve a conflict among the Circuits on the appealability question.

II

Under § 1291, the courts of appeals are vested with “jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” We have consistently interpreted this language as indicating that a party may not take an appeal under this section until there has been “a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coopers & Lybrand v. Livesay, 437 U. S. 463, 467 (1978), quoting Catlin v. United States, 324 U. S. 229, 233 (1945). This rule, that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of “avoid [ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Cobbledick v. United States, 309 U. S. 323, 325 (1940). See DiBella v. United States, 369 U. S. 121, 124 (1962). The rule also serves the important purpose of promoting efficient judicial administration. Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 170 (1974).

Our decisions have recognized, however, a narrow exception to the requirement that all appeals under § 1291 await final judgment on the merits. In Cohen v. Beneficial Industrial Loan Cory., supra, we held that a “small class” of orders that did not end the main litigation were nevertheless final and appealable pursuant to § 1291. Cohen was a shareholder’s derivative action in which the Federal District Court refused to apply a state statute requiring a plaintiff in such a suit to post security for costs. The defendant appealed the ruling without awaiting final judgment on the merits, and the Court of Appeals ordered the trial court to require that costs be posted. We held that the Court of Appeals properly assumed jurisdiction of the appeal pursuant to § 1291 because the District Court’s order constituted a final determination of a claim “separable from, and collateral to,” the merits of the main proceeding, because it was “too important to be denied review/’ and because it was “too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id., at 546. Cohen did not establish new law; rather, it continued a tradition of giving § 1291 a “practical rather than a technical construction.” Ibid. See, e. g., United States v. River Rouge Improvement Co., 269 U. S. 411, 413-414 (1926); Bronson v. LaCrosse & Milwaukee R. Co., 2 Black 524, 530-531 (1863); Forgay v. Conrad, 6 How. 201, 203 (1848); Whiting v. Bank of the United States, 13 Pet. 6, 15 (1839). We have recently defined this limited class of final “collateral orders” in these terms: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unre-viewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, supra, at 468 (footnote omitted). See Abney v. United States, 431 U. S. 651, 658 (1977).

Because the litigation from which the instant petition arises had not reached final judgment at the time the notice of appeal was filed, the order denying petitioner’s motion to disqualify respondent is appealable under § 1291 only if it falls within the Cohen doctrine. The Court of Appeals held that it does not, and 5 of the other 10 Circuits have also reached the conclusion that denials of disqualification motions are not immediately appealable “collateral orders.” We agree with these courts that under Cohen such an order is not subject to appeal prior to resolution of the merits.

An order denying a disqualification motion meets the first part of the “collateral order” test. It “conclusively determine [s] the disputed question,” because the only issue is whether challenged counsel will be permitted to continue his representation. In addition, we will assume, although we do not decide, that the disqualification question “resolve [s] an important issue completely separate from the merits of the action,” the second part of the test. Nevertheless, petitioner is unable to demonstrate that an order denying disqualification is “effectively unreviewable on appeal from a final judgment” within the meaning of our cases.

In attempting to show why the challenged order will be effectively unreviewable on final appeal, petitioner alleges that denying immediate review will cause it irreparable harm. It is true that the finality requirement should “be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered,” Mathews v. Eldridge, 424 U. S. 319, 331, n. 11 (1976). In support of its assertion that it will be irreparably harmed, petitioner hints at “the possibility that the course of the proceedings may be indelibly stamped or shaped with the fruits of a breach of confidence or by acts or omissions prompted by a divided loyalty,” Brief for Petitioner 15, and at “the effect of such a tainted proceeding in frustrating public policy,” id., at 16. But petitioner fails to supply a single concrete example of the indelible stamp or taint of which it warns. The only ground that petitioner urged in the District Court was that respondent might shape the p'roducts-liability plaintiffs’ claims for relief in such a way as to increase the burden on petitioner. Our cases, however, require much more before a ruling may be considered “effectively unreviewable” absent immediate appeal.

To be appealable as a final collateral order, the challenged order must constitute “a complete, formal and, in the trial court, final rejection,” Abney v. United States, supra, at 659, of a claimed right “where denial of immediate review would render impossible any review whatsoever,” United States v. Ryan, 402 U. S. 530, 533 (1971). Thus we have permitted appeals prior to criminal trials when a defendant has claimed that he is about to be subjected to forbidden double jeopardy, Abney v. United States, supra, or a violation of his constitutional right to bail, Stack v. Boyle, 342 U. S. 1 (1951), because those situations, like the posting of security for costs involved in Cohen, “each involved an asserted right the legal and practical value of which could be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U. S. 850, 860 (1978). By way of contrast, we have generally denied review of pretrial discovery orders, see, e. g., United States v. Ryan, supra; Cobbledick v. United States, supra. Our rationale has been that in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. See Cobbledick v. United States, supra, at 327. We have also rejected immediate ap-pealability under § 1291 of claims that “may fairly be assessed” only after trial, United States v. MacDonald, supra, at 860, and those involving “considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” Coopers & Lybrand v. Livesay, 437 U. S., at 469, quoting Mercantile National Bank v. Langdeau, 371 U. S. 555, 558 (1963).

An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits. In the case before us, petitioner has made no showing that its opportunity for meaningful review will perish unless immediate appeal is permitted. On the contrary, should the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial. That remedy seems plainly adequate should petitioner’s concerns of possible injury ultimately prove well founded. As the Second Circuit has recently observed, the potential harm that might be caused by requiring that a party await final judgment before it may appeal even when the denial of its disqualification motion was erroneous does not “diffe[r] in any significant way from the harm resulting from other interlocutory orders that may be erroneous, such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge.” Armstrong v. McAlpin, 625 F. 2d 433, 438 (1980), cert. pending, No. 80-431. But interlocutory orders are not appealable “on the mere ground that they may be erroneous.” Will v. United States, 389 U. S. 90, 98, n. 6 (1967). Permitting wholesale appeals on that ground not only would constitute an unjustified waste of scarce judicial resources, but also would transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291. This we decline to do.

III

We hold that a district court’s order denying a motion to disqualify counsel is not appealable under § 1291 prior to final judgment in the underlying litigation. Insofar as the Eighth Circuit reached this conclusion, its decision is correct. But because its decision was contrary to precedent in the Circuit, the court went further and reached the merits of the order appealed from. This approach, however, overlooks the fact that the finality requirement embodied in § 1291 is jurisdictional in nature. If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits. Consequently, the judgment of the Eighth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction. See DiBella v. United States, 369 U. S., at 133.

So ordered.

Justice Rehnquist,

with whom The Chief Justice joins, concurring in the result.

I agree with the result in this case and the analysis of the Court so far as it concerns the question whether an order denying disqualification of counsel is “effectively unreviewable on appeal from the final judgment.” The Court’s answer to this question is dispositive on the appealability issue. Since it is completely unnecessary to do so, however, I would not state, as the Court does, ante, at 375-376:

“An order denying a disqualification motion meets the first part of the 'collateral order’ test. It 'conclusively determine [s] the disputed question,’ because the only issue is whether challenged counsel will be permitted to continue his representation.”

In Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), Justice Jackson stressed that the order before the Court was “a final disposition of a claimed right” and specifically distinguished a case in which the matter was “subject to reconsideration from time to time.” Id., at 546-547. Just recently in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978), we held that an order denying class certification was not appealable under the collateral-order doctrine, in part because such an order is “subject to revision in the District Court.” Id., at 469. The possibility that a district judge would reconsider his determination was highly significant in United States v. MacDonald, 435 U. S. 850, 858-859 (1978), where the Court held that the denial of a pretrial motion to dismiss an indictment on speedy trial grounds was not appeal-able’ under the collateral-order doctrine. The Court noted that speedy trial claims necessitated a careful assessment of the particular facts of the case, and that “[t]he denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can be better gauged — would also be denied.”

It is not at all clear to me, nor has it been to courts considering the question, that an order denying a motion for disqualification of counsel conclusively determines the disputed question. The District Court remains free to reconsider its decision at any time. See Armstrong v. McAlpin, 625 F. 2d 433, 439 (CA2 1980) (en banc), cert. pending, No. 80-431; id., at 451 (Van Graafeiland, J., concurring in part and dissenting in part); Fleischer v. Phillips, 264 F. 2d 515, 516-517 (CA2), cert. denied, 359 U. S. 1002 (1959). The Court itself recognizes this possibility, ante, at 378-379, n. 13. And in doing so the Court is not only being abstractly inconsistent with its conclusion that the first prong of the Cohen test is satisfied. In this very case the possibility of reconsideration by the trial judge cannot be dismissed as merely theoretical. Petitioner’s claim is that respondent will advance only those theories of liability which absolve the insurer, or will advance those theories more strenuously than others. Although it is impossible to discern if this is true before trial, the issues may become clearer as trial progresses and respondent actually does present his theories. As in MacDonald, it cannot be assumed that a motion made at a later point in the proceedings — “when prejudice can be better gauged” — will be denied.

Because of what seem to me to be totally unnecessary and very probably incorrect statements as to this minor point in the opinion, I concur in the result only.

       Title 28 U. S. C. §1291 provides in relevant part: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.”

       Pursuant to 28 U. S. C. § 1407, the Judicial Panel on Multidistrict Litigation has ordered these and other suits against multipiece truck tire rim manufacturers consolidated for trial in the United States District Court for the Western District of Missouri. App. 73.

       The firm included Home in a list of its clients in the Martindale-Hubbell- Law Directory and had occasionally represented the insurer on matters unrelated to the multipiece rim litigation. At the time that petitioner filed its disqualification motion, respondent was defending Home and five other carriers against a suit on certain fire insurance policies. Home does not pay respondent or his firm a retainer.

       In April 1979 Home sent letters containing similar advice to the defendants in some of the other consolidated suits. The plaintiffs in these other actions were not represented by respondent.

       In the alternative, the District Court stated that respondent could terminate his representation of Home in the unrelated matter. See n! 3, supra.

       The trial court based its determination that a potential conflict existed on its interpretation of Disciplinary Rule 5-105 of the Code of Professional Responsibility, most of which had been adopted verbatim as a local rule of court. That rule prohibits a lawyer from “continu[ing] multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client” except when “it is obvious that he can adequately represent the interest of each and if each consents to the representation . . . .” The District Court agreed with petitioner that it was likely that the dual representation would adversely affect respondent’s “ 'exercise of his independent judgment App. 160, quoting International Business Machines Corp. v. Levin, 579 F. 2d 271, 280 (CA3 1978). It therefore ordered that he “either comply with the consent requirement ... or terminate his representation . . . .” App. 160.

       The District Court certified its pretrial order on disqualification for interlocutory appeal pursuant to 28 U. S. C. § 1292 (b), which provides in relevant part:
      “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order . . . .” Neither party elected to> proceed under § 1292 (b). Respondent chose to comply with the order rather than appeal. Petitioner chose to appeal the denial of its motion under § 1291 rather than under § 1292 (b). After filing its notice of appeal, petitioner moved that respondent be held in contempt for allegedly failing to comply with the pretrial order, but this motion was subsequently withdrawn.

       The Court of Appeals also stated that orders granting motions to disqualify counsel would be appealable under § 1291. 612 F. 2d, at 378. That question is not presented by the instant petition, and we express no opinion on it. Neither do we express any view on whether an order denying a disqualification motion in a criminal case would be appealable under § 1291.

       During pendency of its appeal to the Eighth Circuit, petitioner filed a federal-court action against Home, charging that by consenting to respondent’s continuing representation of the plaintiffs in the multipiece rim prod-uets-liability suits, the insurer had breached its fiduciary duty to petitioner. App. 217. At the time of oral argument, counsel for petitioner represented that no resolution had been reached in that litigation. Tr. of Oral Arg. 7-8.

       In addition to the Eighth Circuit decision currently before us, five other Circuits now follow the rule that denials of disqualification motions are not appealable. See In re Continental Investment Corp., 637 F. 2d 1 (CA1 1980); Armstrong v. McAlpin, 625 F. 2d 433 (CA2 1980), cert. pending, No. 80-431, overruling Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F. 2d 800 (CA2 1974); Melamed v. ITT Continental Baking Co., 592 F. 2d 290 (CA6 1979) (Melamed II), overruling Melamed v. ITT Continental Baking Co., 534 F. 2d 82 (CA6 1976) (Melamed I); Community Broadcasting of Boston, Inc. v. FCC, 178 U. S. App. D. C. 256, 546 F. 2d 1022 (1976); Cord v. Smith, 338 F. 2d 516 (CA9 1964). Five Circuits permit such appeals under §1291. See Westinghome Electric Corp. v. Kerr-McGee Corp., 580 F. 2d 1311 (CA7 1978); MacKethan v. Peat, Marwick, Mitchell & Co., 557 F. 2d 395 (CA4 1977); Kroungold v. Triester, 521 F. 2d 763 (CA3 1975); Fullmer v. Harper, 517 F. 2d 20 (CA10 1975); Uniweld Products, Inc. v. Union Carbide Corp., 385 F. 2d 922 (CA5 1967), cert. denied, 390 U. S. 921 (1968).

       Counsel for respondent represented at oral argument in this Court that the case was, at that time, in the discovery stage. Tr. of Oral Arg. 35-36.

       See n. 10, supra.

       Although there may be situations in which a party will be irreparably damaged if forced to wait until final resolution of the underlying litigation before securing review of an order denying its motion to disqualify opposing counsel, it is not necessary, in order to resolve those situations, to create a general rule permitting the appeal of all such orders. In the proper circumstances, the moving party may seek sanctions short of disqualification, such as a protective order limiting counsel’s ability to disclose or to act' on purportedly confidential information. If additional facts in support of the motion develop in the course of the litigation, the moving party might ask the trial court to reconsider its decision. Ultimately, if dissatisfied with the result in the District Court and absolutely determined that it will be harmed irreparably, a party may seek to have the question certified for interlocutory appellate review pursuant to 28 U. S. C. § 1292 (b), see n. 7, supra, and, in the exceptional circumstances for which it was designed, a writ of mandamus from the court of appeals might be available. See In re Continental Investment Corp., 637 F. 2d, at 7; Community Broadcasting of Boston, Inc. v. FCC, 178 U. S. App. D. C., at 262, 546 F. 2d, at 1028. See generally Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U. Chi. L. Rev. 450, 468-480 (1978). We need not be concerned with the availability of such extraordinary procedures in the case before us, because petitioner has made no colorable claim that the harm it might suffer if forced to await the final outcome of the litigation before appealing the denial of its disqualification motion is any greater than the harm suffered by any litigant forced to wait until the termination of the trial before challenging interlocutory orders it considers erroneous.

       The United States, in its brief amicus curiae, has challenged petitioner’s standing to attack the order permitting respondent to continue his representation of the plaintiffs. In light of our conclusion that the Eighth Circuit was without jurisdiction to hear petitioner’s appeal, we have no occasion to address the standing issue.

       Two other Courts of Appeals that have overruled their precedent and held that orders denying disqualification motions are not immediately ap-pealable have similarly made their decisions prospective only and therefore reached the merits of the disputes before them. See Armstrong v. McAlpin, 625 F. 2d, at 441-442 (citing need to provide guidance to district courts and to avoid waste of judicial resources); Melamed II, 592 F. 2d, at 295 (earlier ruling in Melamed I established appealability as law of the case). To the extent that the rationales of those cases would allow a court to agree to decide the merits of a case over which it is without jurisdiction, we respectfully disagree.