c30:No. 71-1816

HASTIE, Circuit Judge,
with whom GIBBONS, Circuit Judge, joins (concurring in part and dissenting in part).
The photographic identification of appellant Reed occurred in August 1968. Since the argument of this appeal, this court has decided that the requirement of counsel at eyewitness photographic identification of persons in custody and charged with the crime in question is to be enforced prospectively from June 5, 1970. United States v. Higgins, 458 F.2d 461, decided March 28, 1972. For that reason only, I concur in the court’s disposition of this appeal.
However, the majority opinion undertakes to decide “whether there should be continuing viability” to the carefully considered legal conclusion of our unanimous court less than two years ago in United States v. Zeiler, 1970, 427 F.2d 1305, 1307, that the “considerations that led the court in [United States v.] Wade to guarantee the right of counsel at lineups apply equally to photographic identifications [administered by public officers] after the defendant is in custody” and after a judicial officer has found probable cause to hold' him for prosecution. In the view of the majority, our Zeiler holding does not merit “continuing viability.” I disagree.
The basic constitutional right to due process of law and the generalized assurance of fair trial that it affords underlie the more particularized criminal procedural safeguards that also are set out in the Bill of Rights. Thus, when question arises concerning the reach of the right to the assistance of counsel in a particular context, a fundamental testing consideration is the need for and value of the assistance of counsel at that stage of the prosecution in order to assure fairness in the trial that will follow.
Ever since Powell v. Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it has been recognized that the assistance of counsel for a period before trial — how long and on what occasions to be determined by the circumstances of the case —is essential to the guarantee of fair trial. Accordingly, in United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Mr. Justice Brennan began his analysis of the right of an accused to counsel at a lineup by quoting the Sixth Amendment mandate that “the accused shall enjoy the right . to have the Assistance of Counsel for his defense” (emphasis Justice Brennan’s) and, in so doing, pointed out that “this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defense.’ ” 388 U.S. at 225, 87 S.Ct. at 1931. He then proceeded to explain at length why the Court believed that, to assure a meaningful defense, one accused of and judicially charged with an offense needed the assistance of counsel whenever he should be exhibited to an eyewitness of the alleged crime with a view to his identification as a participant in the wrongdoing. 388 U.S. at 228-236, 87 S.Ct. 1926.
In the companion case of Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court held that one essential remedy for the failure of the prosecutor or the police to enable the accused to have the assistance of counsel at a pre-trial lineup is the exclusion from the prosecution’s case of evidence that an eyewitness had identified the accused in an uncounseled lineup. Thereafter, in United States v. Zeiler, supra, we held that in logic the same considerations and the same exclusionary rule applied to evidence that, in the absence of defense counsel, an eyewitness had identified the accused from a photograph or photographs exhibited to him by the police or the prosecutor.
By majority vote of its entire membership this court is now overruling that decision. In so doing, the court does not seem to challenge the need of the accused for the assistance of counsel on an occasion arranged by the government for purposes of eyewitness identification or the value of such assistance in facilitating the subsequent fair trial of the issue of identification before a judge and a jury. Nor is it urged or in any way demonstrated that the need for or the value of such assistance is less when identification is made from photographs than when it is made during a corporeal lineup.
Rather, the majority opinion focuses upon the distinction that the accused himself is present at a corporeal lineup but absent from a photographic exhibition. In Zeiler we pointed out that this distinction, if significant at all, only makes the need for counsel even greater at a photographic identification than at a lineup. For at least the accused, because of his presence, has some knowledge of what happens at a lineup. In contrast, the defense must depend entirely upon the officials who exhibited the photographs or other prosecution witnesses for evidence of what happened at an uncounseled photographic identification. True, the photographs allegedly used at the pre-trial identification may be available at trial. However, only persons present at the identification would know how the photographs were exhibited and what was said on that occasion. But apart from this consideration, it is difficult to see why this distinction should lead to an opposite conclusion as to the right to counsel.
In the view of the majority the key legal concept is “confrontation,” its presence in lineup cases and its absence in photographic identification. But in neither situation is the accused complaining of any denial of his constitutional right to be confronted by the witnesses against him. Why then should the occurrence or the absence of a physical confrontation make any difference in deciding whether the accused is entitled to the assistance of counsel on an occasion arranged by his accusers for the accomplishment of eyewitness identification?
The majority opinion points out that in Wade Mr. Justice Brennan repeatedly characterized a lineup as a “confrontation.” Therefore, the majority reasons, the Court was treating the physical confrontation of accused and witness as the circumstance that made a lineup a “critical stage” of the prosecution and thus entitled the accused to the assistance of counsel. But if this had been what made the lineup a critical stage of prosecution, it is hard to believe that the court would not have made explicit and would not have undertaken to justify so important a conclusion. Instead, as already pointed out, the Court devoted eight pages in its opinion, 388 U.S. at 228-236, 87 S.Ct. 1926, to a demonstration of the decisive impact of eyewitness identification and the great danger of misidentification as the factors that made this a critical stage of the criminal proceeding. Moreover, Mr. Justice Brennan referred early in his opinion to Powell v. Alabama, supra, as establishing the right to the assistance of counsel to the extent needed before trial for proper preparation of whatever defense the accused might have. Obviously, such preparation will rarely involve “confrontation.” The occasion of a prosecution supervised photographic identification is simply one of the pretrial situations in which the need for the assistance of counsel is very great.
The contention that physical “confrontation” is a measure of “critical stage” of prosecution in the present context can be tested impressively by stating certain facts of a recent case. In United States v. Collins, 4th Cir. 1969, 416 F.2d 696, an accused prisoner was required to stand with others in a lineup in order that eyewitnesses to the crime might attempt an identification. One eyewitness did not attend this viewing. However, the police photographed the lineup and later showed that picture to the absent eyewitness. Let us assume that counsel for the accused was not notified of or in attendance at either the lineup or the subsequent exhibition of a photograph of the lineup. Wade and Gilbert would prohibit the prosecution from using as evidence the fact that one eyewitness had identified the accused at the uncounseled lineup. Today’s decision would permit testimony that a second eyewitness had identified the accused at a showing of a photograph of that lineup. In logic and in fairness, I do not see how those opposite conclusions can stand together. Yet, such is the result of relying upon physical “confrontation” as the touchstone of this problem. Indeed, under the majority view, the police could make Wade and Gilbert wholly ineffective merely by conducting lineups without the attendance of either witnesses or counsel, photographing the lineups and thereafter, at convenience, exhibiting the photographs to eyewitnesses in the absence of the accused and counsel. To me, the conclusion is inescapable that the Wade and Gilbert 'rationale should control both corporeal viewings and photographic exhibitions or neither.
Apart from analogy to Wade and Gilbert and from considerations of fairness to the accused, the majority opinion also expresses concern that a requirement of counsel at photographic identifications might at times be impracticable or at least would impose undue burdens upon investigators and prosecutors. This view is supported by reference to and lengthy quotation from a brief filed amicus curiae in this case by state and local prosecutors who view the Zeiler rule with alarm. However, the principal example cited in that brief to show the intolerable consequences of Zeiler gives Zeiler much broader application than this court intended. We spoke in Zeiler of the right of a defendant “in custody” to the assistance of counsel at a photographic identification. We intended, as we think the context shows, to extend the rule only to those defendants who had been charged with the crime in question and thus were being held for further prosecution.
The example cited is a serious prison riot that occurred in Philadelphia in 1970. The brief states that “[i]n order to assure fairness, some twenty books containing the photographs of every person present at the riot scene (several hundred in all) were prepared and given to twenty detectives who in turn interviewed each of the possible witnesses— guards and prisoners alike — to put together information, which would help to reconstruct the events of the riot and, eventually, to form the basis for charges against those responsible.’’ (Emphasis added). This then on its face was a case of using photographic identification as a proper tool of preliminary investigation in order to determine which prisoners should be charged with the crime in question. No riot connected charge had yet been lodged against any prisoner. No magistrate had found probable cause to prosecute any individual. Not only had prosecution for rioting not reached a “critical stage,” prosecution had not even begun.
The brief also suggests that the Zeiler rule is impracticable where eyewitnesses to the alleged crime have scattered to various places far from the place where the prisoner is confined, has been charged and is represented by counsel. It may be onerous to require counsel representing an impecunious defendant to travel around the country to be present at showings of his client’s picture to such witnesses. But, in Wade, Mr. Justice Brennan anticipated this difficulty and suggested that it could be surmounted by “substitute counsel” designated for the limited purpose of representation at the showing of photographs. In these days when criminal -defender organizations abound and the bar generally is increasingly sensitive to its obligation to assist in the defense of persons charged with crime, the recruitment and assignment of substitute counsel for this limited purpose will rarely be difficult or burdensome.
Next, it is suggested that fairly often it is desirable to cheek the possible connection of a person, who has been arrested and charged for one offense, with similar crimes committed at other times and places. To that end, it frequently is worthwhile to exhibit photographs of the prisoner to numerous widely dispersed eyewitnesses of other crimes. But here, as in the case of the riot already discussed, the prisoner is not yet being prosecuted for any of these similar crimes. The Zeiler rule is inapplicable to such photographic exhibition during investigation preliminary to possible charging. Thus, the Zeiler rule, as intended by this court and explained in this opinion, would not impose any of the hardships feared and contemplated by the amici curiae.
Finally, the alleged hardship of the Zeiler rule is minimized by the fact that the prosecution will rarely have serious need to use the fact that an eyewitness made a pre-trial photographic identification as an important part of its case against the accused. For ordinarily the eyewitness will be available to attempt a much more satisfactory face to face identification at trial. Occasionally an important eyewitness will have died before trial. More rarely, the accused may have been identified by photograph shortly after the alleged crime but have changed in appearance so greatly since that time that he is unrecognizable at trial. In these unusual situations where the prosecution’s case .really turns on evidence of pre-trial photographic identification the preservation of the Zeiler rule would afford the accused just and reasonable protection against the inherent grave risk of mistake in eyewitness identification that Mr. Justice Brennan elaborated in his Wade opinion without imposing an unreasonable burden on the government.
For these reasons, the rule of the Zei-ler case should be reaffirmed, though its restriction to identification made after its announcement would require a reversal of the district court’s decision in this case.
. This analysis was suggested by Circuit Judge, now Chief Judge Friendly, United States v. Bennett, 2d Cir. 1969, 409 F.2d 899. Other courts have followed Judge Friendly’s distinguished leadership without critical comment. United States v. Serio, 6th Cir. 1971, 440 F.2d 827; United States v. Long, 8th Cir. 1971, 449 F.2d 288; United States v. Williams, 9th Cir. 1970, 436 F.2d 1166.
. This is not to deny that an offer of hearsay evidence of a pretrial uncounsel-ed photographic identification might create a problem under the confrontation clause.
. This right to counsel for pre-trial preparation makes unpersuasive the majority statement that no critical stage has been found to exist “requiring the assistance of counsel in a factual setting where the accused was not physically present. . . ”
. Only in this respect do the stated facts differ from those of the Collins case. There counsel attended the lineup but was not informed of the subsequent exhibition of the photograph of the lineup to another witness.
. While the Wade majority do not discuss the application of the doctrine of the case to photographic identification, the dissenters point out that in logic it does apply. 388 U.S. 250-251, 87 S.Ct. 1926.
. See United States v. Collins, supra.
. Two judges who joined in the Zeiler decision now join in overruling it. In a concurring opinion they explain that their change of opinion has been caused by a reweighing of underlying policy considerations. But the policy considerations that in the Supreme Court’s view required Wade and Gilbert have equal force here. And we are obligated to treat Wade and Gilbert as authoritative. Therefore, if those decisions do not control this case it must be, not because we think the policy underlying them is unsound, but because a photographic identification of an incarcerated accused, different from his identification at a lineup, is not a critical stage of prosecution. The majority opinion recognizes that this distinction must be validated if Zeiler is to be overruled. The concurring opinion does not mention this issue, much less contribute to its resolution.
. Since the argument of this appeal the Court of Appeals for the District of Columbia Circuit, by a majority vote of the court sitting en banc, has adopted the Zeiler rule. United States v. Ash, decided March 1, 1972, 461 F.2d 92.

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