A national bank was robbed by a man with a small strip of tape on each side of his face. An indictment was returned against David. David was then arrested, and counsel was appointed to represent him. Two weeks later, without notice to David's lawyer, an agent with the Federal Bureau of Investigation arranged to have the two bank employees observe a lineup, including David and five or six other prisoners.
Each person in the lineup wore strips of tape, as had the robber, and each was directed to repeat the words ‘‘Put the money in the bag,'' as had the robber. Both of the bank employees identified David as the robber.
At David's trial he was again identified by the two, in the courtroom, and the prior lineup identification was elicited on cross-examination by David's counsel.
David's counsel moved the court either to grant a judgment of acquittal or alternatively to strike the courtroom identifications on the ground that the lineup had violated David's Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Decision?