What is the test for establishing that counsel is not required at a photographic identification procedure?

MultiRegion, United States of America

The following excerpt is from U.S. v. Higginbotham, 539 F.2d 17 (9th Cir. 1976):

Recognizing that counsel is not required at a photographic identification procedure, appellant takes a big step and argues that when it is not possible to reconstruct a photographic display, the situation is analogous to that about which concern was expressed in United States v. Wade, 388 U.S. 218, 231, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), in connection with the right to confrontation. Counsel attempts to read into the language of United States v. Ash, 413 U.S. 300, 315-316, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), a rule that when reconstruction is impossible there is denial of effective assistance of counsel. The language upon which appellant relies is related to the issue of confrontation, rather than to a failure to reproduce a photographic display. Far more pertinent to our problem is the language from Ash, which reads:

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