Petitioners were convicted of assault with intent to murder and
the Alabama Court of Appeals affirmed. They argue that (1) the
in-court identifications that were made of them were fatally
tainted by a prejudicial station house lineup (which occurred prior
to United States v. Wade, 388 U.
, and Gilbert v. California, 388 U.
, requiring the exclusion of such tainted in-court
identification evidence), and (2) that Alabama's failure to provide
them with appointed counsel at the preliminary hearing, a "critical
stage" of the prosecution, unconstitutionally denied them the
assistance of counsel. The victim testified that, "in the car
lights," while "looking straight at him," he saw the petitioner who
shot him, and saw the other petitioner "face to face." He also
stated that he identified the gunman at the station house before
the formal lineup began, and identified the other before he spoke
the words used by the assailants. The sole purposes of a
preliminary hearing under Alabama law are to determine whether
there is sufficient evidence to warrant presenting the case to a
grand jury, and to fix bail for bailable offenses. The trial court
scrupulously followed Pointer v. Texas, 380 U.
, which prohibits the use of testimony given at a
pretrial proceeding where the accused did not have the benefit of
cross-examination by and through counsel.
The convictions are vacated, and the case is
remanded to determine whether the denial of counsel at the
preliminary hearing was harmless error. Pp. 399 U. S.
44 Ala.App. 429, 211 So. 2d 917, vacated and remanded.
Page 399 U. S. 2
MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL, for the three points enumerated
directly below, and by MR. JUSTICE BLACK, for the third point,
1. On this record, the trial court did not err in finding that
the victim's in-court identifications did not stem from a lineup
procedure "so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification." Pp.
399 U. S. 3
2. The preliminary hearing is a "critical stage" of Alabama's
criminal process at which the indigent accused is "as much entitled
to such aid [of counsel] . . . as at the trial itself." Powell
v. Alabama, 287 U. S. 45
287 U. S. 57
Pp. 399 U. S.
3. Although nothing that occurred at the preliminary hearing was
used at the trial, the record does not reveal whether petitioners
were otherwise prejudiced by absence of counsel at the hearing, and
the question whether the denial of counsel was harmless error
should be answered in the first instance by the Alabama courts. Pp.
399 U. S.
MR. JUSTICE BLACK concluded that:
1. Petitioners had a right to the assistance of counsel at the
preliminary hearing not because it is deemed part of a "fair trial"
by judges, but because the Sixth Amendment establishes a right to
counsel "[i]n all criminal prosecutions," and, in Alabama, the
preliminary hearing is a definite part or stage of a criminal
prosecution. Pp. 399 U. S.
2. The trial court did not err in permitting courtroom
identification of petitioners by the victim who had previously
identified them at the lineup, as the requirements of the Fifth and
Sixth Amendments were satisfied when the prosecution declined at
trial to introduce the lineup identifications into evidence. Pp.
399 U. S.
MR. JUSTICE HARLAN concurs in the conclusion that petitioners
constitutional rights were violated when they were refused counsel
at the preliminary hearing. Pp. 399 U. S.
Page 399 U. S. 3
MR. JUSTICE BRENNAN announced the judgment of the Court and
delivered the following opinion.
Petitioners were convicted in an Alabama Circuit Court of
assault with intent to murder in the shooting of one Reynolds after
he and his wife parked their car on an Alabama highway to change a
flat tire. The Alabama Court of Appeals affirmed, 44 Ala.App. 429,
211 So. 2d 917 (1968), and the Alabama Supreme Court denied review,
282 Ala. 725, 211 So. 2d 927 (1968). We granted certiorari, 394
U.S. 916 (1969). We vacate and remand.
Petitioners make two claims in this Court. First, they argue
that they were subjected to a station house lineup in circumstances
so unduly prejudicial and conducive to irreparable
misidentification as fatally to taint Reynolds' in-court
identifications of them at the trial. Second, they argue that the
preliminary hearing prior to their indictment was a "critical
stage" of the prosecution, and that Alabama's failure to provide
them with appointed counsel at the hearing therefore
unconstitutionally denied them the assistance of counsel.
The lineup of which petitioners complain was conducted on
October 1, 1966, about two months after the assault and seven
months before petitioners' trial. Petitioners concede that, since
the lineup occurred before United States v. Wade,
388 U. S. 218
Gilbert v. California, 388 U. S. 263
were decided on June 12, 1967, they cannot invoke the holding of
those cases requiring the exclusion of in-court identification
evidence which is tainted by exhibiting the accused to identifying
witnesses before trial in the absence of counsel.
Page 399 U. S. 4
Stovall v. Denno, 388 U. S. 293
388 U. S.
-301 (1967). Rather, they argue that, in the
circumstances here, the conduct of the lineup was so unduly
prejudicial as fatally to taint Reynolds' in-court identification
of them. This is a claim that must be determined on the totality of
the surrounding circumstances. Stovall v. Denno, supra,
388 U. S.
-302; Simmons v. United States, 390 U.
(1968); Foster v. California,
394 U. S. 440
At the trial, Reynolds testified that, at about 11:30 p.m. on
July 24, 1966, he was engaged in changing a tire when three men
approached from across the highway. One of them shot him from a
short distance away. The three then ran up to within three or four
feet. Reynolds arose from his stooped position and held on to his
wife, who had left the car to watch him as he worked. One of the
men put his hand on Mrs. Reynolds' shoulder. Reynolds testified
that this was Coleman. Within a few seconds, a car with its lights
on approached, and the three men turned and "ran across the road. .
. ." As they turned to go, Reynolds was shot a second time. He
identified petitioner Stephens as the gunman, stating that he saw
him "in the car lights" while "looking straight at him." Reynolds
repeated on cross-examination his testimony on direct; he said he
saw Coleman "face to face"; "I looked into his face," "got a real
good look at him."
At the pretrial hearing on petitioners' motion to suppress
identification evidence, Detective Fordham testified that he had
spoken briefly to Reynolds at the hospital two days after the
assault and about two weeks later, and that on neither occasion was
Reynolds able to provide much information about his assailants. At
the hospital, he gave a vague description -- that the attackers
were "young, black males, close to the same age and height."
Petitioners are both Negro; but Stephens was 18 and 6'2", and
Coleman, 28 and 5'4 1/2". However,
Page 399 U. S. 5
Detective Fordham also testified that, at the time Reynolds gave
this description, he was in considerable pain, and that,
consequently, the questioning was very brief. The detective further
stated that Reynolds did not identify any of his assailants from
mug shots, but it does not appear whether pictures of petitioners
were among those shown him. Detective Hart testified that a lineup
was held on October 1 at the request of the police. He stated that
Reynolds identified petitioner Stephens spontaneously before the
formal lineup even began.
"[T]he six men were brought in by the warden, up on the stage,
and as Otis Stephens -- he didn't get to his position on the stage,
which was number one, when Mr. Reynolds identified him as being one
of his assailants."
Reynolds gave similar testimony:
"As soon as he stepped inside the door -- I hadn't seen him
previous to then until he stepped inside the door, and I recognized
him. . . . Just as soon as he stepped up on the stage, I said,
'That man, there, is the one; he is the one that shot me.'"
Reynolds also testified that he identified Coleman at the lineup
before Coleman could act on a request Reynolds had made that the
lineup participants speak certain words used by the attackers.
Reynolds admitted that he did not tell Detective Hart of his
identification until later during the lineup, and the detective
stated he could not recall whether Reynolds told him of the
identification before or after Coleman spoke the words.
It cannot be said on this record that the trial court erred in
finding that Reynolds' in-court identification of the petitioners
did not stem from an identification procedure at the lineup "so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Simmons v. United
at 390 U. S. 384
Indeed, the court could find on the evidence adduced at the
suppression hearing that Reynolds' identifications were entirely
based upon observations at the
Page 399 U. S. 6
time of the assault, and not at all induced by the conduct of
the lineup. There is no merit in the three arguments offered by
petitioners for a contrary conclusion.
First, Reynolds testified that, when the police asked him to go
to the city jail, he "took [it] for granted" that the police had
caught his assailants. But the record is utterly devoid of evidence
that anything the police said or did prompted Reynolds' virtually
spontaneous identification of petitioners among the lineup
participants as the proceeding got under way.
Petitioners next contend that the lineup was unfair because they
and their codefendant were the only ones required to say the words
used by one of the attackers. There is some conflict in the
testimony on this point. Petitioner Stephens testified that
petitioners and their codefendant were the only ones who spoke the
words. Reynolds testified that not all the men in the lineup spoke
them. But Detective Hart stated that all the participants spoke the
words. In any case, the court could find on the evidence that
Reynolds identified both petitioners before either said anything,
and that, therefore, any failure to require the other participants
to say the same words did not aid or influence his
Finally, petitioner Coleman contends that he was unfairly
singled out to wear a hat, though all the other participants were
bareheaded. One of the attackers had worn a hat. Although the
record demonstrates that Coleman did, in fact, wear a hat at the
lineup, nothing in the record shows that he was required to do so.
Moreover, it does not appear that Reynolds' identification of
Coleman at the lineup was based on the fact that he remembered that
Coleman had worn a hat at the time of the assault. On the contrary,
the court could conclude from his testimony that Reynolds "asked
them to make John Henry Coleman to take his hat off, or move it
back," because he wanted to see Coleman's face more clearly.
Page 399 U. S. 7
This Court has held that a person accused of crime "requires the
guiding hand of counsel at every step in the proceedings against
him," Powell v. Alabama, 287 U. S. 45
287 U. S. 69
(1932), and that that constitutional principle is not limited to
the presence of counsel at trial.
"It is central to that principle that, in addition to counsel's
presence at trial, the accused is guaranteed that he need not stand
alone against the State at any stage of the prosecution, formal or
informal, in court or out, where counsel's absence might derogate
from the accused's right to a fair trial."
United States v. Wade, supra,
at 388 U. S. 226
"the principle of Powell v. Alabama
cases requires that we scrutinize any pretrial confrontation of the
accused to determine whether the presence of his counsel is
necessary to preserve the defendant's basic right to a fair trial
as affected by his right meaningfully to cross-examine the
witnesses against him and to have effective assistance of counsel
at the trial itself. It calls upon us to analyze whether potential
substantial prejudice to defendant's rights inheres in the
particular confrontation and the ability of counsel to help avoid
at 388 U. S. 227
Applying this test, the Court has held that "critical stages"
include the pretrial type of arraignment where certain rights may
be sacrificed or lost, Hamilton v. Alabama, 368 U. S.
, 368 U. S. 54
(1961), see White v. Maryland, 373 U. S.
(1963), and the pretrial lineup, United States v.
Wade, supra; Gilbert v. California, supra. Cf. Miranda v.
Arizona, 384 U. S. 436
(1966), where the Court held that the privilege against compulsory
self-incrimination includes a right to counsel at a pretrial
custodial interrogation. See also Massiah v. United
States, 377 U. S. 201
Page 399 U. S. 8
The preliminary hearing is not a required step in an Alabama
prosecution. The prosecutor may seek an indictment directly from
the grand jury without a preliminary hearing. Ex parte
278 Ala. 114, 176 So. 2d
(1965). The opinion of the Alabama Court of Appeals in this
case instructs us that, under Alabama law, the sole purposes of a
preliminary hearing are to determine whether there is sufficient
evidence against the accused to warrant presenting his case to the
grand jury, and, if so, to fix bail if the offense is bailable. 44
Ala.App. at 433, 211 So. 2d at 920. See
Ala.Code, Tit. 15
§§ 139, 140, 151. [Footnote 3
The court continued:
"At the preliminary hearing . . . the accused is not required to
advance any defenses, and failure to do so does not preclude him
from availing himself of every defense he may have upon the trial
of the case. Also, Pointer v. State of Texas
(1965),] bars the admission of testimony given at a
pretrial proceeding where the accused did not have the benefit of
cross-examination by and through counsel. Thus, nothing occurring
at the preliminary hearing in absence of counsel can substantially
prejudice the rights of the accused on trial."
44 Ala.App. at 433, 211 So. 2d at 921.
Page 399 U. S. 9
This Court is of course bound by this construction of the
governing Alabama law, Kingsley International Pictures Corp. v
Regents, 360 U. S. 684
360 U. S. 688
(1959); Albertson v. Millard, 345 U.
, 345 U. S. 244
(1953). However, from the fact that, in cases where the accused has
no lawyer at the hearing, the Alabama courts prohibit the State's
use at trial of anything that occurred at the hearing, it does not
follow that the Alabama preliminary hearing is not a "critical
stage" of the State's criminal process. The determination whether
the hearing is a "critical stage" requiring the provision of
counsel depends, as noted, upon an analysis
"whether potential substantial prejudice to defendant's rights
inheres in the . . . confrontation and the ability of counsel to
help avoid that prejudice."
United States v. Wade, supra,
at 388 U. S. 227
Plainly, the guiding hand of counsel at the preliminary hearing is
essential to protect the indigent accused against an erroneous or
improper prosecution. First, the lawyer's skilled examination and
cross-examination of witnesses may expose fatal weaknesses in the
State's case that may lead the magistrate to refuse to bind the
accused over. Second, in any event, the skilled interrogation of
witnesses by an experienced lawyer can fashion a vital impeachment
tool for use in cross-examination of the State's witnesses at the
trial, or preserve testimony favorable to the accused of a witness
who does not appear at the trial. Third, trained counsel can more
effectively discover the case the State has against his client, and
make possible the preparation of a proper defense to meet that case
at the trial. Fourth, counsel can also be influential at the
preliminary hearing in making effective arguments for the accused
on such matters as the necessity for an early psychiatric
examination or bail.
The inability of the indigent accused on his own to realize
these advantages of a lawyer's assistance compels
Page 399 U. S. 10
the conclusion that the Alabama preliminary hearing is a
"critical stage" of the State's criminal process at which the
accused is "as much entitled to such aid [of counsel] . . . as at
the trial itself." Powell v. Alabama, supra,
287 U. S.
There remains, then, the question of the relief to which
petitioners are entitled. The trial transcript indicates that the
prohibition against use by the State at trial of anything that
occurred at the preliminary hearing was scrupulously observed.
] Cf. White v.
But on the record it cannot be said
Page 399 U. S. 11
whether or not petitioners were otherwise prejudiced by the
absence of counsel at the preliminary hearing. That inquiry in the
first instance should more properly be made by the Alabama courts.
The test to be applied is whether the denial of counsel at the
preliminary hearing was harmless error under Chapman v.
California, 386 U. S. 18
(1967). See United States v. Wade, supra,
at 388 U. S.
We accordingly vacate the petitioners' convictions and remand
the case to the Alabama courts for such proceedings not
inconsistent with this opinion as they may deem appropriate to
determine whether such denial of counsel was harmless error,
see Gilbert v. California, supra,
at 388 U. S. 272
and therefore whether the convictions should be reinstated or a new
It is so ordered.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL
join this Part I.
MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL
join this Part II.
A textbook, Criminal Procedure in Alabama, by M. Clinton McGee
(University of Alabama Press 1954), p. 41, states:
"A preliminary hearing or examination is not a trial in its
ordinary sense, nor is it a final determination of guilt. It is a
proceeding whereby an accused is discharged or held to answer, as
the facts warrant. It seeks to determine whether there is probable
cause for believing that a crime has been committed, and whether
the accused is probably guilty, in order that he may be informed of
the nature of such charge and to allow the state to take the
necessary steps to bring him to trial. Such hearing also serves to
perpetuate evidence, and to keep the necessary witnesses within the
control of the state. It also safeguards the accused against
groundless and vindictive prosecutions, and avoids for both the
accused and the state the expense and inconvenience of a public
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and
MR. JUSTICE MARSHALL join this Part III.
The trial judge held a hearing two months before the trial on
motions on behalf of petitioners to suppress
"any evidence or discovery whatsoever obtained . . . on the
preliminary hearing . . . and further any statements relating to
any identification . . . during any line-up. . . ."
The State conceded that the motion should be granted as to any
statements of either petitioner taken by the police upon their
arrests, and written and oral confessions made by them were
therefore not offered at the trial. At an early stage of the
hearing on the motions, the trial judge said:
"It has been my consistent ruling, and I don't know of any law
to the contrary, that, on the basis of what happened at the
preliminary hearing, that, if a lawyer was not representing the
defendant, that anything that may have occurred at that preliminary
which might work against the defendant, whether it be anything he
said there, assuming he might have taken the stand, anything of
that nature, would, on the trial of the case on the merits, be
"I wouldn't anticipate the State offering anything like that,
but that has been my ruling on that ever since we changed some of
our ways of doing things."
"It wouldn't be material from the standpoint that a man down
there, when not represented by counsel on the preliminary, made
some statement, said, 'I am guilty.' You know, a lot of times, he
might say, 'I am guilty.'"
"That that would not be admissible if he weren't represented by
counsel, and that sort of thing."
MR. JUSTICE BLACK, concurring.
I wholeheartedly agree with the conclusion in 399 U.
The purpose of the preliminary hearing in Alabama is
to determine whether an offense has been committed, and, if so,
whether there is probable cause for charging the defendant with
that offense. If the magistrate finds that there is probable cause
for charging the defendant with the offense, the defendant must,
under Alabama law, be either incarcerated or admitted to bail. In
the absence of such a finding of probable cause, the defendant must
be released from custody. Ala.Code, Tit. 15, §§ 139-140. The
preliminary hearing is therefore a definite part or stage of a
criminal prosecution in Alabama,
Page 399 U. S. 12
and the plain language of the Sixth Amendment requires that,
"[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence." Moreover,
every attorney with experience in representing criminal defendants
in a State which has a preliminary hearing similar to Alabama's
knows -- sometimes from sad experience -- that adequate
representation requires that counsel be present at the preliminary
hearing to protect the interests of his client. The practical
importance of the preliminary hearing is discussed in the
prevailing opinion, and the considerations outlined there seem to
me more than sufficient to compel the conclusion that the
preliminary hearing is a "critical stage" of the proceedings during
which the accused must be afforded the assistance of counsel if he
is to have a meaningful defense at trial as guaranteed in the Bill
I fear that the prevailing opinion seems at times to proceed on
the premise that the constitutional principle ultimately at stake
here is not the defendant's right to counsel as guaranteed by the
Sixth and Fourteenth Amendments, but rather a right to a "fair
trial" as conceived by judges. While that phrase is an appealing
one, neither the Bill of Rights nor any other part of the
Constitution contains it. The pragmatic, government-fearing authors
of our Constitution and Bill of Rights did not, and I think wisely
did not, use any such vague, indefinite, and elastic language.
Instead, they provided the defendant with clear, emphatic
guarantees: counsel for his defense, a speedy trial, trial by jury,
confrontation with the witnesses against him, and other such
unequivocal and definite rights. The explicit commands of the
Constitution provide a full description of the kind of "fair trial"
the Constitution guarantees, and, in my judgment, that document
leaves no room for judges either to add to or detract from these
Page 399 U. S. 13
I can have no part in unauthorized judicial toying with the
carefully selected language of our Constitution, which I think is
the wisest and best charter of government in existence. It declares
a man charged with a crime shall be afforded a lawyer to defend him
even though all the judges throughout the entire United States
should declare, "It is only when we think fairness requires it that
an accused shall have the assistance of counsel for his defense."
For one, I still prefer to trust the liberty of the citizen to the
plain language of the Constitution, rather than to the sense of
fairness of particular judges.
I also agree with the prevailing opinion in rejecting
petitioners' claim that their in-court identification by the victim
of the assault should have been suppressed. This claim relies
mainly on Stovall v. Denno, 388 U.
(1967), in which the Court held that an in-court
identification could be suppressed under the Due Process Clause of
the Fourteenth Amendment if it was tainted by an "unnecessarily
suggestive" pretrial lineup. I dissented in Stovall
on the ground that the majority's new suppression rule was a
classic example of this Court's using the Due Process Clause to
write into law its own notions of fairness, decency, and
fundamental justice, in total disregard of the language of the
Constitution itself. But I also argued in Stovall
right to counsel at a lineup, declared that same day in United
States v. Wade, 388 U. S. 218
(1967), should be held fully retroactive. Stovall v.
388 U.S. at 388 U. S. 303
Accordingly, I believe that petitioners in this pre-Wade
case were entitled to court-appointed counsel at the time of the
lineup in which they participated, and that Alabama's failure to
provide such counsel violated petitioners' rights under the Sixth
and Fourteenth Amendments. However, for the reasons stated in my
separate opinion in United States v. Wade, 388 U.
, 388 U. S. 243
Page 399 U. S. 14
I believe the requirements of the Fifth and Sixth Amendments
were satisfied when the Alabama prosecutors declined at trial to
introduce the pretrial lineup identification into evidence.
Accordingly, I concur in the conclusion in 399 U.
For the reasons here stated, I agree that petitioners'
convictions must be vacated and the case remanded to the Alabama
courts for consideration of whether the denial of counsel at the
preliminary hearing was harmless error under the Court's decision
in Chapman v. California, 386 U. S.
MR. JUSTICE DOUGLAS.
While I have joined MR. JUSTICE BRENNAN's opinion, I add a word
as to why I think that a strict construction of the Constitution
requires the result reached.
The critical words are: "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." As MR. JUSTICE BLACK states, a
preliminary hearing is "a definite part or stage of a criminal
prosecution in Alabama." A "criminal prosecution" certainly does
not start only when the trial starts. If the commencement of the
trial were the start of the "criminal prosecution" in the
constitutional sense, then indigents would likely go to trial
without effective representation by counsel. Lawyers for the
defense need time to prepare a defense. The prosecution needs time
for investigations and procedures to make that investigation timely
and telling. As a shorthand expression, we have used the words
"critical stage" to describe whether the preliminary phase of a
criminal trial was part of the "criminal prosecution" as used
Page 399 U. S. 15
the Sixth Amendment. But it is the Sixth Amendment that
controls, not our own ideas as to what an efficient criminal code
should provide. It did not take nearly 200 years of doubt to decide
whether Alabama's preliminary hearing is a part of the "criminal
prosecution" within the meaning of the Sixth Amendment. The
question has never been reached prior to this case. We experience
here the case-by-case approach that is the only one available under
our "case" or "controversy" jurisdiction under Article III of the
If we are to adhere to the mandate of the Constitution, and not
give it merely that meaning which appeals to the personal tastes of
those who from time to time sit here, we should read its terms in
light of the realities of what "criminal prosecutions" truly
I was impressed with the need for that kind of strict
construction on experiences in my various Russian journeys. In that
nation, detention incommunicado
is the common practice,
and the period of permissible detention now extends for nine
months. [Footnote 2/1
] Where there
is custodial interrogation, it is clear that the critical stage of
the trial takes place long before the courtroom formalities
Page 399 U. S. 16
commence. That is apparent to one who attends criminal trials in
Russia. Those that I viewed never put in issue the question of
guilt; guilt was an issue resolved in the inner precincts of a
prison under questioning by the police. The courtroom trial
concerned only the issue of punishment.
Custodial interrogation is in practice -- here and in other
nations -- so critical that we would give "criminal prosecutions"
as used in the Sixth Amendment a strained and narrow meaning if we
held that it did not include that phase. My Brother HARLAN, in his
dissent in Miranda v. Arizona, 384 U.
, 384 U. S. 513
called the Sixth Amendment cases cited by the majority of the Court
the "linchpins" of the ruling that an accused under custodial
interrogation was entitled to the assistance of counsel. [Footnote 2/2
] They were properly such,
although the main emphasis in the Miranda
opinion was on
the use of custodial interrogation to exact incriminating
statements [Footnote 2/3
Page 399 U. S. 17
the commands of the Fourteenth and Fifth Amendments. Like the
preliminary hearing in the present case, custodial interrogation is
obviously part of the "criminal prosecution" that the Sixth
Amendment honors -- if strict construction is our guide.
Article 97 of the RSFSR Codes of Criminal Procedure
"Confinement under guard in connection with the investigation of
a case may not continue for more than two months. Only by reason of
the special complexity of the case may this period be prolonged up
to three months from the day of confinement under guard by a
procurator of an autonomous republic, territory, region, autonomous
region, or national area, or by a military procurator of a military
region or fleet, or up to six months by the RSFSR Procurator or the
Chief Military Procurator. Further prolongation of a period of
confinement under guard may be carried out only in exceptional
instances by the USSR Procurator General for a period of not more
than an additional three months."
Soviet Criminal Law and Procedure: The RSFSR Codes 28 (H. Berman
& J. Spindler transl.1966).
Article 47 of the RSFSR Codes of Criminal Procedure provides in
"Defense counsel shall be permitted to participate in a case
from the moment the accused is informed of the completion of the
preliminary investigation and is presented with all the proceedings
of the case to become acquainted with them."
Soviet Criminal Law and Procedure: The RSFSR Codes,
supra, 399 U.S.
fn2/1|>n. 1, at 269.
No nation has a monopoly on the use of this device, although the
present Greek Government, according to the 1969 report of the
Commission of Human Rights of the Council of Europe, has reached a
high level of efficiency in the use of torture:
or bastinado has been a method of torture
known for centuries. It is the beating of the feet with a wooden or
metal stick or bar which, if skilfully done, breaks no bones, makes
no skin lesions, and leaves no permanent and recognisable marks,
but causes intense pain and swelling of the feet. The use of
has been described in a variety of situations: on
a bench or chair or on a car-seat; with or without shoes on.
Sometimes water has been thrown over the feet, and sometimes the
victim has been made to run around between beatings. Victims have
also been gagged."
"* * * *"
and severe beatings of all parts of the
body are the commonest forms of torture or ill-treatment that
appear in the evidence before the Sub-Commission, other forms have
been described: for example, the application of electric shock,
squeezing of the head in a vice pulling out of hair from the head
or pubic region, or kicking of the male genital organs, dripping
water on the head, and intense noises to prevent sleep."
has not only been the commonest form of
torture or ill-treatment in the cases in which the Sub-Commission
has been able to establish the facts to a substantial degree, but
also appears with great frequency in the further allegations raised
in the proceedings with regard to other named detainees. The
principal forms of alleged treatment -- frequently several forms
combined in one and the same case -- are as follows in the two
. . . . . . . . . . . . . . . 23 53
Electro-shock. . . . . . . . . . . . 4 3
Mock execution or threats to shoot
or kill the victim . . . . . . . . . 12 15
Other beating or ill-treatment . . . 26 17
European Commission of Human Rights, Report on The Greek Case,
Vol. 2, pt. 1, pp. 415-416 (1969).
MR. JUSTICE WHITE, concurring.
I agree with MR. JUSTICE HARLAN that recent cases furnish ample
ground for holding the preliminary hearing a critical event in the
progress of a criminal case. I therefore join the prevailing
opinion, but with some hesitation, since requiring the appointment
of counsel may result in fewer preliminary hearings in
Page 399 U. S. 18
where the prosecutor is free to avoid them by taking a case
directly to a grand jury. Our ruling may also invite eliminating
the preliminary hearing system entirely.
I would expect the application of the harmless error standard on
remand to produce results approximating those contemplated by MR.
JUSTICE HARLAN's separately stated views. Whether denying
petitioners counsel at the preliminary hearing was harmless beyond
a reasonable doubt depends upon an assessment of those factors that
made the denial error. But that assessment cannot ignore the fact
that petitioners have been tried and found guilty by a jury.
The possibility that counsel would have detected preclusive
flaws in the State's probable cause showing is, for all practical
purposes, mooted by the trial where the State produced evidence
satisfying the jury of the petitioners' guilt beyond a reasonable
doubt. Also, it would be wholly speculative in this case to assume
either (1) that the State's witnesses at the trial testified
inconsistently with what their testimony would have been if
petitioners had had counsel to cross-examine them at the
preliminary hearing, or (2) that counsel, had he been present at
the hearing, would have known so much more about the State's case
than he actually did when he went to trial that the result of the
trial might have been different. So too it seems extremely unlikely
that matters related to bail or early psychiatric examination would
ever raise reasonable doubts about the integrity of the trial.
There remains the possibility, as MR. JUSTICE HARLAN suggests,
that important testimony of witnesses unavailable at the trial
could have been preserved had counsel been present to cross-examine
opposing witnesses or to examine witnesses for the defense. If such
was the case, petitioners would be entitled to a new trial.
Page 399 U. S. 19
MR. JUSTICE HARLAN, concurring in part and dissenting in
If I felt free to consider this case upon a clean slate, I would
have voted to affirm these convictions. *
But -- in light of
the lengths to which the right to appointed counsel has been
carried in recent decisions of this Court, see Miranda v.
Arizona, 384 U. S. 436
(1966); United States v. Wade, 388 U.
(1967); Gilbert v. California,
388 U. S. 263
(1967); Mathis v. United States, 391 U. S.
(1968); and Orozco v. Texas, 394 U.
(1969) -- I consider that course is not open to
me with due regard for the way in which the adjudicatory process of
this Court, as I conceive it, should work. The continuing viability
of the cases just cited is not directly before us for decision, and
if and when such an occasion arises, I would face it in terms of
considerations that I have recently expressed elsewhere.
my dissenting opinion in Baldwin v. New York,
decided today, post,
p. 399 U. S. 117
my opinion concurring in the result in Welsh v. United
States, 398 U. S. 333
398 U. S. 344
Page 399 U. S. 20
Accordingly, I am constrained to agree with the Court's
conclusion that petitioners' constitutional rights were violated
when Alabama refused to appoint counsel to represent them at the
preliminary hearing. I dissent, however, from the terms of the
Court's remand on this issue, as well as from the refusal to accord
petitioners the benefit of the Wade
case in connection
with their police "lineup" contentions.
It would indeed be strange were this Court, having held a
suspect or an accused entitled to counsel at such pretrial stages
as "in-custody" police investigation, whether at the station house
) or even in the home (Orozco
), now to
hold that he is left to fend for himself at the first formal
confrontation in the courtroom.
While, given the cases referred to, I cannot escape the
conclusion that petitioners' constitutional rights must be held to
have been violated by denying them appointed counsel at the
preliminary hearing, I consider the scope of the Court's remand too
broad and amorphous. I do not think that reversal of these
convictions, for lack of counsel at the preliminary hearing, should
follow unless petitioners are able to show on remand that they have
been prejudiced in their defense at trial, in that favorable
testimony that might otherwise have been preserved was
irretrievably lost by virtue of not having counsel to help present
an affirmative case at the preliminary hearing. In this regard, of
course, as with any other erroneously excluded testimony,
petitioners would have to show that its weight at trial would have
been such as to constitute its "exclusion" reversible error, as
well as demonstrate the actual likelihood that such testimony could
have been presented and preserved at the preliminary hearing. In my
opinion, mere speculation that defense
Page 399 U. S. 21
counsel might have been able to do better at trial had he been
present at the preliminary hearing should not suffice to vitiate a
conviction. The Court's remand under the Chapman
error rule seems to me to leave the way open for that sort of
Despite my continuing disagreement with United States v.
I must dissent from the refusal to accord
petitioners the benefit of the Wade
petitioner having been afforded counsel at the police "lineup"
identification. The majority's action results from the holding in
Stovall v. Denno, 388 U. S. 293
(1967), making Wade
applicable only to lineups occurring
after the date of that decision, the present lineup having taken
place well before. For reasons explained in my dissent in
Desist v. United States, 394 U. S. 244
394 U. S. 256
(1969), I can no longer follow the "retroactivity" doctrine
announced in Stovall
in cases before us on direct review.
That being the situation here, I would judge the case in light of
rule requires the exclusion of any in-court
identification preceded by a pretrial lineup where the accused was
not represented by counsel, unless the in-court identification is
found to be derived from a source "independent" of the tainted
pretrial viewing. Such a determination must, in the first instance,
be made by the trial court. I would therefore send the case back on
this score, too.
* From the standpoint of Fourteenth Amendment due process, which
is the way in which I think state cases of this kind should be
judged (see, e.g.,
my concurring opinion in Gideon v.
Wainwright, 372 U. S. 335
372 U. S. 349
(1963)), I could not have said that the denial of appointed counsel
at a preliminary hearing, carrying no consequences beyond those
involved in the Alabama procedure, is offensive to the concept of
"fundamental fairness" embodied in the Due Process Clause. The case
would, of course, be different if the State were permitted to
introduce at trial evidence collected and presented at the
preliminary hearing. A fortiori,
I would not have thought
that the lack of counsel at a police "line-up" is as held in
United States v. Wade, 388 U. S. 218
(1967), a denial of due process such as to require reversal. Even
from the standpoint of the Sixth Amendment, I would have found it
difficult to say that the language, "In all criminal
the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence" (emphasis
supplied), was intended to reach such pre-indictment events.
Cf. Sanders v. United States, 373 U. S.
, 373 U. S. 23
MR. CHIEF JUSTICE BURGER, dissenting.
I agree that, as a matter of sound policy, counsel should be
made available to all persons subjected to a preliminary hearing,
and that this should be provided either by statute or by the
rulemaking process. However, I cannot accept the notion that the
Page 399 U. S. 22
it because it is a "criminal prosecution." [Footnote 3/1
] Although MR. JUSTICE STEWART, whose
opinion I join, and MR. JUSTICE HARLAN and MR. JUSTICE WHITE have
each noted some of the difficulties, both on constitutional and
practical grounds, with today's holding, I separately set forth
additional reasons for my dissent. [Footnote 3/2
Certainly, as MR. JUSTICE HARLAN and MR. JUSTICE WHITE suggest,
not a word in the Constitution itself either requires or
contemplates the result reached; unlike them, however, I do not
acquiesce in prior holdings that purportedly, but nonetheless
erroneously, are based on the Constitution. That approach simply is
an acknowledgment that the Court, having previously amended the
Sixth Amendment, now feels bound by its action. While I do not rely
solely on 183 years of contrary constitutional interpretation, it
is indeed an odd business that it has taken this Court nearly two
centuries to "discover" a constitutional mandate to have counsel at
a preliminary hearing. Here there is not even the excuse that
conditions have changed; the preliminary hearing is an ancient
With deference, then, I am bound to reject categorically MR.
JUSTICE HARLAN's and MR. JUSTICE WHITE's thesis that what the Court
said lately controls over the Constitution. While our holdings are
entitled to deference, I will not join in employing recent cases,
rather than the Constitution, to bootstrap ourselves into a result,
even though I agree with the objective of having counsel at
preliminary hearings. By placing a premium on "recent cases,"
rather than the language of the Constitution, the Court makes it
dangerously simple for
Page 399 U. S. 23
future Courts, using the technique of interpretation, to operate
as a "continuing Constitutional convention."
I wish to make clear that my disagreement with the prevailing
opinion is directed primarily at its reasoning process, rather than
with the broad social and legal desirability of the result reached.
I would not decide that the Constitution commands this result
simply because I think it is a desirable one. Indeed, there have
been many studies, including that of the American Bar Association's
Criminal Justice Project, that acknowledged the wisdom of providing
counsel at the preliminary hearing. ABA Project on Standards for
Criminal Justice, Providing Defense Services § 5.1 (Approved Draft
1968). But this should be provided either by statute or by the
rulemaking process, since the Constitution does not require it. MR.
JUSTICE WHITE, while joining the prevailing opinion with some
reservations, belies the essence of the matter when he states that
"recent cases furnish ample ground for holding the preliminary
hearing a critical event
in the progress of a criminal
case." (Emphasis added.)
If the Constitution provided that counsel be furnished for every
"critical event in the progress of a criminal case," that would be
another story, but it does not. In contrast to the variety of
verbal combinations employed by the majority to justify today's
disposition, the Sixth Amendment states with laudable precision
that: "In all criminal prosecutions,
the accused shall . .
. have the Assistance of Counsel." (Emphasis added.) The only
relevant determination is whether a preliminary hearing is a
"criminal prosecution," not
whether it is a "critical
in the progress of a criminal case." By inventing its
own verbal formula, the prevailing opinion simply seeks to reshape
the Constitution in accordance with predilections of what is deemed
desirable. Constitutional interpretation is not an easy matter, but
Page 399 U. S. 24
should be especially cautious about substituting our own notions
for those of the Framers. I heed MR. JUSTICE BLACK's recent
"the difference . . . between our Constitution as
by the Founders and an unwritten constitution to
be formulated by judges according to their ideas of fairness on a
North Carolina v. Pearce, 395 U.
, 395 U. S. 744
(1969) (separate opinion of BLACK, J.) (emphasis in original).
In the federal courts, and as provided by statute in most
States, the three steps that follow arrest are (1) the preliminary
hearing under Fed.Rule Crim.Proc. 5(c); (2) the grand jury inquiry;
and (3) the arraignment under Fed.Rule Crim.Proc. 10. We know, of
course, that, if the hearing officer at the preliminary hearing
concludes to hold the person for possible grand jury action,
counsel is not permitted to attend the latter proceedings. If the
grand jury returns an indictment, the accused must then enter a
plea at arraignment, and, at this hearing, counsel is required
under Hamilton v. Alabama, 368 U. S.
In Alabama, as in the federal system, the preliminary hearing
has been an inquiry into whether the arrested person should be
discharged or whether, on the contrary, there is probable cause to
submit evidence to a grand jury or other charging authority for
further consideration. No verdict can flow from the hearing
magistrate's determination, and a discharge, unlike an acquittal,
is no bar to a later indictment. Thus, it is not a trial in any
sense in which lawyers and judges use that term. Moreover, the
hearing magistrate cannot indict;
he can pass only on the
narrow question of whether further inquiry is warranted.
Recognizing, however, that the preliminary hearing is not an
unimportant step in "the progress of a criminal case," this Court
has already held that disclosures of an uncounseled person at the
hearing may not be used against him if he is later tried.
Page 399 U. S. 25
Maryland, 373 U. S. 59
(1963). See also Pointer v. Texas, 380 U.
Under today's holding, we thus have something of an anomaly
under the new "discovery" of the Court that counsel is
constitutionally required at the preliminary hearing, since counsel
cannot attend a subsequent grand jury inquiry, even though
witnesses, including the person eventually charged, may be
interrogated in secret session. If the current mode of
constitutional analysis subscribed to by this Court in recent cases
requires that counsel be present at preliminary hearings, how can
this be reconciled with the fact that the Constitution itself does
not permit the assistance of counsel at the decidedly more
"critical" grand jury inquiry?
Finally, as pointed out, the Court has already protected an
accused from absence of counsel at the preliminary hearing by
providing that statements of an uncounseled person are inadmissible
at trial. The prevailing opinion fails to explain why that salutary
-- indeed drastic -- remedy is no longer sufficient protection for
the preliminary hearing stage, unless what the Court is doing --
surreptitiously -- is to convert the preliminary hearing into a
discovery device. But the need for even that step is largely
dissipated by the proposed amendments for pretrial discovery in
criminal cases. See
Judicial Conference of the United
States, Committee on Rules of Practice and Procedure, Proposed
Amendments to the Federal Rules of Criminal Procedure for United
States District Courts (preliminary draft, Jan. 1970).
The pertinent language is: "In all criminal prosecutions, the
accused shall enjoy . . . the Assistance of Counsel for his
I concur in the conclusion that due process was not violated by
the identification procedures employed here.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE joins,
On a July night in 1966, Casey Reynolds and his wife stopped
their car on Green Springs Highway in Birmingham, Alabama, in order
to change a flat tire. They were soon accosted by three men whose
evident purpose was
Page 399 U. S. 26
armed robbery and rape. The assailants shot Reynolds twice
before they were frightened away by the lights of a passing
automobile. Some two months later, the petitioners were arrested,
and later identified by Reynolds as two of the three men who had
assaulted him and his wife.
A few days later, the petitioners were granted a preliminary
hearing before a county judge. At this hearing, the petitioners
were neither required nor permitted to enter any plea. The sole
purpose of such a hearing in Alabama is to determine whether there
is sufficient evidence against the accused to warrant presenting
the case to a grand jury, and, if so, to fix bail if the offense is
bailable. [Footnote 4/1
] At the
conclusion of the hearing, the petitioners were bound over to the
grand jury, and their bond was set at $10,000. No record or
transcript of any kind was made of the hearing.
Less than a month later, the grand jury returned an indictment
against the petitioners, charging them with assault to commit
murder. Promptly after their indictment, a lawyer was appointed to
represent them. At their arraignment two weeks later, where they
were represented by their appointed counsel, they entered a plea of
not guilty. Cf. Hamilton v. Alabama, 368 U. S.
. Some months later, they were brought to trial, again
represented by appointed counsel. Cf. Gideon v.
Wainwright, 372 U. S. 335
jury found them guilty as charged, and they were sentenced to the
If, at the trial, the prosecution had used any incriminating
statements made by the petitioners at the preliminary hearing, the
convictions before us would quite properly have to be set aside.
White v. Maryland, 373 U. S. 59
that did not happen in this case. Or if the prosecution had used
the statement of any other witness
Page 399 U. S. 27
at the preliminary hearing against the petitioners at their
trial, we would likewise quite properly have to set aside these
convictions. Pointer v. Texas, 380 U.
. But that did not happen in this case, either.
For, as the prevailing opinion today perforce concedes, "the
prohibition against use by the State at trial of anything that
occurred at the preliminary hearing was scrupulously observed."
Nevertheless, the Court sets aside the convictions because, it
says, counsel should have been provided for the petitioners at the
preliminary hearing. None of the cases relied upon in that opinion
points to any such result. Even the Miranda
not require counsel to be present at "pretrial custodial
interrogation." That case simply held that the constitutional
guarantee against compulsory self-incrimination prohibits the
introduction at the trial of statements made by the defendant
during custodial interrogation if the Miranda
were not followed. 384 U. S. 384
436. See also United States v. Wade, 388 U.
; Gilbert v. California, 388 U.
. And I repeat that, in this case, no evidence of
anything said or done at the preliminary hearing was introduced at
the petitioners' trial.
But the prevailing opinion holds today that the Constitution
required Alabama to provide a lawyer for the petitioners at their
preliminary hearing, not so much, it seems, to assure a fair trial
as to assure a fair preliminary hearing. A lawyer at the
preliminary hearing, the opinion says, might have led the
magistrate to "refuse to bind the accused over." Or a lawyer might
have made "effective arguments for the accused on such matters as
the necessity for an early psychiatric examination or bail."
are the reasons a lawyer must be provided,
then the most elementary logic requires that a new preliminary
hearing must now be held, with counsel
Page 399 U. S. 28
made available to the petitioners. In order to provide such
relief, it would, of course, be necessary not only to set aside
these convictions, but also to set aside the grand jury
indictments, and the magistrate's orders fixing bail and binding
over the petitioners. Since the petitioners have now been found by
a jury in a constitutional trial [Footnote 4/2
] to be guilty beyond a reasonable doubt,
the prevailing opinion understandably boggles at these logical
consequences of the reasoning therein. It refrains, in short, from
now turning back the clock by ordering a new preliminary hearing to
determine all over again whether there is sufficient evidence
against the accused to present their case to a grand jury. Instead,
the Court sets aside these convictions and remands the case for
determination "whether the convictions should be reinstated or a
new trial ordered," and this action seems to me even more
The petitioners have simply not alleged that anything that
happened at the preliminary hearing turned out in this case to be
critical to the fairness of their trial. They have not alleged that
they were affirmatively prejudiced at the trial by anything that
occurred at the preliminary hearing. They have not pointed to any
affirmative advantage they would have enjoyed at the trial if they
had had a lawyer at their preliminary hearing.
No record or transcript of any kind was made of the preliminary
hearing. Therefore, if the burden on remand is on the petitioners
to show that they were prejudiced, it is clear that that burden
cannot be met, and the remand is a futile gesture. If, on the other
hand, the burden is on the State to disprove beyond a reasonable
doubt any and all speculative advantages that the petitioners might
conceivably have enjoyed if counsel had been present at their
preliminary hearing, then
Page 399 U. S. 29
obviously that burden cannot be met either, and the Court should
simply reverse these convictions. All I can say is that, if the
Alabama courts can figure out what they are supposed to do with
this case now that it has been remanded to them, their
perceptiveness will far exceed mine.
The record before us makes clear that no evidence of what
occurred at the preliminary hearing was used against the
petitioners at their now completed trial. I would hold, therefore,
that the absence of counsel at the preliminary hearing deprived the
petitioners of no constitutional rights. Accordingly, I would
affirm these convictions.
Ala.Code, Tit. 15, §§ 133-140 (1958).
I agree with the result reached in 399 U.