Petitioner's pretrial motion to dismiss the indictment against
him because of the court's failure to appoint counsel to represent
him at the preliminary hearing in 1967 was denied, and petitioner
was tried and convicted. The Illinois Supreme Court affirmed on the
ground that
Coleman v. Alabama, 399 U. S.
1, in which this Court held that a preliminary hearing
is a critical stage of the criminal process at which the accused is
constitutionally entitled to assistance of counsel, did not have
retroactive application.
Held: The judgment is affirmed. Pp.
405 U. S.
280-286.
46 Ill. 2d
200,
263 N.E.2d
490, affirmed.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART and MR.
JUSTICE WHITE, concluded that
Coleman v. Alabama, supra,
does not apply retroactively to preliminary hearings conducted
before June 22, 1970, when Coleman was decided. Pp.
405 U.S. 281-285.
MR. CHIEF JUSTICE BURGER concurred in the result, concluding, as
set forth in his dissent in
Coleman, that there is no
constitutional requirement that counsel should be provided at
preliminary hearings. Pp.
405 U. S.
285-286.
MR. JUSTICE BLACKMUN concurred in the result, concluding that
Coleman was wrongly decided. P.
405 U. S.
286.
BRENNAN, J., announced the Court's judgment and delivered an
opinion, in which STEWART and WHITE, JJ., joined. BURGER, C.J.,
filed an opinion concurring in the result,
post, p.
405 U. S. 285.
BLACKMUN, J., filed a statement concurring in the result,
post, p.
405 U. S. 286.
DOUGLAS J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
405 U. S. 286.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
Page 405 U. S. 279
MR. JUSTICE BRENNAN announced the judgment of the Court and an
opinion, in which MR. JUSTICE STEWART and MR. JUSTICE WHITE
join.
In
Coleman v. Alabama, 399 U. S.
1, decided June 22, 1970, we held that a preliminary
hearing is a critical stage of the criminal process at which the
accused is constitutionally entitled to the assistance of counsel.
This case presents the question whether that constitutional
doctrine applies retroactively to preliminary hearings conducted
prior to June 22, 1970.
The Circuit Court of Cook County, Illinois, conducted a
preliminary hearing on February 10, 1967, on a charge against
petitioner of selling heroin. Petitioner was not represented by
counsel at the hearing. He was bound over to the grand jury, which
indicted him. By pretrial motion, he sought dismissal of the
indictment on the ground that it was invalid because of the failure
of the court to appoint counsel to represent him at the preliminary
hearing. The motion was denied on May 3, 1967, on the authority of
People v. Morris, 30 Ill. 2d
406,
197 N.E.2d
433 (1964). In
Morris. the Illinois Supreme Court held
that the Illinois preliminary hearing was not a critical stage at
which the accused had a constitutional right to the assistance of
counsel. Petitioner's conviction was affirmed by the Illinois
Supreme Court, which rejected petitioner's argument that the later
Coleman decision required reversal. The court acknowledged
that its
Morris decision was superseded by
Coleman, [
Footnote 1]
but
Page 405 U. S. 280
held that
Coleman applied only to preliminary hearings
conducted after June 22, 1970, the date
Coleman was
decided.
46 Ill. 2d
200,
263 N.E.2d
490 (1970). We granted certiorari limited to the question of
the retroactivity of
Coleman. 401 U.S. 953 (1971). We
affirm.
The criteria guiding resolution of the question of the
retroactivity of new constitutional rules of criminal procedure
"implicate (a) the purpose to be served by the new standards,
(b) the extent of the reliance by law enforcement authorities on
the old standards, and (c) the effect on the administration of
justice of a retroactive application of the new standards."
Stovall v. Denno, 388 U. S. 293,
388 U. S. 297
(1967). We have given complete retroactive effect to the new rule,
regardless of good faith reliance by law enforcement authorities or
the degree of impact on the administration of justice, where
the
"major purpose of new constitutional doctrine is to overcome an
aspect of the criminal trial that substantially impairs its
truthfinding function and so raises serious questions about the
accuracy of guilty verdicts in past trials. . . ."
Williams v. United States, 401 U.
S. 646,
401 U. S. 653
(1971). Examples are the right to counsel at trial,
Gideon v.
Page 405 U. S. 281
Wainwright, 372 U. S. 335
(1963); on appeal,
Douglas v. California, 372 U.
S. 353 (1963); or at some forms of arraignment,
Hamilton v. Alabama, 368 U. S. 52
(1961).
See generally Stovall v. Denno, supra, at
388 U. S.
297-298;
Williams v. United States, supra, at
401 U. S. 653
n. 6.
However,
"the question whether a constitutional rule of criminal
procedure does or does not enhance the reliability of the
factfinding process at trial is necessarily a matter of
degree,"
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S.
728-729 (1966); it is a "question of probabilities."
Id. at
384 U. S. 729.
Thus, although the rule requiring the assistance of counsel at a
lineup,
United States v. Wade, 388 U.
S. 218 (1967);
Gilbert v. California,
388 U. S. 263
(1967), is "aimed at avoiding unfairness at the trial by enhancing
the reliability of the factfinding process in the area of
identification evidence," we held that the probabilities of
infecting the integrity of the truth-determining process by denial
of counsel at the lineup were sufficiently less than the omission
of counsel at the trial itself or on appeal that those
probabilities
"must, in turn, be weighed against the prior justified reliance
upon the old standard and the impact of retroactivity upon the
administration of justice."
Stovall v. Denno, supra, at
388 U. S.
298.
We hold that similarly the role of counsel at the preliminary
hearing differs sufficiently from the role of counsel at trial in
its impact upon the integrity of the factfinding process as to
require the weighing of the probabilities of such infection against
the elements of prior justified reliance and the impact of
retroactivity upon the administration of criminal justice. We may
lay aside the functions of counsel at the preliminary hearing that
do not bear on the factfinding process at trial -- counsel's help
in persuading the court not to hold the accused for the grand jury
or meanwhile to admit the accused to bail.
Coleman, 399
U.S. at
399 U. S. 9. Of
counsel's other functions -- to "fashion a vital impeachment
Page 405 U. S. 282
tool for use in cross-examination of the State's witnesses at
the trial," to "discover the case the State has against his
client," "making effective arguments for the accused on such
matters as the necessity for an early psychiatric examination . . .
,"
ibid. -- impeachment and discovery may make
particularly significant contribution to the enhancement of the
factfinding process, since they materially affect an accused's
ability to present an effective defense at trial. But because of
limitations upon the use of the preliminary hearing for discovery
and impeachment purposes, counsel cannot be as effectual as at
trial or on appeal. The authority of the court to terminate the
preliminary hearing once probable cause is established,
see
People v. Bonner, 37 Ill. 2d
553, 560,
229 N.E.2d
527, 531 (1967), means that the degree of discovery obtained
will vary depending on how much evidence the presiding judge
receives. Too, the preliminary hearing is held at an early stage of
the prosecution, when the evidence ultimately gathered by the
prosecution may not be complete.
Cf. S.Rep. No. 371, 90th
Cong., 1st Sess., 33, on amending 18 U.S.C. § 3060. Counsel must
also avail himself of alternative procedures, always a significant
factor to be weighed in the scales.
Johnson v. New Jersey,
384 U.S. at
384 U. S. 730.
Illinois provides, for example, bills of particulars and discovery
of the names of prosecution witnesses. Ill.Rev.Stat., c. 38, §§
114-2, 114-9, 114-10 (1971). Pretrial statements of prosecution
witnesses may also be obtained for use for impeachment purposes.
See, e.g., People v. Johnson, 31 Ill. 2d
602,
203 N.E.2d
399 (1964).
We accordingly agree with the conclusion of the Illinois Supreme
Court,
"On this scale of probabilities, we judge that the lack of
counsel at a preliminary hearing involves less danger to 'the
integrity of the truth-determining process at trial' than the
omission of counsel at the trial
Page 405 U. S. 283
itself or on appeal. Such danger is not ordinarily greater, we
consider, at a preliminary hearing at which the accused is
unrepresented than at a pretrial line-up or at an interrogation
conducted without presence of an attorney."
46 Ill. 2d at 207, 263 N.E.2d at 494. [
Footnote 2]
We turn then to weighing the probabilities that the denial of
counsel at the preliminary hearing will infect the integrity of the
factfinding process at trial against the prior justified reliance
upon the old standard and the impact of retroactivity upon the
administration of justice. We do not think that law enforcement
authorities are to be faulted for not anticipating
Coleman. There was no clear foreshadowing of that rule. A
contrary inference was not unreasonable in light of our decisions
in
Hamilton v. Alabama, 368 U. S. 52, and
White v. Maryland, 373 U. S. 59
(1963).
Hamilton denominated the arraignment stage in
Alabama critical because defenses not asserted at that stage might
be forever lost.
White held that an uncounseled plea of
guilty at a Maryland preliminary hearing could not be introduced by
the State at trial. Many state courts not unreasonably regarded
Hamilton and
White as fashioning limited
constitutional rules governing preliminary hearings.
See,
e.g., the decision of the Illinois Supreme Court in
People
v. Morris, 30 Ill. 2d
406,
197 N.E.2d
433. Moreover, a
Page 405 U. S. 284
number of courts, including all of the federal courts of
appeals, had concluded that the preliminary hearing was not a
critical stage entitling an accused to the assistance of counsel.
[
Footnote 3] It is thus clear
there has been understandable and widespread reliance upon this
view by law enforcement officials and the courts.
It follows that retroactive application of
Coleman
"would seriously disrupt the administration of our criminal laws."
Johnson v. New Jersey, 384 U.S. at
384 U. S. 731.
At the very least, the processing of current criminal calendars
would be disrupted while hearings were conducted to determine
whether the denial of counsel at the preliminary hearing
constituted harmless error.
Cf. Stovall v. Denno, 388 U.S.
at
388 U. S. 300.
The task of conducting such hearings would be immeasurably
complicated by the need to construct a record of what occurred. In
Illinois, for example, no court reporter was present at
pre-
Coleman preliminary hearings, and the proceedings are
therefore not recorded.
See People v. Givans, 83
Ill.App.2d 423, 228 N.E.2d 123 (1967). In addition, relief from
this constitutional error would require not merely a new trial, but
also, at least in Illinois, a new preliminary hearing and a new
indictment. The impact upon the administration of the criminal law
of that requirement needs no elaboration. Therefore, here also,
"[t]he unusual force of the countervailing considerations
strengthens our conclusion
Page 405 U. S. 285
in favor of prospective application."
Stovall v. Denno,
supra, at
388 U. S.
299.
We do not regard petitioner's case as calling for a contrary
conclusion merely because he made a pretrial motion to dismiss the
indictment, or because his conviction is before us on direct
review.
"[T]he factors of reliance and burden on the administration of
justice [are] entitled to such overriding significance as to make
[those] distinction [s] unsupportable."
Stovall v. Denno, supra, at
388 U. S.
300-301. Petitioner makes no claim of actual prejudice
constituting a denial of due process. Such a claim would entitle
him to a hearing without regard to today's holding that
Coleman is not to be retroactively applied.
See People
v. Bernatowicz, 35 Ill. 2d
192, 198,
220 N.E.2d
745, 748 (1966);
People v. Bonner, 37 Ill. 2d
553, 561,
229 N.E.2d
527, 532 (1967).
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[
Footnote 1]
The Illinois Supreme Court stated, 46 Ill. 2d at 20206, 263
N.E.2d at 493,
"A preliminary hearing in Alabama, as in Illinois, has the
purpose of determining whether there is probable cause to believe
an offense has been committed by the defendant. . . . In both
States, the hearing is not a required step in the process of
prosecution, as the prosecutor may seek an indictment directly from
the grand jury, thereby eliminating the proceeding. . . . In
neither State is a defendant required to offer defenses at the
hearing at the risk of being precluded from raising them at the
trial itself. . . . We conclude that the preliminary hearing
procedures of Alabama and Illinois are substantially alike, and we
must consider because of
Coleman v. Alabama . . . that a
preliminary hearing conducted pursuant to section 109-3 of the
Criminal Code (Ill.Rev.Stat. 1969, ch. 38, par. 109-3) is a
'critical stage' in this State's criminal process, so as to entitle
the accused to the assistance of counsel."
A right to a preliminary hearing has been constitutionally
established, effective July 1, 1971. Illinois Constitution of 1970,
Art. I, § 7.
[
Footnote 2]
Accord: Phillips v. North Carolina, 433 F.2d 659, 662
(1970), where the Court of Appeals for the Fourth Circuit
observed:
"To be sure, if a preliminary hearing is held, the accused gains
important rights and advantages that can be effectively exercised
only through his attorney. Counsel's function, however, differs
from his function at trial. Broadly speaking, his role at the
preliminary hearing is to advise, observe, discover the facts, and
probe the state's case. In this respect, he serves in somewhat the
same capacity as counsel at lineups and interrogations, which are
both pretrial stages of criminal proceedings where the right to
counsel has not been held retroactive."
[
Footnote 3]
Pagan Cancel v. Delgado, 408 F.2d 1018 (CA1 1969);
United States ex rel. Cooper v. Reincke, 333 F.2d 608 (CA2
1964);
United States ex rel. Budd v. Maroney, 398 F.2d 806
(CA3 1968);
DeToro v. Pepersack, 332 F.2d 341 (CA4 1964);
Walker v. Wainwright, 409 F.2d 1311 (CA5 1969);
Waddy
v. Heer, 383 F.2d 789 (CA6 1967);
Butler v. Burke,
360 F.2d 118 (CA7 1966);
Pope v. Swenson, 395 F.2d 321
(CA8 1968);
Wilson v. Harris, 351 F.2d 840 (CA9 1965);
Latham v. Crouse, 320 F.2d 120 (CA10 1963);
Headen v.
United States, 115 U.S.App.D.C. 81, 317 F.2d 145 (1963).
MR. CHIEF JUSTICE BURGER, concurring in the result.
I concur in the result, but maintain the view expressed in my
dissent in
Coleman v. Alabama, 399 U. S.
1,
399 U. S. 21
(1970), that, while counsel should be provided at preliminary
hearings as a matter of sound policy and judicial administration,
there is no constitutional requirement that it be done. As I noted
in
Coleman, the constitutional command applies to
"criminal prosecutions," not to the shifting notion of "critical
stages." Nor can I join in the view that it is a function of
constitutional adjudication to assure that defense counsel can
"fashion a vital impeachment tool for use in cross-examination of
the State's witnesses at the trial" or "discover the case the State
has against his client."
Page 405 U. S. 286
399 U.S. at
399 U. S. 9.
Nothing could better illustrate the extra-constitutional scope of
Coleman than the interpretation of it now to explain why
we do not make it "retroactive."
MR. JUSTICE BLACKMUN, concurring in the result.
Inasmuch as I feel that
Coleman v. Alabama,
399 U. S. 1 (1970),
was wrongly decided, I concur in the result.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
Until
Linkletter v. Walker, 381 U.
S. 618 (1965), the Court traditionally applied new
constitutional criminal procedure standards to cases finalized and
police practices operative before the promulgation of the new
rules. [
Footnote 2/1]
Linkletter, however, was the cradle of a new doctrine of
nonretroactivity which exempts from relief the earlier victims of
unconstitutional police practices. I have disagreed on numerous
occasions with applications of various brands of this doctrine, and
I continue my dissent in this case. [
Footnote 2/2] My own view is that even-handed justice
requires either prospectivity only [
Footnote 2/3] or complete retroactivity.
Page 405 U. S. 287
To me, there is something inherently invidious, as Mr. Justice
Harlan phrased it, in
"[s]imply fishing one case from the stream of appellate review,
using it as a vehicle for pronouncing new constitutional standards,
and then permitting a stream of similar cases subsequently to flow
by unaffected by that new rule. . . ."
Mackey v. United States, 401 U.
S. 667,
401 U. S. 679
(1971) (separate opinion). I agree with his critique,
id.
at
401 U. S. 695,
that the purported distinction between those rules that are
designed to improve the factfinding process and those designed to
further other values was "inherently intractable," and, to
illustrate his point, he adverted to the Court's difficulty in
reconciling with its rule such nonretroactivity cases as
Johnson v. New Jersey, 384 U. S. 719
(1966);
Stovall v. Denno, 388 U.
S. 293 (1967), and
DeStefano v. Woods,
392 U. S. 631
(1968), all of which held nonretroactive decisions designed, in
part, to enhance the integrity of the factfinding process. He also
questioned the workability of any rule which requires a guess as
to
"whether a particular decision has really announced a 'new' rule
at all, or whether it has simply applied a well established
constitutional principle."
Mackey v. United States, supra, at
401 U. S. 695;
Desist v. United States, 394 U. S. 244,
394 U. S. 263
(1969). For example, as I suggest
infra at
405 U. S.
293-295, a serious question arises in this case whether
Coleman v. Alabama, 399 U. S. 1 (1970),
should have been fully anticipated by state judicial authorities.
[
Footnote 2/4]
Page 405 U. S. 288
Additionally, it is curious that the plurality rule is sensitive
to "reasonable reliance" on prior standards by law enforcement
agencies, but is unconcerned about the
Page 405 U. S. 289
unfairness of arbitrarily granting relief to
Coleman
but denying it to Adams.
Given my disagreement with the plurality's rule, I am reluctant
even to attempt to apply it, but, even by its own
Page 405 U. S. 290
terms, the balancing approach would appear to require that we
hold
Coleman retroactive. This conclusion reinforces my
fear that the process is too imprecise as a neutral guide for
either this Court or the lower courts, and will invariably permit
retroactivity decisions to turn on predilections, not
principles.
I
In applying the rule, I am first troubled by the plurality's
adoption of the finding of the court below that:
"On [the] scale of probabilities, we judge that the lack of
counsel at a preliminary hearing involves less danger to 'the
integrity of the truth-determining process at trial' than the
omission of counsel at the trial itself or on appeal."
Ante at
405 U. S.
282-283. The same might have been said of the right to
counsel at sentencing,
Mempa
Page 405 U. S. 291
v. Rhay, 389 U. S. 128
(1967), at certain arraignments,
Hamilton v. Alabama,
368 U. S. 52
(1961), or at preliminary hearings where guilty pleas were taken,
White v. Maryland, 373 U. S. 59
(1963), all of which have been held retroactive. [
Footnote 2/5]
Rather than reaching for these analogies, however, the plurality
suggests that the danger to the integrity of the truth-determining
process is no greater here than at a pretrial lineup or at an
interrogation conducted without counsel. In relying on these
analogies, the plurality gives short shrift to the argument that,
"in practice, [the preliminary] hearing may provide the defense
with the most valuable discovery technique available to him,"
Wheeler v. Flood, 269 F.
Supp. 194, 198 (EDNY 1967), an objective which is not so
readily achievable at lineups and interrogations at which counsel
serves only a protective function. The State's access to superior
investigative resources and its ability to keep its case secret
until trial normally puts the defendant at a clear disadvantage.
[
Footnote 2/6]
Page 405 U. S. 292
In light of this disparity, one important service the
preliminary hearing performs is to permit counsel to penetrate the
evidence offered by the prosecution at the hearing, to test its
strengths and weaknesses (without the presence of a jury), to learn
the names and addresses of witnesses, to focus upon the key factual
issues in the upcoming trial, and to preserve testimony for
impeachment purposes. The alternative discovery techniques
suggested now by the plurality are puny in comparison. A bill of
particulars can usually reach only prosecution witnesses' names,
and it may be cold comfort to defense counsel to learn that he can
obtain pretrial statements of prosecution witnesses, inasmuch as
such statements are often prepared from the State's viewpoint, and
have not been subjected to cross-examination. And, in many States,
such statements are not discoverable.
Finally, when read in light of
Coleman's exaltation of
the virtues of counseled preliminary hearings, the present language
of the plurality may lend itself to a "credibility gap" between it
and those involved in the administration of the criminal process.
"Plainly," said the
Coleman Court,
"the guiding hand of counsel at the preliminary hearing is
essential to protect the indigent accused against an erroneous or
improper prosecution,"
Coleman v. Alabama, supra, at
399 U. S. 9,
and:
"The inability of the indigent accused on his own to realize
these advantages of a lawyer's assistance compels 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.'"
Id. at
399 U. S. 10. It
will
Page 405 U. S. 293
now appear somewhat anomalous that the right to counsel at a
preliminary hearing is fundamental enough to be incorporated into
the Fourteenth Amendment, but not fundamental enough to warrant
application to the victims of previous unconstitutional conduct.
[
Footnote 2/7]
II
I also believe that the plurality's case for establishing good
faith reliance on "the old standards" by state judicial systems
ignores important developments in the right to counsel cases prior
to
Coleman. First of all, no decision of this Court had
held that counsel need not be afforded at the preliminary hearing
stage. Therefore, to build a case for good faith reliance, the
State must wring from our decision the negative implication that
uncounseled probable cause hearings were permissible. Such negative
implications are found, says the plurality, in
Hamilton v.
Alabama, 368 U. S. 52
(1961), and
White v. Maryland, 373 U. S.
59 (1963), cases reversing convictions obtained through
the use at trial of uncounseled guilty pleas entered at preliminary
hearings. Neither of those decisions, however, faced the question
of whether reversal
Page 405 U. S. 294
was required on the facts of the instant case. And, though I
have studied these two short opinions, I am unable, as is the
plurality, to divine any hidden message to law enforcement agencies
that we would permit the denial of counsel at preliminary hearings
where guilty pleas were not taken. Rather, these cases reinforce,
in my mind, the importance of counsel at every stage in the
criminal process. In any event, by the time
Coleman came
down, it was clear, as Mr. Justice Harlan opined, albeit with some
regret, that our holding was an inevitable consequence of prior
case law:
"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. S. 218 (1967);
Gilbert v. California, 388 U. S. 263 (1967);
Mathis
v. United States, 391 U. S. 1 (1968); and
Orozco
v. Texas, 394 U. S. 324 (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. . . ."
"
* * * *"
"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
(
Miranda) 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."
Coleman v. Alabama, supra, at
399 U. S. 19-20
(separate opinion). [
Footnote
2/8]
Page 405 U. S. 295
Thus, in the instant case, at the times relevant, the State
should have foreseen that the right to counsel attached to the
probable cause hearing.
III
I also disagree that "[t]he impact upon the administration of
the criminal law of [
Coleman retroactivity] needs no
elaboration."
Ante at
405 U. S. 284.
In the 19 months since
Coleman was decided all new
prosecutions have presumably followed it and we therefore need only
be concerned, for impact purposes, with those state proceedings in
which a preliminary hearing was held prior to June, 1970. Inasmuch
as the median state sentence served by felons when they are first
released is about 20.9 months, [
Footnote 2/9] most pre-
Coleman sentences would
now be served and, as a practical matter, these former prisoners
would not seek judicial review. Moreover, we may exclude from our
consideration those 16 or more States that, prior to Coleman
routinely appointed counsel at or prior to preliminary hearings.
See American Bar Association, Project on Standards for
Criminal Justice, Providing Defense Services § 5.1 (Approved Draft
1968). Additionally, we may exclude from consideration the
possibility of collateral challenges by federal prisoners inasmuch
as counsel have routinely been present at preliminary hearings
before federal commissioners. [
Footnote 2/10]
See Fed.Rule Crim.Proc.
5(b).
While there are some current prisoners who might challenge their
confinements if
Coleman were held retrospective,
Page 405 U. S. 296
many of these attacks would probably fail under the harmless
error rule of
Chapman v. California, 386 U. S.
18 (1967). The plurality opinion suggests that
conducting such harmless error proceedings would be onerous. One
reason given is that, in Illinois, for example, preliminary
hearings were not recorded before
Coleman. That assertion
may not be entirely accurate in light of the fact that this very
record contains a transcript of Adams' preliminary hearing.
Perhaps, as the respondent seems to concede, [
Footnote 2/11] transcripts were made available in
other Illinois cases. That is the more reasonable assumption in
light of our holding in
Roberts v. LaVallee, 389 U. S.
40 (1967), that the State must provide a preliminary
hearing transcript to an indigent in every circumstance in which
the more affluent accused could obtain one.
Even where a transcript was not available, however, a prisoner
might be able to show at an evidentiary hearing that he was
prejudiced by a particular need for discovery, by the inability to
preserve the testimony of either an adverse or favorable witness,
or by the inability to secure his release on bail in order to
assist in the preparation of his defense. [
Footnote 2/12] Courts are accustomed, of course, to
assessing claims of prejudice without the aid of transcripts of
previous proceedings, such as is required by
Jackson v.
Denno, 378 U. S. 368
(1964), or
Townsend v. Sain, 372 U.
S. 293 (1963). Indeed, in
Coleman, we remanded
for a determination of whether the failure to appoint counsel had
been harmless error. 399 U.S. at
399 U. S. 11. Not
every
Coleman claim would warrant an evidentiary hearing.
Many attacks might be disposed of summarily, such as a challenge to
a conviction resulting from a counseled guilty plea entered before
any prejudice
Page 405 U. S. 297
had materialized from an uncounseled preliminary hearing.
See Procunier v. Atchley, 400 U.
S. 446 (1971).
Even
Stovall v. Denno, 388 U.S. at
388 U. S. 299,
the analogy frequently invoked by the plurality, held out the
possibility of collateral relief in cases where prisoners could
show that their lineups had imposed "such unfairness that [they]
infringed [their] right to due process of law." Conducting
Coleman harmless error hearings would not appear to be any
more burdensome on the administration of criminal justice than have
Stovall "fundamental fairness" post-conviction
proceedings.
In any event, whatever litigation might follow a holding of
Coleman retrospectivity must be considered part of the
price we pay for former failures to provide fair procedures.
[
Footnote 2/1]
E.g., Eskridge v. Washington Prison Board, 357 U.
S. 214 (1958);
Gideon v. Wainwright,
372 U. S. 335
(1963);
Jackson v. Denno, 378 U.
S. 368 (1964), (
see also Desist v. United
States, 394 U. S. 244,
394 U. S. 250
n. 15 (1969));
Reck v. Pate, 367 U.
S. 433 (1961).
[
Footnote 2/2]
Linkletter v. Walker, 381 U. S. 618,
381 U. S. 640
(1965);
Tehan v. Shott, 382 U. S. 406,
382 U. S. 419
(1966);
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 736
(1966);
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 302
(1967);
DeStefano v. Woods, 392 U.
S. 631,
392 U. S. 635
(1968);
Desist v. United States, 394 U.
S. 244,
394 U. S. 255
(1969);
Halliday v. United States, 394 U.
S. 831,
394 U. S. 835
(1969);
Mackey v. United States, 401 U.
S. 667,
401 U. S. 713
(1971).
[
Footnote 2/3]
It was suggested in
Stovall v. Denno, supra, at
388 U. S. 301,
that a prospective-only holding would violate the Art. III
requirement of case or controversy.
But see England v.
Louisiana State Board of Medical Examiners, 375 U.
S. 411,
375 U. S. 422
(1964), where the Court exempted the petitioner from its holding.
See also Johnson v. New Jersey, supra, at
384 U. S.
733.
[
Footnote 2/4]
While I subscribe to many of the reservations expressed by Mr.
Justice Harlan, I nonetheless find his alternative rule of
retrospectivity unsatisfactory. In
Mackey v. United
States, 401 U. S. 667,
401 U. S. 675
(1971) (separate opinion), he suggested that constitutional
decisions be retroactive as to all nonfinal convictions pending at
the time of the particular holdings, but that prisoners seeking
habeas relief should generally be treated according to the law
prevailing at the time of their convictions. It is on this latter
score that I am troubled. Surely it would be no more facile a task
to unearth the state of law of years past than it is to assign,
under the plurality's test, a degree of reasonableness to reliance
on older standards by law enforcement agencies. Where the question
has arisen in this Court, we have treated habeas petitioners by the
modern law, not by older rules.
See Reck v. Pate,
367 U. S. 433
(1961) (habeas permitted on basis of current law to release
prisoner convicted in 1936).
See also Gideon v.
Wainwright, 372 U. S. 335
(1963), and
Jackson v. Denno, 378 U.
S. 368 (1964), announcing new rules in habeas cases.
Moreover, as has been concluded by Professor Schwartz, the drawing
of a bright line between federal review through habeas and
certiorari would be unjustified:
"Where federal review of the constitutionality of state criminal
proceedings is concerned, the making of so sharp a distinction
between review on certiorari and habeas corpus is unwarranted.
There is often no significant difference with respect to age and
potential staleness between the two types of cases. Rather than
coming years after the conviction is final, habeas corpus is often
but a routine step in the criminal defense process -- the normal
step taken after certiorari has been denied. Sometimes, it actually
replaces certiorari, for, in
Fay v. Noia [
372 U.S.
391 (1963)], the Supreme Court advised criminal defendants to
skip certiorari and to petition directly to the federal district
court for habeas corpus. Even in situations in which a defendant
goes through all the direct review steps, it is often nothing more
than fortuitous circumstance which determines whether his case is
still on direct review or is on collateral attack when the new
decision comes down."
"The difference between review on certiorari and habeas corpus
seems even less significant when we look to function and actual
operation. Although it is sometimes considered the 'normal' method
for obtaining federal review of state convictions, certiorari does
not provide, as the Court remarked in
Fay v. Noia, 'a
normal appellate channel in any sense comparable to the writ of
error,' for the Court must limit its jurisdiction to questions that
have significance beyond the immediate case. Habeas corpus, on the
other hand, facilitates the Court's task in those cases it does
take by providing a record focused exclusively on the federal
constitutional question. Habeas corpus has thus become the primary
vehicle for immediate federal review of state convictions. Further,
this development has resulted in a gradual shrinking of what were
once significant operational differences between review on
certiorari and habeas corpus, such as the relationship to the state
proceeding, the degree of independent factfinding authority, and
the significance of the defendant's violation of state procedural
rules. From both the functional and the operational standpoints,
then, it is justifiable to conclude that 'the distinctions between
habeas corpus proceedings and direct review are largely
illusory.'"
"In addition, drawing a line between review [on] certiorari and
habeas corpus undercuts the Supreme Court's bypass suggestion in
Fay v. Noia. If a defendant has doubts about the
retroactivity of any claim which might both affect him and be
subject to Court review in the foreseeable future, he will be well
advised always to ignore the Court's suggestion and to apply for
certiorari. Many months may pass before his petition for certiorari
is rejected, and, so long as it is pending, he will be entitled to
receive the benefits of any intervening decisions. As soon as he
files his petition for habeas corpus, however, even if he does so
only a day after the last state court order is entered, he will
have forfeited his right to such benefits. He will thus be put to
an election between delayed relief and no relief at all."
"The inequity of drawing a sharp distinction between direct
review and habeas corpus is, however, only one aspect of a broader
inequity: treating two prisoners deprived of the same fundamental
constitutional right differently merely because the Supreme Court
did not get around to enunciating a particular right until after
the conviction of one of them had become final. Professor Mishkin
argues that worry about this point ignores"
"the reasons for barring current convictions and . . . the fact
that the new rule in no way undermines the earlier determinations
of factual guilt."
"To him, it is as if a guilty person were to complain of his lot
because others equally guilty were not prosecuted. And though he
recognizes that such claims are sometimes sustained, he concludes
that 'there are certainly rational bases for drawing a line between
current convictions and those previously final,' citing excerpts
from Professors Bator and Amsterdam on finality. Professor
Mishkin's sharp distinction between collateral attack and direct
review thus rests ultimately on finality considerations."
"Finality considerations seem especially weak where two cases
differ only in the fact that one is still on 'direct' review,
whereas the other is not. Where the two cases are far apart in age,
finality considerations are admittedly more persuasive. But even
there, the mere timing of the Court's decision to grant federal
protection to a fundamental right hardly seems to be a sufficient
basis for unequal treatment; after all, in most instances, it was
not the older prisoner's fault that the Court did not render its
decision earlier. To some extent, of course, the question comes
down to a choice between the competing values of equality and
repose, and choices of this sort are notoriously immune to reasoned
resolution. It will be suggested below, however, that the threat to
finality considerations from complete retroactivity appears to have
been greatly exaggerated, and, if this suggestion is well taken,
Professor Mishkin's rejection of equality is especially
untenable."
Schwartz, Retroactivity, Reliability, and Due Process: A Reply
to Professor Mishkin, 33 U.Chi.L.Rev. 719, 731-734 (1966).
[
Footnote 2/5]
See McConnell v. Rhay, 393 U. S.
2 (1968) (
Mempa retroactive);
Arsenault v.
Massachusetts, 393 U. S. 5 (1968)
(
White and
Hamilton retroactive).
[
Footnote 2/6]
The investigative advantage enjoyed by the State extends beyond
the prohibition of the common law against criminal discovery. It
also results from the fact that the police are usually first at the
scene of the crime, have access to witnesses with fresher
recollections, are authorized to confiscate removable evidence, are
positioned to conduct laboratory tests on physical evidence, enjoy
a communication channel with a complete undercover world of secret
informers, have an air of legitimacy which is conducive to
cooperation by witnesses, and have numerous ways to compel
testimony even before trial.
See generally Norton,
Discovery in the Criminal Process, 61 J.Crim.L., C. & P. S. 11,
13-14 (1970); Comment, Criminal Law: Pre-Trial Discovery -- The
Right of an Indigent's Counsel to Inspect Police Reports, 14
St.Louis U.L.J. 310 (1969); Moore, Criminal Discovery, 19 Hastings
L.J. 865 (1968); A State Statute to Liberalize Criminal Discovery,
4 Harv.J.Legis. 105 (1967); Comment, Disclosure and Discovery in
Criminal Cases: Where Are We Headed?, 6 Duquesne U.L.Rev. 41
(1967); Bibliography: Criminal Discovery, 5 Tulsa L.J. 207 (1968);
Symposium: Discovery in Federal Criminal Cases, 33 F.R.D. 53
(1963); Brennan, Criminal Prosecution: Sporting Event or Quest For
Truth? 1963 Wash.U.L.Q. 279.
[
Footnote 2/7]
I am aware that the retroactivity theory presently commanding a
Court permits a distinction between rules designed to fortify the
reliability of verdicts and rules designed to protect other values.
But here, as the plurality suggests, three of the four functions
counsel might serve at preliminary hearings would appear to enhance
the factfinding process: discovery of the State's case, preserving
of testimony of both hostile and favorable witnesses, and obtaining
release on bail. Although the plurality appears to discount the
investigative advantage of being free on bail, I believe that this
"traditional right to freedom before conviction permits the
unhampered preparation of a defense."
Stack v. Boyle,
342 U. S. 1,
342 U. S. 4
(1951).
See also Kinney v. Lenon, 425 F.2d 209, 210 (CA9
1970), where the Court of Appeals found that "the appellant is the
only person who can effectively prepare his own defense," because
the incarcerated accused was the only person who could recognize
witnesses by sight who might have seen a scuffle.
[
Footnote 2/8]
To this list might have been added
Roberts v. LaVallee,
389 U. S. 40
(1967), holding that the State must provide an indigent with a
preliminary hearing transcript in every circumstance in which the
more affluent accused could obtain one.
[
Footnote 2/9]
Federal Bureau of Prisons, National Prisoner Statistics --
Characteristics of State Prisoners, 1960, pp. 26-27 (1965).
[
Footnote 2/10]
In this respect, the instant case further differs from
Stovall v. Denno, 388 U.S. at
388 U. S. 299,
where it was found that:
"The law enforcement officials of the Federal Government and of
all 50 States have heretofore proceeded on the premise that the
Constitution did not require the presence of counsel at pretrial
confrontations for identification."
[
Footnote 2/11]
Brief for Respondent 33.
[
Footnote 2/12]
See 405
U.S. 278fn2/7|>n. 7,
supra.