399 U.S. 1 (1970)
In July 1966, Casey Reynolds and his wife stopped their car on Green Springs Highway in Birmingham, Alabama, to change a flat tire.1 Three men approached from across the highway.2 One of them shot Reynolds from a short distance away.3 The three then ran up to within three or four feet.4 Reynolds arose from his stooped position and held on to his wife.5
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.6 Reynolds testified at trial that he saw Coleman face to face during the assault and got a real good look at him.7 Reynolds identified petitioner Stephens as the gunman, stating that he saw him in the car lights while looking straight at him. The lineup of which petitioners complain was conducted on October 1, 1966, about two months after the assault and seven months before petitioners' trial.8 Reynolds identified petitioner Stephens spontaneously before the formal lineup even began.9
Petitioners were granted a preliminary hearing before a county judge a few days after their arrest.10 Alabama failed to provide them with appointed counsel at the hearing.11 At the conclusion of the hearing the petitioners were bound over to the grand jury, and their bond was set at $10,000.12 No record or transcript of any kind was made of the hearing.13 Less than a month later the grand jury returned an indictment against the petitioners, charging them with assault to commit murder.14
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.15 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).16 We granted certiorari, 394 U. S. 916 (1969).17
Whether the conduct of the pretrial lineup was so unduly prejudicial and conducive to irreparable misidentification as to fatally taint Reynolds' in-court identifications of the petitioners?18
The Due Process Clause requires exclusion of in-court identification evidence if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.19 This determination is made on the totality of the surrounding circumstances.20
No. Reynolds identified both petitioners spontaneously before the formal lineup procedures began.21 He based his identifications on his observations at the time of the assault.22 Reynolds testified at trial that he saw Coleman face to face during the assault and got a real good look at him. Reynolds identified petitioner Stephens as the gunman, stating that he saw him in the car lights while looking straight at him.
Although petitioners and their codefendant were the only ones required to say the words used by one of the attackers and Coleman wore a hat, Reynolds had already identified them before these actions occurred.23 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.24
The lineup identifications did not taint Reynolds' in-court identifications of the petitioners.25
Related opinions on this issue
Justice Harlan dissented from the refusal to accord petitioners the benefit of the Wade holding.26 Neither petitioner had been afforded counsel at the police lineup identification.27 He would judge the case in light of Wade on direct review rather than apply the Stovall retroactivity doctrine.28
He would send the case back for a determination whether the in-court identifications were derived from a source independent of the tainted pretrial viewing.29 This approach diverges from the majority's application of the Stovall retroactivity doctrine because Harlan no longer follows that doctrine in cases on direct review.30
Whether the Alabama preliminary hearing is a critical stage of the criminal prosecution at which the accused is entitled to the assistance of appointed counsel?31
A pretrial proceeding is a critical stage requiring the assistance of counsel if potential substantial prejudice to the defendant's rights inheres in the confrontation.32 Counsel's presence can help avoid that prejudice.33 The guiding hand of counsel is essential to protect the indigent accused against an erroneous or improper prosecution.34
Yes. The Alabama preliminary hearing serves to determine whether there is sufficient evidence to warrant presenting the case to the grand jury and to fix bail.35 Counsel at the hearing can expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over.36 Counsel can fashion a vital impeachment tool for use in cross-examination at trial.37
Counsel can discover the case the State has against the client.38 Counsel can make effective arguments on matters such as the necessity for an early psychiatric examination or bail.39 The inability of the indigent accused on his own to realize these advantages 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.
The Alabama preliminary hearing is a critical stage of the criminal prosecution at which the accused is entitled to the assistance of appointed counsel.
Related opinions on this issue
Justice Black agreed that an accused has a constitutional right to the assistance of counsel at the preliminary hearing which Alabama grants criminal defendants.40 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.41 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.42 The preliminary hearing is therefore a definite part or stage of a criminal prosecution in Alabama.43 The plain language of the Sixth Amendment requires that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defence.44
Justice Douglas added that a strict construction of the Constitution requires the result reached.45 The critical words of the Sixth Amendment guarantee the assistance of counsel in all criminal prosecutions.46 A preliminary hearing is a definite part or stage of a criminal prosecution in Alabama.47
The Sixth Amendment controls rather than ideas of what an efficient criminal code should provide.48 The case-by-case approach under Article III jurisdiction led to this determination that the preliminary hearing is part of the criminal prosecution.49
Chief Justice Burger dissented and rejected the notion that the Constitution commands counsel at a preliminary hearing because it is a criminal prosecution.50 The Sixth Amendment states with precision that in all criminal prosecutions the accused shall have the assistance of counsel.51 The only relevant determination is whether a preliminary hearing is a criminal prosecution, not whether it is a critical event in the progress of a criminal case.52
By inventing its own verbal formula the prevailing opinion seeks to reshape the Constitution in accordance with predilections of what is deemed desirable.53
Whether the denial of counsel at the preliminary hearing requires reversal of the convictions or may instead be deemed harmless error under Chapman v. California?54
No. 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.57 However, on the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing.58 That inquiry in the first instance should more properly be made by the Alabama courts.59 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).60
The convictions are vacated and the case is remanded to the Alabama courts to determine whether the denial of counsel was harmless error.61
Related opinions on this issue
Justice White joined the prevailing opinion with some hesitation but expected the application of the harmless-error standard on remand to produce results approximating those contemplated by Justice Harlan.62 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.63 It would be wholly speculative in this case to assume either 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 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.64
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.65
Justice Harlan agreed that petitioners' constitutional rights were violated when Alabama refused to appoint counsel at the preliminary hearing but dissented from the terms of the Court's remand.66 He would not reverse the convictions 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.67 In his opinion mere speculation that defense 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.68
The Court's remand under the Chapman harmless-error rule seems to leave the way open for that sort of speculation.69
Justice Stewart would affirm the convictions because 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.70 The petitioners have not alleged that they were affirmatively prejudiced at the trial by anything that occurred at the preliminary hearing.71 The record before the Court makes clear that no evidence of what occurred at the preliminary hearing was used against the petitioners at their now completed trial.72
The absence of counsel at the preliminary hearing therefore deprived the petitioners of no constitutional rights.73