# Coleman v. Alabama (399 U.S. 1)/Concurrence Harlan

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* Case Syllabus
* Opinion of the Court
* Concurring Opinions Black White Harlan
* Dissenting Opinion Stewart
United States Supreme Court
399 U.S. 1
Coleman v. Alabama
Argued: Nov. 18, 1969. --- Decided: June 22, 1970
Mr. Justice HARLAN, concurring in part and dissenting in part.
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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (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. See my dissenting opinion in Baldwin v. New York, decided today, 399 U.S. 117, 90 S.Ct. 1914, 26 L.Ed.2d 437, and my opinion concuring in the result in Welsh v. United States, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970).
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 (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.
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 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 harmless-error rule seems to me to leave the way open for that sort of speculation.
Despite my continuing disagreement with United States v. Wade, supra, I must dissent from the refusal to accord petitioners the benefit of the Wade holding, neither 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, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (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, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (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 Wade.
The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the incourt 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.
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 Constitution commands it because it is a 'criminal prosecution.' 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.
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 institution.
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 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 acknowledge 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 rule-making 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 event 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 we should be especially cautious about substituting our own notions for those of the Framers. I heed Mr. Justice Black's recent admonition on 'the difference * * * between our Constitution as written by the Founders and an unwritten constitution to be formulated by judges according to their ideas of fairness on a case-by-case basis.' North Carolina v. Pearce, 395 U.S. 711, 744, 89 S.Ct. 2072, 2085, 23 L.Ed.2d 656 (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. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).
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. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). See also Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
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 decidely 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).
Mr. Justice STEWART, with whom The Chief Justice joins, dissenting.

## Notes

* ↑ The pertinent language is: 'In all criminal prosecutions, the accused shall enjoy * * * the Assistance of Counsel for his defence.'
* ↑ I concur in the conclusion that due process was not violated by the identification procedures employed here.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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