Professional Documents
Culture Documents
Adams v. Illinois, 405 U.S. 278 (1972)
Adams v. Illinois, 405 U.S. 278 (1972)
278
92 S.Ct. 916
31 L.Ed.2d 202
Syllabus
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, 90 S.Ct. 1999, 26 L.Ed.2d 387, 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. 280286.
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. 280285.
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. 285286.
Mr. Justice BLACKMUN concurred in the result, concluding that
Coleman was wrongly decided. P. 286.
Edward M. Genson, Chicago, Ill., for petitioner.
E. James Gildea, Chicago, Ill., for respondent.
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); on appeal,
Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); or at
some forms of arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7
L.Ed.2d 114 (1961). See generally Stovall v. Denno, supra, 388 U.S., at 297
298, 87 S.Ct., at 19701971; Williams v. United States, supra, 401 U.S., at
653 n. 6, 91 S.Ct., at 1152.
4
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 trialcounsel'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 9, 90 S.Ct., at 2003. Of counsel's other functionsto
'fashion a vital impeachment 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 730, 86 S.Ct., at 1779. Illinois provides, for example, bills of
particulars and discovery of the names of prosecution witnesses. Ill.Rev.Stat., c.
38, 1142, 1149, 11410 (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, 206 N.E.
6
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 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
494.2
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, 82
S.Ct. 157, 7 L.Ed.2d 114, and White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050,
10 L.Ed.2d 193 (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
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.3 It is thus clear there has been understandable and
widespread reliance upon this view by law enforcement officials and the courts.
10
Affirmed.
11
Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the
consideration or decision of this case.
12
13
I concur in the result but maintain the view expressed in my dissent in Coleman
v. Alabama, 399 U.S. 1, 21, 90 S.Ct. 1999, 2010, 26 L.Ed.2d 387 (1970), that
while counsel should be provided at preliminary hearings as a matter of sound
judicial administration, there is no constitutional requirement that it be done. As
15
16
17
Until Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601
(1965), the Court traditionally applied new constitutional criminal procedure
standards to cases finalized and police practices operative before the
promulgation of the new rules.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. 2 My own view is that even-handed justice requires either prospectivity
only3 or complete retroactivity. 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, 679, 91
S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971) (separate opinion). I agree with his
critique, id., at 695, 91 S.Ct., at 1181, that the purported distinction between
those rules that are designed to improve the fact-finding 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, 86 S.Ct. 1772,
16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967), and DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093,
20 L.Ed.2d 1308 (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
19
20
21
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,' U.S. ex rel. 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.6 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.
22
II
23
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, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (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 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:
24
'If I felt free to consider this case upon a clean slate I would have voted to
affirm these convictions. Butin 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. . . .
25
It would indeed be strange were this Court, having held a suspect or an accused
entitled to counsel at such pre-trial 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, 399 U.S., at 1920, 90 S.Ct., at 2008
(separate opinion).8
26
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
27
I also disagree that '(t)he impact upon the administration of the criminal law of
(Coleman retroactivity) needs no elaboration.' Ante, at 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,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).
While there are some current prisoners who might challenge their confinements
if Coleman were held retrospective, many of these attacks would probably fail
under the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (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,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, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), that the State
must provide a preliminary hearing transcript to an indigent in every
circumstances in which the more affluent accused could obtain one.
29
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.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, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1964), or Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745,
9 L.Ed.2d 70 (1963). Indeed, in Coleman we remanded for a determination of
whether the failure to appoint counsel had been harmless error, 399 U.S., at 11,
90 S.Ct., at 2004. 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
had materialized from an uncounseled preliminary hearing. See Procunier v.
Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).
30
Even Stovall v. Denno, 388 U.S., at 299, 87 S.Ct., at 1971, 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.
31
The Illinois Supreme Court stated, 46 Ill.2d, at 205206, 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 1093 of the Criminal Code
(Ill.Rev.Stat. 1969, ch. 38, par. 1093) 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, S.H.A.
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.'
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).
E.g., Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2
L.Ed.2d 1269 (1958); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12
L.Ed.2d 908 (1964), (see also Desist v. United States, 394 U.S. 244, 250 n. 15,
89 S.Ct. 1030, 1034, 22 L.Ed.2d 248 (1969)); Reck v. Pate, 367 U.S. 433, 81
S.Ct. 1541, 6 L.Ed.2d 948 (1961).
Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601
(1965); Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15
L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 736, 86 S.Ct. 1772,
1782, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct.
1967, 1972, 18 L.Ed.2d 1199 (1967); DeStefano v. Woods, 392 U.S. 631, 635,
88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308 (1968); Desist v. United States, 394 U.S.
244, 255, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969); Halliday v. United
States, 394 U.S. 831, 835, 89 S.Ct. 1498, 1500, 23 L.Ed.2d 16 (1969); Mackey
v. United States, 401 U.S. 667, 713, 91 S.Ct. 1160, 1170, 28 L.Ed.2d 404
(1971).
It was suggested in Stovall v. Denno, supra, 388 U.S., at 301, 87 S.Ct., at 1972,
18 L.Ed.2d 1199, 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, 422, 84 S.Ct. 461, 468, 11 L.Ed.2d 440
(1964) where the Court exempted the petitioner from its holding. See also
Johnson v. New Jersey, supra, 384 U.S., at 733, 86 S.Ct., at 1780, 16 L.Ed.2d
882.
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, 731734
(1966).
5
See McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (Mempa
retroactive); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5,
(1968) (White and Hamilton retroactive).
To this list might have been added Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct.
194, 19 L.Ed.2d 41 (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.
10
In this respect the instant case further differs from Stovall v. Denno, 388 U.S.,
at 299, 87 S.Ct., at 1971, 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.'
11
12
See n. 7, supra.