405 U.S.

278
92 S.Ct. 916
31 L.Ed.2d 202

John ADAMS, Petitioner,

v.
State of ILLINOIS.
No. 705038.
Argued Dec. 7, 1971.
Decided March 6, 1972.

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.

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, 90 S.Ct. 1999, 26 L.Ed.2d 387, 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, 1 but 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,
91 S.Ct. 981, 28 L.Ed.2d 236 (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, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (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 truth-finding
function and so raises serious questions about the accuracy of guilty verdicts in
past trials . . ..' Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148,
1152, 28 L.Ed.2d 388 (1971). Examples are the right to counsel at trial, Gideon

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

However, 'the question whether a constitutional rule of criminal procedure does

or does not enhance the reliability of the fact-finding process at trial is
necessarily a matter of degree,' Johnson v. New Jersey, 384 U.S. 719, 728
729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966); it is a 'question of
probabilities.' Id., at 729, 86 S.Ct., at 1778. Thus, although the rule requiring
the assistance of counsel at a lineup, 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), is 'aimed at avoiding unfairness at the trial
by enhancing the reliability of the fact-finding 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 standards and the impact of retroactivity upon the administration
of justice.' Stovall v. Denno, supra, 388 U.S., at 298, 87 S.Ct., at 1970.

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.

It follows that retroactive application of Coleman 'would seriously disrupt the

administration of our criminal laws.' Johnson v. New Jersey, 384 U.S., at 731,
86 S.Ct., at 1780. 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 300, 87 S.Ct., at 1971. 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 in favor of
prospective application.' Stovall v. Denno, supra, 388 U.S., at 299, 87 S.Ct., at
1971.

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 300
301, 87 S.Ct., at 1972. 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).

10

Affirmed.

11

Mr. Justice POWELL and Mr. Justice REHNQUIST took no part in the
consideration or decision of this case.

12

Mr. Chief Justice BURGER, concurring in the result.

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

I noted in Coleman, the constitutional command applies to 'criminal

prosecutions,' not to the shifting notion of 'critical stages.' Nor can I join the
view that it is a function of constitutional adjudication to assure that defense
counsel can 'fashion a vital impeachment tool for the use in cross-examination
of the State's witnesses at the trial' or 'discover the case the State has against his
client.' 399 U.S., at 9, 90 S.Ct., at 2003. 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.'
14

Mr. Justice BLACKMUN, concurring in the result.

15

Inasmuch as I feel that Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26

L.Ed.2d 387 (1970), was wrongly decided, I concur in the result.

16

Mr. Justice DOUGLAS, with whom Mr. Justice MARSHALL concurs,

dissenting.

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

applied a well-established constitutional principle.' Mackey v. United States,

supra, 401 U.S., at 695, 91 S.Ct., at 1181; Desist v. United States, 394 U.S.
244, 263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969). For example, as I
suggest infra, at 293295, a serious question arises in this case whether
Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970),
should have been fully anticipated by state judicial authorities.4
18

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 unfairness of arbitrarily granting relief to Coleman but denying it to
Adams.

19

Given my disagreement with the plurality's rule, I am reluctant even to attempt

to apply it, but even by its own 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.

20

* 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 282283. The same might have been
said of the right to counsel at sentencing, Mempa v. Rhay, 389 U.S. 128, 88
S.Ct. 254, 19 L.Ed.2d 336 (1967), at certain arraignments, Hamilton v.
Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), or at preliminary
hearings where guilty pleas were taken, White v. Maryland, 373 U.S. 59, 83
S.Ct. 1050, 10 L.Ed.2d 193 (1963), all of which have been held retroactive.5

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

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, 399 U.S., at 9,
90 S.Ct., at 2003, 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 9 10, 90 S.Ct., at 2003. It will 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.7

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).

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.10 See Fed.Rule
Crim.Proc. 5(b).
28

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

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.

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.

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, 675, 91 S.Ct. 1171, 28 L.Ed.2d 404
(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, 81 S.Ct.
1541, 6 L.Ed.2d 948 (1961) (habeas permitted on basis of current law to release
prisoner convicted in 1936). See also Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct.

1774, 12 L.Ed.2d 908 (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, 83 S.Ct. 822, 9 L.Ed.2d 837 (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 fact-finding 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, 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).

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 DiscoveryThe 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.

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,
4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (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.

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.

Federal Bureau of Prisons, National Prisoner Statistics Characteristics of State

Prisoners, 1960, pp. 2627 (1965).

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

Brief for Respondent 33.

12

See n. 7, supra.