coleman alabama argued november decided june petitioners convicted assault intent murder alabama appeals affirmed argue identifications made fatally tainted prejudicial lineup occurred prior wade gilbert california requiring exclusion tainted identification evidence alabama failure provide appointed counsel preliminary hearing critical stage prosecution unconstitutionally denied assistance counsel victim testified car lights looking straight saw petitioner shot saw petitioner face face also stated identified gunman station house formal lineup began identified spoke words used assailants sole purposes preliminary hearing alabama law determine whether sufficient evidence warrant presenting case grand jury fix bail bailable offenses trial scrupulously followed pointer texas prohibits use testimony given pretrial proceeding accused benefit counsel held convictions vacated case remanded determine whether denial counsel preliminary hearing harmless error pp app vacated remanded justice brennan joined justice douglas justice white justice marshall three points enumerated directly justice black third point concluded record trial err finding victim identifications stem lineup procedure impermissibly suggestive give rise substantial likelihood irreparable misidentification pp preliminary hearing critical stage alabama criminal process indigent accused much entitled aid counsel trial powell alabama pp although nothing occurred preliminary hearing used trial record reveal whether petitioners otherwise prejudiced absence counsel hearing question whether denial counsel harmless error answered first instance alabama courts pp justice black concluded petitioners right assistance counsel preliminary hearing deemed part fair trial judges sixth amendment establishes right counsel criminal prosecutions alabama preliminary hearing definite part stage criminal prosecution pp trial err permitting courtroom identification petitioners victim previously identified lineup requirements fifth sixth amendments satisfied prosecution declined trial introduce lineup identifications evidence pp justice harlan concurs conclusion petitioners constitutional rights violated refused counsel preliminary hearing pp david clark assistant attorney general alabama argued cause respondent brief macdonald gallion attorney general justice brennan announced judgment delivered following opinion petitioners convicted alabama circuit assault intent murder shooting one reynolds wife parked car alabama highway change flat tire alabama appeals affirmed app alabama denied review granted certiorari vacate remand petitioners make two claims first argue subjected lineup circumstances unduly prejudicial conducive irreparable misidentification fatally taint reynolds identifications trial second argue preliminary hearing prior indictment critical stage prosecution alabama failure provide appointed counsel hearing therefore unconstitutionally denied assistance counsel trial reynolds testified july engaged changing tire three men approached across highway one shot short distance away three ran within three four feet reynolds arose stooped position held wife left car watch worked one men put hand reynolds shoulder reynolds testified coleman within seconds car lights approached three men turned ran across road turned go reynolds shot second time identified petitioner stephens gunman stating saw car lights looking straight reynolds repeated testimony direct said saw coleman face face looked face got real good look pretrial hearing petitioners motion suppress identification evidence detective fordham testified spoken briefly reynolds hospital two days assault two weeks later neither occasion reynolds able provide much information assailants hospital gave vague description attackers young black males close age height petitioners negro stephens coleman however detective fordham also testified time reynolds gave description considerable pain consequently questioning brief detective stated reynolds identify assailants mug shots appear whether pictures petitioners among shown detective hart testified lineup held october request police stated reynolds identified petitioner stephens spontaneously formal lineup even began six men brought warden stage otis stephens get position stage number one reynolds identified one assailants reynolds gave similar testimony soon stepped inside door seen previous stepped inside door recognized soon stepped stage said man one one shot reynolds also testified identified coleman lineup coleman act request reynolds made lineup participants speak certain words used attackers reynolds admitted tell detective hart identification later lineup detective stated recall whether reynolds told identification coleman spoke words said record trial erred finding reynolds identification petitioners stem identification procedure lineup impermissibly suggestive give rise substantial likelihood irreparable misidentification simmons supra indeed find evidence adduced suppression hearing reynolds identifications entirely based upon observations time assault induced conduct lineup merit three arguments offered petitioners contrary conclusion first reynolds testified police asked go city jail took granted police caught assailants record utterly devoid evidence anything police said prompted reynolds virtually spontaneous identification petitioners among lineup participants proceeding got way petitioners next contend lineup unfair codefendant ones required say words used one attackers conflict testimony point petitioner stephens testified petitioners codefendant ones spoke words reynolds testified men lineup spoke detective hart stated participants spoke words case find evidence reynolds identified petitioners either said anything therefore failure require participants say words aid influence identifications finally petitioner coleman contends unfairly singled wear hat though participants bareheaded one attackers worn hat although record demonstrates coleman fact wear hat lineup nothing record shows required moreover appear reynolds identification coleman lineup based fact remembered coleman worn hat time assault contrary conclude testimony reynolds asked make john henry coleman take hat move back wanted see coleman face clearly ii preliminary hearing required step alabama prosecution prosecutor may seek indictment directly grand jury without preliminary hearing ex parte campbell opinion alabama appeals case instructs us alabama law sole purposes preliminary hearing determine whether sufficient evidence accused warrant presenting case grand jury fix bail offense bailable ala see code tit continued preliminary hearing accused required advance defenses failure preclude availing every defense may upon trial case also pointer state texas bars admission testimony given proceeding accused benefit counsel thus nothing occurring preliminary hearing absence counsel substantially prejudice rights accused trial ala inability indigent accused realize advantages lawyer assistance compels conclusion alabama preliminary hearing critical stage state criminal process accused much entitled aid counsel trial powell alabama supra iii accordingly vacate petitioners convictions remand case alabama courts proceedings inconsistent opinion may deem appropriate determine whether denial counsel harmless error see gilbert california supra therefore whether convictions reinstated new trial ordered ordered footnotes justice douglas justice white justice marshall join part ii textbook criminal procedure alabama clinton mcgee university alabama press preliminary hearing examination trial ordinary sense final determination guilt proceeding whereby accused discharged held answer facts warrant seeks determine whether probable cause believing crime committed whether accused probably guilty order may informed nature charge allow state take necessary steps bring trial hearing also serves perpetuate evidence keep necessary witnesses within control state also safeguards accused groundless vindictive prosecutions avoids accused state expense inconvenience public trial justice black justice douglas justice white justice marshall join part iii trial judge held hearing two months trial motions behalf petitioners suppress evidence discovery whatsoever obtained preliminary hearing statements relating identification state conceded motion granted statements either petitioner taken police upon arrests written oral confessions made therefore offered trial early stage hearing motions trial judge said consistent ruling know law contrary basis happened preliminary hearing lawyer representing defendant anything may occurred preliminary might work defendant whether anything said assuming might taken stand anything nature trial case merits inadmissible anticipate state offering anything like ruling ever since changed ways things material standpoint man represented counsel preliminary made statement said guilty know lot times might say guilty admissible represented counsel sort thing mr wholeheartedly agree conclusion part ii prevailing opinion accused constitutional right assistance counsel preliminary hearing alabama grants criminal defendants purpose preliminary hearing alabama determine whether offense committed whether probable cause charging defendant offense magistrate finds probable cause charging defendant offense defendant must alabama law either incarcerated admitted bail absence finding probable cause defendant must released custody code tit preliminary hearing therefore definite part stage criminal prosecution alabama plain language sixth amendment requires criminal prosecutions accused shall enjoy right assistance counsel defence moreover every attorney experience representing criminal defendants state preliminary hearing similar alabama knows sometimes sad experience adequate representation requires counsel present preliminary hearing protect interests client practical importance preliminary hearing discussed prevailing opinion considerations outlined seem sufficient compel conclusion preliminary hearing critical stage proceedings accused must afforded assistance counsel meaningful defense trial guaranteed bill rights fear prevailing opinion seems times proceed premise constitutional principle ultimately stake defendant right counsel guaranteed sixth fourteenth amendments rather right fair trial conceived judges phrase appealing one neither bill rights part constitution contains pragmatic authors constitution bill rights think wisely use vague indefinite elastic language instead provided defendant clear emphatic guarantees counsel defense speedy trial trial jury confrontation witnesses unequivocal definite rights explicit commands constitution provide full description kind fair trial constitution guarantees judgment document leaves room judges either add detract commands part unauthorized judicial toying carefully selected language constitution think wisest best charter government existence declares man charged crime shall afforded lawyer defend even though judges throughout entire declare think fairness requires accused shall assistance counsel defense one still prefer trust liberty citizen plain language constitution rather sense fairness particular judges also agree prevailing opinion rejecting petitioners claim identification victim assault suppressed claim relies mainly stovall denno held identification suppressed due process clause fourteenth amendment tainted unnecessarily suggestive pretrial lineup dissented stovall partly ground majority new suppression rule classic example using due process clause write law notions fairness decency fundamental justice total disregard language constitution also argued stovall right counsel lineup declared day wade held fully retroactive stovall denno accordingly believe petitioners case entitled counsel time lineup participated alabama failure provide counsel violated petitioners rights sixth fourteenth amendments however reasons stated separate opinion wade believe requirements fifth sixth amendments satisfied alabama prosecutors declined trial introduce pretrial lineup identification evidence accordingly concur conclusion part prevailing opinion alabama err permitting courtroom identification petitioners witness previously identified lineup reasons stated agree petitioners convictions must vacated case remanded alabama courts consideration whether denial counsel preliminary hearing harmless error decision chapman california justice douglas joined justice brennan opinion add word think strict construction constitution requires result reached critical words criminal prosecutions accused shall enjoy right assistance counsel defence justice black preliminary hearing definite part stage criminal prosecution alabama criminal prosecution certainly start trial starts commencement trial start criminal prosecution constitutional sense indigents likely go trial without effective representation counsel lawyers defense need time prepare defense prosecution needs time investigations procedures make investigation timely telling shorthand expression used words critical stage describe whether preliminary phase criminal trial part criminal prosecution used sixth amendment sixth amendment controls ideas efficient criminal code provide take nearly years doubt decide whether alabama preliminary hearing part criminal prosecution within meaning sixth amendment question never reached prior case experience approach one available case controversy jurisdiction article iii constitution adhere mandate constitution give merely meaning appeals personal tastes time time sit read terms light realities criminal prosecutions truly mean impressed need kind strict construction experiences various russian journeys nation detention incommunicado common practice period permissible detention extends nine months custodial interrogation clear critical stage trial takes place long courtroom formalities commence apparent one attends criminal trials russia viewed never put issue question guilt guilt issue resolved inner precincts prison questioning police courtroom trial concerned issue punishment custodial interrogation practice nations critical give criminal prosecutions used sixth amendment strained narrow meaning held include phase brother harlan dissent miranda arizona called sixth amendment cases cited majority linchpins ruling accused custodial interrogation entitled assistance counsel properly although main emphasis miranda opinion use custodial interrogation exact incriminating statements commands fourteenth fifth amendments like preliminary hearing present case custodial interrogation obviously part criminal prosecution sixth amendment honors strict construction guide article rsfsr codes criminal procedure provides confinement guard connection investigation case may continue two months reason special complexity case may period prolonged three months day confinement guard procurator autonomous republic territory region autonomous region national area military procurator military region fleet six months rsfsr procurator chief military procurator prolongation period confinement guard may carried exceptional instances ussr procurator general period additional three months soviet criminal law procedure rsfsr codes berman spindler transl article rsfsr codes criminal procedure provides part defense counsel shall permitted participate case moment accused informed completion preliminary investigation presented proceedings case become acquainted soviet criminal law procedure rsfsr codes supra nation monopoly use device although present greek government according report commission human rights council europe reached high level efficiency use torture falanga bastinado method torture known centuries beating feet wooden metal stick bar skillfully done breaks bones makes skin lesions leaves permanent recognizable marks causes intense pain swelling feet use falanga described variety situations bench chair without shoes sometimes water thrown feet sometimes victim made run around beatings victims also gagged falanga severe beatings parts body commonest forms torture appear evidence forms described example application electric shock squeezing head vice pulling hair head public region kicking male genital organs dripping water head intense noises prevent sleep falanga commonest form torture cases able establish facts substantial degree also appears great frequency allegations raised proceedings regard named detainees principal forms alleged treatment frequently several forms combined one case follows two categories cases examined allegations european commission human rights report greek case vol pt pp justice white concurring agree justice harlan recent cases furnish ample ground holding preliminary hearing critical event progress criminal case therefore join prevailing opinion hesitation since requiring appointment counsel may result fewer preliminary hearings jurisdictions prosecutor free avoid taking case directly grand jury ruling may also invite eliminating preliminary hearing system entirely expect application standard remand produce results approximating contemplated justice harlan separately stated views whether denying petitioners counsel preliminary hearing harmless beyond reasonable doubt depends upon assessment factors made denial error assessment ignore fact petitioners tried found guilty jury possibility counsel detected preclusive flaws state showing practical purposes mooted trial state produced evidence satisfying jury petitioners guilt beyond reasonable doubt also wholly speculative case assume either state witnesses trial testified inconsistently testimony petitioners counsel preliminary hearing counsel present hearing known much state case actually went trial result trial might different seems extremely unlikely matters related bail early psychiatric examination ever raise reasonable doubts integrity trial remains possibility justice harlan suggests important testimony witnesses unavailable trial preserved counsel present opposing witnesses examine witnesses defense case petitioners entitled new trial justice harlan concurring part dissenting part felt free consider case upon clean slate voted affirm convictions light lengths right appointed counsel carried recent decisions see miranda arizona wade gilbert california mathis orozco texas consider course open due regard way adjudicatory process conceive work continuing viability cases cited directly us decision occasion arises face terms considerations recently expressed elsewhere see dissenting opinion baldwin new york decided today post opinion concurring result welsh accordingly constrained agree conclusion petitioners constitutional rights violated alabama refused appoint counsel represent preliminary hearing dissent however terms remand issue well refusal accord petitioners benefit wade case connection police lineup contentions indeed strange held suspect accused entitled counsel pretrial stages police investigation whether station house miranda even home orozco hold left fend first formal confrontation courtroom given cases referred escape conclusion petitioners constitutional rights must held violated denying appointed counsel preliminary hearing consider scope remand broad amorphous think reversal convictions lack counsel preliminary hearing follow unless petitioners able show remand prejudiced defense trial favorable testimony might otherwise preserved irretrievably lost virtue counsel help present affirmative case preliminary hearing regard course erroneously excluded testimony petitioners show weight trial constitute exclusion reversible error well demonstrate actual likelihood testimony presented preserved preliminary hearing opinion mere speculation defense counsel might able better trial present preliminary hearing suffice vitiate conviction remand chapman rule seems leave way open sort speculation ii despite continuing disagreement wade supra must dissent refusal accord petitioners benefit wade holding neither petitioner afforded counsel police lineup identification majority action results holding stovall denno making wade applicable lineups occurring date decision present lineup taken place well reasons explained dissent desist longer follow retroactivity doctrine announced stovall cases us direct review situation judge case light wade wade rule requires exclusion identification preceded pretrial lineup accused represented counsel unless identification found derived source independent tainted pretrial viewing determination must first instance made trial therefore send case back score standpoint fourteenth amendment due process way think state cases kind judged see concurring opinion gideon wainwright said denial appointed counsel preliminary hearing carrying consequences beyond involved alabama procedure offensive concept fundamental fairness embodied due process clause case course different state permitted introduce trial evidence collected presented preliminary hearing fortiori thought lack counsel police held wade denial due process require reversal even standpoint sixth amendment found difficult say language criminal prosecutions accused shall enjoy right assistance counsel defence emphasis supplied intended reach events cf sanders chief justice burger dissenting agree matter sound policy counsel made available persons subjected preliminary hearing provided either statute rulemaking process however accept notion constitution commands criminal prosecution although justice stewart whose opinion join justice harlan justice white noted difficulties constitutional practical grounds today holding separately set forth additional reasons dissent certainly justice harlan justice white suggest word constitution either requires contemplates result reached unlike however acquiesce prior holdings purportedly nonetheless erroneously based constitution approach simply acknowledgement previously amended sixth amendment feels bound action rely solely years contrary constitutional interpretation indeed odd business taken nearly two centuries discover constitutional mandate counsel preliminary hearing even excuse conditions changed preliminary hearing ancient institution deference bound reject categorically justice harlan justice white thesis said lately controls constitution holdings entitled deference join employing recent cases rather constitution bootstrap result even though agree objective counsel preliminary hearings placing premium recent cases rather language constitution makes dangerously simple future courts using technique interpretation operate continuing constitutional convention wish make clear disagreement prevailing opinion directed primarily reasoning process rather broad social legal desirability result reached decide constitution commands result simply think desirable one indeed many studies including american bar association criminal justice project acknowledged wisdom providing counsel preliminary hearing aba project standards criminal justice providing defense services approved draft provided either statute rulemaking process since constitution require justice white joining prevailing opinion reservations belies essence matter recent cases furnish ample ground holding preliminary hearing critical event progress criminal case emphasis added constitution provided counsel furnished every critical event progress criminal case another story contrast variety verbal combinations employed majority justify today disposition sixth amendment laudable precision criminal prosecutions accused shall assistance counsel emphasis added relevant determination whether preliminary hearing criminal prosecution whether critical event progress criminal case inventing verbal formula prevailing opinion simply seeks reshape constitution accordance predilections deemed desirable constitutional interpretation easy matter especially cautious substituting notions framers heed justice black recent admonition difference constitution written founders unwritten constitution formulated judges according ideas fairness basis north carolina pearce separate opinion black emphasis original federal courts provided statute three steps follow arrest preliminary hearing fed rule crim proc grand jury inquiry arraignment fed rule crim proc know course hearing officer preliminary hearing concludes hold person possible grand jury action counsel permitted attend latter proceedings grand jury returns indictment accused must enter plea arraignment hearing counsel required hamilton alabama alabama federal system preliminary hearing inquiry whether arrested person discharged whether contrary probable cause submit evidence grand jury charging authority consideration verdict flow hearing magistrate determination discharge unlike acquittal bar later indictment thus trial sense lawyers judges use term moreover hearing magistrate indict pass narrow question whether inquiry warranted recognizing however preliminary hearing unimportant step progress criminal case already held disclosures uncounseled person hearing may used later tried white maryland see also pointer texas today holding thus something anomaly new discovery counsel constitutionally required preliminary hearing since counsel attend subsequent grand jury inquiry even though witnesses including person eventually charged may interrogated secret session current mode constitutional analysis subscribed recent cases requires counsel present preliminary hearings reconciled fact constitution permit assistance counsel decidedly critical grand jury inquiry finally pointed already protected accused absence counsel preliminary hearing providing statements uncounseled person inadmissible trial prevailing opinion fails explain salutary indeed drastic remedy longer sufficient protection preliminary hearing stage unless surreptitiously convert preliminary hearing discovery device need even step largely dissipated proposed amendments pretrial discovery criminal cases see judicial conference committee rules practice procedure proposed amendments federal rules criminal procedure district courts preliminary draft pertinent language criminal prosecutions accused shall enjoy assistance counsel defence concur conclusion due process violated identification procedures employed justice stewart chief justice joins dissenting july night casey reynolds wife stopped car green springs highway birmingham alabama order change flat tire soon accosted three men whose evident purpose armed robbery rape assailants shot reynolds twice frightened away lights passing automobile two months later petitioners arrested later identified reynolds two three men assaulted wife days later petitioners granted preliminary hearing county judge hearing petitioners neither required permitted enter plea sole purpose hearing alabama determine whether sufficient evidence accused warrant presenting case grand jury fix bail offense bailable conclusion hearing petitioners bound grand jury bond set record transcript kind made hearing less month later grand jury returned indictment petitioners charging assault commit murder promptly indictment lawyer appointed represent arraignment two weeks later represented appointed counsel entered plea guilty cf hamilton alabama months later brought trial represented appointed counsel cf gideon wainwright jury found guilty charged sentenced penitentiary trial prosecution used incriminating statements made petitioners preliminary hearing convictions us quite properly set aside white maryland happen case prosecution used statement witness preliminary hearing petitioners trial likewise quite properly set aside convictions pointer texas happen case either prevailing opinion today perforce concedes prohibition use state trial anything occurred preliminary hearing scrupulously observed nevertheless sets aside convictions says counsel provided petitioners preliminary hearing none cases relied upon opinion points result even miranda decision require counsel present pretrial custodial interrogation case simply held constitutional guarantee compulsory prohibits introduction trial statements made defendant custodial interrogation miranda guidelines followed see also wade gilbert california repeat case evidence anything said done preliminary hearing introduced petitioners trial prevailing opinion holds today constitution required alabama provide lawyer petitioners preliminary hearing much seems assure fair trial assure fair preliminary hearing lawyer preliminary hearing opinion says might led magistrate refuse bind accused lawyer might made effective arguments accused matters necessity early psychiatric examination bail reasons lawyer must provided elementary logic requires new preliminary hearing must held counsel made available petitioners order provide relief course necessary set aside convictions also set aside grand jury indictments magistrate orders fixing bail binding petitioners since petitioners found jury constitutional trial guilty beyond reasonable doubt prevailing opinion understandably boggles logical consequences reasoning therein refrains short turning back clock ordering new preliminary hearing determine whether sufficient evidence accused present case grand jury instead sets aside convictions remands case determination whether convictions reinstated new trial ordered action seems even quixotic petitioners simply alleged anything happened preliminary hearing turned case critical fairness trial alleged affirmatively prejudiced trial anything occurred preliminary hearing pointed affirmative advantage enjoyed trial lawyer preliminary hearing record transcript kind made preliminary hearing therefore burden remand petitioners show prejudiced clear burden met remand futile gesture hand burden state disprove beyond reasonable doubt speculative advantages petitioners might conceivably enjoyed counsel present preliminary hearing obviously burden met either simply reverse convictions say alabama courts figure supposed case remanded perceptiveness far exceed mine record us makes clear evidence occurred preliminary hearing used petitioners completed trial hold therefore absence counsel preliminary hearing deprived petitioners constitutional rights accordingly affirm convictions code tit agree result reached part prevailing opinion