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, 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 The court acknowledged that its Morris decision was superseded by Coleman,[1] but [p280] held that Coleman applied only to preliminary hearings conducted after June 22, 1970, the date Coleman was decided. 46 Ill. 2d 200,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 (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 (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 (1971). Examples are the right to counsel at trial, Gideon v. [p281] Wainwright, 372 U.S. 335 (1963); on appeal, Douglas v. California, 372 U.S. 353 (1963); or at some forms of arraignment, Hamilton v. Alabama, 368 U.S. 52 (1961). See generally Stovall v. Denno, supra, at 297-298; Williams v. United States, supra, at 653 n. 6.
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 (1966); it is a "question of probabilities." Id., at 729. Thus, although the rule requiring the assistance of counsel at a lineup, United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967), is "aimed at avoiding unfairness at the trial by enhancing the reliability of the factfinding 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 standard and the impact of retroactivity upon the administration of justice." Stovall v. Denno, supra, at 298.
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 trial—counsel'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. Of counsel's other functions—to "fashion a vital impeachment [p282] 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. Illinois provides, for example, bills of particulars and discovery of the names of prosecution witnesses. Ill. Rev. Stat., c. 38, §§ 114-2, 114-9, 114-10 (1971). Pretrial statements of prosecution witnesses may also be obtained for use in impeachment purposes. See, e.g., People v. Johnson, 31 Ill. 2d 602, 203 N.E. 2d 399 (1964).
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 [p283] 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, and White v. Maryland, 373 U.S. 59 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncontested plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonable 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 [p284] 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 that 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. 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. 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 to elaboration. Therefore, here also, "[t]he unusual force of the countervailing considerations strengthens our [p285] conclusion in favor of prospective application. Stovall v. Denno, supra, at 299.
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. 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).
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
Notes edit
- ↑ The Illinois Supreme Court stated, 46 Ill. 2d, at 205-206, 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 109-3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 109-3) is a 'critical stage' in this State's criminal process so as to entitle the accused to the assistance of counsel."
- ↑ 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, 358 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).