Mr. Justice HARLAN, dissenting.
As the Court states, petitioner was told that if he wished a transcript of his preliminary hearing he would have to pay for it. The Court fails to add, however, that petitioner and his counsel were both present at the preliminary hearing, that they were furnished a free transcript of the grand jury testimony of the state witness in question but made no use of this transcript at trial, and that at no time has petitioner suggested any use to which the preliminary hearing transcript could have been put, although he is in a position to know what it contains.
The decisions cited in the majority opinion fall far short of declaring that any document related to the criminal process, no matter how demonstrably trivial its significance, must be supplied free to indigents simply because the State is willing to make it available to others able to pay for it. Rather than formulate such an undiscriminating rule, a rule that predictably may lead to a narrowing of the availability of documents that a State is not constitutionally required to furnish to any criminal defendant, I would at least undertake to examine the importance of the particular document in question.
This examination is not necessary in the present case, however, for, as the Court's opinion recognizes, there exists an adequate basis under state law for affording petitioner the relief that he seeks here. Believing, as did the Court of Appeals, that federal courts should not unnecessarily interfere with the administration of justice in state courts, particularly when this involves reaching federal constitutional questions unnecessarily, see Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, I would affirm the decision below.
In addition, in the circumstances depicted by this record, I consider the Court's disposition of this case improvident even under the postulates of its opinion. I understand the Court to require the issuance of a writ of habeas corpus, and hence the setting aside of the state conviction, without any further investigation of whether the constitutional error now found to have been committed by the state courts actually prejudiced this defendant. Since there appears every likelihood that further examination would reveal that the denial of a preliminary hearing transcript to this petitioner was 'harmless beyond a reasonable doubt,' Chapman v. California, 386 U.S. 18, at 24, 87 S.Ct. 824, 17 L.Ed.2d 705, the case should have been sent back to the Court of Appeals with instruction to remand to the District Court for a hearing to determine the possibility of prejudice. Cf. Roberts v. United States, 389 U.S. 18, 88 S.Ct. 1, 19 L.Ed.2d 18. Due respect for state criminal processes requires at least this much.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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