UNITED STATES SUPREME COURT DECISIONS ON-LINE

Petitioners were convicted of assault with intent to murder and the Alabama Court of Appeals affirmed. They argue that (1) the in-court identifications that were made of them were fatally tainted by a prejudicial station house lineup (which occurred prior to United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, requiring the exclusion of such tainted in-court identification evidence), and (2) that Alabama's failure to provide them with appointed counsel at the preliminary hearing, a "critical stage" of the prosecution, unconstitutionally denied them the assistance of counsel. The victim testified that, "in the car lights," while "looking straight at him," he saw the petitioner who shot him, and saw the other petitioner "face to face." He also stated that he identified the gunman at the station house before the formal lineup began, and identified the other before he spoke the words used by the assailants. The sole purposes of a preliminary hearing under Alabama law are to determine whether there is sufficient evidence to warrant presenting the case to a grand jury, and to fix bail for bailable offenses. The trial court scrupulously followed Pointer v. Texas, 380 U. S. 400, which prohibits the use of testimony given at a pretrial proceeding where the accused did not have the benefit of cross-examination by and through counsel.

Held: The convictions are vacated, and the case is remanded to determine whether the denial of counsel at the preliminary hearing was harmless error. Pp. 399 U. S. 3-20.

44 Ala.App. 429, 211 So.2d 917, vacated and remanded. clubjuris

Page 399 U. S. 2

MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL, for the three points enumerated directly below, and by MR. JUSTICE BLACK, for the third point, concluded that:

1. On this record, the trial court did not err in finding that the victim's in-court identifications did not stem from a lineup procedure "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Pp. 399 U. S. 3.

2. The preliminary hearing is a "critical stage" of Alabama's criminal process at which the indigent accused is "as much entitled to such aid [of counsel] . . . as at the trial itself." Powell v. Alabama, 287 U. S. 45, 287 U. S. 57. Pp. 399 U. S. 7-10.

3. Although nothing that occurred at the preliminary hearing was used at the trial, the record does not reveal whether petitioners were otherwise prejudiced by absence of counsel at the hearing, and the question whether the denial of counsel was harmless error should be answered in the first instance by the Alabama courts. Pp. 399 U. S. 10-11.

MR. JUSTICE BLACK concluded that:

1. Petitioners had a right to the assistance of counsel at the preliminary hearing not because it is deemed part of a "fair trial" by judges, but because the Sixth Amendment establishes a right to counsel "[i]n all criminal prosecutions," and, in Alabama, the preliminary hearing is a definite part or stage of a criminal prosecution. Pp. 399 U. S. 11-13.

2. The trial court did not err in permitting courtroom identification of petitioners by the victim who had previously identified them at the lineup, as the requirements of the Fifth and Sixth Amendments were satisfied when the prosecution declined at trial to introduce the lineup identifications into evidence. Pp. 399 U. S. 13-14.

MR. JUSTICE HARLAN concurs in the conclusion that petitioners constitutional rights were violated when they were refused counsel at the preliminary hearing. Pp. 399 U. S. 19-20. clubjuris

Page 399 U. S. 3