Adams v. Illinois/Concurrence Burger

MR. CHIEF JUSTICE BURGER, concurring in the result.

I concur in the result but maintain the view expressed in my dissent in Coleman v. Alabama, 399 U.S. 1, 21 (1970), that while counsel should be provided at preliminary hearings as a matter of sound policy and 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 in the view that it is a function of constitutional adjudication to assure that defense counsel can "fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial" or "discover the case the State has against his client." [p286] 399 U.S., at 9. 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."