Coleman v. Alabama (399 U.S. 1)/Concurrence White

Mr. Justice WHITE, concurring.

I agree with Mr. Justice HARLAN that recent cases furnish ample ground for holding the preliminary hearing a critical event in the progress of a criminal case. I therefore join the prevailing opinion, but with some hesitation since requiring the appointment of counsel may result in fewer preliminary hearings in jurisdictions where the prosecutor is free to avoid them by taking a case directly to a grand jury. Our ruling may also invite eliminating the preliminary hearing system entirely.

I would expect the application of the harmless-error standard on remand to produce results approximating those contemplated by Mr. Justice HARLAN's separately stated views. Whether denying petitioners counsel at the preliminary hearing was harmless beyond a reasonable doubt depends upon an assessment of those factors that made the denial error. But that assessment cannot ignore the fact that petitioners have been tried and found guilty by a jury.

The possibility that counsel would have detected preclusive flaws in the State's probable-cause showing is for all practical purposes mooted by the trial where the State produced evidence satisfying the jury of the petitioners' guilt beyond a reasonable doubt. Also, it would be wholly speculative in this case to assume either (1) that the State's witnesses at the trial testified inconsistently with what their testimony would have been if petitioners had had counsel to cross-examine them at the preliminary hearing, or (2) that counsel, had he been present at the hearing, would have known so much more about the State's case than he actually did when he went to trial that the result of the trial might have been different. So too it seems extremely unlikely that matters related to bail or early psychiatric examination would ever raise reasonable doubts about the integrity of the trial.

There remains the possibility, as Mr. Justice HARLAN suggests, that important testimony of witnesses unavailable at the trial could have been preserved had counsel been present to cross-examine opposing witnesses or to examine witnesses for the defense. If such was the case, petitioners would be entitled to a new trial.