opinion: COLEMAN et al. v. ALABAMA
  No. 72.
  Argued November 18, 1969
  Decided June 22, 1970
  Charles Tarter, by appointment of the Court, 394 U. S. 1011, argued the cause and filed a brief for petitioners.
  David W. Clark, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was MacDonald Gallion, Attorney General.
  Mr. Justice Brennan
  announced the judgment of the Court and delivered the following opinion.
  Petitioners were convicted in an Alabama Circuit Court of assault with intent to murder in the shooting of one Reynolds after he and his wife parked their car on an Alabama highway to change a flat tire. The Alabama Court of Appeals affirmed, 44 Ala. App. 429, 211 So. 2d 917 (1968), and the Alabama Supreme Court denied review, 282 Ala. 725, 211 So. 2d 927 (1968). We granted certiorari, 394 U. S. 916 (1969). We vacate and remand.
  Petitioners make two claims in this Court. First, they argue that they were subjected to a station-house lineup in circumstances so unduly prejudicial and conducive to irreparable misidentification as fatally to taint Reynolds’ in-court identifications of them at the trial. Second, they argue that the preliminary hearing prior to their indictment was a “critical stage” of the prosecution and that Alabama’s failure to provide them with appointed counsel at the hearing therefore unconstitutionally denied them the assistance of counsel.
  I
  The lineup of which petitioners complain was conducted on October 1, 1966, about two months after the assault and seven months before petitioners’ trial. Petitioners concede that since the lineup occurred before United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, were decided on June 12, 1967, they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel. Stovall v. Denno, 388 U. S. 293, 296-301 (1967). Rather, they argue that in the circumstances here the conduct of the lineup was so unduly prejudicial as fatally to taint Reynolds’ in-court identification of them. This is a claim that must be determined on the totality of the surrounding circumstances. Stovall v. Denno, supra, at 301-302; Simmons v. United States, 390 U. S. 377 (1968); Foster v. California, 394 U. S. 440 (1969).
  At the trial Reynolds testified that at about 11:30 p. m. on July 24, 1966, he was engaged in changing a tire when three men approached from across the highway. One of them shot him from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife, who had left the car to watch him as he worked. One of the men put his hand on Mrs. Reynolds’ shoulder. Reynolds testified that this was Coleman. Within a few seconds a car with its lights on approached, and the three men turned and “ran across the road . . . .” As they turned to go, Reynolds was shot a second time. He identified petitioner Stephens as the gunman, stating that he saw him “in the car lights” while “looking straight at him.” Reynolds repeated on cross-examination his testimony on direct; he said he saw Coleman “face to face”; “I looked into his face,” “got a real good look at him.”
  At the pretrial hearing on petitioners’ motion to suppress identification evidence, Detective Fordham testified that he had spoken briefly to Reynolds at the hospital two days after the assault and about two weeks later, and that on neither occasion was Reynolds able to provide much information about his assailants. At the hospital he gave a vague description — that the attackers were “young, black males, close to the same age and height.” Petitioners are both Negro; but Stephens was 18 and 6'2", and Coleman, 28 and 5'4%". However, Detective Fordham also testified that at the time Reynolds gave this description he was in considerable pain, and that consequently the questioning was very brief. The detective further stated that Reynolds did not identify any of his assailants from mug shots, but it does not appear whether pictures of petitioners were among those shown him. Detective Hart testified that a lineup was held on October 1 at the request of the police. He stated that Reynolds identified petitioner Stephens spontaneously before the formal lineup even began. “[T]he six men were brought in by the warden, up on the stage, and as Otis Stephens — he didn’t get to his position on the stage, which was number one, when Mr. Reynolds identified him as being one of his assailants.” Reynolds gave similar testimony: “As soon as he stepped inside the door — I hadn’t seen him previous to then until he stepped inside the door, and I recognized him . . . . Just as soon as he stepped up on the stage, I said, ‘That man, there, is the one; he is the one that shot me.’ ” Reynolds also testified that he identified Coleman at the lineup before Coleman could act on a request Reynolds had made that the lineup participants speak certain words used by the attackers. Reynolds admitted that he did not tell Detective Hart of his identification until later during the lineup, and the detective stated he could not recall whether Reynolds told him of the identification before or after Coleman spoke the words.
  It cannot be said on this record that the trial court erred in finding that Reynolds’ in-court identification of the petitioners did not stem from an identification procedure at the lineup “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, supra, at 384. Indeed, the court could find on the evidence adduced at the suppression hearing that Reynolds’ identifications were entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup. There is no merit in the three arguments offered by petitioners for a contrary conclusion.
  First, Reynolds testified that when the police asked him to go to the city jail he “took [it] for granted” that the police had caught his assailants. But the record is utterly devoid of evidence that anything the police said or did prompted Reynolds' virtually spontaneous identification of petitioners among the lineup participants as the proceeding got under way.
  Petitioners next contend that the lineup was unfair because they and their codefendant were the only ones required to say the words used by one of the attackers. There is some conflict in the testimony on this point. Petitioner Stephens testified that petitioners and their codefendant were the only ones who spoke the words. Reynolds testified that not all the men in the lineup spoke them. But Detective Hart stated that all the participants spoke the words. In any case, the court could find on the evidence that Reynolds identified both petitioners before either said anything, and that therefore any failure to require the other participants to say the same words did not aid or influence his identifications.
  Finally, petitioner Coleman contends that he was unfairly singled out to wear a hat though all the other participants were bareheaded. One of the attackers had worn a hat. Although the record demonstrates that Coleman did in fact wear a hat at the lineup, nothing in the record shows that he was required to do so. Moreover, it does not appear that Reynolds’ identification of Coleman at the lineup was based on the fact that he remembered that Coleman had worn a hat at the time of the assault. On the contrary, the court could conclude from his testimony that Reynolds “asked them to make John Henry Coleman to take his hat off, or move it back,” because he wanted to see Coleman’s face more clearly.
  II
  This Court has held that a person accused of crime “requires the guiding hand of counsel at every step in the proceedings against him,” Powell v. Alabama, 287 U. S. 45, 69 (1932), and that that constitutional principle is not limited to the presence of counsel at trial. “It is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, supra, at 226. Accordingly, “the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Id., at 227. Applying this test, the Court has held that “critical stages” include the pretrial type of arraignment where certain rights may be sacrificed or lost, Hamilton v. Alabama, 368 U. S. 52, 54 (1961), see White v. Maryland, 373 U. S. 59 (1963), and the pretrial lineup, United States v. Wade, supra; Gilbert v. California, supra. Cf. Miranda v. Arizona, 384 U. S. 436 (1966), where the Court held that the privilege against compulsory self-incrimination includes a right to counsel at a pretrial custodial interrogation. See also Massiah v. United States, 377 U. S. 201 (1964).
  The preliminary hearing is not a required step in an Alabama prosecution. The prosecutor may seek an indictment directly from the grand jury without a preliminary hearing. Ex parte Campbell, 278 Ala. 114, 176 So. 2d 242 (1965). The opinion of the Alabama Court of Appeals in this case instructs us that under Alabama law the sole purposes of a preliminary hearing are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury, and, if so, to fix bail if the offense is bailable. 44 Ala. App., at 433, 211 So. 2d, at 920. See Ala. Code, Tit. 15, §§ 139, 140, 151. The court continued:
  “At the preliminary hearing . . . the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case. Also Pointer v. State of Texas [380 U. S. 400 (1965)] bars the admission of testimony given at a pre-trial proceeding where the accused did not have the benefit of cross-examination by and through counsel. Thus, nothing occurring at the preliminary hearing in absence of counsel can substantially prejudice the rights of the accused on trial.” 44 Ala. App., at 433, 211 So. 2d, at 921.
  This Court is of course bound by this construction of the governing Alabama law, Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 688 (1959); Albertson v. Millard, 345 U. S. 242, 244 (1953). However, from the fact that in cases where the accused has no lawyer at the hearing the Alabama courts prohibit the State’s use at trial of anything that occurred at the hearing, it does not follow that the Alabama preliminary hearing is not a “critical stage” of the State’s criminal process. The determination whether the hearing is a “critical stage” requiring the provision of counsel depends, as noted, upon an analysis “whether potential substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.” United States v. Wade, supra, at 227. Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
  The inability of the indigent accused on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a "critical- stage” of the State’s criminal process at which the accused is "as much entitled to such aid [of counsel] ... as at the trial itself.” Powell v. Alabama, supra, at 57.
  Ill
  There remains, then, the question of the relief to which petitioners are entitled. The trial transcript indicates that the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed. Cf. White v. Maryland, supra. But on the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing. That inquiry in the first instance should more properly be made by the Alabama courts. The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U. S. 18 (1967). See United States v. Wade, supra, at 242.
  We accordingly vacate the petitioners’ convictions and remand the case to the Alabama courts for such proceedings not inconsistent with this opinion as they may deem appropriate to determine whether such denial of counsel was harmless error, see Gilbert v. California, supra, at 272, and therefore whether the convictions should be reinstated or a new trial ordered.
  It is so ordered.
  Mr. Justice Blacicmun took no part in the consideration or decision of this case.
  Mr. Justice Douglas, Me. Justice White, and Mr. Justice Marshall join this Part I.
  Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join this Part II.
  A textbook, Criminal Procedure in Alabama, by M. Clinton McGee (University of Alabama Press 1954), p. 41, states:
  “A preliminary hearing or examination is not a trial in its ordinary sense nor is it a final determination of guilt. It is a proceeding whereby an accused is discharged or held to answer, as the facts warrant. It seeks to determine whether there is probable cause for believing that a crime has been committed and whether the accused is probably guilty, in order that he may be informed of the nature of such charge and to allow the state to take the necessary steps to bring him to trial. Such hearing also serves to perpetuate evidence and to keep the necessary witnesses within the control of the state. It also safeguards the accused against groundless and vindictive prosecutions, and avoids for both the accused and the state the expense and inconvenience of a public trial.”
  Mr. Justice Black, Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Marshall join this Part III.
  The trial judge held a hearing two months before the trial on motions on behalf of petitioners to suppress “any evidence or discovery whatsoever obtained ... on the preliminary hearing . . . and further any statements relating to any identification . . . during any line-up . . . .” The State conceded that the motion should be granted as to any statements of either petitioner taken by the police upon their arrests, and written and oral confessions made by them were therefore not offered at the trial. At an early stage of the hearing on the motions, the trial judge said:
  “It has been my consistent ruling, and I don’t know of any law to the contrary, that, on the basis of what happened at the preliminary hearing, that if a lawyer was not representing the defendant that anything that may have occurred at that preliminary which might work against the defendant, whether it be anything he said there, assuming he might have taken the stand, anything of that nature, would, on the trial of the case on the merits, be inadmissible.
  “I wouldn’t anticipate the State offering anything like that, but that has been my ruling on that ever since we changed some of our ways of doing things.
  “It wouldn’t be material from the standpoint that a man down there, when not represented by counsel on the preliminary, made some statement, said, 'I am guilty.’ You know, a lot of times he might say, T am guilty.’
  “That that would not be admissible if he weren’t represented by counsel, and that sort of thing.”