concurring.
I wholeheartedly agree with the conclusion in Part II of the prevailing opinion that an accused has a constitutional right to the assistance of counsel at the preliminary hearing which Alabama grants criminal defendants. The purpose of the preliminary hearing in Alabama is to determine whether an offense has been committed and, if so, whether there is probable cause for charging the defendant with that offense. If the magistrate finds that there is probable cause for charging the defendant with the offense, the defendant must, under Alabama law, be either incarcerated or admitted to bail. In the absence of such a finding of probable cause, the defendant must be released from custody. Ala. Code, Tit. 15, §§ 139-140. The preliminary hearing is therefore a definite part or stage of a criminal prosecution in Alabama, *12and the plain language of the Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” Moreover, every attorney with experience in representing criminal defendants in a State which has a preliminary hearing similar to Alabama’s knows — sometimes from sad experience — that adequate representation requires that counsel be present at the preliminary hearing to protect the interests of his client. The practical importance of the preliminary hearing is discussed in the prevailing opinion, and the considerations outlined there seem to me more than sufficient to compel the conclusion that the preliminary hearing is a "critical stage” of the proceedings during which the accused must be afforded the assistance of counsel if he is to have a meaningful defense at trial as guaranteed in the Bill of Rights.
I fear that the prevailing opinion seems at times to proceed on the premise that the constitutional principle ultimately at stake here is not the defendant’s right to counsel as guaranteed by the Sixth and Fourteenth Amendments but rather a right to a “fair trial” as conceived by judges. While that phrase is an appealing one, neither the Bill of Rights nor any other part of the Constitution contains it. The pragmatic, government-fearing authors of our Constitution and Bill of Rights did not, and I think wisely did not, use any such vague, indefinite, and elastic language. Instead, they provided the defendant with clear,' emphatic guarantees: counsel for his defense, a speedy trial, trial by jury, confrontation with the witnesses against him, and other such unequivocal and definite rights. The explicit commands of the Constitution provide a full description of the kind of “fair trial” the Constitution guarantees, and in my judgment that document leaves no room for judges either to add to or detract from these com*13mands. I can have no part in unauthorized judicial toying with the carefully selected language of our Constitution, which I think is the wisest and best charter of government in existence. It declares a man charged with a crime shall be afforded a lawyer to defend him even though all the judges throughout the entire United States should declare, “It is only when we think fairness requires it that an accused shall have the assistance of counsel for his defense.” For one, I still prefer to trust the liberty of the citizen to the plain language of the Constitution rather than to the sense of fairness of particular judges.
I also agree with the prevailing opinion in rejecting petitioners’ claim that their in-court identification by the victim of the assault should have been suppressed. This claim relies mainly on Stovall v. Denno, 388 U. S. 293 (1967), in which the Court held that an in-court identification could be suppressed under the Due Process Clause of the Fourteenth Amendment if it was tainted by an “unnecessarily suggestive” pretrial lineup. I dissented in Stovall partly on the ground that the majority’s new suppression rule was a classic example of this Court’s using the Due Process Clause to write into law its own notions of fairness, decency, and fundamental justice, in total disregard of the language of the Constitution itself. But I also argued in Stovall that the right to counsel at a lineup, declared that same day in United States v. Wade, 388 U. S. 218 (1967), should be held fully retroactive. Stovall v. Denno, 388 U. S., at 303. Accordingly, I believe that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama’s failure to provide such counsel violated petitioners’ rights under the Sixth and Fourteenth Amendments. However, for the reasons stated in my separate opinion in United States v. Wade, 388 U. S. 218, 243 (1967), *14I believe the requirements of the Fifth and Sixth Amendments were satisfied when the Alabama prosecutors declined at trial to introduce the pretrial lineup identification into evidence. Accordingly, I concur in the conclusion in Part I of the prevailing opinion that the Alabama court did not err in permitting the courtroom identification of petitioners by the witness who had previously identified them at the lineup.
For the reasons here stated, I agree that petitioners’ convictions must be vacated and the case remanded to the Alabama courts for consideration of whether the denial of counsel at the preliminary hearing was harmless error under the Court’s decision in Chapman v. California, 386 U. S. 18 (1967).
Mk. Justice Douglas.While I have joined Mr. Justice Brennan’s opinion, I add a word as to why I think that a strict construction of the Constitution requires the result reached.
The critical words are: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” As Mr. Justice Black states, a preliminary hearing is “a definite part or stage of a criminal prosecution in Alabama.” A “criminal prosecution” certainly does not start only when the trial starts. If the commencement of the trial were the start of the “criminal prosecution” in the constitutional sense, then indigents would likely go to trial without effective representation by counsel. Lawyers for the defense need time to prepare a defense. The prosecution needs time for investigations and procedures to make that investigation timely and telling. As a shorthand expression we have used the words “critical stage” to describe whether the preliminary phase of a criminal trial was part of the “criminal prosecution” as used in *15the Sixth Amendment. But it is the Sixth Amendment that controls, not our own ideas as to what an efficient criminal code should provide. It did not take nearly 200 years of doubt to decide whether Alabama's preliminary hearing is a part of the “criminal prosecution” within the meaning of the Sixth Amendment. The question has never been reached prior to this case. We experience here the case-by-case approach that is the only one available under our “case” or “controversy” jurisdiction under Article III of the Constitution.
If we are to adhere to the mandate of the Constitution and not give it merely that meaning which appeals to the personal tastes of those who from time to time sit here, we should read its terms in light of the realities of what “criminal prosecutions” truly mean.
I was impressed with the need for that kind of strict construction on experiences in my various Russian journeys. In that nation detention incommunicado is the common practice, and the period of permissible detention now extends for nine months.1 Where there is custodial interrogation, it is clear that the critical stage of the trial takes place long before the courtroom formali*16ties commence. That is apparent to one who attends criminal trials in Russia. Those that I viewed never put in issue the question of guilt; guilt was an issue resolved in the inner precincts of a prison under questioning by the police. The courtroom trial concerned only the issue of punishment.
Custodial interrogation is in practice — here and in other nations — so critical that we would give “criminal prosecutions” as used in the Sixth Amendment a strained and narrow meaning if we held that it did not include that phase. My Brother Harlan in his dissent in Miranda v. Arizona, 384 U. S. 436, 513, called the Sixth Amendment cases cited by the majority of the Court the “linchpins” of the ruling that an accused under custodial interrogation was entitled to the assistance of counsel.2 They were properly such, although the main emphasis in the Miranda opinion was on the use of custodial interrogation to exact incriminating statements3 against *17the commands of the Fourteenth and Fifth Amendments. Like the preliminary hearing in the present case, custodial interrogation is obviously part of the “criminal prosecution” that the Sixth Amendment honors — if strict construction is our guide.
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 jurisdic*18tions 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 pre-clusive 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.
Article 97 of the RSFSR Codes of Criminal Procedure provides:
“Confinement under guard in connection with the investigation of a case may not continue for more than two months. Only by reason of the special complexity of the case may this period be prolonged up to three months from the day of confinement under guard by a procurator of an autonomous republic, territory, region, autonomous region, or national area, or by a military procurator of a military region or fleet, or up to six months by the RSFSR Procurator or the Chief Military Procurator. Further prolongation of a period of confinement under guard may be carried out only in exceptional instances by the USSR Procurator General for a period of not more than an additional three months.” Soviet Criminal Law and Procedure: The RSFSR Codes 288 (H. Berman & J. Spindler transí. 1966).
Article 47 of the RSFSR Codes of Criminal Procedure provides in part:
“Defense counsel shall be permitted to participate in a case from the moment the accused is informed of the completion of the preliminary investigation and is presented with all the proceedings of the case to become acquainted with them.” Soviet Criminal Law and Procedure: The RSFSR Codes, supra, n. 1, at 269.
No nation has a monopoly on the use of this device although the present Greek Government according to the 1969 report of the Commission of Human Rights of the Council of Europe has reached a high level of efficiency in the use of torture:
“Falanga or bastinado has been a method of torture known for centuries. It is the beating of the feet with a wooden or metal stick or bar which, if skilfully done, breaks no bones, makes no skin lesions, and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet. The use of falanga has been described in a variety of situations: on a bench or cha.-ir or on a car-seat; with or without shoes on. Sometimes water has *17been thrown over the feet and sometimes the victim has been made to run around between beatings. Victims have also been gagged.
“While falanga and severe beatings of all parts of the body are the commonest forms of torture or ill-treatment that appear in the evidence before the Sub-Commission, other forms have been described: for example, the application of electric shock, squeezing of the head in a vice, pulling out of hair from the head or pubic region, or kicking of the male genital organs, dripping water on the head, and intense noises to prevent sleep.
“Falanga has not only been the commonest form of torture or ill-treatment in the eases in which the Sub-Commission has been able to establish the facts to a substantial degree but also appears with great frequency in the further allegations raised in the proceedings with regard to other named detainees. The principal forms of alleged treatment — frequently several forms combined in one and the same case — are as follows in the two categories:
Cases Further examined allegations
Falanga . 23 53
Electro-shock. 4 3
Mock execution or threats to shoot or kill the victim . 12 15
Other beating or ill-treatment. 26 17”
European Commission of Human Rights, Report on The Greek Case, Vol. 2, pt. 1, pp. 415-416 (1969).