concurring in part and dissenting in part.
If I felt free to consider this case upon a clean slate I would have voted to affirm these convictions.* But — in light of the lengths to which the right to appointed counsel has been carried in recent decisions of this Court, see Miranda v. Arizona, 384 U. S. 436 (1966); United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Mathis v. United States, 391 U. S. 1 (1968); and Orozco v. Texas, 394 U. S. 324 (1969)-I consider that course is not open to me with due regard for the way in which the adjudicatory process of this Court, as I conceive it, should work. The continuing viability of the cases just cited is not directly before us for decision, and if and when such an occasion arises I would face it in terms of considerations that I have recently expressed elsewhere. See my dissenting opinion in Baldwin v. New York, decided today, post, p. 117, and my opinion concurring in the result in Welsh v. United States, 398 U. S. 333, 344 (1970).
*20Accordingly I am constrained to agree with the Court’s conclusion that petitioners’ constitutional rights were violated when Alabama refused to appoint counsel to represent them at the preliminary hearing. I dissent, however, from the terms of the Court’s remand on this issue, as well as from the refusal to accord petitioners the benefit of the Wade case in connection with their police “lineup” contentions.
I
It would indeed be strange were this Court, having held a suspect or an accused entitled to counsel at such pretrial stages as “in-custody” police investigation, whether at the station house (Miranda) or even in the home (Orosco), now to hold that he is left to fend for himself at the first formal confrontation in the courtroom.
While, given the cases referred to, I cannot escape the conclusion that petitioners’ constitutional rights must be held to have been violated by denying them appointed counsel at the preliminary hearing, I consider the scope of the Court’s remand too broad and amorphous. I do not think that reversal of these convictions, for lack of counsel at the preliminary hearing, should follow unless petitioners are able to show on remand that they have been prejudiced in their defense at trial, in that favorable testimony that might otherwise have been preserved was irretrievably lost by virtue of not having counsel to help present an affirmative case at the preliminary hearing. In this regard, of course, as with any other erroneously excluded testimony, petitioners would have to show that its weight at trial would have been such as to constitute its “exclusion” reversible error, as well as demonstrate the actual likelihood that such testimony could have been presented and preserved at the preliminary hearing. In my opinion mere speculation that defense *21counsel might have been able to do better at trial had he been present at the preliminary hearing should not suffice to vitiate a conviction. The Court’s remand under the Chapman harmless-error rule seems to me to leave the way open for that sort of speculation.
II
Despite my continuing disagreement with United States v. Wade, supra, I must dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police “lineup” identification. The majority’s action results from the holding in Stovall v. Denno, 388 U. S. 293 (1967), making Wade applicable only to lineups occurring after the date of that decision, the present lineup having taken place well before. For reasons explained in my dissent in Desist v. United States, 394 U. S. 244, 256 (1969), I can no longer follow the “retroactivity” doctrine announced in Stovall in cases before us on direct review. That being the situation here, I would judge the case in light of Wade.
The Wade rule requires the exclusion of any in-court identification preceded by a pretrial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source “independent” of the tainted pretrial viewing. Such a determination must, in the first instance, be made by the trial court. I would therefore send the case back on this score too.
From the standpoint of Fourteenth Amendment due process, which is the way in which I think state cases of this kind should be judged (see, e. g., my concurring opinion in Gideon v. Wainwright, 372 U. S. 335, 349 (1963)), I could not have said that the denial of appointed counsel at a preliminary hearing, carrying no consequences beyond those involved in the Alabama procedure, is offensive to the concept of “fundamental fairness” embodied in the Due Process Clause. The ease would, of course, be different if the State were permitted to introduce at trial evidence collected and presented at the preliminary hearing. A fortiori, I would not have thought that the lack of counsel at a police “line-up” is, as held in United States v. Wade, 388 U. S. 218 (1967), a denial of due process such as to require reversal. Even from the standpoint of the Sixth Amendment, I would have found it difficult to say that the language, “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence” (emphasis supplied), was intended to reach such pre-indictment events. Cf. Sanders v. United States, 373 U. S. 1, 23 (1963).