dissenting.
I agree that as a matter of sound policy counsel should be made available to all persons subjected to a preliminary hearing and that this should be provided either by statute or by the rulemaking process. However, I cannot accept the notion that the Constitution commands *22it because it is a “criminal prosecution.”1 Although Me. Justice Stewart, whose opinion I join, and Me. Justice Harlan and Mr. Justice White have each noted some of the difficulties, both on constitutional and practical grounds, with today’s holding, I separately set forth additional reasons for my dissent.2
Certainly, as Mr. Justice Harlan and Mr. Justice White suggest, not a word in the Constitution itself either requires or contemplates the result reached; unlike them, however, I do not acquiesce in prior holdings that purportedly, but nonetheless erroneously, are based on the Constitution. That approach simply is an acknowledgment that the Court having previously amended the Sixth Amendment now feels bound by its action. While I do not rely solely on 183 years of contrary constitutional interpretation, it is indeed an odd business that it has taken this Court nearly two centuries to “discover” a constitutional mandate to have counsel at a preliminary hearing. Here there is not even the excuse that conditions have changed; the preliminary hearing is an ancient institution.
With deference, then, I am bound to reject categorically Mr. Justice Harlan’s and Mr. Justice White’s thesis that what the Court said lately controls over the Constitution. While our holdings are entitled to deference I will not join in employing recent cases rather than the Constitution, to bootstrap ourselves into a result, even though I agree with the objective of having counsel at preliminary hearings. By placing a premium on “recent cases” rather than the language of the Constitution, the Court makes it dangerously simple for *23future Courts, using the technique of interpretation, to operate as a “continuing Constitutional convention.”
I wish to make clear that my disagreement with the prevailing opinion is directed primarily at its reasoning process, rather than with the broad social and legal desirability of the result reached. I would not decide that the Constitution commands this result simply because I think it is a desirable one. Indeed, there have been many studies, including that of the American Bar Association’s Criminal Justice Project, that acknowledged the wisdom of providing counsel at the preliminary hearing. ABA Project on Standards for Criminal Justice, Providing Defense Services § 5.1 (Approved Draft 1968). But this should be provided either by statute or by the rulemaking process since the Constitution does not require it. Me. Justice White, while joining the prevailing opinion with some reservations, belies the essence of the matter when he states that “recent cases furnish ample ground for holding the preliminary hearing a critical event in the progress of a criminal case.” (Emphasis added.)
If the Constitution provided that counsel be furnished for every “critical event in the progress of a criminal case,” that would be another story, but it does not. In contrast to the variety of verbal combinations employed by the majority to justify today’s disposition, the Sixth Amendment states with laudable precision that: “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel.” (Emphasis added.) The only relevant determination is whether a preliminary hearing is a “criminal prosecution,” not whether it is a “critical event in the progress of a criminal case.” By inventing its own verbal formula the prevailing opinion simply seeks to reshape the Constitution in accordance with predilections of what is deemed desirable. Constitutional interpretation is not an easy matter, but we *24should be especially cautious about substituting our own notions for those of the Framers. I heed Mb. Justice Black’s recent admonition on “the difference .. . between our Constitution as written by the Founders and an unwritten constitution to be formulated by judges according to their ideas of fairness on a case-by-case basis.” North Carolina v. Pearce, 395 U. S. 711, 744 (1969) (separate opinion of Black, J.) (emphasis in original).
In the federal courts, and as provided by statute in most States, the three steps that follow arrest are (1) the preliminary hearing under Fed. Rule Crim. Proc. 5 (c); (2) the grand jury inquiry; and (3) the arraignment under Fed. Rule Crim. Proc. 10. We know, of course, that if the hearing officer at the preliminary hearing concludes to hold the person for possible grand jury action counsel is not permitted to attend the latter proceedings. If the grand jury returns an indictment, the accused must then enter a plea at arraignment, and at this hearing counsel is required under Hamilton v. Alabama, 368 U. S. 52 (1961).
In Alabama, as in the federal system, the preliminary hearing has been an inquiry into whether the arrested person should be discharged or whether, on the contrary, there is probable cause to submit evidence to a grand jury or other charging authority for further consideration. No verdict can flow from the hearing magistrate’s determination, and a discharge, unlike an acquittal, is no bar to a later indictment. Thus it is not a trial in any sense in which lawyers and judges use that term. Moreover, the hearing magistrate cannot indict; he can pass only on the narrow question of whether further inquiry is warranted. Recognizing, however, that the preliminary hearing is not an unimportant step in “the progress of a criminal case,” this Court has already held that disclosures of an uncounseled person at the hearing may not be used against him if he is later tried. White v. *25Maryland, 373 U. S. 59 (1963). See also Pointer v. Texas, 380 U. S. 400 (1965).
Under today’s holding we thus have something of an anomaly under the new “discovery” of the Court that counsel is constitutionally required at the preliminary hearing since counsel cannot attend a subsequent grand jury inquiry, even though witnesses, including the person eventually charged, may be interrogated in secret session. If the current mode of constitutional analysis subscribed to by this Court in recent cases requires that counsel be present at preliminary hearings, how can this be reconciled with the fact that the Constitution itself does not permit the assistance of counsel at the decidedly more “critical” grand jury inquiry?
Finally, as pointed out, the Court has already protected an accused from absence of counsel at the preliminary hearing by providing that statements of an uncounseled person are inadmissible at trial. The prevailing opinion fails to explain why that salutary — indeed drastic — remedy is no longer sufficient protection for the preliminary hearing stage, unless what the Court is doing — surreptitiously — is to convert the preliminary hearing into a discovery device. But the need for even that step is largely dissipated by the proposed amendments for pretrial discovery in criminal cases. See Judicial Conference of the United States, Committee on Rules of Practice and Procedure, Proposed Amendments to the Federal Rules of Criminal Procedure for United States District Courts (preliminary draft, Jan. 1970).
Mr. Justice Stewart, with whom The Chief Justice joins,dissenting.
On a July night in 1966 Casey Reynolds and his wife stopped their ear on Green Springs Highway in Birmingham, Alabama, in order to change a flat tire. They were soon accosted by three men whose evident purpose was *26armed robbery and rape. The assailants shot Reynolds twice before they were frightened away by the lights of a passing automobile. Some two months later the petitioners were arrested, and later identified by Reynolds as two of the three men who had assaulted him and his wife.
A few days later the petitioners were granted a preliminary hearing before a county judge. At this hearing the petitioners were neither required nor permitted to enter any plea. The sole purpose of such a hearing in Alabama is to determine whether there is sufficient evidence against the accused to warrant presenting the case to a grand jury, and, if so, to fix bail if the offense is bailable.1 At the conclusion of the hearing the petitioners were bound over to the grand jury, and their bond was set at $10,000. No record or transcript of any kind was made of the hearing.
Less than a month later the grand jury returned an indictment against the petitioners, charging them with assault to commit murder. Promptly after their indictment, a lawyer was appointed to represent them. At their arraignment two weeks later, where they were represented by their appointed counsel, they entered a plea of not guilty. Cf. Hamilton v. Alabama, 368 U. S. 52. Some months later they were brought to trial, again represented by appointed counsel. Cf. Gideon v. Wainwright, 372 U. S. 335. The jury found them guilty as charged, and they were sentenced to the penitentiary.
If at the trial the prosecution had used any incriminating statements made by the petitioners at the preliminary hearing, the convictions before us would quite properly have to be set aside. White v. Maryland, 373 U. S. 59. But that did not happen in this case. Or if the prosecution had used the statement of any other wit*27ness at the preliminary hearing against the petitioners at their trial, we would likewise quite properly have to set aside these convictions. Pointer v. Texas, 380 U. S. 400. But that did not happen in this case either. For, as the prevailing opinion today perforce concedes, "the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed.”
Nevertheless, the Court sets aside the convictions because, it says, counsel should have been provided for the petitioners at the preliminary hearing. None of the cases relied upon in that opinion points to any such result. Even the Miranda decision does not require counsel to be present at “pretrial custodial interrogation.” That case simply held that the constitutional guarantee against compulsory self-incrimination prohibits the introduction at the trial of statements made by the defendant during custodial interrogation if the Miranda "guidelines” were not followed. 384 U. S. 436. See also United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263. And I repeat that in this case no evidence of anything said or done at the preliminary hearing was introduced at the petitioners’ trial.
But the prevailing opinion holds today that the Constitution required Alabama to provide a lawyer for the petitioners at their preliminary hearing, not so much, it seems, to assure a fair trial as to assure a fair preliminary hearing. A lawyer at the preliminary hearing, the opinion says, might have led the magistrate to “refuse to bind the accused over.” Or a lawyer might have made “effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.”
If those are the reasons a lawyer must be provided, then the most elementary logic requires that a new preliminary hearing must now be held, with counsel *28made available to the petitioners. In order to provide such relief, it would, of course, be necessary not only to set aside these convictions, but also to set aside the grand jury indictments, and the magistrate’s orders fixing bail and binding over the petitioners. Since the petitioners have now been found by a jury in a constitutional trial2 to be guilty beyond a reasonable doubt, the prevailing opinion understandably boggles at these logical consequences of the reasoning therein. It refrains, in short, from now turning back the clock by ordering a new preliminary hearing to determine all over again whether there is sufficient evidence against the accused to present their case to a grand jury. Instead, the Court sets aside these convictions and remands the case for determination “whether the convictions should be reinstated or a new trial ordered,” and this action seems to me even more quixotic.
The petitioners have simply not alleged that anything that happened at the preliminary hearing turned out in this case to be critical to the fairness of their trial. They haye not alleged that they were affirmatively prejudiced at the trial by anything that occurred at the preliminary hearing. They have not pointed to any affirmative advantage they would have enjoyed at the trial if they had had a lawyer at their preliminary hearing.
No record or transcript of any kind was made of the preliminary hearing. Therefore, if the burden on remand is on the petitioners to show that they were prejudiced, it is clear that that burden cannot be met, and the remand is a futile gesture. If, on the other hand, the burden is on the State to disprove beyond a reasonable doubt any and all speculative advantages that the petitioners might conceivably have enjoyed if counsel had been present at their preliminary hearing, then *29obviously that burden cannot be met either, and the Court should simply reverse these convictions. All I can say is that if the Alabama courts can figure out what they are supposed to do with this case now that it has been remanded to them, their perceptiveness will far exceed mine.
The record before us makes clear that no evidence of what occurred at the preliminary hearing was used against the petitioners at their now completed trial. I would hold, therefore, that the absence of counsel at the preliminary hearing deprived the petitioners of no constitutional rights. Accordingly, I would affirm these convictions.
The pertinent language is: “In all criminal prosecutions, the accused shall enjoy ... the Assistance of Counsel for his defence.”
concur in the conclusion that due process was not violated by the identification procedures employed here.
Ala. Code, Tit. 15, §§ 133-140 (1958).
agree with the result reached in Part I of the prevailing opinion.