Rose v. Mitchell

Mr. Justice Stewart,

with whom Mr. Justice Rehnquist joins, concurring in the judgment.

The respondents were found guilty beyond a reasonable doubt after a fair and wholly constitutional jury trial. Why should such persons be entitled to have their convictions set aside on the ground that the grand jury that indicted them was *575improperly constituted? That question was asked more than 25 years ago by Mr. Justice Jackson in Cassell v. Texas, 339 U. S. 282, 298 (dissenting opinion). It has never been answered.1 I think the time has come to acknowledge that Mr. Justice Jackson’s question is unanswerable, and to hold that a defendant may not rely on a claim of grand jury discrimination to overturn an otherwise valid conviction.

I

A grand jury proceeding “is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.” United States v. Calandra, 414 U. S. 338, 343-344. It is not a proceeding in which the guilt or innocence of a defendant is determined, but merely one to decide whether there is a prima facie case against him. Any possible prejudice to the defendant resulting from an indictment returned by an invalid grand jury thus disappears when a constitutionally valid trial jury later finds him guilty beyond a reasonable doubt.2 In short, a convicted defendant who alleges that he was indicted by a discriminatorily selected grand jury is complaining of an *576antecedent constitutional violation that could have had no conceivable impact on the fairness of the trial that resulted in his conviction.

It is well settled that deprivations of constitutional rights that occur before trial are no bar to conviction unless there has been an impact upon the trial itself.3 A conviction after trial, like a guilty plea, “represents a break in the chain of events which has preceded it in the criminal process.” Tollett v. Henderson, 411 U. S. 258, 267. See United States v. Blue, 384 U. S. 251, 255; cf. Stroble v. California, 343 U. S. 181, 197 (“illegal acts of state officials prior to trial are relevant only as they bear on petitioner’s contention that he has been deprived of a fair trial”).

The cases in this Court dealing with unlawful arrest are particularly instructive. Unconstitutional arrests are unreasonable seizures of the person that violate the Fourth and Fourteenth Amendments. E. g., Terry v. Ohio, 392 U. S. 1. Yet, an “illegal arrest or detention does not void a subsequent conviction.” Gerstein v. Pugh, 420 U. S. 103, 119. In Frisbie v. Collins, 342 U. S. 519, for example, a defendant had been forcibly abducted from one State and brought to another to stand trial, but the trial itself was fair, and the Court upheld his conviction. See also Mahon v. Justice, 127 U. S. 700; Ker v. Illinois, 119 U. S. 436.4

*577The cases in this Court specifically dealing with grand jury proceedings are equally instructive. In Costello v. United States, 350 U. S. 359, the Court sustained the conviction of a defendant who had sought to dismiss the charges against him on the ground that the indictment had been based exclusively upon inadmissible hearsay evidence. See also Holt v. United States, 218 U. S. 245. In Lawn v. United States, 355 U. S. 339, the Court held that a defendant could not avoid trial and conviction on the ground that the indictment had been procured by evidence obtained in violation of the Fifth Amendment. “[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, ... or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination.” United States v. Calandra, supra, at 345. Cf. Gelbard v. United States, 408 U. S. 41, 60 (“The 'general rule’ ... is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government 'acquire'[d] incriminating evidence in violation of the [rule],’ even if the ‘tainted evidence was presented to the grand jury’ ”); United States v. Blue, supra, at 255 n. 3.

II

A person who has been indicted on the basis of incompetent or illegal evidence has suffered demonstrable prejudice. By contrast, the prejudice suffered by a defendant who has been indicted by an unconstitutionally chosen grand jury is speculative at best, and more likely nonexistent. But there are, of course, other interests implicated when a State systematically excludes qualified Negroes from grand jury service. Such *578discrimination denies Negroes the right to participate equally in the responsibilities of citizenship. The compelling constitutional interest of our Nation in eliminating all forms of racial discrimination requires that no group of qualified citizens be excluded from participation as either grand or petit jurors in the administration of justice.

These interests can be fully vindicated, however, by means other than setting aside valid criminal convictions. This Court has held, for example, that Negroes can obtain injunctive relief to remedy unconstitutional exclusion from grand or petit jury service. Carter v. Jury Comm’n of Greene County, 396 U. S. 320; Turner v. Fouche, 396 U. S. 346. That remedy has the advantage of allowing the members of the class actually injured by grand jury discrimination to vindicate their rights without the heavy societal cost entailed when valid criminal convictions are overturned.5 Moreover, Congress has made it a criminal offense for a public official to exclude any person from a grand or petit jury on the basis of his or her race. 18 U. S. C. § 243.6 Defendants may also have pretrial remedies against unlawful indictments. But, as Mr. Justice Jackson stated in the Cassell case, “[i]t hardly lies in *579the mouth of á defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice.” 339 TJ. S., at 302.

For all these reasons, I believe that a claim of discrimination in the selection of a grand jury or its foreman is not a ground for setting aside a valid criminal conviction. Accordingly, I concur only in the judgment.

In proffering an answer today, the Court relies on (1) historical precedents and (2) the duty of the courts to apply the Equal Protection Clause with special vigor in the area of racial discrimination.

As to the first ground, I can only recall what Mr. Justice Frankfurter once said: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Bank, 335 U. S. 595, 600 (dissenting opinion). As to the second ground, I agree wholeheartedly with the Court’s general view of the Equal Protection Clause, but believe, as explained in this opinion, that that constitutional guarantee protects the victims of discrimination rather than defendants who have been convicted after fair trials by lawfully constituted juries.

There is no constitutional requirement that a state criminal prosecution even be initiated by a grand jury. A State is free to bring a criminal charge through information filed by a prosecutor. Hurtado v. California, 110 U. S. 516. And the Court has held that a defendant is not entitled “to judicial oversight or review of the decision to prosecute.” Gerstein v. Pugh, 420 U. S. 103, 119.

In Coleman v. Alabama, 399 U. S. 1, the Court vacated a conviction in a situation where a State had failed to provide a defendant with appointed counsel at the preliminary hearing. The Court’s holding was premised on the opportunity of defense counsel at a preliminary hearing to develop a record that could be useful for impeachment purposes at the trial. Favorable testimony of a witness who did not appear at trial could also be preserved. In addition, the Court emphasized the ability of counsel at a preliminary hearing to discover the substance of the prosecution’s case and thus to prepare an effective trial defense. Id., at 9.

Similarly, a defendant is not immune from prosecution under an outstanding indictment if he is searched in violation of his Fourth Amendment rights or interrogated in violation of his “Miranda” rights. Illegally *577obtained evidence may be excluded from the trial, but the prosecution is not barred altogether. “So drastic a step might advance marginally some of the ends served by the exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.” United States v. Blue, 384 U. S. 251, 255.

That Negroes are the class most directly affected by grand jury discrimination was first recognized by this Court in the landmark case of Strauder v. West Virginia, 100 U. S. 303. The Court stated:

“The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.” Id., at 308.

Since qualified Negroes can now vindicate their rights directly, the rationale for allowing a defendant who has been convicted by a constitutional petit jury to assert the rights of Negroes who were excluded from the grand jury has been undermined.

The constitutionality of this statute was upheld in Ex parte Virginia, 100 U. S. 339.