U.S. Supreme Court Richardson v. Marsh, 481
U.S. 200 (1987) Richardson v. Marsh No. 85-1433 Argued January 14,
1987 Decided April 21,
1987 481
U.S. 200 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Respondent and Benjamin Williams were charged with murder,
robbery, and assault. At their joint trial, Williams' confession
was admitted over respondent's objection. The confession had been
redacted to omit all reference to respondent -- indeed, to omit all
indication that anyone other than Williams and a third accomplice
participated in the crime. In his confession, Williams described a
conversation he had with the third accomplice as they drove to the
victims' home, during which the accomplice said that he would have
to kill the victims after robbing them. At the time the confession
was admitted, the jury was admonished not to use it in any way
against respondent. Williams did not testify. Respondent's
testimony indicated that she had been in the car with Williams and
the third accomplice, but had not heard their conversation.
Respondent insisted that she had not intended to rob or kill
anyone. Respondent was convicted of felony murder and assault to
commit murder, and the Michigan Court of Appeals affirmed. The
Federal District Court denied respondent's petition for a writ of
habeas corpus, but the Court of Appeals reversed, holding that
respondent was entitled to a new trial under Bruton v. United
States, 391 U. S. 123 . Bruton held that a defendant is deprived of his rights
under the Confrontation Clause when his nontestifying codefendant's
confession naming him as a participant in the crime is introduced
at their joint trial, even if the jury is instructed to consider
that confession only against the codefendant. The Court of Appeals
held that Bruton requires the same result when the
codefendant's confession is redacted to omit any reference to the
defendant, but the defendant is nonetheless linked to the
confession by evidence properly admitted against him at trial. Held: The Confrontation Clause is not violated by the
admission of a nontestifying codefendant's confession with a proper
limiting instruction when, as here, the confession is redacted to
eliminate not only the defendant's name, but any reference to her
existence. The Bruton Court recognized a very narrow
exception to the almost invariable assumption of the law that
jurors follow their instructions in the situation when the facially
incriminating confession of a nontestifying codefendant is
introduced at a joint trial and the jury is instructed to consider
the confession only against the codefendant. In that situation, Bruton explained, the Page 481 U. S. 201 risk that the jury will not follow its instructions is so great,
and the consequences of that failure so vital to the defendant,
that jurors will be assumed incapable of obeying their
instructions. There are two important distinctions between this
case and Bruton which cause it to fall outside the narrow
exception Bruton created. First, in Bruton, the
codefendant's confession expressly implicated the defendant as his
accomplice, whereas here the confession was not incriminating on
its face, but became so only when linked with evidence introduced
later at trial. Where the necessity of such linkage is involved,
there does not exist the overwhelming probability of jurors'
inability to disregard incriminating inferences that is the
foundation of Bruton. Second, evidence requiring linkage
differs from evidence incriminating on its face in the practical
effects which application of the Bruton exception would
produce. If limited to facially incriminating confessions, Bruton can be complied with by redaction. If extended to
confessions incriminating by connection, not only is that not
possible, but it is not even possible to predict the admissibility
of a confession in advance of trial. Compliance with the Court of
Appeals' overbroad reading of Bruton could not be achieved
without enormous costs to the criminal justice system. Pp. 481 U. S.
206 -211.

															781 F.2d 1201, reversed and remanded.

															SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined, post, p. 481 U. S.
211 .

															JUSTICE SCALIA delivered the opinion of the Court.

															In Bruton v. United States, 391 U.
S. 123 (1968), we held that a defendant is deprived of
his rights under the Confrontation Clause when his nontestifying
codefendant's confession naming him as a participant in the crime
is introduced at their joint trial, even if the jury is instructed
to consider Page 481 U. S. 202 that confession only against the codefendant. Today we consider
whether Bruton requires the same result when the
codefendant's confession is redacted to omit any reference to the
defendant, but the defendant is nonetheless linked to the
confession by evidence properly admitted against him at trial. I Respondent Clarissa Marsh, Benjamin Williams, and Kareem Martin
were charged with assaulting Cynthia Knighton and murdering her
4-year-old son, Koran, and her aunt, Ollie Scott. Respondent and
Williams were tried jointly, over her objection. (Martin was a
fugitive at the time of trial.) At the trial, Knighton testified as
follows: On the evening of October 29, 1978, she and her son were
at Scott's home when respondent and her boyfriend Martin visited.
After a brief conversation in the living room, respondent announced
that she had come to "pick up something" from Scott, and rose from
the couch. Martin then pulled out a gun, pointed it at Scott and
the Knightons, and said that "someone had gotten killed, and
[Scott] knew something about it." Respondent immediately walked to
the front door and peered out the peephole. The doorbell rang,
respondent opened the door, and Williams walked in, carrying a gun.
As Williams passed respondent, he asked, "Where's the money?"
Martin forced Scott upstairs, and Williams went into the kitchen,
leaving respondent alone with the Knightons. Knighton and her son
attempted to flee, but respondent grabbed Knighton and held her
until Williams returned. Williams ordered the Knightons to lie on
the floor, and then went upstairs to assist Martin. Respondent,
again left alone with the Knightons, stood by the front door and
occasionally peered out the peephole. A few minutes later, Martin,
Williams, and Scott came down the stairs, and Martin handed a paper
grocery bag to respondent. Martin and Williams then forced Scott
and the Knightons into the basement, where Martin shot them. Only
Cynthia Knighton survived. Page 481 U. S. 203 In addition to Knighton's testimony, the State introduced (over
respondent's objection) a confession given by Williams to the
police shortly after his arrest. The confession was redacted to
omit all reference to respondent -- indeed, to omit all indication
that anyone other than Martin and Williams participated in the
crime. [ Footnote 1 ] The
confession largely corroborated Page 481 U. S. 204 Knighton's account of the activities of persons other than
respondent in the house. In addition, the confession described a
conversation Williams had with Martin as they drove to the Scott
home, during which, according to Williams, Martin said that he
would have to kill the victims after the robbery. At the time the
confession was admitted, the jury was admonished not to use it in
any way against respondent. Williams did not testify.

															After the State rested, respondent took the stand. She testified
that, on October 29, 1978, she had lost money that Martin intended
to use to buy drugs. Martin was upset, and suggested to respondent
that she borrow money from Scott, with whom she had worked in the
past. Martin and respondent picked up Williams and drove to Scott's
house. During the drive, respondent, who was sitting in the
backseat, "knew that [Martin and Williams] were talking," but could
not hear the conversation because "the radio was on and the speaker
was right in [her] ear." Martin and respondent were admitted into
the home, and respondent had a short conversation with Scott,
during which she asked for a loan. Martin then pulled a gun, and
respondent walked to the door to see where the car was. When she
saw Williams, she opened the door for him. Respondent testified
that, during the robbery, she did not feel free to leave, and was
too scared to flee. She said that she did not know why she
prevented the Knightons from escaping. She admitted taking the bag
from Martin, but said that, after Martin and Williams took the
victims into the basement, she left the house without the bag.
Respondent insisted that she had possessed no prior knowledge that
Martin and Williams were armed, had heard no conversation about
anyone's being harmed, and had not intended to rob or kill
anyone. Page 481 U. S. 205 During his closing argument, the prosecutor admonished the jury
not to use Williams' confession against respondent. Later in his
argument, however, he linked respondent to the portion of Williams'
confession describing his conversation with Martin in the car.
[ Footnote 2 ] (Respondent's
attorney did not object to this.) After closing arguments, the
judge again instructed the jury that Williams' confession was not
to be considered against respondent. The jury convicted respondent
of two counts of felony murder in the perpetration of an armed
robbery and one count of assault with intent to commit murder. The
Michigan Court of Appeals affirmed in an unpublished opinion, People v. Marsh, No. 46128 (Dec. 17, 1980), and the
Michigan Supreme Court denied leave to appeal, 412 Mich. 927
(1982).

															Respondent then filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. She alleged that her conviction was
not supported by sufficient evidence, and that introduction of
Williams' confession at the joint trial had violated her rights
under the Confrontation Clause. The District Court denied the
petition. Civ.Action No. 83-CV-2665-DT (ED Mich., Oct. 11, 1984).
The United States Court of Appeals for the Sixth Circuit reversed.
781 F.2d 1201 (1986). The Court of Appeals held that, in
determining whether Bruton bars the admission of a
nontestifying codefendant's confession, a court must assess the
confession's "inculpatory Page 481 U. S. 206 value" by examining not only the face of the confession, but
also all of the evidence introduced at trial. 781 F.2d at 1212.
Here, Williams' account of the conversation in the car was the only
direct evidence that respondent knew before entering Scott's house
that the victims would be robbed and killed. Respondent's own
testimony placed her in that car. In light of the "paucity" of
other evidence of malice and the prosecutor's linkage of respondent
and the statement in the car during closing argument, admission of
Williams' confession "was powerfully incriminating to [respondent]
with respect to the critical element of intent." Id. at
1213. Thus, the Court of Appeals concluded, the Confrontation
Clause was violated. We granted certiorari, 476 U.S. 1168 (1986),
because the Sixth Circuit's decision conflicts with those of other
Courts of Appeals which have declined to adopt the "evidentiary
linkage" or "contextual implication" approach to Bruton questions, see, e.g., United States v. Belle, 593 F.2d 487
(CA3 1979) (en banc). II The Confrontation Clause of the Sixth Amendment, extended
against the States by the Fourteenth Amendment, guarantees the
right of a criminal defendant "to be confronted with the witnesses
against him." The right of confrontation includes the right to
cross-examine witnesses. See Pointer v. Texas, 380 U. S. 400 , 380 U. S. 404 , 380 U. S.
406 -407 (1965). Therefore, where two defendants are
tried jointly, the pretrial confession of one cannot be admitted
against the other unless the confessing defendant takes the
stand.

															Ordinarily, a witness whose testimony is introduced at a joint
trial is not considered to be a witness "against" a defendant if
the jury is instructed to consider that testimony only against a
codefendant. This accords with the almost invariable assumption of
the law that jurors follow their instructions, Francis v.
Franklin, 471 U. S. 307 , 471 U. S. 325 ,
n. 9 (1985), which we have applied in many varying contexts. For
example, in Harris v. New York, 401 U.
S. 222 (1971), Page 481 U. S. 207 we held that statements elicited from a defendant in violation
of Miranda v. Arizona, 384 U. S. 436 (1966), can be introduced to impeach that defendant's credibility,
even though they are inadmissible as evidence of his guilt, so long
as the jury is instructed accordingly. Similarly, in Spencer v.
Texas, 385 U. S. 554 (1967), we held that evidence of the defendant's prior criminal
convictions could be introduced for the purpose of sentence
enhancement, so long as the jury was instructed it could not be
used for purposes of determining guilt. Accord, Marshall v.
Lonberger, 459 U. S. 422 , 459 U. S.
438 -439, n. 6 (1983). See also Tennessee v.
Street, 471 U. S. 409 , 471 U. S.
414 -416 (1985) (instruction to consider accomplice's
incriminating confession only for purpose of assessing truthfulness
of defendant's claim that his own confession was coerced); Watkins v. Sowders, 449 U. S. 341 , 449 U. S. 347 (1981) (instruction not to consider erroneously admitted eyewitness
identification evidence); Walder v. United States, 347 U. S. 62 (1954)
(instruction to consider unlawfully seized physical evidence only
in assessing defendant's credibility). In Bruton, however,
we recognized a narrow exception to this principle: we held that a
defendant is deprived of his Sixth Amendment right of confrontation
when the facially incriminating confession of a nontestifying
codefendant is introduced at their joint trial, even if the jury is
instructed to consider the confession only against the codefendant.
We said:

															"[T]here are some contexts in which the risk that the jury will
not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored. Such a context is presented here, where the powerfully
incriminating extrajudicial statements of a codefendant, who stands
accused side-by-side with the defendant, are deliberately spread
before the jury in a joint trial. . . ."

															391 U.S. at 391 U. S.
135 -136 (citations omitted). Page 481 U. S. 208 There is an important distinction between this case and Bruton which causes it to fall outside the narrow
exception we have created. In Bruton, the codefendant's
confession "expressly implicat[ed]" the defendant as his
accomplice. Id. at 391 U. S. 124 ,
n. 1. Thus, at the time that confession was introduced there was
not the slightest doubt that it would prove "powerfully
incriminating." Id. at 391 U. S. 135 .
By contrast, in this case, the confession was not incriminating on
its face, and became so only when linked with evidence introduced
later at trial (the defendant's own testimony). [ Footnote 3 ]

															Where the necessity of such linkage is involved, it is a less
valid generalization that the jury will not likely obey the
instruction to disregard the evidence. Specific testimony that "the
defendant helped me commit the crime" is more vivid than
inferential incrimination, and hence more difficult to thrust out
of mind. Moreover, with regard to such an explicit statement, the
only issue is, plain and simply, whether the jury can possibly be
expected to forget it in assessing the defendant's guilt; whereas,
with regard to inferential incrimination, the judge's instruction
may well be successful in dissuading the jury from entering onto
the path of inference in the first place, so that there is no
incrimination to forget. In short, while it may not always be
simple for the members of a jury to obey the instruction that they
disregard an incriminating inference, there does not exist the
overwhelming probability of their inability to do so that is the
foundation of Bruton's exception to the general rule.

															Even more significantly, evidence requiring linkage differs from
evidence incriminating on its face in the practical effects which
application of the Bruton exception would produce. If Page 481 U. S. 209 limited to facially incriminating confessions, Bruton can be complied with by redaction -- a possibility suggested in
that opinion itself. Id. at 391 U. S. 134 ,
n. 10. If extended to confessions incriminating by connection, not
only is that not possible, but it is not even possible to predict
the admissibility of a confession in advance of trial. The
"contextual implication" doctrine articulated by the Court of
Appeals would presumably require the trial judge to assess at the
end of each trial whether, in light of all of the evidence, a
nontestifying codefendant's confession has been so "powerfully
incriminating" that a new, separate trial is required for the
defendant. This obviously lends itself to manipulation by the
defense -- and, even without manipulation, will result in numerous
mistrials and appeals. It might be suggested that those
consequences could be reduced by conducting a pretrial hearing at
which prosecution and defense would reveal the evidence they plan
to introduce, enabling the court to assess compliance with Bruton ex ante, rather than ex post. If this
approach is even feasible under the Federal Rules (which is
doubtful -- see, e.g., Fed.Rule Crim.Proc. 14), it would
be time-consuming and obviously far from foolproof.

															One might say, of course, that a certain way of assuring
compliance would be to try defendants separately whenever an
incriminating statement of one of them is sought to be used. That
is not as facile or as just a remedy as might seem. Joint trials
play a vital role in the criminal justice system, accounting for
almost one-third of federal criminal trials in the past five years.
Memorandum from David L. Cook, Administrative Office of the United
States Courts, to Supreme Court Library (Feb. 20, 1987) (available
in Clerk of Court's case file). Many joint trials -- for example,
those involving large conspiracies to import and distribute illegal
drugs -- involve a dozen or more codefendants. Confessions by one
or more of the defendants are commonplace -- and indeed the
probability of confession increases with the number Page 481 U. S. 210 of participants, since each has reduced assurance that he will
be protected by his own silence. It would impair both the
efficiency and the fairness of the criminal justice system to
require, in all these cases of joint crimes where incriminating
statements exist, that prosecutors bring separate proceedings,
presenting the same evidence again and again, requiring victims and
witnesses to repeat the inconvenience (and sometimes trauma) of
testifying, and randomly favoring the last-tried defendants who
have the advantage of knowing the prosecution's case beforehand.
Joint trials generally serve the interests of justice by avoiding
inconsistent verdicts and enabling more accurate assessment of
relative culpability -- advantages which sometimes operate to the
defendant's benefit. Even apart from these tactical considerations,
joint trials generally serve the interests of justice by avoiding
the scandal and inequity of inconsistent verdicts. [ Footnote 4 ] The other way of assuring
compliance with an expansive Bruton rule would be to forgo
use of codefendant confessions. That price also is too high, since
confessions

															"are more than merely 'desirable;' they are essential to
society's compelling interest in finding, convicting, and punishing
those who violate the law." Moran v. Burbine, 475 U. S. 412 , 475 U. S. 426 (1986) (citation omitted). Page 481 U. S. 211 The rule that juries are presumed to follow their instructions
is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant in the criminal justice process. On the precise
facts of Bruton, involving a facially incriminating
confession, we found that accommodation inadequate. As our
discussion above shows, the calculus changes when confessions that
do not name the defendant are at issue. While we continue to apply Bruton where we have found that its rationale validly
applies, see Cruz v. New York, ante p. 481 U. S. 186 , we
decline to extend it further. We hold that the Confrontation Clause
is not violated by the admission of a nontestifying codefendant's
confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant's name,
but any reference to his or her existence. [ Footnote 5 ]

															In the present case, however, the prosecutor sought to undo the
effect of the limiting instruction by urging the jury to use
Williams' confession in evaluating respondent's case. See
supra at 481 U. S. 205 ,
and n. 2. On remand, the court should consider whether, in light of
respondent's failure to object to the prosecutor's comments, the
error can serve as the basis for granting a writ of habeas corpus. See Wainwright v. Sykes, 433 U. S. 72 (1977).

															The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion. So ordered. [ Footnote 1 ]

															The redacted confession, in its entirety, read:

															"On Sunday evening, October the 29th, 1978, at about 6:30 p.m.,
I was over to my girl friend's house at 237 Moss, Highland Park,
when I received a phone call from a friend of mine named Kareem
Martin. He said he had been looking for me and James Coleman, who I
call Tom. He asked me if I wanted to go on a robbery with him. I
said okay. Then he said he'd be by and pick me up. About 15 or 20
minutes later, Kareem came by in his black Monte Carlo car. I got
in the car and Kareem told me he was going to stick up this crib,
told me the place was a numbers house. Kareem said there would be
over $6,000 or $10,000 in the place. Kareem said he would have to
take them out after the robbery. Kareem had a big silver gun. He
gave me a long barrelled [ sic ] .22 revolver. We then drove
over to this house and parked the car across the big street near
the house. The plan was that I would wait in the car in front of
the house, and then I would move the car down across the big
street, because he didn't want anybody to see the car. Okay, Kareem
went up to the house and went inside. A couple of minutes later, I
moved the car and went up to the house. As I entered, Kareem and
this older lady were in the dining room, a little boy and another
younger woman were sitting on the couch in the front room. I pulled
my pistol and told the younger woman and the little boy to lay on
the floor. Kareem took the older lady upstairs. He had a pistol,
also. I stayed downstairs with the two people on the floor. After
Kareem took the lady upstairs I went upstairs, and the lady was
laying on the bed in the room to the left as you get up the stairs.
The lady had already given us two bags full of money before we ever
got upstairs. Kareem had thought she had more money, and that's why
we had went upstairs. Me and Kareem started searching the rooms,
but I didn't find any money. I came downstairs, and then Kareem
came down with the lady. I said, 'Let's go, let's go.' Kareem said
no. Kareem then took the two ladies and little boy down the
basement, and that's when I left to go to the car. I went to the
car and got in the back seat. A couple of minutes later, Kareem
came to the car and said he thinks the girl was still living,
because she was still moving, and he didn't have any more bullets.
He asked me how come I didn't go down the basement, and I said I
wasn't doing no shit like that. He then dropped me back off at my
girl's house in Highland Park, and I was supposed to get together
with him today, get my share of the robbery after he had counted
the money. That's all."

															App. in No. 84-1777 (CA6), pp. 88-90.

															[ Footnote 2 ]

															The prosecutor said:

															"It's important in light of [respondent's] testimony when she
says Kareem drives over to Benjamin Williams' home and picks him up
to go over. What's the thing that she says? 'Well, I'm sitting in
the back seat of the car.' 'Did you hear any conversation that was
going on in the front seat between Kareem and Mr. Williams?' 'No,
couldn't hear any conversation. The radio was too loud.' I asked
[ sic ] you whether that is reasonable. Why did she say
that? Why did she say she couldn't hear any conversation? She said,
'I know they were having conversation, but I couldn't hear it
because of the radio.' Because if she admits that she heard the
conversation, and she admits to the plan, she's guilty of at least
armed robbery. So she can't tell you that." Id. at 164.

															[ Footnote 3 ]

															The dissent is mistaken in believing we "assum[e] that
[Williams'] confession did not incriminate respondent." Post at 481 U. S. 215 ,
n. 3. To the contrary, the very premise of our discussion is that
respondent would have been harmed by Williams' confession if the jury had disobeyed its instructions. Our
disagreement pertains not to whether the confession incriminated
respondent, but to whether the trial court could properly assume
that the jury did not use it against her.

															[ Footnote 4 ]

															The dissent notes that

															"all of the cases in this Court that involved joint trials
conducted after Bruton was decided, in which compliance
with the rule of that case was at issue, appear to have originated
in a state court." Post at 481 U. S. 219 .
It concludes from this that "[f]ederal prosecutors seem to have had
little difficulty" in implementing Bruton as the dissent
believes it must be implemented. Ibid. Since the cases in
question number only a handful, the fact that they happened to be
state cases may signify nothing more than that there are many times
more state prosecutions than federal. There is assuredly no basis
to believe that federal prosecutors have been applying the
dissent's interpretation of Bruton. Indeed the contrary
proposition -- as well as the harmfulness of that interpretation to
federal law enforcement efforts -- is suggested by the fact that
the Solicitor General has appeared here as amicus to urge
reversal for substantially the reasons we have given. See Brief for United States as Amicus Curiae. [ Footnote 5 ]

															We express no opinion on the admissibility of a confession in
which the defendant's name has been replaced with a symbol or
neutral pronoun.

															JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.

															The rationale of our decision in Bruton v. United
States, 391 U. S. 123 , 391 U. S.
135 -136 (1968), applies without exception to all Page 481 U. S. 212 inadmissible confessions that are "powerfully incriminating."
Today, however, the Court draws a distinction of constitutional
magnitude between those confessions that directly identify the
defendant and those that rely for their inculpatory effect on the
factual and legal relationships of their contents to other evidence
before the jury. Even if the jury's indirect inference of the
defendant's guilt based on an inadmissible confession is much more
devastating to the defendant's case than its inference from a
direct reference in the codefendant's confession, the Court
requires the exclusion of only the latter statement. This illogical
result demeans the values protected by the Confrontation Clause.
Moreover, neither reason nor experience supports the Court's
argument that a consistent application of the rationale of the Bruton case would impose unacceptable burdens on the
administration of justice. I It is a "basic premise" of the Confrontation Clause that certain
kinds of hearsay

															"are at once so damaging, so suspect, and yet so difficult to
discount, that jurors cannot be trusted to give such evidence the
minimal weight it logically deserves, whatever instructions the trial judge might give. [ Footnote 2/1 ] Page 481 U. S. 213 This constitutionally mandated skepticism undergirds the Bruton holding, and is equally applicable to this case.
The Court framed the issue in Bruton as"

															"whether the conviction of a defendant at a joint trial should
be set aside although the jury was instructed that a codefendant's
confession inculpating the defendant had to be disregarded in
determining his guilt or innocence."

															391 U.S. at 391 U. S. 123 -124.
We answered that question in the affirmative, noting that the Sixth
Amendment is violated

															"where the powerfully incriminating extrajudicial statements of
a codefendant, who stands accused side-by-side with the defendant,
are deliberately spread before the jury in a joint trial." Id. at 391 U. S.
135 -136.

															Today, the Court nevertheless draws a line between codefendant
confessions that expressly name the defendant and those that do
not. The Court relies on the presumption that, in the latter
category, "it is a less valid generalization that the jury will not
likely obey the instruction to disregard the evidence." Ante at 481 U. S. 208 .
I agree; but I do not read Bruton to require the exclusion
of all codefendant confessions that do not mention the
defendant. [ Footnote 2/2 ] Some such
confessions may not have any significant impact on the defendant's
case. But others will. If we presume, as we must, that jurors give
their full and vigorous attention to every witness and each item of
evidence, the very acts of listening and seeing will sometimes lead
them down "the path of inference." Indeed, the Court tacitly
acknowledges this point; while the Court speculates that the
judge's instruction may dissuade the jury Page 481 U. S. 214 from making inferences at all, it also concedes the probability
of their occurrence, arguing that there is no overwhelming
probability that jurors will be unable to "disregard an
incriminating inference." Ibid. Bruton has always
required trial judges to answer the question whether a particular
confession is or is not "powerfully incriminating" on a
case-by-case basis; they should follow the same analysis whether or
not the defendant is actually named by his or her codefendant.

															Instructing the jury that it was to consider Benjamin Williams'
confession only against him, and not against Clarissa Marsh, failed
to guarantee the level of certainty required by the Confrontation
Clause. The uncertainty arose because the prosecution's case made
it clear at the time Williams' statement was introduced that the
statement would prove "powerfully incriminating" of the respondent, as well as of Williams himself. There can be
absolutely no doubt that spreading Williams' carefully edited
confession before the jury intolerably interfered with the jury's
solemn duty to treat the statement as nothing more than meaningless
sounds in its consideration of Marsh's guilt or innocence.

															At the time that Williams' confession was introduced, the
evidence already had established that respondent and two men
committed an armed robbery in the course of which the two men
killed two persons and shot a third. Ante at 481 U. S. 202 .
There was a sharp dispute, however, on the question whether
respondent herself intended to commit a robbery in which murder was
a foreseeable result, or knew that the two men planned to do so.
The quantum of evidence admissible against respondent was just
sufficient to establish this intent, and hence to support her
conviction. As the Court of Appeals explained:

															"[T]he issue is whether the evidence was sufficient to show that
Marsh aided and abetted the assault with the specific intent to
murder Knighton, or with the knowledge that Martin had this
specific intent. . . . Marsh's case presents a much closer question
on this issue than Page 481 U. S. 215 does Williams'. There was no testimony indicating she harbored
an intent to murder Knighton, nor was there any showing that she
heard Martin's statements regarding the need to 'hurt' or 'take
out' the victims. There was, in addition, no testimony placing her
in the basement, the scene of the shootings. The evidence does
indicate, viewed in the light most favorable to the prosecution,
that she was aware that Williams and Martin were armed, that she
served as a guard or 'lookout' at the door, that she prevented an
attempted escape by Knighton, and that she was given the paper bag
thought to contain the proceeds of a robbery. The evidence also
indicates that Marsh knew Scott, supporting the inference that it
was Marsh who allowed Martin to gain entrance. While it is a close
question, we believe the evidence presented at the time of the
motion was sufficient to survive a motion for directed
verdict."

															781 F.2d 1201, 1204 (CA6 1986) (emphasis omitted).

															In the edited statement that the jury was instructed not to
consider against Marsh, Williams described the conversation he had
with Kareem Martin while they were in a car driving to their
victims' residence. In that conversation, Martin stated that "he
would have to take them out after the robbery." See ante at 481 U. S. 203 ,
n. 1. The State's principal witness had testified that Martin and
Marsh arrived at the victims' house together. The jury was
therefore certain to infer from the confession that respondent had
been in the car and had overheard the statement by Martin. Viewed
in the total context of the trial evidence, this confession was of
critical importance, because it was the only evidence directly
linking respondent with the specific intent, expressed before the
robbery, to kill the victims afterwards. [ Footnote 2/3 ] If Williams had taken Page 481 U. S. 216 the witness stand and testified, respondent's lawyer could have
cross-examined him to challenge his credibility and to establish or
suggest that the car radio was playing so loudly that Marsh could
not have overheard the conversation between the two men from the
backseat. An acknowledgment of the possibility of such facts by
Williams would have done much more to eliminate the certainty
beyond a reasonable doubt that Marsh knew about the murder plan
than could possibly have been achieved by the later testimony of
respondent herself. Moreover, the price respondent had to pay in
order to attempt to rebut the obvious inference that she had
overheard Martin was to remind the jury once again of what he had
said, and to give the prosecutor a further opportunity to point to
this most damaging evidence on the close question of her specific
intent. See ante at 481 U. S. 205 ,
n. 2.

															The facts in this case are, admittedly, different from those in Bruton, because Williams' statement did not directly
mention respondent. Thus, instead of being "incriminating on its
face," ante at 481 U. S. 208 ,
it became so only when considered in connection with the other
evidence presented to the jury. The difference between the facts of Bruton and the facts of this case does not eliminate their
common, substantial, and constitutionally unacceptable risk that
the jury, when resolving Page 481 U. S. 217 a critical issue against respondent, may have relied on
impermissible evidence. [ Footnote
2/4 ] II The facts that joint trials conserve prosecutorial resources,
diminish inconvenience to witnesses, and avoid delays in the
administration of criminal justice have been well known for a long
time. See United States v. Lane, 474 U.
S. 438 , 474 U. S. 449 (1986) (quoting Bruton, 391 U.S. at 391 U. S.
134 ). It is equally well known that joint trials create
special risks of prejudice to one of the defendants, and that such
risks often make it necessary to grant severances. See
Bruton, 391 U.S. at 391 U. S. 131 ;
Fed.Rule Crim.Proc. 14 (Relief from Prejudicial Joinder). The
Government argues that the costs of requiring the prosecution to
choose between severance and not offering the codefendant's
confession at a joint trial outweigh the benefits to the defendant.
Brief for United States as Amicus Curiae 22. On the scales
of justice, however, considerations of fairness normally outweigh
administrative concerns.

															In the Bruton case, the United States argued that the
normal

															"benefits of joint proceedings should not have to be
sacrificed Page 481 U. S. 218 by requiring separate trials in order to use the confession
against the declarant." See 391 U.S. at 391 U. S. 134 .
The Court endorsed the answer to this argument that Judge Lehman of
the New York Court of Appeals had previously made in his dissenting
opinion in People v. Fisher, 249 N.Y. 419, 432, 164 N.E.
336, 341 (1928):

															"We still adhere to the rule that an accused is entitled to
confrontation of the witnesses against him and the right to
cross-examine them. . . . We destroy the age-old rule which in the
past has been regarded as a fundamental principle of our
jurisprudence by a legalistic formula, required of the judge, that
the jury may not consider any admissions against any party who did
not join in them. We secure greater speed, economy and convenience
in the administration of the law at the price of fundamental
principles of constitutional liberty. That price is too high."

															The concern about the cost of joint trials, even if valid, does
not prevail over the interests of justice. Moreover, the Court's
effort to revive this concern in a state criminal case rests on the
use of irrelevant statistics. The Court makes the startling
discovery that joint trials account for "almost one-third of
federal criminal trials in the past five years." Ante at 481 U. S. 209 .
In the interest of greater precision, the Court might have stated
that there were 10,904 federal criminal trials involving more than
one defendant during that 5-year period. [ Footnote 2/5 ] The Court might have added that the
database from which that figure was obtained does not contain any
information at all to show the number of times that confessions
were offered in evidence in those 10,904 federal cases. [ Footnote 2/6 ] The Page 481 U. S. 219 relevance of this data is also difficult to discern, because all
of the cases in this Court that involved joint trials conducted
after Bruton was decided, in which compliance with the
rule of that case was at issue, appear to have originated in a
state court. Federal prosecutors seem to have had little
difficulty, in conducting the literally thousands of joint trials
to which the Court points, in maintaining "both the efficiency and
the fairness of the criminal justice system" that the Court
speculates will occur if Bruton's reasoning is applied to
this case. See ante at 481 U. S. 210 .
Presumably, the options of granting immunity, making plea bargains,
or simply waiting until after a confessing defendant has been tried
separately before trying to use his admissions against an
accomplice have enabled the Federal Government to enforce the
criminal law without sacrificing the basic premise of the
Confrontation Clause. [ Footnote
2/7 ] Page 481 U. S. 220 The Court also expresses concern that trial judges will be
unable to determine whether a codefendant's confession that does
not directly mention the defendant and is inadmissible against him
will create a substantial risk of unfair prejudice. In most such
cases, the trial judge can comply with the dictates of Bruton by postponing his or her decision on the
admissibility of the confession until the prosecution rests, at
which time its potentially inculpatory effect can be evaluated in
the light of the government's entire case. The Court expresses
concern that such a rule would enable "manipulation by the
defense," see ante at 481 U. S. 209 ,
by which the Court presumably means the defense might tailor its
evidence to make sure that a confession which does not directly
mention the defendant is deemed powerfully incriminating when
viewed in light of the prosecution's entire case. As a practical
matter, I cannot believe that there are many defense lawyers who
would deliberately pursue this high-risk strategy of "manipulating"
their evidence in order to enhance the prejudicial impact of a
codefendant's confession. Moreover, a great many experienced and
competent trial judges throughout the Nation are fully capable of
managing cases and supervising counsel in order to avoid the
problems that seem insurmountable to appellate judges who are
sometimes distracted by illogical distinctions and irrelevant
statistics.

															I respectfully dissent. [ Footnote
2/8 ]

															[ Footnote 2/1 ] Bruton v. United States, 391 U.
S. 123 , 391 U. S. 138 (1968) (Stewart, J., concurring) (emphasis in original). Judge
Learned Hand and Justice Frankfurter also would recognize that the
admission of Williams' confession, even with limiting instructions,
placed too great a strain upon the jury's ability to exclude this
evidence from its consideration of respondent's innocence or guilt.
As we noted in Bruton: "Judge Hand addressed the subject several times. The limiting
instruction, he said, is a 'recommendation to the jury of a mental
gymnastic which is beyond, not only their powers, but anybody's
else,' Nash v. United States, 54 F.2d 1006, 1007; 'Nobody
can indeed fail to doubt whether the caution is effective, or
whether usually the practical result is not to let in hearsay,' United States v. Gottfried, 165 F.2d 360, 367; 'it is
indeed very hard to believe that a jury will, or for that matter
can, in practice, observe the admonition,' Delli Paoli v.
United States, 229 F.2d 319, 321. Judge Hand referred to the
instruction as a 'placebo,' medically defined as 'a medicinal
lie.'"

															391 U.S. at 391 U. S. 132 ,
n. 8. In a similar vein, Justice Frankfurter observed:

															"The Government should not have the windfall of having the jury
be influenced by evidence against a defendant which, as a matter of
law, they should not consider, but which they cannot put out of
their minds." Delli Paoli v. United States, 352 U.
S. 232 , 352 U. S. 248 (1957) (dissenting opinion).

															[ Footnote 2/2 ]

															Indeed, I have no doubt that there are some codefendant
confessions that expressly mention the defendant, but nevertheless
need not be excluded under Bruton because they are not
prejudicial.

															[ Footnote 2/3 ]

															The Court assumes that the confession did not incriminate
respondent at the time the confession was introduced. I disagree.
Cynthia Knighton had already testified that respondent and Kareem
Martin had arrived at the victims' residence together, and that
respondent admitted Williams to the house a few minutes later. In
his statement Williams said:

															"We then drove over to this house and parked the car across the
big street near the house. The plan was that I would wait in the
car in front of the house, and then I would move the car down
across the big street, because he didn't want anybody to see the
car. Okay, Kareem went up to the house and went inside. A couple of
minutes later, I moved the car and went up to the house." Ante at 481 U. S. 203 ,
n. 1.

															It is unrealistic to believe that the jury would assume that
respondent did not accompany the two men in the car, but had just
magically appeared at the front door of the apartment at the same
time that Martin did.

															[ Footnote 2/4 ]

															It is worth noting that the dissenting opinion in Bruton did not regard the Court's decision as limited to
codefendant confessions expressly implicating the defendant:

															"I would suppose that it will be necessary to exclude all
extrajudicial confessions unless all portions of them which
implicate defendants other than the declarant are effectively
deleted. Effective deletion will probably require not only
omission of all direct and indirect inculpations of codefendants,
but also of any statement that could be employed against those
defendants once their identity is otherwise established. "

															391 U.S. at 391 U. S. 143 (emphasis added) (WHITE, J., dissenting).

															The author of that opinion today adheres to that interpretation
of Bruton. See Cruz v. New York, ante at 481 U. S.
195 -196 (WHITE, J., dissenting) ("[A] codefendant's
out-of-court statements implicating the defendant are not only
hearsay, but also have traditionally been viewed with special
suspicion. . . . Bruton held that, where the defendant has
not himself confessed, there is too great a chance that the jury
would rely on the codefendant's confession").

															[ Footnote 2/5 ] See Memorandum from David L. Cook, Administrative
Office of the United States Courts, to Supreme Court Library (Feb.
20, 1987) (available in Clerk of Court's case file).

															[ Footnote 2/6 ] See Memorandum from David L. Cook, Administrative
Office of the United States Courts, to Supreme Court Library (Mar.
25, 1987) (available in Clerk of Court's case file) (establishing
that figures cited in Memorandum of February 20, 1987, cited ante at 481 U. S. 209 ,
carry no information whatever about the number of
multiple-defendant trials in which a codefendant's confession was
offered or admitted).

															[ Footnote 2/7 ]

															The Court expresses an apparently deep-seated fear that an
evenhanded application of Bruton would jeopardize the use
of joint trials. This proposition rests on the unsupported
assumption that the number of powerfully incriminating confessions
that do not name the defendant is too large to be evaluated on a
case-by-case basis. The Court then proceeds to the ostensible
administrative outrages of the separate trials that would be
necessary, contending that it would be unwise to compel prosecutors
to

															"bring separate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat the
inconvenience (and sometimes trauma) of testifying, and randomly
favoring the last-tried defendants who have the advantage of
knowing the prosecution's case beforehand." Ante at 481 U. S. 210 .
This speculation also floats unattached to any anchor of reality.
Since the likelihood that more than one of the defendants in a
joint trial will have confessed is fairly remote, the prospect of
"presenting the same evidence again and again" is nothing but a
rhetorical flourish. At worst, in the typical case, two trials may
be required, one for the confessing defendant and another for the
nonconfessing defendant or defendants. And even in that category,
presumably most confessing defendants are likely candidates for
plea bargaining.

															[ Footnote 2/8 ]

															Except for Williams' confession, and the prosecutor's closing
argument that will be separately considered on remand, there was a
paucity of other evidence connecting respondent with the plan
discussed in the car on the way to the victims' home. The Court of
Appeals was thus unquestionably correct in concluding that the
violation of the Confrontation Clause in this case was not harmless
error.


OPINION OF THE COURT UNITED STATES V. GONZALEZ-LOPEZ 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-352 UNITED STATES, PETITIONER v. CUAUHTEMOC
GONZALEZ-LOPEZ

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 26, 2006]

															   Justice Scalia delivered the
opinion of the Court.

															   We must decide whether a trial
court’s erroneous deprivation of a criminal defendant’s choice of
counsel entitles him to a reversal of his conviction.

															I

															   Respondent Cuauhtemoc
Gonzalez-Lopez was charged in the Eastern District of Missouri with
conspiracy to distribute more than 100 kilograms of marijuana. His
family hired attorney John Fahle to represent him. After the
arraignment, respondent called a California attorney, Joseph Low,
to discuss whether Low would represent him, either in addition to
or instead of Fahle. Low flew from California to meet with
respondent, who hired him.

															   Some time later, Low and Fahle
represented respondent at an evidentiary hearing before a
Magistrate Judge. The Magistrate Judge accepted Low’s provisional
entry of appearance and permitted Low to participate in the hearing
on the condition that he immediately file a motion for admission pro hac vice . During the hearing, however, the Magistrate
Judge revoked the provisional acceptance on the ground that, by
passing notes to Fahle, Low had violated a court rule restricting
the cross-examination of a witness to one counsel.

															   The following week, respondent informed Fahle
that he wanted Low to be his only attorney. Low then filed an
application for admission pro hac vice . The District Court
denied his application without comment. A month later, Low filed a
second application, which the District Court again denied without
explanation. Low’s appeal, in the form of an application for a writ
of mandamus, was dismissed by the United States Court of Appeals
for the Eighth Circuit.

															   Fahle filed a motion to withdraw as counsel
and for a show-cause hearing to consider sanctions against Low.
Fahle asserted that, by contacting respondent while respondent was
represented by Fahle, Low violated Mo. Rule of Professional Conduct
4–4.2 (1993), which prohibits a lawyer “[i]n representing a client”
from “communicat[ing] about the subject of the representation with
a party … represented by another lawyer” without that lawyer’s
consent. Low filed a motion to strike Fahle’s motion. The District
Court granted Fahle’s motion to withdraw and granted a continuance
so that respondent could find new representation. Respondent
retained a local attorney, Karl Dickhaus, for the trial. The
District Court then denied Low’s motion to strike and, for the
first time, explained that it had denied Low’s motions for
admission pro hac vice primarily because, in a separate
case before it, Low had violated Rule 4–4.2 by communicating with a
represented party.

															   The case proceeded to trial, and Dickhaus
represented respondent. Low again moved for admission and was again
denied. The Court also denied Dickhaus’s request to have Low at
counsel table with him and ordered Low to sit in the audience and
to have no contact with Dickhaus during the proceedings. To enforce
the Court’s order, a United States Marshal sat between Low and
Dickhaus at trial. Respondent was unable to meet with Low
throughout the trial, except for once on the last night. The jury
found respondent guilty.

															   After trial, the District Court granted
Fahle’s motion for sanctions against Low. It read Rule 4–4.2 to
forbid Low’s contact with respondent without Fahle’s permission. It
also reiterated that it had denied Low’s motions for admission on
the ground that Low had violated the same Rule in a separate
matter.

															   Respondent appealed, and the Eighth Circuit
vacated the conviction. 399 F. 3d 924 (2005). The Court first
held that the District Court erred in interpreting Rule 4–4.2 to
prohibit Low’s conduct both in this case and in the separate matter
on which the District Court based its denials of his admission
motions. The District Court’s denials of these motions were
therefore erroneous and violated respondent’s Sixth Amendment right
to paid counsel of his choosing. See id. , at 928–932. The
Court then concluded that this Sixth Amendment violation was not
subject to harmless-error review. See id. , at 932–935. We
granted certiorari. 546 U. S. ___ (2006).

															II

															   The Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right
… to have the Assistance of Counsel for his defence.” We have
previously held that an element of this right is the right of a
defendant who does not require appointed counsel to choose who will
represent him. See Wheat v. United States, 486 U. S. 153 , 159 (1988). Cf. Powell v. Alabama, 287 U. S. 45 , 53 (1932)
(“It is hardly necessary to say that, the right to counsel being
conceded, a defendant should be afforded a fair opportunity to
secure counsel of his own choice”). The Government here agrees, as
it has previously, that “the Sixth Amendment guarantees the
defendant the right to be represented by an otherwise qualified
attorney whom that defendant can afford to hire, or who is willing
to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United
States, 491 U.
S. 617 , 624–625 (1989). To be sure, the right to counsel of
choice “is circumscribed in several important respects.” Wheat , supra , at 159. But the Government does not
dispute the Eighth Circuit’s conclusion in this case that the
District Court erroneously deprived respondent of his counsel of
choice.

															   The Government contends, however,
that the Sixth Amendment violation is not “complete” unless the
defendant can show that substitute counsel was ineffective within
the meaning of Strickland v. Washington, 466 U. S. 668 , 691–696
(1984)— i.e. , that substitute counsel’s performance was
deficient and the defendant was prejudiced by it. In the
alternative, the Government contends that the defendant must at
least demonstrate that his counsel of choice would have pursued a
different strategy that would have created a “reasonable
probability that … the result of the proceedings would have been
different,” id. , at 694—in other words, that he was
prejudiced within the meaning of Strickland by the denial
of his counsel of choice even if substitute counsel’s performance
was not constitutionally deficient.[ Footnote 1 ] To support these propositions, the Government
points to our prior cases, which note that the right to counsel
“has been accorded … not for its own sake, but for the effect it
has on the ability of the accused to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162 , 166
(2002) (internal quotation marks omitted). A trial is not unfair
and thus the Sixth Amendment is not violated, the Government
reasons, unless a defendant has been prejudiced.

															   Stated as broadly as this, the Government’s
argument in effect reads the Sixth Amendment as a more detailed
version of the Due Process Clause—and then proceeds to give no
effect to the details. It is true enough that the purpose of the
rights set forth in that Amendment is to ensure a fair trial; but
it does not follow that the rights can be disregarded so long as
the trial is, on the whole, fair. What the Government urges upon us
here is what was urged upon us (successfully, at one time, see Ohio v. Roberts , 448 U. S. 56 (1980)) with
regard to the Sixth Amendment’s right of confrontation—a line of
reasoning that “abstracts from the right to its purposes, and then
eliminates the right.” Maryland v. Craig, 497 U. S. 836 ,
862 (1990) (Scalia, J., dissenting). Since, it was argued, the
purpose of the Confrontation Clause was to ensure the reliability
of evidence, so long as the testimonial hearsay bore “indicia of
reliability,” the Confrontation Clause was not violated. See Roberts, supra, at 65–66. We rejected that
argument (and our prior cases that had accepted it) in Crawford v. Washington , 541 U. S. 36 (2004),
saying that the Confrontation Clause “commands, not that evidence
be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination.” Id., at 61.

															   So also with the Sixth Amendment right to
counsel of choice. It commands, not that a trial be fair, but that
a particular guarantee of fairness be provided—to wit, that the
accused be defended by the counsel he believes to be best. “The
Constitution guarantees a fair trial through the Due Process
Clauses, but it defines the basic elements of a fair trial largely
through the several provisions of the Sixth Amendment, including
the Counsel Clause.” Strickland, supra, at
684–685. In sum, the right at stake here is the right to counsel of
choice, not the right to a fair trial; and that right was violated
because the deprivation of counsel was erroneous. No additional
showing of prejudice is required to make the violation
“complete.”[ Footnote 2 ]

															   The cases the Government relies on involve the
right to the effective assistance of counsel, the violation of
which generally requires a defendant to establish prejudice. See, e.g., Strickland, supra, at 694; Mickens , supra, at 166; United States v. Cronic , 466
U. S. 648 (1984). The earliest case generally cited for the
proposition that “the right to counsel is the right to the
effective assistance of counsel,” McMann v. Richardson , 397 U. S. 759 , 771,
n. 14 (1970), was based on the Due Process Clause rather than
on the Sixth Amendment, see Powell, 287 U. S., at 57
(cited in e.g., McMann, supra, at 771,
n. 14). And even our recognition of the right to effective
counsel within the Sixth Amendment was a consequence of our
perception that representation by counsel “is critical to the
ability of the adversarial system to produce just results.” Strickland , supra, at 685. Having derived the
right to effective representation from the purpose of ensuring a
fair trial, we have, logically enough, also derived the limits of
that right from that same purpose. See Mickens, supra, at 166. The requirement that a defendant show
prejudice in effective representation cases arises from the very
nature of the specific element of the right to counsel at issue
there— effective (not mistake-free) representation. Counsel
cannot be “ineffective” unless his mistakes have harmed the defense
(or, at least, unless it is reasonably likely that they have).
Thus, a violation of the Sixth Amendment right to effective representation is not “complete” until the
defendant is prejudiced. See Strickland , supra ,
at 685.

															   The right to select counsel of one’s choice,
by contrast, has never been derived from the Sixth Amendment’s
purpose of ensuring a fair trial.[ Footnote 3 ] It has been regarded as the root meaning of
the constitutional guarantee. See Wheat, 486 U. S., at
159; Andersen v. Treat , 172 U. S. 24 (1898). See
generally W. Beaney, The Right to Counsel in American Courts 18–24,
27–33 (1955). Cf. Powell , supra, at 53. Where the
right to be assisted by counsel of one’s choice is wrongly denied,
therefore, it is unnecessary to conduct an ineffectiveness or
prejudice inquiry to establish a Sixth Amendment violation.
Deprivation of the right is “complete” when the defendant is
erroneously prevented from being represented by the lawyer he
wants, regardless of the quality of the representation he received.
To argue otherwise is to confuse the right to counsel of
choice—which is the right to a particular lawyer regardless of
comparative effectiveness—with the right to effective counsel—which
imposes a baseline requirement of competence on whatever lawyer is
chosen or appointed.

															III

															   Having concluded, in light of the
Government’s concession of erroneous deprivation, that the trial
court violated respondent’s Sixth Amendment right to counsel of
choice, we must consider whether this error is subject to review
for harmlessness. In Arizona v. Fulminante , 499 U. S. 279 (1991), we divided constitutional errors into two classes. The
first we called “trial error,” because the errors “occurred during
presentation of the case to the jury” and their effect may “be
quantitatively assessed in the context of other evidence presented
in order to determine whether [they were] harmless beyond a
reasonable doubt.” Id. , at 307–308 (internal quotation
marks omitted). These include “most constitutional errors.” Id. , at 306. The second class of constitutional error we
called “structural defects.” These “defy analysis by
‘harmless-error’ standards” because they “affec[t] the framework
within which the trial proceeds,” and are not “simply an error in
the trial process itself.” Id. , at 309–310.[ Footnote 4 ] See also Neder v. United States , 527 U. S. 1 , 7–9 (1999). Such errors
include the denial of counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963),
the denial of the right of self-representation, see McKaskle v. Wiggins , 465 U. S. 168 , 177–178, n. 8
(1984), the denial of the right to public trial, see Waller v. Georgia, 467 U. S. 39 , 49, n. 9 (1984), and the
denial of the right to trial by jury by the giving of a defective
reasonable-doubt instruction, see Sullivan v. Louisiana, 508 U. S. 275 (1993).

															   We have little trouble concluding
that erroneous deprivation of the right to counsel of choice, “with
consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as ‘structural error.’ ” Id. , at 282. Different attorneys will pursue different
strategies with regard to investigation and discovery, development
of the theory of defense, selection of the jury, presentation of
the witnesses, and style of witness examination and jury argument.
And the choice of attorney will affect whether and on what terms
the defendant cooperates with the prosecution, plea bargains, or
decides instead to go to trial. In light of these myriad aspects of
representation, the erroneous denial of counsel bears directly on
the “framework within which the trial proceeds,” Fulminante , supra, at 310—or indeed on whether it
proceeds at all. It is impossible to know what different choices
the rejected counsel would have made, and then to quantify the
impact of those different choices on the outcome of the
proceedings. Many counseled decisions, including those involving
plea bargains and cooperation with the government, do not even
concern the conduct of the trial at all. Harmless-error analysis in
such a context would be a speculative inquiry into what might have
occurred in an alternate universe.

															   The Government acknowledges that the
deprivation of choice of counsel pervades the entire trial, but
points out that counsel’s ineffectiveness may also do so and yet we
do not allow reversal of a conviction for that reason without a
showing of prejudice. But the requirement of showing prejudice in
ineffectiveness claims stems from the very definition of the right
at issue; it is not a matter of showing that the violation was
harmless, but of showing that a violation of the right to effective
representation occurred . A choice-of-counsel violation
occurs whenever the defendant’s choice is wrongfully
denied. Moreover, if and when counsel’s ineffectiveness “pervades”
a trial, it does so (to the extent we can detect it) through
identifiable mistakes. We can assess how those mistakes affected
the outcome. To determine the effect of wrongful denial of choice
of counsel, however, we would not be looking for mistakes committed
by the actual counsel, but for differences in the defense that
would have been made by the rejected counsel—in matters ranging
from questions asked on voir dire and cross-examination to
such intangibles as argument style and relationship with the
prosecutors. We would have to speculate upon what matters the
rejected counsel would have handled differently—or indeed, would
have handled the same but with the benefit of a more jury-pleasing
courtroom style or a longstanding relationship of trust with the
prosecutors. And then we would have to speculate upon what effect
those different choices or different intangibles might have had.
The difficulties of conducting the two assessments of prejudice are
not remotely comparable.[ Footnote
5 ]

															IV

															   Nothing we have said today casts
any doubt or places any qualification upon our previous holdings
that limit the right to counsel of choice and recognize the
authority of trial courts to establish criteria for admitting
lawyers to argue before them. As the dissent too discusses, post, at 3, the right to counsel of choice does not extend
to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale ,
491 U. S., at 624, 626. Nor may a defendant insist on
representation by a person who is not a member of the bar, or
demand that a court honor his waiver of conflict-free
representation. See Wheat , 486 U. S., at 159–160. We have
recognized a trial court’s wide latitude in balancing the right to
counsel of choice against the needs of fairness, id. , at
163–164, and against the demands of its calendar, Morris v. Slappy , 461 U. S. 1 , 11–12 (1983).
The court has, moreover, an “independent interest in ensuring that
criminal trials are conducted within the ethical standards of the
profession and that legal proceedings appear fair to all who
observe them.” Wheat , supra, at 160. None of
these limitations on the right to choose one’s counsel is relevant
here. This is not a case about a court’s power to enforce rules or
adhere to practices that determine which attorneys may appear
before it, or to make scheduling and other decisions that
effectively exclude a defendant’s first choice of counsel. However
broad a court’s discretion may be, the Government has conceded that
the District Court here erred when it denied respondent his choice
of counsel. Accepting that premise, we hold that the error violated
respondent’s Sixth Amendment right to counsel of choice and that
this violation is not subject to harmless-error analysis.

															*  *  *

															   The judgment of the Court of
Appeals is affirmed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 The dissent proposes yet a third
standard—viz., that the defendant must show “ ‘an identifiable
difference in the quality of representation between the
disqualified counsel and the attorney who represents the defendant
at trial.’ ” Post, at 4 (opinion of Alito, J.). That
proposal suffers from the same infirmities (outlined later in text)
that beset the Government’s positions. In addition, however, it
greatly impairs the clarity of the law. How is a lower-court judge
to know what an “identifiable difference” consists of? Whereas the
Government at least appeals to Strickland and the case law
under it, the most the dissent can claim by way of precedential
support for its rule is that it is “consistent with” cases that
never discussed the issue of prejudice. Id. Footnote 2 The dissent resists giving effect to our
cases’ recognition, and the Government’s concession, that a
defendant has a right to be defended by counsel of his choosing. It
argues that because the Sixth Amendment guarantees the right to the
“assistance of counsel,” it is not violated unless “the erroneous
disqualification of a defendant’s counsel of choice … impair[s] the
assistance that a defendant receives at trial.” Post, at 1–2
(opinion of Alito, J.). But if our cases (and the Government’s
concession) mean anything, it is that the Sixth Amendment is
violated when the erroneous disqualification of counsel “impair[s]
the assistance that a defendant receives at trial [from the
counsel that he chose].” Footnote 3 In Wheat v. United States, 486 U. S. 153 (1988), where we
formulated the right to counsel of choice and discussed some of the
limitations upon it, we took note of the overarching purpose of
fair trial in holding that the trial court has discretion to
disallow a first choice of counsel that would create serious risk
of conflict of interest. Id., at 159. It is one thing to
conclude that the right to counsel of choice may be limited by the
need for fair trial, but quite another to say that the right does
not exist unless its denial renders the trial unfair. Footnote 4 The dissent criticizes us for our trial
error/structural defect dichotomy, asserting that Fulminante never said that “trial errors are the only sorts of errors amenable to harmless-error review, or
that all errors affecting the framework within which the
trial proceeds are structural,” post, at 8 (opinion of
Alito, J.) (internal quotation marks and citation omitted).
Although it is hard to read that case as doing anything other than
dividing constitutional error into two comprehensive categories,
our ensuing analysis in fact relies neither upon such
comprehensiveness nor upon trial error as the touchstone for the
availability of harmless-error review. Rather, here, as we have
done in the past, we rest our conclusion of structural error upon
the difficulty of assessing the effect of the error. See Waller v. Georgia, 467 U. S. 39 , 49, n. 9 (1984)
(violation of the public-trial guarantee is not subject to
harmlessness review because “the benefits of a public trial are
frequently intangible, difficult to prove, or a matter of chance”); Vasquez v. Hillery, 474 U. S. 254 , 263
(1986) (“[W]hen a petit jury has been selected upon improper
criteria or has been exposed to prejudicial publicity, we have
required reversal of the conviction because the effect of the
violation cannot be ascertained”). The dissent would use
“fundamental unfairness” as the sole criterion of structural error,
and cites a case in which that was the determining factor, see Neder v. United States , 527 U. S. 1 , 9 (1999) (quoted by the
dissent, post, at 6). But this has not been the only
criterion we have used. In addition to the above cases using
difficulty of assessment as the test, we have also relied on the
irrelevance of harmlessness, see McKaskle v. Wiggins, 465 U. S. 168 , 177, n. 8 (1984)
(“Since the right to self-representation is a right that when
exercised usually increases the likelihood of a trial outcome
unfavorable to the defendant, its denial is not amenable to
‘harmless error’ analysis”). Thus, it is the dissent that creates a
single, inflexible criterion, inconsistent with the reasoning of
our precedents, when it asserts that only those errors
that always or necessarily render a trial
fundamentally unfair and unreliable are structural, post, at 8. Footnote 5 In its discussion of the analysis that would
be required to conduct harmless-error review, the dissent focuses
on which counsel was “better.” See post, at 7–8 (opinion
of Alito, J.). This focus has the effect of making the analysis
look achievable, but it is fundamentally inconsistent with the
principle (which the dissent purports to accept for the sake of
argument) that the Sixth Amendment can be violated without a
showing of harm to the quality of representation. Cf. McKaskle,
supra, at 177, n. 8. By framing its inquiry in these
terms and expressing indignation at the thought that a defendant
may receive a new trial when his actual counsel was at least as
effective as the one he wanted, the dissent betrays its
misunderstanding of the nature of the right to counsel of choice
and its confusion of this right with the right to effective
assistance of counsel. ALITO, J., DISSENTING UNITED STATES V. GONZALEZ-LOPEZ 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-352 UNITED STATES, PETITIONER v. CUAUHTEMOC
GONZALEZ-LOPEZ

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 26, 2006]

															   Justice Alito, with whom The
Chief Justice, Justice Kennedy, and Justice Thomas join,
dissenting.

															   I disagree with the Court’s
conclusion that a criminal conviction must automatically be
reversed whenever a trial court errs in applying its rules
regarding pro hac vice admissions and as a result prevents
a defendant from being represented at trial by the defendant’s
first-choice attorney. Instead, a defendant should be required to
make at least some showing that the trial court’s
erroneous ruling adversely affected the quality of assistance that
the defendant received. In my view, the majority’s contrary holding
is based on an incorrect interpretation of the Sixth Amendment and
a misapplication of harmless-error principles. I respectfully
dissent.

															I

															   The majority makes a subtle but
important mistake at the outset in its characterization of what the
Sixth Amendment guarantees. The majority states that the Sixth
Amendment protects “the right of a defendant who does not require
appointed counsel to choose who will represent him.” Ante ,
at 3. What the Sixth Amendment actually protects, however, is the
right to have the assistance that the defendant’s counsel
of choice is able to provide. It follows that if the erroneous
disqualification of a defendant’s counsel of choice does not impair
the assistance that a defendant receives at trial, there is no
violation of the Sixth Amendment.[ Footnote 1 ]

															   The language of the Sixth
Amendment supports this interpretation. The Assistance of Counsel
Clause focuses on what a defendant is entitled to receive
(“Assistance”), rather than on the identity of the provider. The
background of the adoption of the Sixth Amendment points in the
same direction. The specific evil against which the Assistance of
Counsel Clause was aimed was the English common-law rule severely
limiting a felony defendant’s ability to be assisted by counsel. United States v. Ash , 413 U. S. 300 , 306
(1973). “[T]he core purpose of the counsel guarantee was to assure
‘Assistance’ at trial,” id. , at 309, and thereby “to
assure fairness in the adversary criminal process,” United
States v. Morrison , 449 U. S. 361 , 364
(1981). It was not “the essential aim of the Amendment … to ensure
that a defendant will inexorably be represented by the lawyer whom
he prefers.” Wheat v. United States , 486 U. S. 153 , 159
(1988); cf. Morris v. Slappy , 461 U. S. 1 , 14 (1983)
(“[W]e reject the claim that the Sixth Amendment guarantees a
‘meaningful relationship’ between an accused and his counsel”).

															   There is no doubt, of course, that the right
“to have the Assistance of Counsel” carries with it a limited right
to be represented by counsel of choice. At the time of the adoption
of the Bill of Rights, when the availability of appointed counsel
was generally limited,[ Footnote
2 ] that is how the right inevitably played out: A defendant’s
right to have the assistance of counsel necessarily meant the right
to have the assistance of whatever counsel the defendant was able
to secure. But from the beginning, the right to counsel of choice
has been circumscribed.

															   For one thing, a defendant’s choice of counsel
has always been restricted by the rules governing admission to
practice before the court in question. The Judiciary Act of 1789
made this clear, providing that parties “in all the courts of the
United States” had the right to “the assistance of such counsel or
attorneys at law as by the rules of the said courts respectively
shall be permitted to manage and conduct cases therein.” Ch. 20,
§35, 1 Stat. 92. Therefore, if a defendant’s first-choice attorney
was not eligible to appear under the rules of a particular court,
the defendant had no right to be represented by that attorney.
Indeed, if a defendant’s top 10 or top 25 choices were all
attorneys who were not eligible to appear in the court in question,
the defendant had no right to be represented by any of them. Today,
rules governing admission to practice before particular courts
continue to limit the ability of a criminal defendant to be
represented by counsel of choice. See Wheat, 486 U. S., at
159.

															   The right to counsel of choice is also limited
by conflict- of-interest rules. Even if a defendant is aware that
his or her attorney of choice has a conflict, and even if the
defendant is eager to waive any objection, the defendant has no
constitutional right to be represented by that attorney. See id. , at 159–160.

															   Similarly, the right to be represented by
counsel of choice can be limited by mundane case-management
considerations. If a trial judge schedules a trial to begin on a
particular date and defendant’s counsel of choice is already
committed for other trials until some time thereafter, the trial
judge has discretion under appropriate circumstances to refuse to
postpone the trial date and thereby, in effect, to force the
defendant to forgo counsel of choice. See, e.g. , Slappy , supra; United States v. Hughey , 147 F. 3d 423, 428–431 (CA5 1998).

															   These limitations on the right to counsel of
choice are tolerable because the focus of the right is the quality
of the representation that the defendant receives, not the identity
of the attorney who provides the representation. Limiting a
defendant to those attorneys who are willing, available, and
eligible to represent the defendant still leaves a defendant with a
pool of attorneys to choose from—and, in most jurisdictions today,
a large and diverse pool. Thus, these restrictions generally have
no adverse effect on a defendant’s ability to secure the best
assistance that the defendant’s circumstances permit.

															   Because the Sixth Amendment focuses on the
quality of the assistance that counsel of choice would have
provided, I would hold that the erroneous disqualification of
counsel does not violate the Sixth Amendment unless the ruling
diminishes the quality of assistance that the defendant would have
otherwise received. This would not require a defendant to show that
the second-choice attorney was constitutionally ineffective within
the meaning of Strickland v. Washington , 466 U. S. 668 (1984).
Rather, the defendant would be entitled to a new trial if the
defendant could show “an identifiable difference in the quality of
representation between the disqualified counsel and the attorney
who represents the defendant at trial.” Rodriguez v. Chandler , 382 F. 3d 670, 675 (CA7 2004), cert.
denied, 543 U. S.
1156 (2005).

															   This approach is fully consistent with our
prior decisions. We have never held that the erroneous
disqualification of counsel violates the Sixth Amendment when there
is no prejudice, and while we have stated in several cases that the
Sixth Amendment protects a defendant’s right to counsel of choice,
see Caplin & Drysdale, Chartered v. United
States , 491 U.
S. 617 , 624–625 (1989); Wheat , supra , at 159; Powell v. Alabama, 287 U. S. 45 , 53 (1932),
we had no occasion in those cases to consider whether a violation
of this right can be shown where there is no prejudice. Nor do our
opinions in those cases refer to that question. It is therefore
unreasonable to read our general statements regarding counsel of
choice as addressing the issue of prejudice.[ Footnote 3 ]

															II

															   But even accepting, as the
majority holds, that the erroneous disqualification of counsel of
choice always violates the Sixth Amendment, it still would not
follow that reversal is required in all cases. The Constitution, by
its terms, does not mandate any particular remedy for violations of
its own provisions. Instead, we are bound in this case by Federal
Rule of Criminal Procedure 52(a), which instructs federal courts to
“disregar[d]” “[a]ny error … which does not affect substantial
rights.” See also 28 U. S. C. §2111; Chapman v. California, 386 U. S. 18 , 22 (1967).
The only exceptions we have recognized to this rule have been for
“a limited class of fundamental constitutional errors that ‘defy
analysis by “harmless error” standards.’ ” Neder v. United States, 527 U. S. 1 , 7 (1999)
(quoting Arizona v. Fulminante, 499 U. S. 279 , 309
(1991)); see also Chapman , supra , at 23. “Such
errors … ‘necessarily render a trial fundamentally unfair’ [and]
deprive defendants of ‘basic protections’ without which ‘a criminal
trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence … and no criminal punishment
may be regarded as fundamentally fair.’ ” Neder , supra, at 8–9 (quoting Rose v. Clark, 478 U. S. 570 ,
577–578 (1986) (second omission in original)); see also ante , at 9 (listing such errors).

															   Thus, in Neder , we
rejected the argument that the omission of an element of a crime in
a jury instruction “ necessarily render[s] a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt
or innocence.” 527 U. S., at 9. In fact, in that case, “quite the
opposite [was] true: Neder was tried before an impartial judge,
under the correct standard of proof and with the assistance of
counsel; a fairly selected, impartial jury was instructed to
consider all of the evidence and argument in respect to Neder’s
defense . …” Ibid. Neder’s situation—with an impartial judge, the
correct standard of proof, assistance of counsel, and a fair
jury—is much like respondent’s. Fundamental unfairness does not
inexorably follow from the denial of first-choice counsel. The
“decision to retain a particular lawyer” is “often uninformed,” Cuyler v. Sullivan , 446 U. S. 335 , 344
(1980); a defendant’s second-choice lawyer may thus turn out to be
better than the defendant’s first-choice lawyer. More often, a
defendant’s first- and second-choice lawyers may be simply
indistinguishable. These possibilities would not justify violating
the right to choice of counsel, but they do make me hard put to
characterize the violation as “ always render[ing] a trial
unfair,” Neder , supra , at 9. Fairness may not
limit the right, see ante , at 5, but it does inform the
remedy.

															   Nor is it always or nearly always impossible
to determine whether the first choice would have provided better
representation than the second choice. There are undoubtedly cases
in which the prosecution would have little difficulty showing that
the second-choice attorney was better qualified than or at least as
qualified as the defendant’s initial choice, and there are other
cases in which it will be evident to the trial judge that any
difference in ability or strategy could not have possibly affected
the outcome of the trial.

															   Requiring a defendant to fall back on a
second-choice attorney is not comparable to denying a defendant the
right to be represented by counsel at all. Refusing to permit a
defendant to receive the assistance of any counsel is the epitome
of fundamental unfairness, and as far as the effect on the outcome
is concerned, it is much more difficult to assess the effect of a
complete denial of counsel than it is to assess the effect of
merely preventing representation by the defendant’s first-choice
attorney. To be sure, when the effect of an erroneous
disqualification is hard to gauge, the prosecution will be unable
to meet its burden of showing that the error was harmless beyond a
reasonable doubt. But that does not justify eliminating the
possibility of showing harmless error in all cases.

															   The majority’s focus on the “trial
error”/“structural defect” dichotomy is misleading. In Fulminante , we used these terms to denote two poles of
constitutional error that had appeared in prior cases; trial errors
always lead to harmless-error review, while structural defects
always lead to automatic reversal. See 499 U. S., at 306–310. We
did not suggest that trial errors are the only sorts of
errors amenable to harmless-error review, or that all errors “affecting the framework within which the trial proceeds,” id. , at 310, are structural. The touchstone of structural
error is fundamental unfairness and unreliability. Automatic
reversal is strong medicine that should be reserved for
constitutional errors that “ always ” or
“ necessarily ,” Neder , supra , at 9
(emphasis in original), produce such unfairness.

															III

															   Either of the two courses
outlined above—requiring at least some showing of prejudice, or
engaging in harmless-error review—would avoid the anomalous and
unjustifiable consequences that follow from the majority’s two-part
rule of error without prejudice followed by automatic reversal.

															   Under the majority’s holding, a
defendant who is erroneously required to go to trial with a
second-choice attorney is automatically entitled to a new trial
even if this attorney performed brilliantly. By contrast, a
defendant whose attorney was ineffective in the constitutional
sense ( i.e. , “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed … by the Sixth Amendment,” Strickland , 466 U. S., at 687) cannot obtain relief
without showing prejudice.

															   Under the majority’s holding, a trial court
may adopt rules severely restricting pro hac vice admissions, cf. Leis v. Flynt , 439 U. S. 438 , 443
(1979) (per curiam), but if it adopts a generous rule and
then errs in interpreting or applying it, the error automatically
requires reversal of any conviction, regardless of whether the
erroneous ruling had any effect on the defendant.

															   Under the majority’s holding, some defendants
will be awarded new trials even though it is clear that the
erroneous disqualification of their first-choice counsel did not
prejudice them in the least. Suppose, for example, that a defendant
is initially represented by an attorney who previously represented
the defendant in civil matters and who has little criminal
experience. Suppose that this attorney is erroneously disqualified
and that the defendant is then able to secure the services of a
nationally acclaimed and highly experienced criminal defense
attorney who secures a surprisingly favorable result at trial—for
instance, acquittal on most but not all counts. Under the
majority’s holding, the trial court’s erroneous ruling
automatically means that the Sixth Amendment was violated—even if
the defendant makes no attempt to argue that the disqualified
attorney would have done a better job. In fact, the defendant would
still be entitled to a new trial on the counts of conviction even
if the defendant publicly proclaimed after the verdict that the
second attorney had provided better representation than any other
attorney in the country could have possibly done.

															   Cases as stark as the above hypothetical are
unlikely, but there are certainly cases in which the erroneous
disqualification of a defendant’s first-choice counsel neither
seriously upsets the defendant’s preferences nor impairs the
defendant’s representation at trial. As noted above, a defendant’s
second-choice lawyer may sometimes be better than the defendant’s
first-choice lawyer. Defendants who retain counsel are frequently
forced to choose among attorneys whom they do not know and about
whom they have limited information, and thus a defendant may not
have a strong preference for any one of the candidates. In
addition, if all of the attorneys considered charge roughly
comparable fees, they may also be roughly comparable in experience
and ability. Under these circumstances, the erroneous
disqualification of a defendant’s first-choice attorney may simply
mean that the defendant will be represented by an attorney whom the
defendant very nearly chose initially and who is able to provide
representation that is just as good as that which would have been
furnished by the disqualified attorney. In light of these
realities, mandating reversal without even a minimal showing of
prejudice on the part of the defendant is unwarranted.

															   The consequences of the majority’s holding are
particularly severe in the federal system and in other court
systems that do not allow a defendant to take an interlocutory
appeal when counsel is disqualified. See Flanagan v. United States , 465 U. S. 259 , 260
(1984). Under such systems, appellate review typically occurs after
the defendant has been tried and convicted. At that point, if an
appellate court concludes that the trial judge made a marginally
incorrect ruling in applying its own pro hac vice rules,
the appellate court has no alternative but to order a new
trial—even if there is not even any claim of prejudice. The Sixth
Amendment does not require such results.

															   Because I believe that some showing of
prejudice is required to establish a violation of the Sixth
Amendment, I would vacate and remand to let the Court of Appeals
determine whether there was prejudice. However, assuming for the
sake of argument that no prejudice is required, I believe that such
a violation, like most constitutional violations, is amenable to
harmless-error review. Our statutes demand it, and our precedents
do not bar it. I would then vacate and remand to let the Court of
Appeals determine whether the error was harmless in this case. Footnote 1 This view is consistent with the Government’s
concession that “[t]he Sixth Amendment … encompasses a non-indigent
defendant’s right to select counsel who will represent him in a
criminal prosecution,” Brief for United States 11, though this
right is “circumscribed in several important respects,” id. , at 12 (citation and internal quotation marks
omitted). Footnote 2 See Act of Apr. 30, 1790, ch. 9, §29, 1 Stat.
118 (providing for appointment of counsel in capital cases); Betts v. Brady , 316 U. S. 455 , 467,
n. 20 (1942) (surveying state statutes). Footnote 3 Powell is the case generally cited
as first noting a defendant’s right to counsel of choice. Powell involved an infamous trial in which the defendants
were prevented from obtaining any counsel of their choice and were
instead constrained to proceed with court-appointed counsel of
dubious effectiveness. We held that this denied them due process
and that “a fair opportunity to secure counsel of [one’s] own
choice” is a necessary concomitant of the right to counsel. 287 U.
S., at 53; cf. id. , at 71 (“[T]he failure of the trial
court to give [petitioners] reasonable time and opportunity to
secure counsel was a clear denial of due process”). It is clear
from the facts of the case that we were referring to the denial of
the opportunity to choose any counsel, and we certainly
said nothing to suggest that a violation of the right to counsel of
choice could be established without any showing of prejudice.

															In Wheat , we held that the trial judge had not erred in
declining the defendant’s waiver of his right to conflict-free
counsel, and therefore we had no need to consider whether an
incorrect ruling would have required reversal of the defendant’s
conviction in the absence of a showing of prejudice. We noted that
“the right to select and be represented by one’s preferred attorney
is comprehended by the Sixth Amendment,” 486 U. S., at l59, but we
went on to stress that this right “is circumscribed in several
important respects,” ibid ., including by the requirement
of bar membership and rules against conflicts of interest. Wheat did not suggest that a violation of the limited
Sixth Amendment right to counsel of choice can be established
without showing prejudice, and our statements about the Sixth
Amendment’s “purpose” and “essential aim”—providing effective
advocacy and a fair trial, ibid. —suggest the opposite.

															   Finally, in Caplin & Drysdale , we
held that the challenged action of the trial judge—entering an
order forfeiting funds that the defendant had earmarked for use in
paying his attorneys—had been proper, and, accordingly, we had no
occasion to address the issue of prejudice. We recognized that “the
Sixth Amendment guarantees a defendant the right to be represented
by an otherwise qualified attorney whom that defendant can afford
to hire, or who is willing to represent the defendant even though
he is without funds,” 491 U. S., at 624–625, but we added that
“[w]hatever the full extent of the Sixth Amendment’s protection of
one’s right to retain counsel of his choosing, that protection does
not go beyond ‘the individual’s right to spend his own money to
obtain the advice and assistance of … counsel,’ ” id., at 626 (omission in original).