U.S. Supreme Court Brady v. Maryland, 373 U.S.
83 (1963) Brady v. Maryland No. 490 Argued March 18-19, 1963 Decided May 13, 1963 373 U.S.
83 CERTIORARI TO THE COURT OF APPEALS OF MARYLAND Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR.
JUSTICE BRENNAN.

															Petitioner and a companion, Boblit, were found guilty of murder
in the first degree and were sentenced to death, their convictions
being affirmed by the Court of Appeals of Maryland. 220 Md. 454,
154 A.2d 434. Their trials were separate, petitioner being tried
first. At his trial, Brady took the stand and admitted his
participation in the crime, but he claimed that Boblit did the
actual killing. And, in his summation to the jury, Brady's counsel
conceded that Brady was guilty of murder in the first degree,
asking only that the jury return that verdict "without capital
punishment." Prior to the trial, petitioner's counsel had requested
the prosecution to allow him to examine Boblit's extrajudicial
statements. Several of those statements were shown to him, but one
dated July 9, 1958, in which Boblit admitted the actual homicide,
was withheld by the prosecution, and did not come to petitioner's
notice until after he had been tried, convicted, and sentenced, and
after his conviction had been affirmed.

															Petitioner moved the trial court for a new trial based on the
newly discovered evidence that had been suppressed by the
prosecution. Petitioner's appeal from a denial of that motion was
dismissed by the Court of Appeals without prejudice to relief under
the Maryland [85 ]

															Post-Conviction Procedure Act. 222 Md. 442, 160 A.2d 912. The
petition for post-conviction relief was dismissed by the trial
court, and, on appeal, the Court of Appeals held that suppression
of the evidence by the prosecution denied petitioner due process of
law, and remanded the case for a retrial of the question of
punishment, not the question of guilt. 226 Md. 422, 174 A.2d 167.
The case is here on certiorari, 371 U.S. 812. [ Footnote 1 ]

															The crime in question was murder committed in the perpetration
of a robbery. Punishment for that crime in Maryland is life
imprisonment or death, the jury being empowered to restrict the
punishment to life by addition of the words "without capital
punishment." 3 Md.Ann.Code, 1957, Art. 27, § 413. In Maryland, by
reason of the state constitution, the jury in a criminal case are
"the Judges of Law, as well as of fact." Art. XV, § 5. The question
presented is whether petitioner was denied a federal right when the
Court of Appeals restricted the new trial to the question of
punishment. [86 ]

															We agree with the Court of Appeals that suppression of this
confession was a violation of the Due Process Clause of the
Fourteenth Amendment. The Court of Appeals relied, in the main, on
two decisions from the Third Circuit Court of Appeals United States
ex rel. Almeida v. Baldi , 195 F.2d 815, 33 A.L.R.2d 1407,
and United States ex rel. Thompson v. Dye , 221 F.2d 763
which, we agree, state the correct constitutional rule.

															This ruling is an extension of Mooney v. Holohan , 294 U. S. 103 ,
112, where the Court ruled on what nondisclosure by a prosecutor
violates due process: "It is a requirement that cannot be deemed to be satisfied by
mere notice and hearing if a state has contrived a conviction
through the pretense of a trial which, in truth, is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known
to be perjured. Such a contrivance by a state to procure the
conviction and imprisonment of a defendant is as inconsistent with
the rudimentary demands of justice as is the obtaining of a like
result by intimidation." In Pyle v. Kansas , 317 U. S. 213 , 215-216,
we phrased the rule in broader terms: "Petitioner's papers are inexpertly drawn, but they do set forth
allegations that his imprisonment resulted from perjured testimony,
knowingly used by the State authorities to obtain his conviction,
and from the deliberate suppression by those same authorities of
evidence favorable to him. These allegations sufficiently charge a
deprivation of rights guaranteed by the Federal Constitution, and,
if proven, would entitle petitioner to release from his present
custody. Mooney v. Holohan , 294 U. S. 103 . " [87 ]

															The Third Circuit, in the Baldi case, construed that
statement in Pyle v. Kansas to mean that the "suppression
of evidence favorable" to the accused was itself sufficient to
amount to a denial of due process. 195 F.2d at 820. In Napue v.
Illinois , 360 U.
S. 264 , 269, we extended the test formulated in Mooney v.
Holohan when we said: "The same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected
when it appears." And see Alcorta v. Texas , 355 U. S. 28 ; Wilde v.
Wyoming ,. Cf. Durley v. Mayo , 351 U. S. 277 , 285
(dissenting opinion).

															We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.

															The principle of Mooney v. Holohan is not punishment of
society for misdeeds of a prosecutor, but avoidance of an unfair
trial to the accused. Society wins not only when the guilty are
convicted, but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated
unfairly. An inscription on the walls of the Department of Justice
states the proposition candidly for the federal domain: "The United
States wins its point whenever justice is done its citizens in the
courts." [ Footnote 2 ] A
prosecution that withholds evidence on demand of an accused which,
if made avail- [88 ]

															able, would tend to exculpate him or reduce the penalty helps
shape a trial that bears heavily on the defendant. That casts the
prosecutor in the role of an architect of a proceeding that does
not comport with standards of justice, even though, as in the
present case, his action is not "the result of guile," to use the
words of the Court of Appeals. 226 Md. at 427, 174 A.2d at 169.

															The question remains whether petitioner was denied a
constitutional right when the Court of Appeals restricted his new
trial to the question of punishment. In justification of that
ruling, the Court of Appeals stated: "There is considerable doubt as to how much good Boblit's
undisclosed confession would have done Brady if it had been before
the jury. It clearly implicated Brady as being the one who wanted
to strangle the victim, Brooks. Boblit, according to this
statement, also favored killing him, but he wanted to do it by
shooting. We cannot put ourselves in the place of the jury, and
assume what their views would have been as to whether it did or did
not matter whether it was Brady's hands or Boblit's hands that
twisted the shirt about the victim's neck. . . . [I]t would be 'too
dogmatic' for us to say that the jury would not have attached any
significance to this evidence in considering the punishment of
the defendant Brady. "

															"Not without some doubt, we conclude that the withholding of
this particular confession of Boblit's was prejudicial to the
defendant Brady. . . . "

															"The appellant's sole claim of prejudice goes to the punishment
imposed. If Boblit's withheld confession had been before the
jury, nothing in it could have reduced the appellant Brady's
offense below murder in the first degree. We therefore see no
occasion to retry that issue." 226 Md. at 429 430, 174 A.2d at 171.
(Italics added.) [89 ]

															If this were a jurisdiction where the jury was not the judge of
the law, a different question would be presented. But since it is,
how can the Maryland Court of Appeals state that nothing in the
suppressed confession could have reduced petitioner's offense
"below murder in the first degree"? If, as a matter of Maryland
law, juries in criminal cases could determine the admissibility of
such evidence on the issue of innocence or guilt, the question
would seem to be foreclosed.

															But Maryland's constitutional provision making the jury in
criminal cases "the Judges of Law" does not mean precisely what it
seems to say. [ Footnote 3 ] The
present status of that provision was reviewed recently in Giles
v. State , 229 Md. 370, 183 A.2d 359, appeal
dismissed , 372
U. S. 767 , where the several exceptions, added by statute or
carved out by judicial construction, are reviewed. One of those
exceptions material here is that "Trial courts have always passed,
and still pass, upon the admissibility of evidence the jury may
consider on the issue of the innocence or guilt of the accused."
229 Md. at 383, 183 A.2d at 365. The cases cited make up a long
line going back nearly a century. Wheeler v. State , 42 Md.
563, 570, stated that instructions to the jury were advisory only,
"except in regard to questions as to what shall be considered as
evidence." And the court "having such right, it follows of course,
that it also has the right to prevent counsel from arguing against
such an instruction." Bell v. State , 57 Md. 108, 120. And see Beard v. State , 71 Md. 275, 280, 17 A. 1044, 1045; Dick v. State , 107 Md. 11, 21, 68 A. 286, 290. Cf.
Vogel v. State , 163 Md. 267, 162 A. 705. [90 ]

															We usually walk on treacherous ground when we explore state law,
[ Footnote 4 ] for state courts,
state agencies, and state legislatures are its final expositors
under our federal regime. But, as we read the Maryland decisions,
it is the court, not the jury, that passes on the "admissibility of
evidence" pertinent to "the issue of the innocence or guilt of the
accused." Giles v. State, supra. In the present case, a
unanimous Court of Appeals has said that nothing in the suppressed
confession "could have reduced the appellant Brady's offense below
murder in the first degree." We read that statement as a ruling on
the admissibility of the confession on the issue of innocence or
guilt. A sporting theory of justice might assume that, if the
suppressed confession had been used at the first trial, the judge's
ruling that it was not admissible on the issue of innocence or
guilt might have been flouted by the jury just as might have been
done if the court had first admitted a confession and then stricken
it from the record. [ Footnote
5 ] But we cannot raise that trial strategy to the dignity of a
constitutional right and say that the deprival of this defendant of
that sporting chance through the use of a [91 ]

															bifurcated trial ( cf. Williams v. New York , 337 U. S. 241 ) denies him
due process or violates the Equal Protection Clause of the
Fourteenth Amendment. Affirmed. Separate opinion of MR. JUSTICE WHITE.

															1. The Maryland Court of Appeals declared, "The suppression or
withholding by the State of material evidence exculpatory to an
accused is a violation of due process" without citing the United
States Constitution or the Maryland Constitution, which also has a
due process clause. [ Footnote
* ] We therefore cannot be sure which Constitution was invoked
by the court below, and thus whether the State, the only party
aggrieved by this portion of the judgment, could even bring the
issue here if it desired to do so. See New York City v. Central
Savings Bank , 306 U.S. 661; Minnesota v. National Tea
Co. , 309 U. S.
551 . But, in any event, there is no cross-petition by the
State, nor has it challenged the correctness of the ruling below
that a new trial on punishment was called for by the requirements
of due process. In my view, therefore, the Court should not reach
the due process question which it decides. It certainly is not the
case, as it may be suggested, that, without it, we would have only
a state law question, for, assuming the court below was correct in
finding a violation of petitioner's rights in the suppression of
evidence, the federal question he wants decided here still remains,
namely, whether denying him a new trial on guilt as well as
punishment deprives him of equal protection. There is thus a
federal question to deal with in this Court, cf. Bell v.
Hood , 327 U. S.
678 , [92 ]

															wholly aside from the due process question involving the
suppression of evidence. The majority opinion makes this
unmistakably clear. Before dealing with the due process issue, it
says, "The question presented is whether petitioner was denied a
federal right when the Court of Appeals restricted the new trial to
the question of punishment." After discussing at some length and
disposing of the suppression matter in federal constitutional
terms, it says the question still to be decided is the same as it
was before: "The question remains whether petitioner was denied a
constitutional right when the Court of Appeals restricted his new
trial to the question of punishment."

															The result, of course, is that the due process discussion by the
Court is wholly advisory.

															2. In any event, the Court's due process advice goes
substantially beyond the holding below. I would employ more
confining language, and would not cast in constitutional form a
broad rule of criminal discovery. Instead, I would leave this task,
at least for new, to the rulemaking or legislative process after
full consideration by legislators, bench, and bar.

															3. I concur in the Court's disposition of petitioner's equal
protection argument.

															MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK joins,
dissenting.

															I think this case presents only a single federal question: did
the order of the Maryland Court of Appeals granting a new trial,
limited to the issue of punishment, violate petitioner's Fourteenth
Amendment right to equal protection? [ Footnote 1 ] In my opinion, an affirmative answer
would [93 ]

															be required if the Boblit statement would have been admissible
on the issue of guilt at petitioner's original trial. This indeed
seems to be the clear implication of this Court's opinion.

															The Court, however, holds that the Fourteenth Amendment was not
infringed because it considers the Court of Appeals' opinion, and
the other Maryland cases dealing with Maryland's constitutional
provision making juries in criminal cases "the Judges of Law, as
well as of fact," as establishing that the Boblit statement would
not have been admissible at the original trial on the issue of
petitioner's guilt.

															But I cannot read the Court of Appeals' opinion with any such
assurance. That opinion can as easily, and perhaps more easily, be
read as indicating that the new trial limitation followed from the
Court of Appeals' concept of its power, under § 645G of the
Maryland Post Conviction Procedure Act, Md.Code, Art. 27 (1960
Cum.Supp.) and Rule 870 of the Maryland Rules of Procedure, to
fashion appropriate relief meeting the peculiar circumstances of
this case, [ Footnote 2 ]
rather than from the view that the Boblit statement would have been
relevant at the original trial only on the issue of punishment. 226
Md. at 430, 174 A.2d at 171. This interpretation is indeed
fortified by the Court of Appeals' earlier general discussion as to
the admissibility of third-party confessions, which falls short of
saying anything that is dispositive [94 ]

															of the crucial issue here. 226 Md. at 427 429, 174 A.2d at 170.
[ Footnote 3 ]

															Nor do I find anything in any of the other Maryland cases cited
by the Court (ante, p. 89) which bears on the admissibility vel
non of the Boblit statement on the issue of guilt. None of
these cases suggests anything more relevant here than that a jury
may not "overrule" the trial court on questions relating to the
admissibility of evidence. Indeed, they are by no means clear as to
what happens if the jury in fact undertakes to do so. In this very
case, for example, the trial court charged that, "in the final
analysis the jury are the judges of both the law and the facts, and
the verdict in this case is entirely the jury's
responsibility." (Emphasis added.)

															Moreover, uncertainty on this score is compounded by the State's
acknowledgment at the oral argument here that the withheld Boblit
statement would have been admissible at the trial on the issue of
guilt. [ Footnote 4 ]

															In this state of uncertainty as to the proper answer to the
critical underlying issue of state law, and in view of the fact
that the Court of Appeals did not, in terms, [95 ]

															address itself to the equal protection question, I do not see
how we can properly resolve this case at this juncture. I think the
appropriate course is to vacate the judgment of the State Court of
Appeals and remand the case to that court for further consideration
in light of the governing constitutional principle stated at the
outset of this opinion. Cf. Minnesota v. National Tea Co. , 309 U. S.
551 . Footnotes [ Footnote 1 ]

															Neither party suggests that the decision below is not a "final
judgment" within the meaning of 28 U.S.C. § 1257(3), and no attack
on the reviewability of the lower court's judgment could be
successfully maintained. For the general rule that "Final judgment
in a criminal case means sentence. The sentence is the judgment"
( Berman v. United States , 302 U. S. 211 , 212)
cannot be applied here. If, in fact, the Fourteenth Amendment
entitles petitioner to a new trial on the issue of guilt as well as
punishment, the ruling below has seriously prejudiced him. It is
the right to a trial on the issue of guilt "that presents a serious
and unsettled question" ( Cohen v. Beneficial Industrial Loan
Corp. , 337 U. S.
541 , 547) that "is fundamental to the further conduct of the
case" ( United States v. General Motors Corp. , 323 U. S. 373 , 377). This
question is "independent of, and unaffected by" ( Radio Station
WOW v. Johnson , 326 U. S. 120 , 126) what
may transpire in a trial at which petitioner can receive only a
life imprisonment or death sentence. It cannot be mooted by such a
proceeding. See Largent v. Texas , 318 U. S. 418 , 421-422. Cf. Local No. 438 v. Curry , 371 U. S. 542 , 549.

															[ Footnote 2 ]

															Judge Simon E. Sobeloff, when Solicitor General, put the idea as
follows in an address before the Judicial Conference of the Fourth
Circuit on June 29, 1954:

															"The Solicitor General is not a neutral; he is an advocate, but
an advocate for a client whose business is not merely to prevail in
the instant case. My client's chief business is not to achieve
victory, but to establish justice. We are constantly reminded of
the now classic words penned by one of my illustrious predecessors,
Frederick William Lehmann, that the Government wins its point when
justice is done in its courts."

															[ Footnote 3 ] See Dennis, Maryland's Antique Constitutional Thorn, 92
U. of Pa.L.Rev. 34, 39, 43; Prescott, Juries as Judges of the Law:
Should the Practice be Continued, 60 Md.St.Bar Assn.Rept. 246, 253
254.

															[ Footnote 4 ]

															For one unhappy incident of recent vintage see Oklahoma
Packing Co. v. Oklahoma Gas & Electric Co. , 309 U. S. 4 , that replaced
an earlier opinion in the same case, 309 U.S. 703.

															[ Footnote 5 ]

															"In the matter of confessions, a hybrid situation exists. It is
the duty of the Court to determine from the proof, usually taken
out of the presence of the jury, if they were freely and
voluntarily made, etc., and admissible. If admitted, the jury is
entitled to hear and consider proof of the circumstances
surrounding their obtention, the better to determine their weight
and sufficiency. The fact that the Court admits them clothes them
with no presumption for the jury's purposes that they are either
true or were freely and voluntarily made. However, after a
confession has been admitted and read to the jury, the judge may
change his mind and strike it out of the record. Does he strike it
out of the jury's mind?"

															Dennis, Maryland's Antique Constitutional Thorn, 92 U. of
Pa.L.Rev. 34, 39. See also Bell v. State, supra , 57 Md. at
120; Vogel v. State , 163 Md. at 272, 162 A. at 706
707.

															[ Footnote * ]

															Md.Const., Art. 23; Home Utilities Co., Inc., v. Revere
Copper & Brass, Inc. , 209 Md. 610, 122 A.2d 109; Raymond v. State ex rel. Szydlouski , 192 Md. 602, 65 A.2d
285; County Comm'rs of Anne Arundel County v. English , 182
Md. 514, 35 A.2d 135; Oursler v. Tawes , 178 Md. 471, 13
A.2d 763.

															[ Footnote 1 ]

															I agree with my Brother WHITE that there is no necessity for
deciding in this case the broad due process questions with which
the Court deals at pp. 86-88 of its opinion.

															[ Footnote 2 ]

															Section 645G provides in part:

															"If the court finds in favor of the petitioner, it shall enter
an appropriate order with respect to the judgment or sentence in
the former proceedings, and any supplementary orders as to
rearraignment, retrial, custody, bail, discharge, correction of
sentence, or other matters that may be necessary and proper."

															Rule 870 provides that the Court of Appeals

															"will either affirm or reverse the judgment from which the
appeal was taken, or direct the manner in which it shall be
modified, changed or amended."

															[ Footnote 3 ]

															It is noteworthy that the Court of Appeals did not indicate that
it was limiting in any way the authority of Day v. State ,
196 Md. 384, 76 A.2d 729. In that case, two defendants were jointly
tried and convicted of felony murder. Each admitted participating
in the felony, but accused the other of the homicide. On appeal,
the defendants attacked the trial court's denial of a severance,
and the State argued that neither defendant was harmed by the
statements put in evidence at the joint trial because admission of
the felony amounted to admission of guilt of felony murder.
Nevertheless, the Court of Appeals found an abuse of discretion and
ordered separate new trials on all issues.

															[ Footnote 4 ]

															In response to a question from the Bench as to whether Boblit's
statement, had it been offered at petitioner's original trial,
would have been admissible for all purposes, counsel for the State,
after some colloquy, stated: "It would have been, yes."


U.S. Supreme Court Betts v. Brady, 316
U.S. 455 (1942) Betts v. Brady No. 837 Argued April 13, 14, 1942 Decided June 1, 1942 316
U.S. 455 CERTIORARI TO HON. CARROLL T. BOND, A JUDGE OF THE STATE OF MARYLAND, BEING A JUDGE OF THE COURT OF APPEALS OF MARYLAND FROM THE CITY OF BALTIMORE. Syllabus 1. In the light of the applicable law of Maryland, an order of
the Chief Judge of the Court of Appeals, he being also the judge of
that court from the City of Baltimore, denying petitioner's release
upon a writ of habeas corpus held reviewable here by
certiorari under Jud.Code § 237, as a "final judgment" of the
"highest court" in which a decision of the federal question
involved could be had. P. 316 U. S.
458 .

															2. A judgment of a state tribunal denying release on habeas
corpus, which is not reviewable in any other state court and ends
the particular proceeding, is a final judgment within the meaning
of Jud.Code § 237, notwithstanding that, under the state law, the
prisoner retains the right to seek discharge by applications to
other courts and judges successively. P. 316 U. S.
460 .

															3. The due process clause of the Fourteenth Amendment does not
incorporate, as such, the specific guarantees found in the Sixth
Amendment, although a denial by a State of rights or privileges
specifically embodied in that and others of the first eight
amendments may, in certain circumstances, or in connection with
other elements, operate, in a given case, to deprive a litigant of
due process of law in violation of the Fourteenth. P. 316 U. S.
461 . Page 316 U. S. 456 4. The application of the due process clause to State criminal
proceedings is not governed by hard and fast rule. Asserted denial
of due process is to be tested by appraisal of all facts in the
case, and that which in one setting may constitute a denial of due
process because it is a denial of fundamental fairness shocking to
the universal sense of justice may, in other circumstances, and in
the light of other considerations, fall short of such a denial. P. 316 U. S.
462 .

															5. Decisions of this Court do not lay down a rule that, in every
case, whatever the circumstances, one charged with crime who is
unable to obtain counsel must be furnished counsel by the State. P. 316 U. S.
462 .

															6. A review of state constitutional and statutory provisions on
the subject in connection with the common law demonstrates that, in
the great majority of the States, it has been the considered
judgment of the people, their representatives, and their courts
that an appointment of counsel for indigent defendants in criminal
cases is not a fundamental right, essential to a fair trial, and
that the matter has generally been deemed one of legislative
policy. In the light of this evidence, it cannot be said that the
concept of due process incorporated in the Fourteenth Amendment
obliges the State, whatever may be their own views, to furnish
counsel in every such case. P. 316 U. S.
471 .

															7. Upon the facts of this case, the refusal of a state court to
appoint counsel to represent an indigent defendant at a trial in
which he was connected of robbery did not deny him due process of
law in violation of the Fourteenth Amendment. P. 316 U. S.
472 .

															Affirmed.

															CERTIORARI, 315 U.S. 791, to review an order of a judge of the
Court of Appeals of Maryland from the City of Baltimore, denying
petitioner's release upon a writ of habeas corpus.

															MR. JUSTICE ROBERTS delivered the opinion of the Court.

															The petitioner was indicted for robbery in the Circuit Court of
Carroll County, Maryland. Due to lack of funds, Page 316 U. S. 457 he was unable to employ counsel, and so informed the judge at
his arraignment. He requested that counsel be appointed for him.
The judge advised him that this would not be done, as it was not
the practice in Carroll County to appoint counsel for indigent
defendants, save in prosecutions for murder and rape.

															Without waiving his asserted right to counsel, the petitioner
pleaded not guilty and elected to be tried without a jury. At his
request, witnesses were summoned in his behalf. He cross-examined
the State's witnesses and examined his own. The latter gave
testimony tending to establish an alibi. Although afforded the
opportunity, he did not take the witness stand. The judge found him
guilty, and imposed a sentence of eight years.

															While serving his sentence, the petitioner filed with a judge of
the Circuit Court for Washington County, Maryland, a petition for a
writ of habeas corpus alleging that he had been deprived of the
right to assistance of counsel guaranteed by the Fourteenth
Amendment of the Federal Constitution. The writ issued, the cause
was heard, his contention was rejected, and he was remanded to the
custody of the prison warden.

															Some months later, a petition for a writ of habeas corpus was
presented to Hon. Carroll T. Bond, Chief Judge of the Court of
Appeals of Maryland, setting up the same grounds for the prisoner's
release as the former petition. The respondent answered, a hearing
was afforded, at which an agreed statement of facts was offered by
counsel for the parties, the evidence taken at the petitioner's
trial was incorporated in the record, and the cause was argued.
Judge Bond granted the writ, but, for reasons set forth in an
opinion, denied the relief prayed and remanded the petitioner to
the respondent's custody.

															The petitioner applied to this court for certiorari directed to
Judge Bond. The writ was issued on account of the importance of the
jurisdictional questions involved Page 316 U. S. 458 and conflicting decisions [ Footnote 1 ] upon
the constitutional question presented. In awarding the writ, we
requested counsel to discuss the jurisdiction of this court,

															"particularly (1) whether the decision below is that of a court
within the meaning of § 237 [ Footnote 2 ] of the
Judicial Code, and (2) whether state remedies, either by appeal or
by application to other judges or any other state court, have been
exhausted."

															1. Sec. 237 of the Judicial Code declares this court competent
to review, upon certiorari, "any cause wherein a final judgment . .
. has been rendered . . . by the highest court" of a State "in
which a decision could be had" on a federal question. Was Judge
Bond's judgment that of a court within the meaning of the statute?
Answer must be made in the light of the applicable law of
Maryland.

															Art. 4, § 6 of the State Constitution provides: "All Judges
shall by virtue of their offices be Conservators of the Peace
throughout the State; . . ." Sec. 1 of Art. 42 of the Public
General Laws of Maryland (Flack's 1939 Edition) invests the Court
of Appeals and the Chief Judge thereof, the Circuit Courts for the
respective counties, and the several judges thereof, the Superior
Court of Baltimore City, the Court of Common Pleas of that city,
the Circuit Court and Circuit Court No. 2 of Baltimore City, the
Baltimore City Court, and the judges of the said courts, out of
court, and the Judge of the Court of Appeals from the City of
Baltimore, with power to grant writs of habeas corpus and to
exercise jurisdiction in all matters pertaining thereto. Page 316 U. S. 459 Although it is settled that the grant to the Court of Appeals of
the power to issue the writ is unconstitutional and void, [ Footnote 3 ] and although the statute does not confer on
individual judges of the Court of Appeals the power to issue a writ
and proceed thereon, nevertheless those judges, as conservators of
the peace, have the power under the quoted section of the
Constitution. [ Footnote 4 ] In any event, Judge
Bond is the Chief Judge of the Court of Appeals and the judge of
that court from the City of Baltimore, and, as such, is empowered
to act.

															Sections 2 to 6, inclusive, 9 to 12 inclusive, and 17 of the
statute prescribe the procedure governing the issue of the writ,
its service, the return, and the hearing. No question is made but
that Judge Bond complied with these provisions. It is, therefore,
apparent that, in all respects, he acted in a judicial capacity,
and that, in his proper person, he was a judicial tribunal having
jurisdiction, upon pleadings and proofs, to hear and to adjudicate
the issue of the legality of the petitioner's detention. If Judge
Bond had been sitting in term time as a member of a court, clothed
with power to act as one of the members of that court, his judgment
would be that of a court within the scope of § 237. Doubt that his
judgment in the present instance is such arises out of our decision
in McKnight v. James, 155 U. S. 685 ,
where we refused to review the denial of a discharge by a judge of
an inferior court of Ohio who issued the writ and heard the case at
chambers. It appeared that the petitioner had addressed his
petition to a judge of the Circuit Court, instead of the court
itself, and that, for this reason, the order of the judge was not
reviewable by the Supreme Court of Ohio as it would have been had
the writ been addressed Page 316 U. S. 460 to the Circuit Court, though heard by a single judge. The
petitioner had not exhausted his state remedy since, though he
could have obtained a decision by the highest Court of the State,
he had avoided doing so, and then sought to come to this court
directly from the order of the Circuit Judge on the theory that
that judge's order was the final order of the highest court of the
State which could decide his case. In a later decision, we referred
to this and other cognate cases as deciding that appeals do not lie
to this court from orders by judges at chambers, [ Footnote 5 ] but the fundamental reason for denying our
jurisdiction was that the appellant had not exhausted state
remedies.

															In view of what has been said of the power of Judge Bond as a
judicial tribunal to hear and finally decide the cause, and of the
judicial quality of his action, we are of opinion that his judgment
was that of a court within the intendment of § 237.

															2. Did the judgment entered comply with the requirement of § 237
that it must be a final judgment rendered by the highest court in
which a decision could be had? Again, answer must be made in the
light of the applicable law of Maryland. The judgment was final in
the sense that an order of a Maryland judge in a habeas corpus
case, whatever the court to which he belongs, is not reviewable by
any other court of Maryland except in specific instances named in
statutes which are here inapplicable. [ Footnote
6 ] It is true that the order was not final, and the petitioner
has not exhausted state remedies in the sense that, in Maryland, as
in England, in many of the States, and in the federal courts, a
prisoner may apply successively Page 316 U. S. 461 to one judge after another and to one court after another
without exhausting his right. [ Footnote 7 ] We
think this circumstance does not deny to the judgment in a given
case the quality of finality requisite to this court's
jurisdiction. Although the judgment is final in the sense that it
is not subject to review by any other court of the State, we may,
in our discretion, refuse the writ when there is a higher court of
the State to which another petition for the relief sought could be
addressed, [ Footnote 8 ] but this is not such a
case. To hold that, since successive applications to courts and
judges of Maryland may be made as of right, the judgment in any
case is not final would be to deny all recourse to this court in
such cases.

															Since Judge Bond's order was a final disposition by the highest
court of Maryland in which a judgment could be had of the issue
joined on the instant petition, we have jurisdiction to review
it.

															3. Was the petitioner's conviction and sentence a deprivation of
his liberty without due process of law, in violation of the
Fourteenth Amendment, because of the court's refusal to appoint
counsel at his request?

															The Sixth Amendment of the national Constitution applies only to
trials in federal courts. [ Footnote 9 ] The due
process clause of the Fourteenth Amendment does not
incorporate, Page 316 U. S. 462 as such, the specific guarantees found in the Sixth Amendment,
[ Footnote 10 ] although a denial by a State of
rights or privileges specifically embodied in that and others of
the first eight amendments may, in certain circumstances, or in
connection with other elements, operate, in a given case, to
deprive a litigant of due process of law in violation of the
Fourteenth. [ Footnote 11 ] Due process of law is
secured against invasion by the federal Government by the Fifth
Amendment, and is safeguarded against state action in identical
words by the Fourteenth. The phrase formulates a concept less rigid
and more fluid than those envisaged in other specific and
particular provisions of the Bill of Rights. Its application is
less a matter of rule. Asserted denial is to be tested by an
appraisal of the totality of facts in a given case. That which may,
in one setting, constitute a denial of fundamental fairness,
shocking to the universal sense of justice, may, in other
circumstances and in the light of other considerations, fall short
of such denial. [ Footnote 12 ] In the application
of such a concept, there is always the danger of falling into the
habit of formulating the guarantee into a set of hard and fast
rules the application of which, in a given case, may be to ignore
the qualifying factors therein disclosed.

															The petitioner, in this instance, asks us, in effect, to apply a
rule in the enforcement of the due process clause. He says the rule
to be deduced from our former decisions is that, in every case,
whatever the circumstances, one charged with crime who is unable to
obtain counsel must be furnished counsel by the State. Expressions
in the Page 316 U. S. 463 opinions of this court lend color to the argument, [ Footnote 13 ] but, as the petitioner admits, none of our
decisions squarely adjudicates the question now presented.

															In Powell v. Alabama, 287 U. S. 45 ,
ignorant and friendless negro youths, strangers in the community,
without friends or means to obtain counsel, were hurried to trial
for a capital offense without effective appointment of counsel on
whom the burden of preparation and trial would rest, and without
adequate opportunity to consult even the counsel casually appointed
to represent them. This occurred in a State whose statute law
required the appointment of counsel for indigent defendants
prosecuted for the offense charged. Thus, the trial was conducted
in disregard of every principle of fairness and in disregard of
that which was declared by the law of the State a requisite of a
fair trial. This court held the resulting convictions were without
due process of law. It said that, in the light of all the facts,
the failure of the trial court to afford the defendants reasonable
time and opportunity to secure counsel was a clear denial of due
process. The court stated further that,

															"under the circumstances . . . , the necessity of counsel was so
vital and imperative that the failure of the trial court to make an
effective appointment of counsel was likewise a denial of due
process,"

															but added:

															"Whether this would be so in other criminal prosecutions, or
under other circumstances, we need not determine. All that it is
necessary now to decide, as we do decide, is that, in a capital
case, where the defendant is unable to employ counsel and is
incapable adequately of making his own defense because of
ignorance, feeble-mindedness, illiteracy, or the like, it is the
duty of the court, whether requested or not, to assign Page 316 U. S. 464 counsel for him as a necessary requisite of due process of law,
. . ."

															Likewise, in Avery v. Alabama, 308 U.
S. 444 , the state law required the appointment of
counsel. The claim which we felt required examination, as in the Powell case, was that the purported compliance with this
requirement amounted to mere lip service. Scrutiny of the record
disclosed that counsel had been appointed, and the defendant had
been afforded adequate opportunity to prepare his defense with the
aid of counsel. We therefore overruled the contention that due
process had been denied.

															In Smith v. O'Grady, 312 U. S. 329 , the
petition for habeas corpus alleged a failure to appoint counsel,
but averred other facts which, if established, would prove that the
trial was a mere sham and pretense, offensive to the concept of due
process. There also, state law required the appointment of counsel
for one on trial for the offense involved.

															Those cases, which are the petitioner's chief reliance, do not
rule this. The question we are now to decide is whether due process
of law demands that, in every criminal case, whatever the
circumstances, a State must furnish counsel to an indigent
defendant. Is the furnishing of counsel in all cases whatever
dictated by natural, inherent, and fundamental principles of
fairness? The answer to the question may be found in the common
understanding of those who have lived under the Anglo-American
system of law. By the Sixth Amendment, the people ordained that, in
all criminal prosecutions, the accused should "enjoy the right . .
. to have the assistance of counsel for his defence." We have
construed the provision to require appointment of counsel in all
cases where a defendant is unable to procure the services of an
attorney, and where the right has not been intentionally and Page 316 U. S. 465 competently waived. [ Footnote 14 ] Though, as
we have noted, the Amendment lays down no rule for the conduct of
the States, the question recurs whether the constraint laid by the
Amendment upon the national courts expresses a rule so fundamental
and essential to a fair trial, and so to due process of law, that
it is made obligatory upon the States by the Fourteenth Amendment.
Relevant data on the subject are afforded by constitutional and
statutory provisions subsisting in the colonies and the States
prior to the inclusion of the Bill of Rights in the national
Constitution, and in the constitutional, legislative, and judicial
history of the States to the present date. These constitute the
most authoritative sources for ascertaining the considered judgment
of the citizens of the States upon the question.

															The Constitutions of the thirteen original States, as they were
at the time of federal union, exhibit great diversity in respect of
the right to have counsel in criminal cases. Rhode Island had no
constitutional provision on the subject until 1843, North Carolina
and South Carolina had none until 1868. Virginia has never had any.
Maryland, in 1776, and New York, in 1777, adopted provisions to the
effect that a defendant accused of crime should be "allowed"
counsel. A constitutional mandate that the accused should have a
right to be heard by himself and by his counsel was adopted by
Pennsylvania in 1776, New Hampshire in 1774, by Delaware in 1782,
and by Connecticut in 1818. In 1780, Massachusetts ordained that
the defendant should have the right to be heard by himself or his
counsel at his election. In 1798, Georgia provided that the accused
might be heard by himself or counsel, or both. In 1776, New Jersey
guaranteed the accused the same privileges of witnesses and counsel
as their prosecutors "are or shall be entitled to." Page 316 U. S. 466 The substance of these provisions of colonial and early state
constitutions is explained by the contemporary common law.
Originally, in England, a prisoner was not permitted to be heard by
counsel upon the general issue of not guilty on any indictment for
treason or felony. [ Footnote 15 ] The practice of
English judges, however, was to permit counsel to advise with a
defendant as to the conduct of his case and to represent him in
collateral matters and as respects questions of law arising upon
the trial. [ Footnote 16 ] In 1695, the rule was
relaxed by statute [ Footnote 17 ] to the extent
of permitting one accused of treason the privilege of being heard
by counsel. The rule forbidding the participation of counsel stood,
however, as to indictments for felony until 1836, when a statute
accorded the right to defend by counsel against summary convictions
and charges of felony. [ Footnote 18 ] In
misdemeanor cases and, after 1695, in prosecutions for treason, the
rule was that the defense must be conducted either by the defendant
in person or by counsel, but that both might not participate in the
trial. [ Footnote 19 ]

															In the light of this common law practice, it is evident that the
constitutional provisions to the effect that a defendant should be
"allowed" counsel or should have a right "to be heard by himself
and his counsel," or that he might be heard by "either or both," at
his election, were intended to do away with the rules which denied
representation, in whole or in part, by counsel in criminal
prosecutions, but were not aimed to compel the State to provide
counsel for a defendant. At the least, such a construction by State
courts and legislators cannot be said to lack reasonable basis. Page 316 U. S. 467 The statutes in force in the thirteen original States at the
time of the adoption of the Bill of Rights are also illuminating.
It is of interest that the matter of appointment of counsel for
defendants, if dealt with at all, was dealt with by statute, rather
than by constitutional provision. The contemporary legislation
exhibits great diversity of policy. [ Footnote
20 ]

															The constitutions of all the States, presently in force, save
that of Virginia, contain provisions with respect to the assistance
of counsel in criminal trials. Those of nine Page 316 U. S. 468 States [ Footnote 21 ] may be said to embody a
guarantee textually the same as that of the Sixth Amendment, or of
like import. In the fundamental law of most States, however, the
language used indicates only that a defendant is not to be denied
the privilege of representation by counsel of his choice. [ Footnote 22 ]

															In three States, the guarantee, whether or not in the exact
phraseology of the Sixth Amendment, has been held to require
appointment in all cases where the defendant Page 316 U. S. 469 is unable to procure counsel. [ Footnote 23 ]
In six, the provision (one of which is like the Sixth Amendment)
have been held not to require the appointment of counsel for
indigent defendants. [ Footnote 24 ] In eight,
provisions, one of which is the same as that of the Sixth
Amendment, have evidently not been viewed as requiring such
appointment, since the courts have enforced statutes making
appointment discretionary, or obligatory only in prosecutions for
capital offenses or felonies. [ Footnote 25 ]

															In twelve States, it seem to be understood that the
constitutional provision does not require appointment of Page 316 U. S. 470 counsel, since statute of greater or less antiquity call for
such appointment only in capital cases or cases of felony or other
grave crime, [ Footnote 26 ] or refer the matter
to the discretion of the court. [ Footnote 27 ] In
eighteen States, the statutes now require the court to appoint in
all cases where defendants are unable to procure counsel. [ Footnote 28 ] But this has not always been Page 316 U. S. 471 the statutory requirement in some of those States. [ Footnote 29 ] And it seems to have been assumed by many
legislatures that the matter was one for regulation from time to
time as deemed necessary, since laws requiring appointment in all
cases have been modified to require it only in the case of certain
offenses. [ Footnote 30 ]

															This material demonstrates that, in the great majority of the
States, it has been the considered judgment of the people, their
representatives, and their courts that appointment of counsel is
not a fundamental right, essential to a fair trial. On the
contrary, the matter has generally been deemed one of legislative
policy. In the light of this evidence, we are unable to say that
the concept of due process incorporated in the Fourteenth Amendment
obligates the States, whatever may be their own views, to furnish
counsel in every such case. Every court has power, if it deems Page 316 U. S. 472 proper, to appoint counsel where that course seems to be
required in the interest of fairness.

															The practice of the courts of Maryland gives point to the
principle that the States should not be straight-jacketed in this
respect by a construction of the Fourteenth Amendment. Judge Bond's
opinion states, and counsel at the bar confirmed the fact, that, in
Maryland, the usual practice is for the defendant to waive a trial
by jury. This the petitioner did in the present case. Such trials,
as Judge Bond remarks, are much more informal than jury trials, and
it is obvious that the judge can much better control the course of
the trial, and is in a better position to see impartial justice
done, than when the formalities of a jury trial are involved.
[ Footnote 31 ]

															In this case, there was no question of the commission of a
robbery. The State's case consisted of evidence identifying the
petitioner as the perpetrator. The defense was an alibi. Petitioner
called and examined witnesses to prove that he was at another place
at the time of the commission of the offense. The simple issue was
the veracity of the testimony for the State and that for the
defendant. As Judge Bond says, the accused was not helpless, but
was a man forty-three years old, of ordinary intelligence and
ability to take care of his own interests on the trial of that
narrow issue. He had once before been in a criminal court, pleaded
guilty to larceny, and served a sentence, and was not wholly
unfamiliar with criminal procedure. It is quite clear that, in
Maryland, if the situation had been otherwise and it had appeared
that the petitioner was, for any reason, at a serious disadvantage
by reason of the lack Page 316 U. S. 473 of counsel, a refusal to appoint would have resulted in the
reversal of a judgment of conviction. Only recently, the Court of
Appeals has reversed a conviction because it was convinced on the
whole record that an accused, tried without counsel, had been
handicapped by the lack of representation. [ Footnote
32 ]

															To deduce from the due process clause a rule binding upon the
States in this matter would be to impose upon them, as Judge Bond
points out, a requirement without distinction between criminal
charges of different magnitude or in respect of courts of varying
jurisdiction. As he says:

															"Charges of small crimes tried before justices of the peace and
capital charges tried in the higher courts would equally require
the appointment of counsel. Presumably it would be argued that
trials in the Traffic Court would require it."

															And, indeed, it was said by petitioner's counsel both below and
in this court that, as the Fourteenth Amendment extends the
protection of due process to property as well as to life and
liberty, if we hold with the petitioner, logic would require the
furnishing of counsel in civil cases involving property.

															As we have said, the Fourteenth Amendment prohibits the
conviction and incarceration of one whose trial is offensive to the
common and fundamental ideas of fairness and right, and, while want
of counsel in a particular case may result in a conviction lacking
in such fundamental fairness, we cannot say that the Amendment
embodies an inexorable command that no trial for any offense, or in
any court, can be fairly conducted and justice accorded a defendant
who is not represented by counsel.

															The judgment is Affirmed. Page 316 U. S. 474 [ Footnote 1 ] In re McKnight, 52 F. 799; Wilson v. Lanagan, 99 F.2d 544; Boyd v. O'Grady, 121 F.2d 146; Carey v.
Brady, 125 F.2d 253; Commonwealth ex rel. Schultz v.
Smith, 139 Pa.Super.Ct. 357, 11 A.2d 656; Commonwealth ex
rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1.

															[ Footnote 2 ]

															28 U.S.C. § 344(b).

															[ Footnote 3 ] State v. Glenn, 54 Md. 572, 596; Sevinskey v.
Wagus, 76 Md. 335, 25 A. 468.

															[ Footnote 4 ] Ex parte O'Neill, 8 Md. 227; Ex parte Maulsby, 13 Md. 625.

															[ Footnote 5 ] Craig v. Hecht, 263 U. S. 255 , 263 U. S.
276 .

															[ Footnote 6 ] Bell v. State, 4 Gill. 301; Ex parte O'Neill, 8 Md. 227; In re Coston, 23 Md. 271; Coston v.
Coston, 25 Md. 500; State v. Glenn, 54 Md. 572; Annapolis v. Howard, 80 Md. 244, 30 A. 910; Petition
of Otho Jones, 179 Md. 240, 16 A.2d 901.

															[ Footnote 7 ]

															Judge Bond intimates that § 3 of Art. 42, as amended by Laws
1941, c. 484 permits the use of a rule to show cause ( cf.
Holiday v. Johnston, 313 U. S. 342 ) or
other form of preliminary inquiry to avoid the necessity of the
issue of a writ and a hearing where a redundant petition is filed
disclosing no new matter. See, Salinger v. Loisel, 265 U. S. 224 , 265 U. S.
231 -232. He determined, however, in this case to issue
the writ and afford a hearing.

															[ Footnote 8 ] Tenner v. Dulles, 314 U.S. 692.

															[ Footnote 9 ] United States v.
Dawson , 15 How. 467, 56 U. S. 487 ; Twitchell v.
Pennsylvania , 7 Wall. 321, 74 U. S. 325 ; Spies v. Illinois, 123 U. S. 131 , 123 U. S. 166 ; In re Sawyer, 124 U. S. 200 , 124 U. S. 219 ; Brooks v. Missouri, 124 U. S. 394 , 124 U. S. 397 ; Eilenbecker v. District Court, 134 U. S.
31 , 134 U. S. 34 ,
35; West v. Louisiana, 194 U. S. 258 , 194 U. S. 263 ; Howard v. Kentucky, 200 U. S. 164 , 200 U. S.
172 .

															[ Footnote 10 ] Hurtado v. California, 110 U.
S. 516 ; Macwell v. Dow, 176 U.
S. 581 ; West v. Louisiana, 194 U.
S. 258 ; Twining v. New Jersey, 211 U. S.
78 ; Frank v. Mangum, 237 U.
S. 309 ; Snyder v. Massachusetts, 291 U. S.
97 ; Palko v. Connecticut, 302 U.
S. 319 .

															[ Footnote 11 ] Compare Twining v. New Jersey, 211 U. S.
78 , 211 U. S. 98 ; Powell v. Alabama, 287 U. S. 45 ; Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 323 ff.

															[ Footnote 12 ] Compare Lisenba v. California, 314 U.
S. 219 , 314 U. S.
236 -237.

															[ Footnote 13 ] Powell v. Alabama, 287 U. S. 45 , 287 U. S. 73 ; Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S. 243 , 304 U. S. 244 ; Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 462 ; Avery v. Alabama, 308 U. S. 444 , 308 U. S.
447 .

															[ Footnote 14 ] Johnson v. Zerbst, 304 U. S. 458 .

															[ Footnote 15 ]

															Chitty Criminal Law (5th Am.Ed.) Vol. 1, p. 406.

															[ Footnote 16 ]

															Chitty, supra, Vol. I, p. 407; Rex v. Parkins, 1 C. & P. 314.

															[ Footnote 17 ]

															7 Will. 3, c. 3, § 1.

															[ Footnote 18 ]

															6 & 7 Will. 4, c. 114, §§ I and II.

															[ Footnote 19 ] Rex v. White, 3 Camp. N.P. 97; Regina v.
Boucher, 8 C. & P. 655.

															[ Footnote 20 ]

															Connecticut had no statute, although it was the custom of the
courts to assign counsel in all criminal cases. Swift, "System of
Laws, Connecticut," 1796, Vol. II, p. 392. In Delaware Penn's Laws
of 1719, c. XXII, and in Pennsylvania the Act of May 31, 1718, §
III (Mitchell and Flanders' Statutes at Large of Penna., 1682-1801,
Vol. III, p. 201) provided for appointment only in case of
"felonies of death." Georgia has never had any law on the subject.
Maryland had no such law at the time of the adoption of the Bill of
Rights. An Act of 1777 in Massachusetts gave the right to have
counsel appointed in cases of treason or misprision of treason.
Laws of the Commonwealth of Massachusetts from Nov. 28, 1780 to
Feb. 28, 1807, c. LXXI, Vol. II, Appendix, p. 1049. By an Act of
Feb. 8, 1791, New Hampshire required appointment in all cases where
the punishment was death. Metcalf's Laws of New Hampshire, 1916,
Vol. 5, pp. 596, 599. An Act of New Jersey of March 6, 1795, § 2,
required appointment in the case of any person tried upon an
indictment. Acts of the General Assembly of the Session of 1794, c.
DXXXII, p. 1012. New York apparently had no statute on the subject. See Act. Feb. 20, 1787, Laws of New York, Sessions 1st to
20th (1798), Vol. I, pp. 356-7. An Act of 1777 of North Carolina
made no provision for appointment, but accorded defendants the
right to have counsel. Laws of North Carolina, 1789, pp. 40, 56.
Rhode Island had no statute until 1798, when one was passed in the
words of the Sixth Amendment. Laws 1798, p. 80. South Carolina, by
Act of August 20, 1731, limited appointment to capital cases.
Grimke's So.Car.Pub.Laws, 1682-1790, p. 130. Virginia, by Act of
Oct. 1786, enacted with respect to one charged with treason or
felony that "the court shall allow him counsel . . . if he desire
it." Hening's Statutes of Virginia, 1785-1788, Vol. 12, p. 343.

															[ Footnote 21 ] Georgia (Art. I, Par. V); Iowa (Art. I, § 10); Louisiana (Art. I, § 9); Michigan (Dec. of Rights, Art.
II, § 19); Minnesota (Art. I, § 6); New Jersey (Art. I, § 8); North Carolina (Art. I, § 11); Rhode
Island (Art. I, § 10); West Virginia (Art. III, §
14).

															[ Footnote 22 ]

															Some assert the right of a defendant "to appear and defend in
person and by counsel." Arizona (Art. II, § 24); Colorado (Art. II, § 16); Illinois (Art. II, §
9); Missouri (Art. II, § 22); Montana (Art. III,
§ 16); New Mexico (Art. II, § 14); South Dakota (Art. VI, § 7); Utah (Art. I, § 12); Wyoming (Art. I, § 10). Others phrase the right as that "to be heard by
himself and [his] counsel": Arkansas (Art. II, § 10); Delaware (Art. I, § 7); Indiana (Art. I, § 13); Kentucky (Bill of Rights, § 11); Pennsylvania (Art. I, § 9); Tennessee (Art. I, § 9); Vermont (Ch. I, Art. 10th); or "by himself and by counsel": Connecticut (Art. I, § 9); or "by himself and counsel": New Hampshire (Bill of Rights, 15th); Oklahoma (Art. II, § 20); Oregon (Art. I, § 11); Wisconsin (Art. I, § 7); or "by himself and counsel or either": Alabama (Art. I, § 6); "by himself or counsel or [by]
both": Florida (Dec. of Rights, § 11); Mississippi (Art. III, § 26); South Carolina (Art. I, § 18); Texas (Art. I, § 10). The verbiage sometimes
employed is: "to appear and defend in person and with counsel": California (Art. I, § 13), Idaho, (Art. I, § 13); North Dakota (Art. I, § 13); Ohio (Art. I, § 10);
or "in person or by counsel"; Kansas (Bill of Rights, §
10); Nebraska (Art. I, § 11); Washington (Art. I,
§ 22). Nevada (Art. I, § 8) and New York (Art. I,
§ 6) add: "as in civil actions." Some constitutions formulate the
right as one "to be heard by himself and his counsel at his
election" or "himself and his counsel or either at his election": Massachusetts (Part I, § 12), Maine (Art. I, §
6). Maryland (Dec. of Rights, Art. 21) states the right as
that "to be allowed counsel."

															[ Footnote 23 ] Elam v. Johnson, 48 Ga. 348; Delk v. State, 99
Ga. 667, 26 S.E. 752; Fugate v. Commonwealth, 254 Ky. 663,
72 S.W.2d 47; Carperter v. Dane County, 9 Wis. 274.

															[ Footnote 24 ] Cutts v. State, 54 Fla. 21, 45 So. 491; McDonald v.
Commonwealth, 173 Mass. 322, 53 N.E. 874; People v.
Dudley, 173 Mich. 389, 138 N.W. 1044; People v.
Williams, 225 Mich. 133, 195 N.W. 818; People v.
Harris, 266 Mich. 317, 253 N.W. 312; People v.
Crandell, 270 Mich. 124, 258 N.W. 224; Commonwealth v.
Smith, 344 Pa. 41, 24 A.2d 1; State v. Sweeney, 48
S.D. 248, 203 N.W. 460; State v. Yoes, 67 W.Va. 546, 68
S.E. 181; cf. Pardee v. Salt Lake County, 39 Utah 482, 118
P. 122.

															[ Footnote 25 ] Alabama: Code (1940) Tit. 15, § 318; Campbell v.
State, 182 Ala. 18, 62 So. 57; Gilchrist v. State, 234 Ala. 73, 173 So. 651; Clark v. State, 239 Ala. 380,
195 So. 260. Louisiana: Code Crim.Proc. (Dart, 1932) Tit.
XIII, Art. 143; State v. Davis, 171 La. 449, 131 So. 295. Maryland: Annotated Code (Flack, 1939), Art. 26, Par. 7,
p. 1060; cf. the decision below and Coates v.
Maryland, 180 Md. 502, 25 A.2d 676. Mississippi: Annotated Code (1930) Crim.Proc., c. 21, § 1262; Laws 1934, c. 303; Reed v. State, 143 Miss. 686, 109 So. 715; Robinson v.
State, 178 Miss. 568, 173 So. 451. Rhode Island: General Laws 1938, c. 625, § 62; Acts & Resolves, 1891, c. 921,
p. 165; State v. Hudson, 55 R.I. 141, 179 A. 130. South Carolina: Code 1932, Vol. 1, § 979; State v.
Jones, 172 S.C. 129, 173 S.E. 77. Texas: Lopez v.
State, 46 Tex.Cr. 473, 80 S.W. 1016; Faggett v.
State, 122 Tex.Cr. 399, 55 S.W.2d 842; Thomas v.
State, 132 Tex.Cr. 549, 106 S.W.2d 289; Austin v.
State, 51 S.W. 249. Vermont: Public Laws (1933) c.
57, § 1424; c. 101, § 2327; c. 102, § 2370; State v.
Gomez, 89 Vt. 490, 96 A. 190.

															[ Footnote 26 ] Arkansas: Steel & McCampbell's Compiled Laws of
Arkansas Territory, 1835, "Crimes and Misdemeanors," § 37, p. 194;
Gantt's Digest of Ark. Stats. 1874, Crim.Proc. c. 43, Art. XII, §
1824, p. 410; Pope's Digest (1937), Vol. 1, c. 43, § 3877, p. 1180. Delaware: Penn's Laws, c. XXII (1719); Rev.Code (1935) c.
114, 4305-6. Kansas: Gen.Stats. 1868, c. 82, § 160, p.
845; Gen.Stats.1935, c. 62, § 1304, p. 1449. Maine: Act of
March 8, 1826, § 6, p. 146; R.S. Apr. 17, 1857, c. 134, § 12, p.
713; R.S. 1030, c. 146, § 14, p. 1655. Minnesota: Act of
March 5, 1869, G.L. 1869, c. LXXII, § 1; Mason's Minn.Stats. (1927)
Vol. 2, c. 94, § 9957. Missouri: Casselberry's Rev.Stats.
1845, pp. 434, 443-4, 458; Rev.Stats. (1939) Crim.Proc. § 4003. Nebraska: Gen.Stats. 1873, c. 58, § 437, p. 821;
Comp.Stat. (1929) Crim.Proc. Art. 18, § 29-1803. New
Hampshire: R.S. 1843, Tit. XXVII, c. 225, p. 457; Pub.Laws
(1926), c. 368, Laws 1937, c. 22. Washington: Territorial
Stats. 1881, c. LXXXV, § 1063; Rem.Rev.Stats. Vol. 4, c. 2, §
2305.

															[ Footnote 27 ] Arizona: Code (1939) Art. 9, §§ 44-904, 44-906. Colorado: Colo.Stats. Annotated (1935), Vol. 2, c. 48, §
502, p. 1148. Maryland: Laws 1886, c. 46, p. 66; Anno.Code
(Flack, 1939), Art. 26, par. 7.

															[ Footnote 28 ]

															California, Penal Code, Deering (1937), Pt. 2, Tit. 6, c. 1, §
987; Idaho, Code Anno. (1932) § 19-1412; Illinois, R.S.1935, c. 38,
¶ 754; Iowa, Code 1939, c. 640, § 13773; Kansas, Laws 1941, c. 291;
Michigan, Statutes Ann. § 28.1253; Montana, Rev.Codes Ann. (1935)
c. 73, § 11886; Nevada, Comp.Laws (1929) Cr.L. & Proc. § 10883;
New Jersey, N.J.Stat.Ann. § 2:190-3; New York, Thompson's Laws
(1939) Pt. II, Code of Crim.Proc. § 308; North Dakota, Comp.Laws
(1913) Vol. II, § 8965; Ohio, Throckmorton's Code Ann. (1940) §
13439-2; Oklahoma, Stats.Ann. Tit. 22, § 1271; Oregon, Comp.Laws
Ann. Vol. 3, § 26-804; South Dakota, Code (1939) § 34.1901;
Tennessee, Michie's Code (1938) § 11734; Utah, R.S. (1938) Code
Cr.Proc. § 105-22-12; Wyoming, R.S. (1931) § 33-501. Connecticut
provides official public defenders available to all persons unable
to retain counsel. G.S. (Revision of 1930), c. 335, § 6476.

															At least as early as 1903 (3 Edw. 7, c. 38), England adopted a
Poor Prisoners' Defence Act, under which a rule was adopted whereby
an accused might defend by counsel assigned by the court.
Bowen-Rowlands, Criminal Proceedings, London (1904) pp. 46-47. The
existing statute is the Poor Prisoners' Defence Act (1930) 20 &
21 Geo. 5, c. 32. See Archbold's Criminal Pleading, Evidence and
Practice, 30th Ed. (1938) p. 167. Under this act, a poor defendant
is entitled as of right to counsel on a charge of murder, but
assignment of counsel is discretionary in other cases.

															[ Footnote 29 ]

															See, e.g., earlier and more restricted statutes: Idaho,
Terr.Laws, 2d Sess., 1864, c. II, p. 246; Iowa, Act of January 4,
1839, § 64; Korf v. Jasper County, 132 Ia. 682, 108 N.W. 1031;
Michigan, Laws 1857, Act No. 109, p. 239; Montana, Act January 12,
1872, c. IX, § 196; Nevada, Comp.L. 1861-73, c. LIII. Changes in
the statutes of other States might be cited. Compare Notes 20 and
28.

															[ Footnote 30 ]
Louisiana. Compare Laws, 1855, Act No. 121; State v. Ferris, 16
La.Ann. 424; State v. Bridges, 109 La. 530, 33 So. 589, with
La.Code Crim.Proc. (Dart) 1932, Tit. XIII, Art. 143. Nebraska.
Compare Laws of 1869, p. 163, with Comp.Stats. (1929) § 29-1803.
Washington. Compare Code of Washington Terr. (1881) c. L316V, §
1063, with Rem.Rev.Stats. Vol. 4, c. 2, § 2305. And compare Texas
Code Crim.Proc. (1856), Pt. III, Arts. 466-7 with Vernon's Stats.
(1936), Art. 1917, and Lopez v. State, 46 Tex.Cr. 473, 80 S.W.
1016, and Thomas v. State, 132 Tex.Cr. 549, 106 S.W.2d 289.

															[ Footnote 31 ]

															Judge Bond adds: Certainly, my own experience in criminal trials over
which I have presided (over 2000, as I estimate it), has
demonstrated to me that there are fair trials without counsel
employed for the prisoner. [ Footnote 32 ]
Coates v. State, 180 Md. 502, 25 A.2d 676.

															MR. JUSTICE BLACK, dissenting, with whom MR. JUSTICE DOUGLAS and
MR. JUSTICE MURPHY concur.

															To hold that the petitioner had a constitutional right to
counsel in this case does not require us to say that "no trial for
any offense, or in any court, can be fairly conducted and justice
accorded a defendant who is not represented by counsel." This case
can be determined by a resolution of a narrower question: whether,
in view of the nature of the offense and the circumstances of his
trial and conviction, this petitioner was denied the procedural
protection which is his right under the Federal Constitution. I
think he was.

															The petitioner, a farm hand, out of a job and on relief, was
indicted in a Maryland state court on a charge of robbery. He was
too poor to hire a lawyer. He so informed the court, and requested
that counsel be appointed to defend him. His request was denied.
Put to trial without a lawyer, he conducted his own defense, was
found guilty, and was sentenced to eight years' imprisonment. The
court below found that the petitioner had "at least an ordinary
amount of intelligence." It is clear from his examination of
witnesses that he was a man of little education.

															If this case had come to us from a federal court, it is clear we
should have to reverse it, because the Sixth Amendment makes the
right to counsel in criminal cases inviolable by the Federal
Government. I believe that the Fourteenth Amendment made the Sixth
applicable to the states.[ Footnote 1 ] But this view, although often urged in
dissents, has never been accepted by a majority of this Court [p475] and is not accepted today. A statement of
the grounds supporting it is, therefore, unnecessary at this time.
I believe, however, that, under the prevailing view of due process,
as reflected in the opinion just announced, a view which gives this
Court such vast supervisory powers that I am not prepared to accept
it without grave doubts, the judgment below should be reversed.

															This Court has just declared that due process of law is denied
if a trial is conducted in such manner that it is "shocking to the
universal sense of justice" or "offensive to the common and
fundamental ideas of fairness and right." On another occasion, this
Court has recognized that whatever is "implicit in the concept of
ordered liberty" and "essential to the substance of a hearing" is
within the procedural protection afforded by the constitutional
guaranty of due process. Palko v. Connecticut , 302 U.S.
319 , 325, 327.

															The right to counsel in a criminal proceeding is "fundamental." Powell v. Alabama , 287 U.S. 45"] 287 U.S.
45 , 70; 287 U.S.
45 , 70; Grosjean v. American Press Co. , 297 U.S.
233"] 297 U.S.
233 , 243-244. It is guarded from invasion by the Sixth
Amendment, adopted to raise an effective barrier against arbitrary
or unjust deprivation of liberty by the Federal Government. 297 U.S.
233 , 243-244. It is guarded from invasion by the Sixth
Amendment, adopted to raise an effective barrier against arbitrary
or unjust deprivation of liberty by the Federal Government. Johnson v. Zerbst , 304 U.S.
458 , 462.

															An historical evaluation of the right to a full hearing in
criminal cases, and the dangers of denying it, were set out in the Powell case, where this Court said: What . . . does a hearing include? Historically and in
practice, in our own country, at least, it has always included the
right to the aid of counsel when desired and provided by the person
asserting the right . . . Even the intelligent [p476] and educated layman . . . lacks both the
skill and knowledge adequately to prepare his defense, even though
he have a perfect one. He requires the guiding hand of counsel in
every step in the proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. Powell v. Alabama, supra , 68-89. Cf. Johnson v.
Zerbst, supra , 462-463.

															A practice cannot be reconciled with "common and fundamental
ideas of fairness and right," which subjects innocent men to
increased dangers of conviction merely because of their poverty.
Whether a man is innocent cannot be determined from a trial in
which, as here, denial of counsel has made it impossible to
conclude, with any satisfactory degree of certainty, that the
defendant's case was adequately presented. No one questions that
due process requires a hearing before conviction and sentence for
the serious crime of robbery. As the Supreme Court of Wisconsin
said, in 1859, . . . would it not be a little like mockery to secure
to a pauper these solemn constitutional guaranties for a fair and
full trial of the matters with which he was charged, and yet say to
him, when on trial, that he must employ his own counsel, who could
alone render these guaranties of any real permanent value to him. .
. . Why this great solicitude to secure him a fair trial if he
cannot have the benefit of counsel? Carpenter v. Dane County , 9 Wis. 274, 276-277.

															Denial to the poor of the request for counsel in proceedings
based on charges of serious crime has long been regarded as
shocking to the "universal sense of justice" throughout this
country. In 1854, for example, the Supreme Court of Indiana
said: It is not to be thought of, in a civilized community,
for a moment, that any citizen put in jeopardy of life or liberty
should be debarred of counsel because he was too poor to employ
such aid. No Court could be respected, or respect itself, to sit
and hear [p477] such a trial. The defence of the
poor in such cases is a duty resting somewhere, which will be at
once conceded as essential to the accused, to the Court, and to the
public. Webb v. Baird , 6 Ind. 13, 18. And most of the other
States have shown their agreement by constitutional provisions,
statutes, or established practice judicially approved, which assure
that no man shall be deprived of counsel merely because of his
poverty.[ Footnote 2 ] Any
other practice seems to me to defeat the promise of our democratic
society to provide equal justice under the law.

															APPENDIX

															Rev.Stat. 1874, Criminal Code, § 422; Jones' Ill.Stat.Ann.1936,
§ 37.707. [p478] Cf.Laws, 1933, 430-431. See also
Vise v. County of Hamilton, 19 Ill. 78, 79 (1857). IOWA:
Territorial Laws, 1839, Courts, § 64; Iowa Code, 1939, § 13773.
KANSAS: See Compilation published in 1856 as S.Doc. No. 23, 34th
Cong., 1st Sess., 520 (c. 129, Art. V, § 4). Laws, 1941, c. 291.
LOUISIANA: Act of May 4, 1805, of the Territory of Orleans, § 35;
Dart's Louisiana Code of Criminal Procedure, 1932, Title XIII, Art.
143. MINNESOTA: Minnesota General Laws, 1869, c. LXXII, § 1;
Mason's Minnesota Statutes, 1927, §§ 9957, 10667. MISSOURI: Digest
of Laws of Missouri Territory, 1818, Crimes and Misdemeanours, §
35; Rev.Stat. 1939, § 4003. MONTANA: Montana Territory Criminal
Practice Act of 1872, § 196 (Laws of Montana, Codified Stat.
1871-1872, 220); Revised Code, 1935, § 11886. NEBRASKA: General
Statutes, 1873, c. 58, § 437; Compiled Stat. 1929, § 29-1803.
NEVADA: Act of November 26, 1861 (Compiled Laws, 1861-1873, Vol. I,
477, 493); Compiled Laws, 1929, Vol. 5, § 10883. NEW HAMPSHIRE:
Laws, 1907, c. 136; Laws, 1937, c. 22. NEW JERSEY: Act of March 6,
1795, § 2; New Jersey Stat. § 2.190-3. NEW YORK: Code of Criminal
Procedure, § 308 (enacted in 1881, still in force). See People v.
Supervisors of Albany County, 28 How.Pr. 22, 24 (1864). NORTH
DAKOTA: Dakota Territory Code of Procedure, 1863, § 249 (Rev.Codes,
1877, Criminal Procedure, 875); Compiled Laws, 1913, Vol. II, §§
8965, 10721. OHIO: Act of February 26, 1816, § 14 (Chase, Statutes
of Ohio, 1788-1833, Vol. II, 982); Throckmorton's Ohio Code
Ann.1940, Vol. II, § 13439-2. OKLAHOMA: Oklahoma Territorial Stat.
1890, c. 70, § 10; Stat.Ann.1941 Supp., Title 22, 464. OREGON: Act
of October 19, 1864 (General Laws, 1845-1864, c. 37, § 381; Laws
1837, c. 406 (Compiled Laws Ann, Vol. III, § 26-804). SOUTH DAKOTA:
Dakota Territory Code of Procedure, 1863, § 249 (Rev.Codes, 1877,
Criminal Procedure 875); Code of 1939, Vol. II, § 34.1901.
TENNESSEE: Code of 1857-1858, §§ 5205, 5206; Code of 1938, [p479] §§ 11733, 11734. UTAH: Laws of Territory of
Utah, 1878, Criminal Procedure, § 181; Rev.Stat. 1933, § 105-22-12.
WASHINGTON: Statutes of Territory of Washington, 1854, Criminal
Practice Act, § 89; Remington's Revised Statutes, 1932, Vol. IV, §§
2095, 2305. WYOMING: Laws of Wyoming Territory, 1869, Criminal
Procedure, § 98; Rev.Stat. 1931, § 33-501.

															B. By judicial decision or established practice judicially
approved. CONNECTICUT: for an account of early practice in
Connecticut, see Zephaniah Swift "A System of the Laws of the State
of Connecticut," Vol. II, 392: The chief justice then, before the prisoner is called
upon to plead, asks the prisoner if he desires counsel, which, if
requested, is always granted as a matter of course. On his naming
counsel, the court will appoint or assign them. If, from any cause,
the prisoner decline to request or name counsel and a trial is had,
especially in the case of minors, the court will assign proper
counsel. When counsel are assigned, the court will enquire of them
whether they have advised with the prisoner, so that he is ready to
plead, and if not, will allow them proper time for that purpose.
But it is usually the case that the prisoner has previously
employed and consulted counsel and, of course, is prepared to
plead. See Powell v. Alabama, 287 U.S.
45 , footnote, 63-64. See also Connecticut General Statutes,
Revision of 1930, § 2267, 6476. FLORIDA: Cutts v. State, 54 Fla.
21, 23, 45 So. 491 (1907). See Compiled General Laws, 1927, § 8375
(capital crimes). INDIANA: Webb v. Baird, 6 Ind. 13, 18 (1854). See
also Knox County Council v. State ex rel. McCormick, 217 Ind. 493,
497-498, 29 N.E.2d 405 (1940); State v. Hilgemann, 218 Ind. 572, 34
N.E.2d 129, 131 (1941). MICHIGAN: People v. Crandell, 270 Mich.
124, 127, 258 N.W. 224 (1935). PENNSYLVANIA: Commonwealth v.
Richards, 111 Pa.Super. 124, 169 A. 464 (1933). See Commonwealth ex
rel. McGlinn v. Smith, 344 Pa. 41, 49, 59, 24 A.2d 1. VIRGINIA:
Watkins v. Commonwealth, 174 Va. 518, 521-525, 6 S.E.2d 670 (1940).
[p480] WEST VIRGINIA: State v. Kellison, 56 W.Va. 690, 692-693, 47
S.E. 166 (1904). WISCONSIN: Carpenter v. Dane County, 9 Wis. 274
(1859). See Stat. 1941, § 357.26.

															C. By constitutional provision. GEORGIA: Constitution of 1865,
Art. 1, Par. 8. See Martin v. Georgia, 51 Ga. 567, 568 (1874).
KENTUCKY: Kentucky Constitution, § 11. See Fugate v. Commonwealth,
254 Ky. 663, 665, 72 S.W.2d 47 (1934).

															II. States which are without constitutional provision, statutes,
or judicial decisions clearly establishing this requirement:

															COLORADO: General Laws, 1877, §§ 91916; Colorado Stat.Ann.1935,
Vol. 2, c. 48, §§ 502, 505, as amended by Laws of 1937, 498, § 1.
See Abshier v. People, 87 Colo. 507, 517, 289 P. 1081. DELAWARE:
See 6 Laws of Delaware 741; 7 id. 410; Rev.Code, 1935, §§ 4306,
4310. MAINE: See Rev.Stat. 1857, 713; Rev.Stat. 1930, C. 146, § 14.
MASSACHUSETTS: See McDonald v. Commonwealth, 173 Mass. 322, 327, 53
N.E. 874 (1899). NEW MEXICO. NORTH CAROLINA. RHODE ISLAND: See
State v. Hudson, 55 R.I. 141, 179 A. 130 (1935); General Laws,
1938, c. 625, § 62. SOUTH CAROLINA: See State v. Jones, 172 S.C.
129, 130, 173 S.E. 77 (1934); Code, 1932, Vol. I, § 980.
VERMONT.

															III. States in which dicta of judicial opinions are in harmony
with the decision by the court below in this case:

															ALABAMA: Gilchrist v. State, 234 Ala. 73, 74, 173 So. 651.
MISSISSIPPI: Reed v. State, 143 Miss. 686, 689, 109 So. 715.

															IV. States in which the requirement of counsel for indigent
defendants in noncapital cases has been affirmatively rejected:

															MARYLAND: See, however, Coates v. State, 180 Md. 502, 25 A.2d
676. TEXAS: Gilley v. State, 114 Tex.Cr. 548, 26 S.W.2d 1070. But
cf. Brady v. State, 122 Tex.Cr. 275, 278, 54 S.W.2d 513.

															Notes

															[ Footnote 1 ]

															Discussion of the Fourteenth Amendment by its sponsors in the
Senate and House shows their purpose to make secure against
invasion by the states the fundamental liberties and safeguards set
out in the Bill of Rights. The legislative history and subsequent
course of the amendment to its final adoption have been discussed
in Flack, "The Adoption of the Fourteenth Amendment." Flack cites
the Congressional debates, committee reports, and other data on the
subject. Whether the amendment accomplished the purpose its
sponsors intended has been considered by this Court in the
following decisions, among others: O'Neil v. Vermont, 144 U.S.
323 , dissent, 337; Maxwell v. Dow, 176
U.S. 581 , dissent, 605; Twining v. New Jersey, 211 U.S.
78 , 98-99, dissent, 114.

															[ Footnote 2 ]

															In thirty-five states, there is some clear legal requirement or
an established practice that indigent defendants in serious
noncapital as well as capital criminal cases (e.g., where the crime
charged is a felony, a "penitentiary offense," an offense
punishable by imprisonment for several years) be provided with
counsel on request. In nine states, there are no clearly
controlling statutory or constitutional provisions, and no decisive
reported cases on the subject. In two states, there are dicta in
judicial decisions indicating a probability that the holding of the
court below in this case would be followed under similar
circumstances. In only two states (including the one in which this
case arose) has the practice here upheld by this Court been
affirmatively sustained. Appended to this opinion is a list of the
several states divided into these four categories.