U.S. Supreme Court Powell v. Alabama, 287 U.S.
45 (1932) Powell v. Alabama Nos. 98, 99, and 100 Argued October 10,
1932 Decided November 7,
1932 287 U.S.
45 CERTIORARI TO THE SUPREME COURT OF
ALABAMA Syllabus 1. The rule denying the aid of counsel to persons charged with
felony, which (except as to legal questions) existed in England Page 287 U. S. 46 when our Constitution was formed, was rejected in this country
by the Colonies before the Declaration of Independence, and is not
a test of whether the right to counsel in such cases is embraced in
the guarantee of "due process of law." P. 287 U. S.
65 .

															2. The rule that no part of the Constitution shall be treated as
superfluous is an aid to construction which, in some instances, may
be conclusive, but which must yield to more compelling
considerations whenever they exist. P. 287 U. S.
67 .

															3. The fact that the right of an accused person to have counsel
for his defense was guaranteed expressly (as respects the federal
Government) by the Sixth Amendment, notwithstanding the presence of
the due process clause in the Fifth Amendment, does not exclude
that right from the concept "due process of law." Pp. 287 U. S.
66 -68.

															4. The right of the accused, at least in a capital case, to have
the aid of counsel for his defense, which includes the right to
have sufficient time to advise with counsel and to prepare a
defense, is one of the fundamental rights guaranteed by the due
process clause of the Fourteenth Amendment. Pp. 287 U. S.
68 -71.

															5. In a capital case, where the defendant is unable to employ
counsel and is incapable of making his own defense adequately
because of ignorance, feeble-mindedness, illiteracy or the like, it
is the duty of the court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of law, and
that duty is not discharged by an assignment at such a time and
under such circumstances as to preclude the giving of effective aid
in the preparation and trial of the case. P. 287 U. S.
71 .

															6. In a case such as this, the right to have counsel appointed,
when necessary, is a logical corollary to the right to be heard by
counsel. P. 287 U. S.
72 .

															7. In such circumstances, the trial court has power, even in the
absence of statute, to appoint an attorney for the accused, and the
attorney, as an officer of the court, is bound to serve. P. 287 U. S.
73 .

															224 Ala. 524, 531, 540, reversed.

															CERTIORARI, 286 U.S. 540, to review judgments affirming
sentences to death based upon convictions for rape. There was one
indictment against these petitioners and two other persons. The
petitioners were tried in three groups, as shown in the caption,
pursuant to an order of severance obtained by the State. Page 287 U. S. 49 MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

															These cases were argued together and submitted for decision as
one case.

															The petitioners, hereinafter referred to as defendants, are
negroes charged with the crime of rape, committed upon the persons
of two white girls. The crime is said to have been committed on
March 25, 1931. The indictment was returned in a state court of
first instance on March 31, and the record recites that, on the
same day, the defendants were arraigned and entered pleas of not
guilty. There is a further recital to the effect that, upon the
arraignment, they were represented by counsel. But no counsel had
been employed, and aside from a statement made by the trial judge
several days later during a colloquy immediately preceding the
trial, the record does not disclose when, or under what
circumstances, an appointment of counsel was made, or who was
appointed. During the colloquy referred to, the trial judge, in
response to a question, said that he had appointed all the members
of the bar for the purpose of arraigning the defendants, and then,
of course, anticipated that the members of the bar would continue
to help the defendants if no counsel appeared. Upon the argument
here, both sides accepted that as a correct statement of the facts
concerning the matter.

															There was a severance upon the request of the state, and the
defendants were tried in three several groups, as indicated above.
As each of the three cases was called for trial, each defendant was
arraigned, and, having the Page 287 U. S. 50 indictment read to him, entered a plea of not guilty. Whether
the original arraignment and pleas were regarded as ineffective is
not shown. Each of the three trials was completed within a single
day. Under the Alabama statute, the punishment for rape is to be
fixed by the jury, and, in its discretion, may be from ten years'
imprisonment to death. The juries found defendants guilty and
imposed the death penalty upon all. The trial court overruled
motions for new trials and sentenced the defendants in accordance
with the verdicts. The judgments were affirmed by the state supreme
court. Chief Justice Anderson thought the defendants had not been
accorded a fair trial, and strongly dissented. 224 Ala. 524; id., 531; id., 540, 141 So. 215, 195, 201.

															In this court, the judgments are assailed upon the grounds that
the defendants, and each of them, were denied due process of law
and the equal protection of the laws in contravention of the
Fourteenth Amendment, specifically as follows: (1) they were not
given a fair, impartial and deliberate trial; (2) they were denied
the right of counsel, with the accustomed incidents of consultation
and opportunity of preparation for trial, and (3) they were tried
before juries from which qualified members of their own race were
systematically excluded. These questions were properly raised and
saved in the courts below.

															The only one of the assignments which we shall consider is the
second, in respect of the denial of counsel, and it becomes
unnecessary to discuss the facts of the case or the circumstances
surrounding the prosecution except insofar as they reflect light
upon that question.

															The record shows that, on the day when the offense is said to
have been committed, these defendants, together with a number of
other negroes, were upon a freight train on its way through
Alabama. On the same train were seven white boys and the two white
girls. A fight took Page 287 U. S. 51 place between the negroes and the white boys in the course of
which the white boys, with the exception of one named Gilley, were
thrown off the train. A message was sent ahead, reporting the fight
and asking that every negro be gotten off the train. The
participants in the fight, and the two girls, were in an open
gondola car. The two girls testified that each of them was
assaulted by six different negroes in turn, and they identified the
seven defendants as having been among the number. None of the white
boys was called to testify, with the exception of Gilley, who was
called in rebuttal.

															Before the train reached Scottsboro, Alabama, a sheriff's posse
seized the defendants and two other negroes. Both girls and the
negroes then were taken to Scottsboro, the county seat. Word of
their coming and of the alleged assault had preceded them, and they
were met at Scottsboro by a large crowd. It does not sufficiently
appear that the defendants were seriously threatened with, or that
they were actually in danger of, mob violence, but it does appear
that the attitude of the community was one of great hostility. The
sheriff thought it.necessary to call for the militia to assist in
safeguarding the prisoners. Chief Justice Anderson pointed out in
his opinion that every step taken from the arrest and arraignment
to the sentence was accompanied by the military. Soldiers took the
defendants to Gadsden for safekeeping, brought them back to
Scottsboro for arraignment, returned them to Gadsden for
safekeeping while awaiting trial, escorted them to Scottsboro for
trial a few days later, and guarded the courthouse and grounds at
every stage of the proceedings. It is perfectly apparent that the
proceedings, from beginning to end, took place in an atmosphere of
tense, hostile and excited public sentiment. During the entire
time, the defendants were closely confined or were under military
guard. The record does not disclose their ages, except that one of
them was nineteen; but the Page 287 U. S. 52 record clearly indicates that most, if not all, of them were
youthful, and they are constantly referred to as "the boys." They
were ignorant and illiterate. All of them were residents of other
states, where alone members of their families or friends
resided.

															However guilty defendants, upon due inquiry, might prove to have
been, they were, until convicted, presumed to be innocent. It was
the duty of the court having their cases in charge to see that they
were denied no necessary incident of a fair trial. With any error
of the state court involving alleged contravention of the state
statutes or constitution we, of course, have nothing to do. The
sole inquiry which we are permitted to make is whether the federal
Constitution was contravened ( Rogers v. Peck, 199 U.
S. 425 , 199 U. S. 434 ; Hebert v. Louisiana, 272 U. S. 312 , 272 U. S.
316 ), and as to that, we confine ourselves, as already
suggested, to the inquiry whether the defendants were in substance
denied the right of counsel, and, if so, whether such denial
infringes the due process clause of the Fourteenth Amendment. First. The record shows that, immediately upon the
return of the indictment, defendants were arraigned, and pleaded
not guilty. Apparently they were not asked whether they had, or
were able to, employ counsel, or wished to have counsel appointed,
or whether they had friends or relatives who might assist in that
regard if communicated with. That it would not have been an idle
ceremony to have given the defendants reasonable opportunity to
communicate with their families and endeavor to obtain counsel is
demonstrated by the fact that, very soon after conviction, able
counsel appeared in their behalf. This was pointed out by Chief
Justice Anderson in the course of his dissenting opinion. "They
were nonresidents," he said,

															"and had little time or opportunity to get in touch with their
families and friends who were scattered throughout two other
states, and time has demonstrated Page 287 U. S. 53 that they could or would have been represented by able counsel
had a better opportunity been given by a reasonable delay in the
trial of the cases, judging from the number and activity of counsel
that appeared immediately or shortly after their conviction."

															224 Ala. at pp. 554-555, 141 So. 201.

															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. Not only was that not done here,
but such designation of counsel as was attempted was either so
indefinite or so close upon the trial as to amount to a denial of
effective and substantial aid in that regard. This will be amply
demonstrated by a brief review of the record.

															April 6, six days after indictment, the trials began. When the
first case was called, the court inquired whether the parties were
ready for trial. The state's attorney replied that he was ready to
proceed. No one answered for the defendants or appeared to
represent or defend them. Mr. Roddy, a Tennessee lawyer not a
member of the local bar, addressed the court, saying that he had
not been employed, but that people who were interested had spoken
to him about the case. He was asked by the court whether he
intended to appear for the defendants, and answered that he would
like to appear along with counsel that the court might appoint. The
record then proceeds:

															"The Court: If you appear for these defendants, then I will not
appoint counsel; if local counsel are willing to appear and assist
you under the circumstances, all right, but I will not appoint
them."

															"Mr. Roddy: Your Honor has appointed counsel, is that
correct?"

															"The Court: I appointed all the members of the bar for the
purpose of arraigning the defendants, and then, of course, I
anticipated them to continue to help them if no counsel appears.
" Page 287 U. S. 54 "Mr Roddy: Then I don't appear then as counsel, but I do want to
stay in, and not be ruled out in this case."

															"The Court: Of course, I would not do that --"

															"Mr. Roddy: I just appear here through the courtesy of Your
Honor."

															"The Court: Of course, I give you that right; . . ."

															And then, apparently addressing all the lawyers present, the
court inquired:

															". . . well, are you all willing to assist?"

															"Mr. Moody: Your Honor appointed us all, and we have been
proceeding along every line we know about it under Your Honor's
appointment."

															"The Court: The only thing I am trying to do is, if counsel
appears for these defendants, I don't want to impose on you all,
but if you feel like counsel from Chattanooga --"

															"Mr. Moody: I see his situation, of course, and I have not run
out of anything yet. Of course, if Your Honor purposes to appoint
us, Mr. Parks, I am willing to go on with it. Most of the bar have
been down and conferred with these defendants in this case; they
did not know what else to do."

															"The Court: The thing, I did not want to impose on the members
of the bar if counsel unqualifiedly appears; if you all feel like
Mr. Roddy is only interested in a limited way to assist, then I
don't care to appoint --"

															"Mr. Parks: Your Honor, I don't feel like you ought to impose on
any member of the local bar if the defendants are represented by
counsel."

															"The Court: That is what I was trying to ascertain, Mr.
Parks."

															"Mr. Parks: Of course, if they have counsel, I don't see the
necessity of the Court appointing anybody; if they haven't counsel,
of course, I think it is up to the Court to appoint counsel to
represent them. " Page 287 U. S. 55 "The Court: I think you are right about it, Mr. Parks, and that
is the reason I was trying to get an expression from Mr.
Roddy."

															"Mr. Roddy: I think Mr. Parks is entirely right about it, if I
was paid down here and employed, it would be a different thing, but
I have not prepared this case for trial, and have only been called
into it by people who are interested in these boys from
Chattanooga. Now, they have not given me an opportunity to prepare
the case, and I am not familiar with the procedure in Alabama, but
I merely came down here as a friend of the people who are
interested, and not as paid counsel, and certainly I haven't any
money to pay them, and nobody I am interested in had me to come
down here has put up any fund of money to come down here and pay
counsel. If they should do it, I would be glad to turn it over -- a
counsel but I am merely here at the solicitation of people who have
become interested in this case without any payment of fee and
without any preparation for trial, and I think the boys would be
better off if I step entirely out of the case according to my way
of looking at it and according to my lack of preparation of it and
not being familiar with the procedure in Alabama, . . ."

															Mr. Roddy later observed:

															"If there is anything I can do to be of help to them, I will be
glad to do it; I am interested to that extent."

															"The Court: Well gentlemen, if Mr. Roddy only appears as
assistant that way, I think it is proper that I appoint members of
this bar to represent them, I expect that is right. If Mr. Roddy
will appear, I wouldn't of course, I would not appoint anybody. I
don't see, Mr. Roddy, how I can make a qualified appointment or a
limited appointment. Of course, I don't mean to cut off your
assistance in any way -- Well gentlemen, I think you understand it.
" Page 287 U. S. 56 "Mr. Moody: I am willing to go ahead and help Mr. Roddy in
anything I can do about it, under the circumstances."

															"The Court: All right, all the lawyers that will; of course, I
would not require a lawyer to appear if --"

															"Mr. Moody: I am willing to do that for him as a member of the
bar; I will go ahead and help do anything I can do."

															"The Court: All right."

															And in this casual fashion, the matter of counsel in a capital
case was disposed of.

															It thus will be seen that, until the very morning of the trial,
no lawyer had been named or definitely designated to represent the
defendants. Prior to that time, the trial judge had "appointed all
the members of the bar" for the limited "purpose of arraigning the
defendants." Whether they would represent the defendants thereafter
if no counsel appeared in their behalf was a matter of speculation
only, or, as the judge indicated, of mere anticipation on the part
of the court. Such a designation, even if made for all purposes,
would, in our opinion, have fallen far short of meeting, in any
proper sense, a requirement for the appointment of counsel. How
many lawyers were members of the bar does not appear, but, in the
very nature of things, whether many or few, they would not, thus
collectively named, have been given that clear appreciation of
responsibility or impressed with that individual sense of duty
which should and naturally would accompany the appointment of a
selected member of the bar, specifically named and assigned.

															That this action of the trial judge in respect of appointment of
counsel was little more than an expansive gesture, imposing no
substantial or definite obligation upon any one, is borne out by
the fact that, prior to the calling of the case for trial on April
6, a leading member of the local bar accepted employment on the
side of the prosecution Page 287 U. S. 57 and actively participated in the trial. It is true that he said
that, before doing so, he had understood Mr. Roddy would be
employed as counsel for the defendants. This the lawyer in
question, of his own accord, frankly stated to the court, and no
doubt he acted with the utmost good faith. Probably other members
of the bar had a like understanding. In any event, the circumstance
lends emphasis to the conclusion that, during perhaps the most
critical period of the proceedings against these defendants, that
is to say, from the time of their arraignment until the beginning
of their trial, when consultation, thoroughgoing investigation and
preparation were vitally important, the defendants did not have the
aid of counsel in any real sense, although they were as much
entitled to such aid during that period as at the trial itself. People ex rel. Burgess v. Risley, 66 How.Pr. (N.Y.) 67; Batchelor v. State, 189 Ind. 69, 76, 125 N.E. 773.

															Nor do we think the situation was helped by what occurred on the
morning of the trial. At that time, as appears from the colloquy
printed above, Mr. Roddy stated to the court that he did not appear
as counsel, but that he would like to appear along with counsel
that the court might appoint; that he had not been given an
opportunity to prepare the case; that he was not familiar with the
procedure in Alabama, but merely came down as a friend of the
people who were interested; that he thought the boys would be
better off if he should step entirely out of the case. Mr. Moody, a
member of the local bar, expressed a willingness to help Mr. Roddy
in anything he could do under the circumstances. To this, the court
responded, "All right, all the lawyers that will; of course, I
would not require a lawyer to appear if -- ." And Mr. Moody
continued, "I am willing to do that for him as a member of the bar;
I will go ahead and help do anything I can do." With this dubious
understanding, the trials immediately proceeded. The defendants,
young, ignorant, Page 287 U. S. 58 illiterate, surrounded by hostile sentiment, haled back and
forth under guard of soldiers, charged with an atrocious crime
regarded with especial horror in the community where they were to
be tried, were thus put in peril of their lives within a few
moments after counsel for the first time charged with any degree of
responsibility began to represent them.

															It is not enough to assume that counsel thus precipitated into
the case thought there was no defense, and exercised their best
judgment in proceeding to trial without preparation. Neither they
nor the court could say what a prompt and thoroughgoing
investigation might disclose as to the facts. No attempt was made
to investigate. No opportunity to do so was given. Defendants were
immediately hurried to trial. Chief Justice Anderson, after
disclaiming any intention to criticize harshly counsel who
attempted to represent defendants at the trials, said: " . . . the
record indicates that the appearance was rather pro forma than zealous and active. . . ." Under the circumstances disclosed,
we hold that defendants were not accorded the right of counsel in
any substantial sense. To decide otherwise would simply be to
ignore actualities. This conclusion finds ample support in the
reasoning of an overwhelming array of state decisions, among which
we cite the following: Sheppard v. State, 165 Ga. 460,
464, 141 S.E. 196; Reliford v. State, 140 Ga. 777, 79 S.E.
1128; McArver v. State, 114 Ga. 514, 40 S.E. 779; Sanchez v. State, 199 Ind. 235, 246, 157 N.E. l; Batchelor v. State, 189 Ind. 69, 76, 125 N.E. 773; Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W. (2d) 823; Jackson v. Commonwealth, 215 Ky. 800, 287 S.W. 17; State v. Collins, 104 La. 629, 29 So. 180; State v.
Pool, 50 La.Ann. 449, 23 So. 503; People ex rel. Burgess
v. Risley, 66 How.Pr.(N.Y.) 67; State ex rel. Tucker v.
Davis, 9 Okla.Cr. 94, 130 Pac. 962; Commonwealth v.
O'Keefe, 298 Pa. 169, Page 287 U. S. 59 148 Atl. 73; Shaffer v. Territory, 14 Ariz. 329, 333,
127 Pac. 746.

															It is true that great and inexcusable delay in the enforcement
of our criminal law is one of the grave evils of our time.
Continuances are frequently granted for unnecessarily long periods
of time, and delays incident to the disposition of motions for new
trial and hearings upon appeal have come in many cases to be a
distinct reproach to the administration of justice. The prompt
disposition of criminal cases is to be commended and encouraged.
But, in reaching that result, a defendant, charged with a serious
crime, must not be stripped of his right to have sufficient time to
advise with counsel and prepare his defense. To do that is not to
proceed promptly in the calm spirit of regulated justice, but to go
forward with the haste of the mob.

															As the court said in Commonwealth v. O'Keefe, 298 Pa.
169, 173, 148 Atl. 73:

															"It is vain to give the accused a day in court with no
opportunity to prepare for it, or to guarantee him counsel without
giving the latter any opportunity to acquaint himself with the
facts or law of the case."

															" * * * *" "A prompt and vigorous administration of the criminal law is
commendable, and we have no desire to clog the wheels of justice.
What we here decide is that to force a defendant, charged with a
serious misdemeanor, to trial within five hours of his arrest is
not due process of law, regardless of the merits of the case." Compare Reliford v. State, 140 Ga. 777, 778, 79 S.E.
1128. Second. The Constitution of Alabama provides that, in
all criminal prosecutions the accused shall enjoy the right to have
the assistance of counsel, and a state statute requires the court
in a capital case where the defendant Page 287 U. S. 60 is unable to employ counsel to appoint counsel for him. The
state supreme court held that these provisions had not been
infringed, and with that holding we are powerless to interfere. The
question, however, which it is our duty, and within our power, to
decide is whether the denial of the assistance of counsel
contravenes the due process clause of the Fourteenth Amendment to
the federal Constitution.

															If recognition of the right of a defendant charged with a felony
to have the aid of counsel depended upon the existence of a similar
right at common law as it existed in England when our Constitution
was adopted, there would be great difficulty in maintaining it as
necessary to due process. Originally, in England, a person charged
with treason or felony was denied the aid of counsel, except in
respect of legal questions which the accused himself might suggest.
At the same time, parties in civil cases and persons accused of
misdemeanors were entitled to the full assistance of counsel. After
the revolution of 1688, the rule was abolished as to treason, but
was otherwise steadily adhered to until 1836, when, by act of
Parliament, the full right was granted in respect of felonies
generally. 1 Cooley's Const.Lim., 8th ed., 698, et seq., and notes.

															An affirmation of the right to the aid of counsel in petty
offenses, and its denial in the case of crimes of the gravest
character, where such aid is most needed, is so outrageous and so
obviously a perversion of all sense of proportion that the rule was
constantly, vigorously, and sometimes passionately assailed by
English statesmen and lawyers. As early as 1758, Blackstone,
although recognizing that the rule was settled at common law,
denounced it as not in keeping with the rest of the humane
treatment of prisoners by the English law. "For upon what face of
reason," he says, "can that assistance be denied Page 287 U. S. 61 to save the life of a man which yet is allowed him in
prosecutions for every petty trespass?" 4 Blackstone 355. One of
the grounds upon which Lord Coke defended the rule was that, in
felonies, the court itself was counsel for the prisoner. 1 Cooley's
Const.Lim., supra. But how can a judge, whose functions
are purely judicial, effectively discharge the obligations of
counsel for the accused? He can and should see to it that, in the
proceedings before the court, the accused shall be dealt with
justly and fairly. He cannot investigate the facts, advise and
direct the defense, or participate in those necessary conferences
between counsel and accused which sometimes partake of the
inviolable character of the confessional.

															The rule was rejected by the colonies. Before the adoption of
the federal Constitution, the Constitution of Maryland had declared
"That, in all criminal prosecutions, every man hath a right . . .
to be allowed counsel; . . ." (Art. XIX, Constitution of 1776). The
Constitution of Massachusetts, adopted in 1780 (Part the First,
Art. XII), the Constitution of New Hampshire, adopted in 1784 (Part
I, Art. XV), the Constitution of New York of 1777 (Art. XXXIV), and
the Constitution of Pennsylvania of 1776 (Art. IX), had also
declared to the same effect. And, in the case of Pennsylvania, as
early as 1701, the Penn Charter (Art. V) declared that "all
Criminals shall have the same Privileges of Witnesses and Council
as their Prosecutors", and there was also a provision in the
Pennsylvania statute of May 31, 1718 (Dallas, Laws of Pennsylvania,
1700-1781, Vol. 1, p. 134) that, in capital cases, learned counsel
should be assigned to the prisoners.

															In Delaware, the Constitution of 1776 (Art. 25), adopted the
common law of England, but expressly excepted such parts as were
repugnant to the rights and privileges contained in the Declaration
of Rights, and the Declaration of Rights, which was adopted on
September Page 287 U. S. 62 11, 1776, provided (Art. 14) "That in all Prosecutions for
criminal Offences, every Man hath a Right . . . to be allowed
Counsel, . . ." In addition, Penn's Charter, already referred to,
was applicable in Delaware. The original Constitution of New Jersey
of 1776 (Art. XVI) contained a provision like that of the Penn
Charter, to the effect that all criminals should be admitted to the
same privileges of counsel as their prosecutors. The original
Constitution of North Carolina (1776) did not contain the
guarantee, but c. 115, § 85, Sess.Laws, N.Car., 1777
(N.Car.Rev.Laws, 1715-1796, Vol. 1, 316), provided

															". . . That every person accused of any crime or misdemeanor
whatsoever shall be entitled to council in all matters which may be
necessary for his defence, as well to facts as to law; . . ."

															Similarly, in South Carolina, the original Constitution of 1776
did not contain the provision as to counsel, but it was provided as
early as 1731 (Act of August 20, 1731, § XLIII, Grimke,
S.Car.Pub.Laws, 1682-1790, p. 130) that every person charged with
treason, murder, felony, or other capital offense should be
admitted to make full defense by counsel learned in the law. In
Virginia, there was no constitutional provision on the subject,
but, as early as August, 1734 (c. VII, § III, Laws of Va. 8th Geo.
II, Hening's Stat. at Large, Vol. 4, p. 404), there was an act
declaring that, in all trials for capital offenses, the prisoner,
upon his petition to the court, should be allowed counsel.

															The original Constitution of Connecticut (Art. I, § 9) contained
a provision that, "In all criminal prosecutions, the accused shall
have the right to be heard by himself and by counsel"; but this
constitution was not adopted until 1818. However, it appears that
the English common law rule had been rejected in practice long
prior to 1796. See Zephaniah Swift's "A System of the Laws
of the State of Connecticut," printed at Windham by John Page 287 U. S. 63 Byrne, 1795-1796, Vol. II, Bk. 5, "Of Crimes and Punishments,"
c. XXIV, "Of Trials," pp. 398-399. * The original Constitution of Georgia (1777) did not contain a
guarantee in respect of counsel, but the Constitution of 1798 (Art.
III, § 8) provided that

															". . . no person shall be debarred from advocating or defending
his cause before any court or tribunal, either by himself or
counsel, or both."

															What the practice was prior to 1798 we are unable to discover.
The first constitution adopted by Rhode Island was in 1842, and
this constitution contained the usual guarantee in respect of the
assistance of counsel in criminal prosecutions. As early as 1798,
it was provided by statute, in the very language of the Sixth
Amendment to the Federal Constitution, that, "In all criminal
prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defence; . . ." Page 287 U. S. 64 An Act Declaratory of certain Rights of the People of this
State, § 6, Rev.Pub.Laws, Rhode Island and Providence Plantations,
1798. Furthermore, while the statute itself is not available, it is
recorded as a matter of history that, in 1668 or 1669, the colonial
assembly enacted that any person who was indicted might employ an
attorney to plead in his behalf. 1 Arnold, History of Rhode Island,
336.

															It thus appears that, in at least twelve of the thirteen
colonies, the rule of the English common law, in the respect now
under consideration, had been definitely rejected, and the right to
counsel fully recognized in all Page 287 U. S. 65 criminal prosecutions, save that, in one or two instances, the
right was limited to capital offenses or to the more serious
crimes, and this court seems to have been of the opinion that this
was true in all the colonies. In Holden v. Hardy, 169 U. S. 366 , 169 U. S. 386 ,
Mr. Justice Brown, writing for the court, said:

															"The earlier practice of the common law, which denied the
benefit of witnesses to a person accused of felony, had been
abolished by statute, though, so far as it deprived him of the
assistance of counsel and compulsory process for the attendance of
his witnesses, it had not been changed in England. But to the
credit of her American colonies, let it be said that so oppressive
a doctrine had never obtained a foothold there."

															One test which has been applied to determine whether due process
of law has been accorded in given instances is to ascertain what
were the settled usages and modes of proceeding under the common
and statute law of England before the Declaration of Independence,
subject, however, to the qualification that they be shown not to
have been unsuited to the civil and political conditions of our
ancestors by having been followed in this country after it became a
nation. Lowe v. Kansas, 163 U. S. 81 , 163 U. S. 85 . Compare 59 U. S. Hoboken
Land & Improvement Co., 18 How. 272, 59 U. S.
276 -277; Twining v. New Jersey, 211 U. S.
78 , 211 U. S.
100 -101. Plainly, as appears from the foregoing, this
test, as thus qualified, has not been met in the present case.

															We do not overlook the case of Hurtado v. California, 110 U. S. 516 ,
where this court determined that due process of law does not
require an indictment by a grand jury as a prerequisite to
prosecution by a state for murder. In support of that conclusion
the court (pp. 110 U. S.
534 -535) referred to the fact that the Fifth Amendment,
in addition to containing the due process of law clause,
provides Page 287 U. S. 66 in explicit terms that "No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, . . . ", and said that, since no part
of this important amendment could be regarded as superfluous, the
obvious inference is that, in the sense of the Constitution, due
process of law was not intended to include, ex vi termini, the institution and procedure of a grand jury in any case, and that
the same phrase, employed in the Fourteenth Amendment to restrain
the action of the states, was to be interpreted as having been used
in the same sense and with no greater extent, and that, if it had
been the purpose of that Amendment to perpetuate the institution of
the grand jury in the states, it would have embodied, as did the
Fifth Amendment, an express declaration to that effect.

															The Sixth Amendment, in terms, provides that, in all criminal
prosecutions, the accused shall enjoy the right "to have the
assistance of counsel for his defense." In the face of the
reasoning of the Hurtado case, if it stood alone, it would
be difficult to justify the conclusion that the right to counsel,
being thus specifically granted by the Sixth Amendment, was also
within the intendment of the due process of law clause. But the Hurtado case does not stand alone. In the later case of Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 241 ,
this court held that a judgment of a state court, even though
authorized by statute, by which private property was taken for
public use without just compensation, was in violation of the due
process of law required by the Fourteenth Amendment notwithstanding
that the Fifth Amendment explicitly declares that private property
shall not be taken for public use without just compensation. This
holding was followed in Norwood v. Baker, 172 U.
S. 269 , 172 U. S. 277 ; Smyth v. Ames, 169 U. S. 466 , 169 U. S. 524 ,
and San Diego Land Co. v. National City, 174 U.
S. 739 , 174 U. S.
754 . Page 287 U. S. 67 Likewise, this court has considered that freedom of speech and
of the press are rights protected by the due process clause of the
Fourteenth Amendment, although in the First Amendment, Congress is
prohibited in specific terms from abridging the right. Gitlow
v. New York, 268 U. S. 652 , 268 U. S. 666 ; Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S.
707 .

															These later cases establish that, notwithstanding the sweeping
character of the language in the Hurtado case, the rule
laid down is not without exceptions. The rule is an aid to
construction, and in some instances may be conclusive, but it must
yield to more compelling considerations whenever such
considerations exist. The fact that the right involved is of such a
character that it cannot be denied without violating those
"fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions" ( Hebert v.
Louisiana, 272 U. S. 312 , 272 U. S.
316 ), is obviously one of those compelling
considerations which must prevail in determining whether it is
embraced within the due process clause of the Fourteenth Amendment,
although it be specifically dealt with in another part of the
federal Constitution. Evidently this court, in the later cases
enumerated, regarded the rights there under consideration as of
this fundamental character. That some such distinction must be
observed is foreshadowed in Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 99 ,
where Mr. Justice Moody, speaking for the court, said that

															". . . it is possible that some of the personal rights
safeguarded by the first eight Amendments against National action
may also be safeguarded against state action, because a denial of
them would be a denial of due process of law. Chicago,
Burlington & Quincy R. Co. v. Chicago, 166 U. S.
226 . If this is so, it is not because those rights are
enumerated in the first eight Amendments, but because they are of
such a nature that they are included in Page 287 U. S. 68 the conception of due process of law."

															While the question has never been categorically determined by
this court, a consideration of the nature of the right and a review
of the expressions of this and other courts, makes it clear that
the right to the aid of counsel is of this fundamental
character.

															It never has been doubted by this court, or any other, so far as
we know, that notice and hearing are preliminary steps essential to
the passing of an enforceable judgment, and that they, together
with a legally competent tribunal having jurisdiction of the case,
constitute basic elements of the constitutional requirement of due
process of law. The words of Webster, so often quoted, that, by
"the law of the land" is intended "a law which hears before it
condemns" have been repeated in varying forms of expression in a
multitude of decisions. In Holden v. Hardy, 169 U.
S. 366 , 169 U. S. 389 ,
the necessity of due notice and an opportunity of being heard is
described as among the "immutable principles of justice which
inhere in the very idea of free government which no member of the
Union may disregard." And Mr. Justice Field, in an earlier case, Galpin v.
Page , 18 Wall. 350, 85 U. S.
368 -369, said that the rule that no one shall be
personally bound until he has had his day in court was as old as
the law, and it meant that he must be cited to appear and afforded
an opportunity to be heard.

															"Judgment without such citation and opportunity wants all the
attributes of a judicial determination; it is judicial usurpation
and oppression, and never can be upheld where justice is justly
administered."

															Citations to the same effect might be indefinitely multiplied,
but there is no occasion for doing so.

															What, then, 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 party
asserting the right. The right Page 287 U. S. 69 to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He 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 at 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. If that be true of
men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect. If in any case, civil or
criminal, a state or federal court were arbitrarily to refuse to
hear a party by counsel, employed by and appearing for him, it
reasonably may not be doubted that such a refusal would be a denial
of a hearing, and, therefore, of due process in the constitutional
sense.

															The decisions all point to that conclusion. In Cooke v.
United States, 267 U. S. 517 , 267 U. S. 537 ,
it was held that, where a contempt was not in open court, due
process of law required charges and a reasonable opportunity to
defend or explain. The court added, "We think this includes the
assistance of counsel, if requested, . . ." In numerous other
cases, the court, in determining that due process was accorded, has
frequently stressed the fact that the defendant had the aid of
counsel. See, for example, Felts v. Murphy, 201 U.
S. 123 , 201 U. S. 129 ; Frank v. Mangum, 237 U. S. 309 , 237 U. S. 344 ; Kelley v. Oregon, 273 U. S. 589 , 273 U. S. 591 .
In Ex parte Hidekuni Iwata, 219 Fed. 610, 611, the federal
district Page 287 U. S. 70 judge enumerated among the elements necessary to due process of
law in a deportation case the opportunity at some stage of the
hearing to secure and have the advice and assistance of counsel. In Ex parte Chin Loy You, 223 Fed. 833, also a deportation
case, the district judge held that, under the particular
circumstances of the case, the prisoner, having seasonably made
demand, was entitled to confer with and have the aid of counsel.
Pointing to the fact that the right to counsel as secured by the
Sixth Amendment relates only to criminal prosecutions, the judge
said,

															". . . but it is equally true that that provision was inserted
in the Constitution because the assistance of counsel was
recognized as essential to any fair trial of a case against a
prisoner."

															In Ex parte Riggins, 134 Fed. 404, 418, a case
involving the due process clause of the Fourteenth Amendment, the
court said, by way of illustration, that, if the state should
deprive a person of the benefit of counsel, it would not be due
process of law. Judge Cooley refers to the right of a person
accused of crime to have counsel as perhaps his most important
privilege, and, after discussing the development of the English law
upon that subject, says: "With us, it is a universal principle of
constitutional law that the prisoner shall be allowed a defense by
counsel." 1 Cooley's Const.Lim., 8th ed., 700. The same author, as
appears from a chapter which he added to his edition of Story on
the Constitution, regarded the right of the accused to the
presence, advice and assistance of counsel a necessarily included
in due process of law. 2 Story on the Constitution, 4th ed., §
1949, p. 668. The state decisions which refer to the matter
invariably recognize the right to the aid of counsel as fundamental
in character. E.g., People v. Napthaly, 105 Cal. 641, 644,
39 Pac. 29; Cutts v. State, 54 la. 21, 23, 45 So. 491; Martin v. State, 51 Ga. 567, 568; Sheppard v.
State, 165 Ga. 460, 464, 141 S.E. 196; State v.
Moore, 61 Kan. 732, 734, 60 Pac. 748; Page 287 U. S. 71 State v. Ferris, 16 La.Ann. 424; State v.
Simson, 38 La.Ann. 23, 24; State v. Briggs, 58 W.Va.
291, 292, 52 S.E. 218.

															In the light of the facts outlined in the forepart of this
opinion -- the ignorance and illiteracy of the defendants, their
youth, the circumstances of public hostility, the imprisonment and
the close surveillance of the defendants by the military forces,
the fact that their friends and families were all in other states
and communication with them necessarily difficult, and, above all,
that they stood in deadly peril of their lives -- we think the
failure of the trial court to give them reasonable time and
opportunity to secure counsel was a clear denial of due
process.

															But passing that, and assuming their inability, even if
opportunity had been given, to employ counsel, as the trial court
evidently did assume, we are of opinion that, under the
circumstances just stated, 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 within the meaning of the Fourteenth Amendment. 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 counsel for him as a necessary
requisite of due process of law, and that duty is not discharged by
an assignment at such a time or under such circumstances as to
preclude the giving of effective aid in the preparation and trial
of the case. To hold otherwise would be to ignore the fundamental
postulate, already adverted to,

															"that there are certain immutable principles of justice which
inhere in the very idea of free government which Page 287 U. S. 72 no member of the Union may disregard." Holden v. Hardy, supra. In a case such as this,
whatever may be the rule in other cases, the right to have counsel
appointed, when necessary, is a logical corollary from the
constitutional right to be heard by counsel. Compare Carpenter
& Sprague v. Dane County, 9 Wis. 274; Dane County v.
Smith, 13 Wis. 585, 586. Hendryx v. State, 130 Ind.
265, 268-269, 29 N.E. 1131; Cutts v. State, 54 Fla. 21,
23, 45 So. 491; People v. Goldenson, 76 Cal. 328, 344, 19
Pac. 161; Delk v. State, 99 Ga. 667, 669-670, 26 S.E.
752.

															In Hendryx v. State, supra, there was no statute
authorizing the assignment of an attorney to defend an indigent
person accused of crime, but the court held that such an assignment
was necessary to accomplish the ends of public justice, and that
the court possessed the inherent power to make it. "Where a
prisoner," the court said (p. 269),

															"without legal knowledge, is confined in jail, absent from his
friends, without the aid of legal advice or the means of
investigating the charge against him, it is impossible to conceive
of a fair trial where he is compelled to conduct his cause in
court, without the aid of counsel. . . . Such a trial is not far
removed from an ex parte proceeding."

															Let us suppose the extreme case of a prisoner charged with a
capital offense who is deaf and dumb, illiterate and feeble minded,
unable to employ counsel, with the whole power of the state arrayed
against him, prosecuted by counsel for the state without assignment
of counsel for his defense, tried, convicted and sentenced to
death. Such a result, which, if carried into execution, would be
little short of judicial murder, it cannot be doubted would be a
gross violation of the guarantee of due process of law, and we
venture to think that no appellate court, state or federal, would
hesitate so to decide. See Stephenson v. State, 4 Ohio
App. 128; Williams v. State, 163 Ark. 623, Page 287 U. S.
73 628, 260 S.W. 721; Grogan v. Commonwealth, 222 Ky.
484, 485, 1 S.W.2d 779; Mullen v. State, 28 Okla.Cr. 218, 230,
230 Pac. 285; Williams v. Commonwealth, (Ky.), 110 S.W.
339, 340. The duty of the trial court to appoint counsel under such
circumstances is clear, as it is clear under circumstances such as
are disclosed by the record here, and its power to do so, even in
the absence of a statute, cannot be questioned. Attorneys are
officers of the court, and are bound to render service when
required by such an appointment. See Cooley, Const.Lim., supra, 700 and note.

															The United States, by statute, and every state in the Union, by
express provision of law or by the determination of its courts,
make it the duty of the trial judge, where the accused is unable to
employ counsel, to appoint counsel for him. In most states, the
rule applies broadly to all criminal prosecutions; in others, it is
limited to the more serious crimes; and in a very limited number,
to capital cases. A rule adopted with such unanimous accord
reflects, if it does not establish, the inherent right to have
counsel appointed, at least in cases like the present, and lends
convincing support to the conclusion we have reached as to the
fundamental nature of that right.

															The judgments must be reversed, and the causes remanded for
further proceedings not inconsistent with this opinion. Judgments reversed. * This ancient work, consisting of six books, has long been out
of print. A copy of it is preserved in the locked files of the
Library of Congress. The following extract from the pages cited is
both interest ing and instructive:

															"The attorney for the state then proceeds to lay before the jury
all the evidence against the prisoner, without any remarks or
arguments. The prisoner by himself, or counsel, is then allowed to
produce witnesses to counteract and obviate the testimony against
him, and to exculpate himself with the same freedom as in civil
cases. We have never admitted that cruel and illiberal principle of
the common law of England that, when a man is on trial for his
life, he shall be refused counsel, and denied those means of
defence, which are allowed when the most trifling pittance of
property is in question. The flimsy pretence that the court are to
be counsel for the prisoner will only heighten our indignation at
the practice, for it is apparent to the least consideration that a
court can never furnish a person accused of a crime with the advice
and assistance necessary to make his defence. This doctrine might
with propriety have been advanced at the time when, by the common
law of England, no witnesses could be adduced on the part of the
prisoner to manifest his innocence, for he could then make no
preparation for his defense. One cannot read without horror and
astonishment the abominable maxims of law which deprived persons
accused and on trial for crimes of the assistance of counsel,
except as to points of law, and the advantage of witnesses to
exculpate themselves from the charge. It seems by the ancient
practice that, whenever a person was accused of a crime, every
expedient was adopted to convict him and every privilege denied him
to prove his innocence. In England, however, as the law now stands,
prisoners are allowed the full advantage of witnesses, but
excepting in a few cases, the common law is enforced in denying
them counsel except as to points of law"

															"Our ancestors, when they first enacted their laws respecting
crimes, influenced by the illiberal principles which they had
imbibed in their native country, denied counsel to prisoners to
plead for them to anything but points of law. It is manifest that
there is as much necessity for counsel to investigate matters of
fact as points of law if truth is to be discovered."

															"The legislature has become so thoroughly convinced of the
impropriety and injustice of shackling and restricting a prisoner
with respect to his defence that they have abolished all those
odious laws, and every person, when he is accused of a crime, is
entitled to every possible privilege in making his defence and
manifesting his innocence by the instrumentality of counsel and the
testimony of witnesses."

															The early statutes of Connecticut, upon examination, do not seem
to be as clear as this last paragraph would indicate; but Mr.
Swift, writing in 1796, was in a better position to know how the
statutes had been interpreted and applied in actual practice than
the reader of today, and we see no reason to reject his
statement.

															MR. JUSTICE BUTLER, dissenting.

															The Court, putting aside -- they are utterly without merit --
all other claims that the constitutional rights of petitioners were
infringed, grounds its opinion and judgment upon a single assertion
of fact. It is that petitioners "were denied the right of counsel,
with the accustomed incidents of consultation and opportunity of
preparation for trial." If that is true, they were denied due
process Page 287 U. S. 74 of law and are entitled to have the judgments against them
reversed.

															But no such denial is shown by the record.

															Nine defendants, including Patterson, were accused in one
indictment, and he was also separately indicted. Instead of trying
them en masse, the State gave four trials, and so lessened
the danger of mistake and injustice that inevitably attends an
attempt in a single trial to ascertain the guilt or innocence of
many accused. Weems and Norris were tried first. Patterson was
tried next on the separate indictment. Then five were tried. These
eight were found guilty. The other defendant, Roy Wright, was tried
last, and not convicted. The convicted defendants took the three
cases to the state supreme court, where the judgment as to Williams
was reversed and those against the seven petitioners were
affirmed.

															There were three painstaking opinions, a different justice
writing for the court in each case. 224 Ala. 524, 531, 540, 141 So.
215, 195, 201. Many of the numerous questions decided were raised
at the trial, and reflect upon defendants' counsel much credit for
zeal and diligence on behalf of their clients. Seven justices heard
the cases. The chief justice, alone dissenting, did not find any
contention for the accused sufficient, in itself, to warrant a
reversal, but alluded to a number of considerations which he deemed
sufficient, when taken together, to warrant the conclusion that the
defendants did not have a fair trial. The court said (p. 553):

															"We think it a bit inaccurate to say Mr. Roddy appeared only as amicus curiae. [This refers to a remark in the dissenting
opinion.] He expressly announced he was there from the beginning at
the instance of friends of the accused; but not being paid counsel
asked to appear not as employed counsel, but to aid local counsel
appointed by the court, and was permitted so to appear. The
defendants were represented as shown by the record and pursuant to
appointment of the Page 287 U. S. 75 court by Hon. Milo Moody, an able member of the local bar of
long and successful experience in the trial of criminal, as well as
civil, cases. We do not regard the representation of the accused by
counsel as pro forma. A very rigorous and rigid
cross-examination was made of the state's witnesses, the alleged
victims of rape, especially in the cases first tried. A reading of
the records discloses why experienced counsel would not travel over
all the same ground in each case."

															The informality disclosed by the colloquy between court and
counsel, which is quoted in the opinion of this Court and so
heavily leaned on, is not entitled to any weight. It must be
inferred from the record that Mr. Roddy at all times was in touch
with the defendants and the people who procured him to act for
them. Mr. Moody and others of the local bar also acted for
defendants at the time of the first arraignment, and, as appears
from the part of the record that is quoted in the opinion,
thereafter proceeded in the discharge of their duty, including
conferences with the defendants. There is not the slightest ground
to suppose that Roddy or Moody were by fear or in any manner
restrained from full performance of their duties. Indeed, it
clearly appears that the State, by proper and adequate show of its
purpose and power to preserve order, furnished adequate protection
to them and the defendants.

															When the first case was called for trial, defendants' attorneys
had already prepared, and then submitted, a motion for change of
venue, together with supporting papers. They were ready to, and did
at once, introduce testimony of witnesses to sustain that demand.
They had procured, and were ready to offer, evidence to show that
the defendants Roy Wright and Eugene Williams were under age. The
record shows that the State's evidence was ample to warrant a
conviction. And three defendants each, while asserting his own
innocence, testified that he Page 287 U. S. 76 saw others accused commit the crime charged. When regard is had
to these and other disclosures that may have been, and probably
were, made by petitioners to Roddy and Moody before the trial, it
would be difficult to think of anything that counsel erroneously
did or omitted for their defense.

															If there had been any lack of opportunity for preparation, trial
counsel would have applied to the court for postponement. No such
application was made. There was no suggestion, at the trial or in
the motion for a new trial which they made, that Mr. Roddy or Mr.
Moody was denied such opportunity, or that they were not, in fact,
fully prepared. The amended motion for new trial, by counsel who
succeeded them, contains the first suggestion that defendants were
denied counsel or opportunity to prepare for trial. But neither Mr.
Roddy nor Mr. Moody has given any support to that claim. Their
silence requires a finding that the claim is groundless, for if it
had any merit, they would be bound to support it. And no one has
come to suggest any lack of zeal or good faith on their part.

															If correct, the ruling that the failure of the trial court to
give petitioners time and opportunity to secure counsel was denial
of due process is enough, and with this, the opinion should end.
But the Court goes on to declare that

															"the failure of the trial court to make an effective appointment
of counsel was likewise a denial of due process within the meaning
of the Fourteenth Amendment."

															This is an extension of federal authority into a field hitherto
occupied exclusively by the several States. Nothing before the
Court calls for a consideration of the point. It was not suggested
below, and petitioners do not ask for its decision here. The Court,
without being called upon to consider it, adjudges without a
hearing an important constitutional question concerning criminal
procedure in state courts. Page 287 U. S. 77 It is a wise rule, firmly established by a long course of
decisions here, that constitutional questions -- even when properly
raised and argued -- are to be decided only when necessary for a
determination of the rights of the parties in controversy before
it. Thus, in the Charles River Bridge
Case , 11 Pet. 420, the Court said (p. 36 U. S.
553 ):

															"Many other questions of the deepest importance have been raised
and elaborately discussed in the argument. It is not necessary, for
the decision of this case, to express our opinion upon them, and
the Court deem it proper to avoid volunteering an opinion on any
question involving the construction of the constitution where the
case itself does not bring the question directly before them, and
make it their duty to decide upon it." And see Davidson v. New Orleans, 96 U. S.
97 , 96 U. S. 103 , et seq. Haguenstein v. Lynham, 100 U.
S. 483 , 100 U. S. 490 . Blair v. United States, 250 U. S. 273 , 250 U. S. 279 . Adkins v. Children's Hospital, 261 U.
S. 525 , 261 U. S.
544 .

															The record wholly fails to reveal that petitioners have been
deprived of any right guaranteed by the Federal Constitution, and I
am of opinion that the judgment should be affirmed.

															MR. JUSTICE McREYNOLDS concurs in this opinion.

Summary: In Powell v. Alabama, the United States Supreme Court held that the right to counsel in a criminal case is a fundamental right guaranteed by the Due Process Clause of the Fourteenth Amendment, especially in capital cases. The Court ruled that it is the duty of the court to assign counsel for defendants who are unable to employ their own, and this right to counsel includes the right to have sufficient time to prepare a defense. The Court also stated that the trial court has the power to appoint an attorney for the accused, even in the absence of a statute.


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."

Summary: The Supreme Court ruled that the prosecution's suppression of a confession that may have mitigated the defendant's role in a crime violated the Due Process Clause of the Fourteenth Amendment, granting a new trial for the petitioner.