Petitioner, an illiterate, was tried in a Florida State Court
without counsel and was convicted of serious noncapital offenses.
The record was silent as to whether he had been offered and had
waived counsel, but it clearly showed that he was incapable of
conducting his own defense.
1. Petitioner's case was one in which the assistance of counsel,
unless intelligently and understandingly waived by him, was a right
guaranteed him by the Fourteenth Amendment. Pp. 369 U. S.
2. Presuming waiver of counsel from a silent record is
impermissible. To sustain a claim that counsel was waived, the
record must show, or there must be an allegation and evidence which
show, that the accused was offered counsel but intelligently and
understandingly rejected the offer. Pp. 369 U. S.
So. 2d 249
, reversed and cause remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The petitioner, who was not afforded the assistance of counsel
for his defense at his trial, claims that, for this reason, his
conviction by a jury in the Court of Record for Escambia County,
Florida, deprived him of rights guaranteed by the Fourteenth
Amendment. He obtained a provisional writ of habeas corpus from the
Florida Supreme Court on his petition asserting that claim.
Page 369 U. S. 507
However, that court, on the petition, the respondent's return
and the petitioner's reply -- but without any hearing -- discharged
the writ. 123 So. 2d
. Since an important constitutional right is involved, we
granted certiorari and appointed counsel to represent the
petitioner in this Court. 366 U.S. 958, 368 U.S. 806.
The assistance of counsel might well have materially aided the
petitioner in coping with several aspects of the case. He was
charged with the non-capital offenses of incestuous sexual
intercourse with his 13-year-old daughter and, in a separate count
relating to the same acts, fondling a minor child, that is, assault
in a lewd, lascivious and indecent manner, upon a female child
under the age of 14. At the time of trial, two sets of Florida
criminal statutes contained language reaching such behavior.
Sections 741.22 and 800.04, Florida Statutes, 1959, were generally
criminal provisions separately defining the two offenses of incest
and assault in a lewd, lascivious, and indecent manner. In
addition, both offenses were included within the later enacted
Chapter 801 of the Florida Statutes -- Florida's so-called Child
Molester Act -- if the victim was 14 years of age or younger.
] The Florida
Page 369 U. S. 508
plainly conceived the petitioner's prosecution for both offenses
as having been under the Child Molester Act. 123 So. 2d at 250.
While that is an obviously plausible view, a lawyer, but not a
layman, might have perceived that, because the Child Molester Act
was invoked against the petitioner in respect of conduct elsewhere
specifically defined as criminal, the 1954 decision of the Florida
Supreme Court in Copeland v. State, 76 So. 2d
, raised doubts, under the Florida Constitution, of the
validity of a prosecution based on the Act. [Footnote 2
] The picture is further complicated by
the fact that the Child Molester Act had included no reference to
incest prior to an amendment made subsequent to the petitioner's
alleged offense. [Footnote
Establishing the basis of the petitioner's prosecution was
vitally important for the protection of his rights. If the Child
Molester Act was validly applied against the
Page 369 U. S. 509
petitioner, counsel could have materially assisted him by
invoking on his behalf the special provisions of that law governing
the disposition of defendants charged under it. Sections 741.22 and
800.04 authorize only jail sentences. In contrast, the Child
Molester Act empowers the sentencing judge in a proper case to
commit the convicted defendant to a Florida state hospital for
treatment and rehabilitation. [Footnote 4
] That law also permits the accused to
Page 369 U. S. 510
petition for a psychiatric or psychological examination for the
purpose of assisting the court in the trial of the case. [Footnote 5
There are thus present considerations of a sort often deemed
sufficient to require the conclusion that a trial for crime without
defense counsel did not measure up to the requirements of the
Fourteenth Amendment. See, e.g., Chewning v. Cunningham,
368 U. S. 443
368 U. S.
-447; Reynolds v. Cochran, 365 U.
, 365 U. S.
-532; McNeal v. Culver, 365 U.
, 365 U. S.
-116; Rice v. Olson, 324 U.
, 324 U. S.
Other aspects of this record also support petitioner's claim of
the unfairness of trying him without affording him the help of a
lawyer. As must generally be the case, the trial judge could not
effectively discharge the roles of both judge and defense counsel.
Here, the record shows that the trial judge made efforts to assist
the petitioner, but there were important omissions in the guidance
he gave. He did not fully apprise the petitioner of vital
Page 369 U. S. 511
procedural rights of which laymen could not be expected to know
but to which defense counsel doubtless would have called attention.
The omissions are significant. See, e.g., Cash v. Culver,
358 U. S. 633
358 U. S.
-638; Gibbs v. Burke, 337 U.
, 337 U. S.
-778; Hudson v. North Carolina, 363 U.
, 363 U. S.
-703. Despite the allegation in respondent's return
"the petitioners were carefully instructed by the trial court
with regard to the rights guaranteed by both the Constitution
and the Constitution of the United States,
] and with regard to
the procedures to be followed during the course of the trial,"
it appears that, while petitioner was advised that he need not
testify, he was not told what consequences might follow if he did
testify. He chose to testify, and his criminal record was brought
out on his cross-examination. For defense lawyers, it is
commonplace to weigh the risk to the accused of the revelation on
cross-examination of a prior criminal record when advising an
accused whether to take the stand in his own behalf; for
petitioner, the question had to be decided in ignorance of this
important consideration. Nor does it appear that the trial judge
advised the petitioner of his right to examine prospective jurors
on voir dire,
or of his right to submit proposed
instructions to the jury, or of his right to object to the
instructions that were given.
Other circumstances attending this case only serve to accentuate
the unfairness of trial without counsel. Petitioner is illiterate.
He did not interpose a single objection during the trial. The only
two witnesses against him were his daughter and a 15-year-old son.
Although both petitioner and his wife testified that they had
experienced disciplinary problems with the children, and thus
clearly revealed a possibly significant avenue for impeachment
Page 369 U. S. 512
the children's testimony, there was no cross-examination worthy
of the name. [Footnote 7
We hold that petitioner's case was one in which the assistance
of counsel, unless intelligently and understandingly
Page 369 U. S. 513
waived by him, was a right guaranteed him by the Fourteenth
We must therefore consider whether the petitioner did
intelligently and understandingly waive the assistance of counsel.
The record does not show that the trial judge offered, and the
petitioner declined, counsel. Cf. Moore v. Michigan,
355 U. S. 155
355 U. S.
-161. Nevertheless, the State Supreme Court imputed
to petitioner the waiver of the benefit of counsel on a ground
stated in the court's opinion as follows: "If the record shows that
defendant did not have counsel . . . , it will be presumed that
defendant waived the benefit of counsel. . . ." 123 So. 2d at 251.
This might mean that the petitioner could have suffered no
constitutional deprivation if he had not formally requested
counsel, and that failure to make such a request is to be presumed
unless the record shows the contrary. But it is settled that where
the assistance of counsel is a constitutional requisite, the right
to be furnished counsel does not depend on a request. [Footnote 8
] In McNeal v. Culver,
the petitioner's allegation that he had requested
counsel was countered by a denial in the return that "petitioner's
constitutional rights were violated by the court's alleged refusal
to appoint counsel in his behalf," and the State Supreme Court
noted that the record was silent as to any request. We held that
when the Constitution grants protection against criminal
proceedings without the assistance of counsel, counsel must be
furnished "whether or not the accused requested the appointment of
counsel. Uveges v. Pennsylvania, 335 U.
, 335 U. S.
." 365 U.S. at 365 U. S. 111
note 1. See Rice v. Olson, supra,
at 324 U. S. 788
Gibbs v. Burke, supra,
at 337 U. S.
Page 369 U. S. 514
However, the Florida Supreme Court may not have meant that the
constitutional right to counsel depends upon a formal request. The
court may have meant that, from the very fact that no counsel was
present, it would be assumed that the trial judge made an offer of
counsel which the petitioner declined. [Footnote 9
] Or, it may have meant that it would assume
simply that petitioner knew of his right to counsel and was willing
to forego it. Of course, the validity of such presumptions is
immediately called in question, because the accused has no way of
protecting against them during his trial except by requesting
counsel -- a formality upon which we have just said his right may
not be made to depend. Nor is it an answer to say that he may
counter such presumptions on collateral attack by showing -- if he
can -- that he had not in fact agreed, or been willing, to be tried
without counsel. To cast such a burden on the accused is wholly at
war with the standard of proof of waiver of the right to counsel
which we laid down in Johnson v. Zerbst, 304 U.
, 304 U. S.
"It has been pointed out that 'courts indulge every reasonable
presumption against waiver' of fundamental constitutional rights,
and that we 'do not presume acquiescence in the loss of fundamental
"* * * *"
"The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court, in
which the accused -- whose life or liberty is at stake -- is
without counsel. This protecting duty imposes the serious and
Page 369 U. S. 515
responsibility upon the trial judge of determining whether there
is an intelligent and competent waiver by the accused. While an
accused may waive the right to counsel, whether there is a proper
waiver should be clearly determined by the trial court, and it
would be fitting and appropriate for that determination to appear
upon the record."
We have held the principles declared in Johnson v.
equally applicable to asserted waivers of the right to
counsel in state criminal proceedings. In Rice v. Olson,
the petitioner had pleaded guilty to a burglary charge.
He did not claim that he had requested counsel, but alleged that he
had not been advised of his right to the assistance of counsel, and
that he had not waived that right. In affirming the denial of
relief, the State Supreme Court wrote that
"It is not necessary that there be a formal waiver; and a waiver
will ordinarily be implied where accused appears without counsel
and fails to request that counsel be assigned to him, particularly
where accused voluntarily pleads guilty."
We held that, even when there had been a guilty plea, such an
implication, treated as a conclusive presumption, was "inconsistent
with our interpretation of the scope of the Fourteenth Amendment,"
and that "[a] defendant who pleads guilty is entitled to the
benefit of counsel, and a request for counsel is not necessary."
324 U.S. at 324 U. S. 788
However, we recognized in Rice v. Olson
that, although the
Fourteenth Amendment would not countenance any presumption of
waiver from the appearance of the accused without counsel and the
silence of the record as to a request, the entry of the guilty plea
might have raised a fact issue as to whether the accused did not
intelligently and understandingly waive his constitutional right.
We held that a hearing was required since the facts were in
Page 369 U. S. 516
dispute. In the present case, however, there was no guilty plea,
and the return to the writ does not allege an affirmative waiver.
there is no disputed fact question requiring a hearing. Presuming
waiver from a silent record is impermissible. The record must show,
or there must be an allegation and evidence which show, that an
accused was offered counsel but intelligently and understandingly
rejected the offer. Anything less is not waiver.
Neither Bute v. Illinois, 333 U.
, nor Moore v. Michigan, supra,
is in any
way inconsistent with our holding and disposition here. In
in which the petitioner pleaded guilty without
having requested counsel, it was alleged that he had not been
advised of his right of counsel. The Court held that there had been
no denial of a constitutional right, but it expressly disclaimed a
waiver rationale. It decided simply that the nature of the charge
and the circumstances attending the reception of the guilty plea,
as recited in that record, were not such as to call into play any
constitutionally protected right to counsel. In Moore,
record showed clearly that the petitioner had expressly declined an
offer of counsel by the trial judge, and we held that the accused
had to show by a preponderance of the evidence that his
acquiescence was not sufficiently understanding and intelligent to
amount to an effective waiver. But no such burden can be imposed
upon an accused unless the record -- or a hearing,
Page 369 U. S. 517
where required -- reveals his affirmative acquiescence. Where,
as in this case, the constitutional infirmity of trial without
counsel is manifest, and there is not even an allegation, much less
a showing, of affirmative waiver, the accused is entitled to relief
from his unconstitutional conviction.
The judgment of the Florida Supreme Court is reversed, and the
cause is remanded for proceedings not inconsistent with this
Reversed and remanded.
MR. JUSTICE HARLAN concurs in the result.
MR. JUSTICE FRANKFURTER took no part in the decision of this
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
Fla.Stat., 1959, § 741.22:
"Punishment for incest. -- Persons within the degrees of
consanguinity within which marriages are prohibited or declared by
law to be incestuous and void, who intermarry or commit adultery or
fornication with each other, shall be punished by imprisonment in
the state prison not exceeding twenty years, or in the county jail
not exceeding one year."
Fla.Stat., 1959, § 800.04:
"Lewd, lascivious or indecent assault or act upon or in presence
of child. -- Any person who shall handle, fondle or make an assault
upon any male or female child under the age of fourteen years in a
lewd, lascivious or indecent manner, or who shall knowingly commit
any lewd or lascivious act in the presence of such child, without
intent to commit rape where such child is female, shall be deemed
guilty of a felony and punished by imprisonment in the state prison
or county jail for not more than ten years."
Fla.Stat., 1959, § 801.02:
"Definitions. -- An offense under the provisions of this chapter
shall include attempted rape, sodomy, attempted sodomy, crimes
against nature, attempted crimes against nature, lewd and
lascivious behavior, incest and attempted incest, assault (when a
sexual act is completed or attempted) and assault and battery (when
a sexual act is completed or attempted), when said acts are
committed against, to, or with a person fourteen years of age or
In the Copeland case, supra,
the Florida Supreme Court
held that the inclusion of rape in the Child Molester Act -- with
its attendant alteration in the consequences of that offense when
committed against a child of 14 or younger -- ran afoul of the
State Constitution because the Act embraced 11 distinct crimes
separately dealt with in other statutes, because the Act failed to
set forth at length the general rape provisions which were pro
amended, and because the title of the Act failed to give
notice that the consequences of rape had been changed. But see
Buchanan v. State,
111 So. 2d 51, in which the District Court
of Appeal upheld the Child Molester Act as applied to lewd and
Florida Laws, E.S.1957, c. 57-1990.
Fla.Stat., 1959, § 801.03(1):
"Powers and duties of judge after convictions. --"
"(1) When any person has been convicted of an offense within the
meaning of this chapter, it shall be within the power and
jurisdiction of the trial judge to:"
"(a) Sentence said person to a term of years not to exceed
twenty-five years in the state prison at Raiford."
"(b) Commit such person for treatment and rehabilitation to the
Florida state hospital, or to the hospital or the state institution
to which he would be sent as provided by law because of his age or
color provided the hospital or institution possesses a maximum
security facility as prescribed by the board of commissioners of
state institutions. When, as provided for in this law, there shall
have been created and established a Florida research and treatment
center then the trial judge shall, instead of committing a person
to the Florida state hospital, commit such person instead to the
Florida research and treatment center. In any such case the court
may, in its discretion, stay further criminal proceedings or defer
the imposition of sentence pending the discharge of such person
from further treatment in accordance with the procedure as outlined
in this chapter."
Fla.Stat., 1959, § 801.08:
"Execution of judgment may be suspended; probation;
requirements. -- "
"(1) The trial judge under whose jurisdiction a conviction is
obtained may suspend the execution of judgment and place the
defendant upon probation."
"(2) The trial court placing a defendant on probation may at any
time revoke the order placing such defendant on probation and
impose such sentence or commitment as might have been imposed at
the time of conviction."
"(3) No defendant shall be placed on probation or continue on
probation until the court is satisfied that the defendant will take
regular psychiatric, psychotherapeutic or counseling help, and the
individual helping the defendant shall make written reports at
intervals of not more than six months to the court and the
probation officer in charge of the case. The costs, fees and
charges for treatment of a defendant on probation shall not be a
charge of the county where the defendant was tried."
Fla.Stat., 1959, § 801.10:
"Examination; petition for, court order. -- When any person is
charged with an offense within the purview of this chapter, said
person may petition the court for a psychiatric and psychological
examination as heretofore set out and the written report shall be
filed with the clerk of the court having jurisdiction of the
offense for the purpose of assisting the court in the trial of the
case. The court may, of its own initiative, or upon petition of an
interested person, order such examination and report as heretofore
Emphasis in original.
The wife testified:
"We tried to be firm with them, but it seemed like the more firm
we got, these two older kids, they couldn't stand the pressure, so
they would, every time that their Daddy would get after them or
something or other about some of their doings, well, that oldest
boy would say, 'Well, Daddy, you will sure regret it. I will get
even with you one way or the other,' and also the girl would get
mad and flirtified and she would almost have the same opinion."
The entire cross-examination of both witnesses by petitioner and
by his wife, who was a codefendant, is as follows:
"CROSS EXAMINATION BY MR. WILLARD CARNLEY:"
"Q. Carol Jean, you say your mother, she went and made
arrangements to get the casket for your sister?"
"Q. You are right sure now that she did?"
"A. I am sure."
"Q. Well, I will tell the Court, my wife was out at Mr. Joe
Gayfer's house -- "
"THE COURT: Wait a minute, sir, you are testifying. You will
have a chance to testify when the State rests. Any questions you
wish to ask your daughter, you are welcome to do it."
"CROSS EXAMINATION BY MRS. PEARL CARNLEY:"
"Q. Carol Jean, don't you recall after you got age of maturity
that Mother tried to tell you right from wrong and always teach you
right from wrong?"
"A. Yes, you have taught me right from wrong."
"THEREUPON the witness was excused."
"CROSS EXAMINATION BY MRS. CARNLEY:"
"Q. J.W., at this period of time, did you realize whenever we
was up there at Century of your Dad's sickness from the time we
moved up there until it was springtime, and after he was sick from
his stomach that he taken a serious attack down by reason of his
"A. Yes, I realize he said he was sick. He was supposed to be
sick. I know that."
"THEREUPON the witness was excused."
For this reason, there is no occasion to hold a hearing in this
case to settle the fact issue raised by the petition and return as
to whether the petitioner requested counsel.
Or that the trial judge was justified in believing that the
accused knew perfectly well of his right to counsel, and that it
was unnecessary to make an explicit offer and to secure to
accused's rejection of the offer.
Petitioner's allegation that he requested counsel is, obviously,
tantamount to a denial of waiver. The return's denial of a request
is not, however, for reasons already canvassed, the equivalent of
an allegation of waiver.
The return alleged that the trial judge instructed petitioner as
to his constitutional rights, but this allegation claimed support
in the transcript, inspection of which reveals no instruction as to
any constitutional right except the right not to testify.
MR. JUSTICE BLACK, concurring.
I concur in the Court's judgment of reversal, and agree for the
reasons stated in its opinion that petitioner was, even under the
constitutional doctrine announced in Betts v. Brady,
316 U. S. 455
entitled to be represented by counsel. That case, decided in 1942,
held that an indigent defendant charged with crime in a state court
did not have a right under the Federal Constitution to be provided
with counsel unless this Court could say "by an appraisal of the
totality of facts in a given case" that the refusal to provide
counsel for the particular defendant constituted "a denial of
fundamental fairness, shocking to the universal sense of justice. .
. ." Id.
at 316 U. S. 462
I dissented from the Court's denial of counsel and its announcement
of what I considered to be such an impossibly vague and
unpredictable standard. Among other
Page 369 U. S. 518
grounds, I thought the defendant in that case entitled to
counsel because of my belief that the Fourteenth Amendment makes
applicable to the States the Sixth Amendment's guarantee that "In
all criminal prosecutions, the accused shall . . . have the
Assistance of Counsel for his defence." That is still my view.
Twenty years' experience in the state and federal courts with
the Betts v. Brady
rule has demonstrated its basic failure
as a constitutional guide. Indeed, it has served not to guide, but
to confuse, the courts as to when a person prosecuted by a State
for crime is entitled to a lawyer. Little more could be expected,
however, of a standard which imposes upon courts nothing more than
the perplexing responsibility of appointing lawyers for an accused
when a trial judge believes that a failure to do so would be
"shocking to the universal sense of justice." To be sure, in recent
years, this Court has been fairly consistent in assuring indigent
defendants the right to counsel. As the years have gone on, we have
been compelled even under the Betts
rule to reverse more
and more state convictions either for new trial or for hearing to
determine whether counsel had been erroneously denied [Footnote 2/1
] -- a result that, in my
judgment, is due to a growing recognition of the fact that our Bill
of Rights is correct in assuming that no layman should be compelled
to defend himself in a criminal
Page 369 U. S. 519
prosecution. But all defendants who have been convicted of crime
without the benefit of counsel cannot possibly bring their cases to
us. And one need only look at the records of the "right to counsel"
cases since Betts v. Brady
in both state and federal
courts to understand the capriciousness with which the "shocking to
the universal sense of justice" standard bestows its protection
upon persons accused of crime. [Footnote 2/2
] I think that now is the time to abandon
this vague, fickle standard for determining the right to counsel of
a person prosecuted for crime in a state court. We can do that by
recognizing that defendants in state courts have, by reason of the
Fourteenth Amendment, the same unequivocal right to counsel as
defendants in federal courts have been held to have by virtue of
the Sixth Amendment. Johnson v. Zerbst, 304 U.
. For these and many other reasons, including
those set out in McNeal v. Culver, 365 U.
, 365 U. S. 117
by MR. JUSTICE DOUGLAS and joined in by MR. JUSTICE BRENNAN, I
would overrule Betts v. Brady
in this case. In so doing,
we would simply return to the holding of this Court in Powell
v. Alabama, 287 U. S. 45
287 U. S. 68
where it was stated with reference to prosecution for crime in the
state courts that the " . . . right to be heard would be, in many
cases, of little avail if it did not comprehend the right to be
heard by counsel." I am aware that this statement was made in a
capital case, but the Fourteenth Amendment
Page 369 U. S. 520
protects life, liberty, and property, and I would hold that
defendants prosecuted for crime are entitled to counsel whether it
is their life, their liberty, or their property which is at stake
in a criminal prosecution.
THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS, while joining the
opinion of the Court, also join this opinion.
Chewning v. Cunningham, 368 U.
; Hamilton v. Alabama, 368 U. S.
; McNeal v. Culver, 365 U.
; Hudson v. North Carolina, 363 U.
; Cash v. Culver, 358 U.
; Moore v. Michigan, 355 U.
; Herman v. Claudy, 350 U.
; Massey v. Moore, 348 U.
; Gibbs v. Burke, 337 U.
; Uveges v. Pennsylvania, 335 U.
; Townsend v. Burke, 334 U.
; Wade v. Mayo, 334 U.
; Marino v. Ragen, 332 U.
; De Meerleer v. Michigan, 329 U.
; Tomkins v. Missouri, 323 U.
; Williams v. Kaiser, 323 U.
. But cf. Quicksall v. Michigan,
339 U. S. 660
Gryger v. Burke, 334 U. S. 728
Bute v. Illinois, 333 U. S. 640
Foster v. Illinois, 332 U. S. 134
Compare, e.g., Flansburg v. Kaiser,
55 F. Supp. 959,
aff'd on other grounds,
144 F.2d 917, with Powell v.
Alabama, 287 U. S. 45
Parker v. Ellis,
258 F.2d 937, with Massey v.
Moore, 348 U. S. 105
Henderson v. Bannan,
256 F.2d 363, with United States
ex rel. Savini v. Jackson,
250 F.2d 349. Numerous other
examples could, of course, be cited, including the contrast between
the decisions cited in 369
fn2/1|>note 1 and the lower court decisions which
they reversed, which had held that the denial of counsel had not
been erroneous under the Betts v. Brady
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court and the separate opinion
of MR. JUSTICE BLACK, I wish to add a word to the reasons MR.
JUSTICE BRENNAN and I gave in McNeal v. Culver,
365 U. S. 109
365 U. S.
-119, for overruling Betts v. Brady,
316 U. S. 455
Petitioner, an admitted illiterate, *
was forced to
try his case to a six-man jury. There is no record of the
proceedings at which the jury was impaneled. There is nothing to
show that petitioner was told of his right to challenge individual
veniremen, or the panel as a whole, or that he challenged anyone
for cause or exercised any of the six peremptory challenges granted
him by Florida law. Fla.Stat., 1959, § 913.08.
It is certain that he could have made no challenge to the panel
as a whole. Such challenge must be in writing,
Page 369 U. S. 521
Fla.Stats., 1959, § 913.01, and the Florida Supreme Court tells
us he could not write. But even if he could, it is doubtful that he
would have been able to show an improper method of selection or
even discrimination, because he was confined for a lengthy period
prior to trial, five months of which were alleged to have been
spent in solitary confinement. He did not have an opportunity,
therefore, to gather the factual evidence necessary to sustain a
possible challenge to the panel. The Florida statute, moreover,
explicitly requires that the written challenge specify the facts on
which it is based. Ibid.
Had petitioner been able to write, and had he access to the
facts, he still would not, in all probability, have been able to
build a legal argument sufficient to challenge the panel. He is a
man of low intelligence. Some of the grounds for challenging the
panel that might have been invoked by petitioner turn on difficult
questions of state law, as where it is alleged that the legislature
has passed a special, or local, law providing for the summoning and
impaneling of grand and petit jurors. Article III, § 20, of the
Florida Constitution prohibits such "special" laws. It is not
always clear, though, whether a particular law is "special" or
"general." See, e.g., Hysler v. State,
132 Fla. 200, 181
So. 350; 132 Fla. 209, 181 So. 354; State ex rel. Green v.
153 Fla. 314, 14 So. 2d 565. The sophisticated nature
of the arguments necessary to attack a law as "special" would
almost always be beyond the comprehension of one unlearned in the
In Florida, a plea of abatement is the usual manner of testing
the legality of a jury list. In some cases, a proceeding in
mandamus has been deemed a proper remedy, as where it is claimed
that the county commissioners have erred in the manner in which
they selected the panel. State ex rel. Jackson v. Jordan,
101 Fla. 616, 135 So. 138. Often, a simple oral challenge to an
individual juror can achieve just as much, as where an accused
contends a venireman
Page 369 U. S. 522
does not have the "qualifications required by law." Fla.Stat.,
1959, § 913.03(1). Yet obviously an illiterate cannot be expected
to know these niceties of criminal procedure.
Assuming that an accused does decide to challenge prospective
veniremen, either peremptorily or for cause, he must then decide
how to secure the maximum benefit from his peremptory challenges.
Florida statutes provide at least 12 independent grounds for a
challenge for cause. Fla.Stat., 1959, § 913.03. Ignorance of a
ground for challenge is no defense. Denmark v. State,
Fla. 182, 31 So. 269; McNish v. State,
47 Fla. 69, 36 So.
176; Webster v. State,
47 Fla. 108, 36 So. 584. Objections
to qualifications of jurors not raised at the trial will not be
considered on appeal. McNish v. State, supra; Crosby v.
90 Fla. 381, 106 So. 741.
Where the trial court excuses a juror on its own motion, the
accused has a right to object. The objection must be timely made,
and the grounds therefor clearly stated. It is too late to object
once the juror has been excused. Ellis v. State,
702, 6 So. 768. On appeal, the accused must be able to show that
the action of the court was prejudicial, or constituted an abuse of
discretion. Williams v. State,
45 Fla. 128, 34 So. 279;
Peadon v. State,
46 Fla. 124, 35 So. 204.
The special difficulties facing an accused in a jury trial do
not end with challenges to the panel or individual jurors. Florida
prohibits the trial judge from commenting on the weight of the
evidence, Lester v. State,
37 Fla. 382, 20 So. 232;
Leavine v. State,
109 Fla. 447, 147 So. 897; Seward v.
State, 59 So. 2d
, or from expressing an opinion that the accused should be
convicted, Wood v. State,
31 Fla. 221, 12 So. 539, lest he
influence the jury in its decision. But if he did make such
comment, and the accused took no exception, the error will be
deemed waived on appeal (Surrency v. State,
48 Fla. 59, 37
Page 369 U. S. 523
575; Smith v. State,
65 Fla. 56, 61 So. 120), except
where the interests of justice would not be served. Kellum v.
104 So. 2d 99 (Fla.Ct.App.3d Dist.).
Hearsay evidence takes on added importance in jury trials. It is
excluded if prejudicial. Owens v. State,
65 Fla. 483, 62
So. 651; Alvarez v. State,
75 Fla. 286, 78 So. 272. But,
if admitted without objection, it is generally regarded as having
been received by consent. Sims v. State,
59 Fla. 38, 52
So. 198. An objection after a question has been answered is
sometimes held to come too late. Schley v. State,
53, 37 So. 518; Williams v. State,
58 Fla. 138, 50 So.
749; Sims v. State, supra.
Yet a motion to strike may
achieve the same result. Dickens v. State,
50 Fla. 17, 38
So. 909. In a rapid-fire exchange of questions and answers by the
prosecution and a witness, a defendant without the assistance of
counsel will oftentime find himself helpless to object or even to
conceive grounds on which an objection to hearsay will lie. Indeed,
what constitutes hearsay is itself a difficult question, on which
judges may not always agree. See, e.g., Royal v. State,
127 Fla. 320, 170 So. 450.
Once the evidence is in, an accused in Florida has the right to
have the jury instructed on the law of the case before any final
arguments are made.
"The Judge's charge following immediately upon the conclusion of
the evidence may enable the jury to obtain a clearer and more
accurate conception of their duties in the particular case than if
they were required to wait until after the argument of counsel to
hear the law of the case from the judge."
Smithie v. State,
88 Fla. 70, 76, 101 So. 276, 278.
This right is waived by a failure to take exception to the
procedure adopted by the court. Defects in the instructions of the
court will likewise be deemed waived, where the accused fails to
make timely objection. White v. State,
122 So. 2d 340
(Fla.Ct.App.2d Dist.); Williams v. State, 117 So. 2d
Page 369 U. S. 524
Intricate procedural rules are not restricted to criminal trials
in Florida. Similar rules, equally as complex and confusing to the
layman, may be found in the criminal statutes of the other States.
I assume that they might not be applied with the same vigor against
a layman defending himself as they would against one represented by
a lawyer. Yet, even so, the rule of Betts v. Brady
projected in a jury trial faces a layman with a labyrinth he can
never understand nor negotiate.
As a result, the jury system -- pride of the English-speaking
world -- becomes a trap for the layman because he is utterly
without ability to make it serve the ends of justice.
* The Florida Supreme Court denied petitioner's application for
a writ of habeas corpus without a hearing. With respect to the
allegation that both petitioner and his wife were illiterate and
unable to defend themselves, the court admitted that the record
showed conclusively that they were in fact illiterate. It
concluded, however, that illiteracy alone did not necessarily
import ignorance of the ordinary things of life, such as how to get
money from a bank. Apparently classifying the conduct of a defense
to a felony charge as one of the "commonplace things of life," the
court concluded there was no showing petitioner or his wife
"suffered in the slightest from lack of intelligence." 123
So. 2d 249
, 251. (Petitioner's wife joined in the proceedings
below, but is not a party to the petition for certiorari.)