During the course of a joint first-degree murder trial,
respondent's codefendant pleaded guilty to second-degree murder, of
which the trial court advised the jury, stating that the trial
against respondent would continue. In his summation, the prosecutor
stated that respondent and his counsel had said that they
"hope that you find him not guilty. I quite frankly think that
they hope that you find him guilty of something a little less than
Respondent's counsel objected, and later sought an instruction
that the remark was improper, and should be disregarded. In its
instructions, the trial court, after reemphasizing the prosecutor's
statement that his argument was not evidence, declared that the
challenged remark was unsupported, and admonished the jury to
ignore it. Respondent was convicted of first-degree murder. The
State's highest court ruled that the prosecutor's remark, though
improper, was not so prejudicial as to warrant a mistrial, and that
the trial court's instruction sufficed to safeguard respondent's
rights. The District Court denied respondent's petition for a writ
of habeas corpus. The Court of Appeals reversed, concluding that
the challenged comment implied that respondent, like his
codefendant, had offered to plead guilty to a lesser offense, but
was refused, and that the comment was thus potentially so
misleading and prejudicial as to deprive respondent of a
constitutionally fair trial.
In the circumstances of this case, where the
prosecutor's ambiguous remark in the course of an extended trial
was followed by the trial court's specific disapproving
instructions, no prejudice amounting to a denial of constitutional
due process was shown. Miler v. Pate, 386 U. S.
; Brady v. Maryland, 373 U. S.
, distinguished. Pp. 416 U. S.
473 F.2d 1236, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN and POWELL, JJ., joined.
STEWART, J., filed a concurring opinion, in which WHITE, J.,
Page 416 U. S. 638
p. 416 U. S. 648
DOUGLAS, J., filed a dissenting opinion, in Part II of which
BRENNAN and MARSHALL, JJ., joined, post,
p. 416 U. S.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent was tried before a jury in Massachusetts Superior
Court and convicted of first-degree murder. [Footnote 1
] The jury recommended that the death
penalty not be imposed, and respondent was sentenced to life
imprisonment. He appealed to the Supreme Judicial Court of
Massachusetts, contending, inter alia,
that certain of the
prosecutor's remarks during closing argument deprived him of his
constitutional right to a fair trial. The Supreme Judicial Court
affirmed. [Footnote 2
court acknowledged that the prosecutor had made improper remarks,
but determined that they were not so prejudicial as to require
Respondent then sought habeas corpus relief in the United States
District Court for the District of Massachusetts.
Page 416 U. S. 639
The District Court denied relief, stating: "[T]he prosecutor's
arguments were not so prejudicial as to deprive [DeChristoforo] of
his constitutional right to a fair trial." [Footnote 3
] The Court of Appeals for the First Circuit
reversed by a divided vote. [Footnote 4
] The majority held that the prosecutor's
remarks deliberately conveyed the false impression that respondent
had unsuccessfully sought to plead to a lesser charge and that this
conduct was a denial of due process. We granted certiorari, 414
U.S. 974 (1973), to consider whether such remarks, in the context
of the entire trial, were sufficiently prejudicial to violate
respondent's due process rights. We hold they were not, and so
Respondent and two companions were indicted for the first-degree
murder of Joseph Lanzi, a passenger in the car in which the
defendants were riding. Police had stopped the car at approximately
4 a.m. on April 18, 1967, and had discovered Lanzi's dead body
along with two firearms, one of which had been fired. A second gun,
also recently fired, was found a short distance away. Respondent
and one companion avoided apprehension at that time, but the third
defendant was taken into custody. He later pleaded guilty to
Respondent and the other defendant, Gagliardi, were finally
captured and tried jointly. The prosecutor made little claim that
respondent fired any shots, but argued that he willingly assisted
in the killing. Respondent, on the other hand, maintained that he
was an innocent passenger. At the close of the evidence, but before
final argument, Gagliardi elected to plead guilty to a charge of
second-degree murder. The court advised the jury that
Page 416 U. S. 640
Gagliardi had pleaded guilty and that respondent's trial would
continue. [Footnote 5
Respondent did not seek an instruction that the jury was to draw no
inference from the plea, and no such instruction was given.
Respondent's claims of constitutional error focus on two remarks
made by the prosecutor during the course of his rather lengthy
closing argument to the jury. The first involved the expression of
a personal opinion as to guilt, [Footnote 6
] perhaps offered to rebut a somewhat
personalized argument by respondent's counsel. The majority of the
Court of Appeals agreed with the Supreme Judicial Court of
Massachusetts that this remark was improper, but declined to rest
its holding of a violation of due process on that remark. [Footnote 7
] It turned to a second
remark that it deemed "more serious."
The prosecutor's second challenged comment was directed at
respondent's motives in standing trial:
"They [the respondent and his counsel] said they hope that you
find him not guilty. I quite frankly think that they hope that you
find him guilty of something a little less than first-degree
murder. [Footnote 8
Respondent's counsel objected immediately to the statement, and
later sought an instruction that the remark was improper, and
Page 416 U. S. 641
be disregarded. [Footnote 9
The Court then gave the following instruction:
"Closing arguments are not evidence for your consideration. . .
"Now, in his closing, the District Attorney, I noted, made a
"I don't know what they want you to do by way of a verdict. They
said they hope that you find him not guilty. I quite frankly think
that they hope that you find him guilty of something a little less
than first-degree murder."
"There is no evidence of that whatsoever, of course; you are
instructed to disregard that statement made by the District
"Consider the case as though no such statement was made.
The majority of the Supreme Judicial Court of Massachusetts,
though again not disputing that the remark was improper, held that
it was not so prejudicial as to require a mistrial, and further
stated that the trial judge's instruction "was sufficient to
safeguard the defendant's rights." [Footnote 11
] Despite this decision and the District
Court's denial of a writ of habeas corpus, the Court of Appeals
found that the comment was potentially so misleading and
prejudicial that it deprived respondent of a constitutionally fair
Page 416 U. S. 642
The Court of Appeals reasoned that the jury would be naturally
curious about respondent's failure to plead guilty, and that this
curiosity would be heightened by Gagliardi's decision to plead
guilty at the close of the evidence. In this context, the court
thought, the prosecutor's comment that respondent hoped for
conviction on a lesser offense would suggest to the jury that
respondent had sought to plead guilty, but had been refused. Since
the prosecutor was in a position to know such facts, the jury may
well have surmised that respondent had already admitted guilt in an
attempt to secure reduced charges. This, said the Court of Appeals,
is the inverse of, but a parallel to, intentional suppression of
favorable evidence. The prosecutor had deliberately misled the
jury, and even if the statement was made thoughtlessly, "in a first
degree murder case, there must be some duty on a prosecutor to be
thoughtful." [Footnote 12
Therefore, the District Court had erred in denying respondent's
The Court of Appeals in this case noted, as petitioner urged,
that its review was "the narrow one of due process, and not the
broad exercise of supervisory power that [it] would possess in
regard to [its] own trial court." [Footnote 13
] We regard this observation as important, for
not every trial error or infirmity which might call for application
of supervisory powers correspondingly constitutes a "failure to
observe that fundamental fairness essential to the very concept of
justice." Lisenba v. California, 314 U.
, 314 U. S. 236
(1941). We stated only this Term in Cupp v. Naughten,
414 U. S. 141
(1973), when reviewing an instruction given in a state court:
"Before a federal court may overturn a conviction
Page 416 U. S. 643
resulting from a state trial in which this instruction was used,
it must be established not merely that the instruction is
undesirable, erroneous, or even 'universally condemned,' but that
it violated some right which was guaranteed to the defendant by the
Fourteenth Amendment. [Footnote
This is not a case in which the State has denied a defendant the
benefit of a specific provision of the Bill of Rights, such as the
right to counsel, Argersingner v. Hamlin, 407 U. S.
(1972), or in which the prosecutor's remarks so
prejudiced a specific right, such as the privilege against
compulsory self-incrimination, as to amount to a denial of that
right. Griffin v. California, 380 U.
(1965). [Footnote 15
] When specific guarantees of the Bill of
Rights are involved, this Court has taken special care to assure
that prosecutorial conduct in no way impermissibly infringes them.
But here the claim is only that a prosecutor's remark about
respondent's expectations at trial, by itself, so infected the
trial with unfairness as to make the resulting conviction a denial
of due process. We do not believe that examination of the entire
proceedings in this case supports that contention.
Conflicting inferences have been drawn from the prosecutor's
statement by the courts below. Although the Court of Appeals stated
flatly that "the prosecuting attorney turned Gagliardi's plea into
a telling stroke against [DeChristoforo]" [Footnote 16
] by implying respondent had
Page 416 U. S. 644
offered to plead guilty as well, the dissent found the inference
to be "far less obvious." [Footnote 17
] The Supreme Judicial Court of Massachusetts
stated that it considered the same argument illogical:
"It is not logical to conclude that the jury would accept any
implied argument of the prosecutor that, because one of the men
whom the defendant blamed for the murder had pleaded guilty, the
defendant was any less firm in his assertion that he himself was
not guilty of any crime whatsoever. [Footnote 18
Thus, it is by no means clear that the jury did engage in the
hypothetical analysis suggested by the majority of the Court of
Appeals, or even probable that it would seize such a comment out of
context and attach this particular meaning to it. Five Justices of
the Supreme Judicial Court of Massachusetts, and at least one
federal judge, have all confessed difficulty in making this
In addition, the trial court took special pains to correct any
impression that the jury could consider the prosecutor's statements
as evidence in the case. The prosecutor, as is customary, had
previously told the jury that his argument was not evidence,
] and the trial
judge specifically reemphasized that point. Then the judge directed
the jury's attention to the remark particularly challenged here,
declared it to be unsupported, and admonished the jury to ignore
it. [Footnote 20
some occurrences at trial may be too clearly prejudicial for such a
curative instruction to mitigate their effect, the comment in this
case is hardly of such character.
Page 416 U. S. 645
In Cupp v. Naughten, supra,
the respondent had
challenged his conviction on the ground that a "presumption of
truthfulness" instruction, given by the state trial court, had
deprived him of the presumption of innocence and had shifted the
State's burden of proof to himself. Holding that the instruction,
although perhaps not advisable, did not violate due process, we
"In determining the effect of this instruction on the validity
of respondent's conviction, we accept at the outset the well
established proposition that a single instruction to a jury may not
be judged in artificial isolation, but must be viewed in the
context of the overall charge. Boyd v. United States,
271 U. S.
, 271 U. S. 107
this does not mean that an instruction, by itself, may never rise
to the level of constitutional error, see Cool v. United
States, 409 U. S. 100
(1972), it does
recognize that a judgment of conviction is commonly the culmination
of a trial which includes testimony of witnesses, argument of
counsel, receipt of exhibits in evidence, and instruction of the
jury by the judge. Thus, not only is the challenged instruction but
one of many such instructions, but the process of instruction
itself is but one of several components of the trial which may
result in the judgment of conviction. [Footnote 21
Similarly, the prosecutor's remark here, admittedly an ambiguous
one, was but one moment in an extended trial, and was followed by
specific disapproving instructions. Although the process of
constitutional line-drawing in this regard is necessarily
imprecise, we simply do not believe that this incident made
respondent's trial so fundamentally unfair as to deny him due
Page 416 U. S. 646
We do not find the cases cited by the Court of Appeals to
require a different result. In Miller v. Pate,
386 U. S. 1
the principal case relied upon, this Court held that a state
prisoner was entitled to federal habeas relief upon a showing that
a pair of stained undershorts, allegedly belonging to the prisoner
and repeatedly described by the State during trial as stained with
blood, was, in fact, stained with paint. In the course of its
opinion, this Court said:
"It was further established that counsel for the prosecution had
known at the time of the trial that the shorts were stained with
paint. . . ."
". . . The record of the petitioner's trial reflects the
prosecution's consistent and repeated misrepresentation that
People's Exhibit 3 was, indeed, 'a garment heavily stained with
at 6. A long series of decisions in this Court,
] of course, had
established the proposition that the "Fourteenth Amendment cannot
tolerate a state criminal conviction obtained by the knowing use of
false evidence." Id.
at 7. The Court in Miller
found those cases controlling.
We countenance no retreat from that proposition in observing
that it falls far short of embracing the prosecutor's remark in
this case. The "consistent and repeated misrepresentation" of a
dramatic exhibit in evidence may profoundly impress a jury, and may
have a significant impact on the jury's deliberations. Isolated
passages of a prosecutor's argument, billed in advance to the jury
as a matter of opinion, not of evidence, do not reach the same
proportions. Such arguments, like all closing arguments of counsel,
are seldom carefully constructed
Page 416 U. S. 647
before the event; improvisation frequently
results in syntax left imperfect and meaning less than crystal
clear. While these general observations in no way justify
prosecutorial misconduct, they do suggest that a court should not
lightly infer that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less
The Court of Appeals' reliance on Brady v. Maryland,
373 U. S. 83
(1963), is likewise misplaced. In Brady,
had withheld evidence, a statement by the petitioner's codefendant,
which was directly relevant to the extent of the petitioner's
involvement in the crime. Since the petitioner had testified that
his codefendant had done the actual shooting, and since the
petitioner's counsel was not contesting guilt, but merely seeking
to avoid the death penalty, evidence of the degree of the
petitioner's participation was highly significant to the primary
jury issue. As in Miller,
manipulation of the evidence by
the prosecution was likely to have an important effect on the
jury's determination. But here there was neither the introduction
of specific misleading evidence important to the prosecution's case
in chief nor the nondisclosure of specific evidence valuable to the
accused's defense. There were, instead, a few brief sentences in
the prosecutor's long and expectably hortatory closing argument
which might or might not suggest to a jury that the respondent had
unsuccessfully sought to bargain for a lesser charge. We find
nothing in Brady
to suggest that due process is so easily
The result reached by the Court of Appeals in this case leaves
virtually meaningless the distinction between ordinary trial error
of a prosecutor and that sort of egregious misconduct held in
and Brady, supra,
Page 416 U. S. 648
amount to a denial of constitutional due process. [Footnote 23
] Since we believe that
distinction should continue to be observed, we reverse the judgment
of the Court of Appeals.
It is so ordered.
Respondent and his codefendants were also indicted for illegal
possession of firearms, and respondent received a four- to
five-year sentence on that charge. The conviction is in no way
related to the issues before the Court in this case.
Commonwealth v. DeChristoforo,
___ Mass ___, 277 N.E.2d
473 F.2d 1236 (1973).
The trial court stated:
"Mr. Foreman, madam and gentlemen of the jury. You will notice
that the defendant Gagliardi is not in the dock. He has pleaded
'guilty,' and his case has been disposed of."
"We will, therefore, go forward with the trial of the case of
Commonwealth vs. DeChristoforo.
The challenged remark was: "I honestly and sincerely believe
that there is no doubt in this case, none whatsoever." Id.
The Court of Appeals noted: "[A]t least the jury knows that the
prosecutor is an advocate, and it may be expected, to some degree,
to discount such remarks as seller's talk." 473 F.2d at 1238.
No instruction was sought at the time, although the court
apparently was willing to give one. The trial judge later told
"[H]ad there been a motion made by you at that time to have me
instruct the jury along the lines of eliminating that from their
minds, or something of that nature, I certainly would have
complied, because I did consider, at the time, the argument was
beyond the grounds of complete propriety, but certainly far from
being grounds for a mistrial."
___ Mass. at ___, 277 N.E.2d at 105.
473 F.2d at 1240.
414 U.S. at 414 U. S.
Respondent does suggest that the prosecutor's statements may
have deprived him of the right to confrontation. See Pointer v.
Texas, 380 U. S. 400
(1965). But this argument is without merit, for the prosecutor here
simply stated his own opinions, and introduced no statements made
by persons unavailable for questioning at trial.
1473 F.2d at 1239.
at 1241 (Campbell, J., dissenting).
414 U.S. at 414 U. S.
See, e.g., Mooney v. Holohan, 294 U.
(1935); Napue v. Illinois, 360 U.
We do not, by this decision, in any way condone prosecutorial
misconduct, and we believe that trial courts, by admonition and
instruction, and appellate courts, by proper exercise of their
supervisory power, will continue to discourage it. We only say
that, in the circumstances of the case, no prejudice amounting to a
denial of constitutional due process was shown.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE Joins,
I agree with my Brother DOUGLAS that, when no new principle of
law is presented, we should generally leave undisturbed the
decision of a court of appeals that upon the particular facts of
any case habeas corpus relief should be granted -- or denied. For
this reason I think it was a mistake to grant a writ of certiorari
in this case, and I would now dismiss the writ as improvidently
We are bound here, however, by the "rule of four." That rule
ordains that the votes of four Justices are enough to grant
certiorari and bring a case before the Court for decision on the
merits. If as many as four Justices remain so-minded after oral
argument, due adherence to that rule requires me to address the
merits of a case, however strongly I may feel that it does not
belong in this Court. See Ferguson v. Moore-McCormack
Lines, 352 U. S. 521
352 U. S. 559
(separate opinion of Harlan, J.).
Upon this premise, I join the Court's opinion.
MR. JUSTICE DOUGLAS, dissenting.
The function of the prosecutor under the Federal Constitution is
not to tack as many skins of victims as possible
Page 416 U. S. 649
to the wall. His function is to vindicate the right of people as
expressed in the laws, and give those accused of crime a fair
trial. As stated by the Court in Berger v. United States,
295 U. S. 78
295 U. S.
"The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all, and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall
be done. As such, he is, in a peculiar and very definite sense, the
servant of the law, the twofold aim of which is that guilt shall
not escape or innocence suffer. He may prosecute with earnestness
and vigor -- indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring
about a just one."
We have here a state case, not a federal one, and the prosecutor
is a state official. But we deal with an aspect of a fair trial
which is implicit in the Due Process Clause of the Fourteenth
Amendment by which the States are bound. Chambers v.
Mississippi, 410 U. S. 284
Sheppard v. Maxwell, 384 U. S. 333
Turner v. Louisiana, 379 U. S. 466
Irvin v. Dowd, 366 U. S. 717
In this case, respondent was charged with first-degree murder,
and was convicted in the state court by a jury. At no time did he
seek to plead guilty to a lesser offense. It is stipulated:
"[A]t no time did defendant seek to plead guilty to any offense;
at no time did the Commonwealth
Page 416 U. S. 650
seek to solicit or offer to accept a plea; and at all times
defendant insisted upon a trial."
A codefendant pleaded guilty to second-degree murder, and the
jury was advised of the fact.
As to the guilt of respondent the prosecutor told the jury: "I
honestly and sincerely believe that there is no doubt in this case,
And he went on to say: "I quite frankly think that they hope
that you find him guilty of something a little less than
These statements, in the setting of the case and in light of the
fact that the jury knew the codefendant had pleaded guilty to
second-degree murder, are a subtle equivalent of a statement by the
prosecutor that respondent sought a lesser penalty. Counsel for
respondent immediately objected, but the court, at the time, did
not admonish the prosecutor or tell the jury to disregard the
statement, though it did cover the matter later in its general
As a matter of federal law, the introduction of a withdrawn plea
of guilty is not admissible evidence, Kercheval v. United
States, 274 U. S. 220
a matter of procedural due process, the Confrontation Clause of the
Sixth Amendment, applicable to the States by reason of the
Fourteenth Amendment, Pointer v. Texas, 380 U.
, would bar a person from testifying that the
defendant had sought a guilty plea unless the right of
cross-examination of the witness was afforded, id.
380 U. S.
-408. That requirement of procedural due process
should be sedulously enforced (save for the recognized exceptions
of dying declarations and the like, id.
at 380 U. S. 407
lest the theory that the end justifies the means gains further
footholds here. The prosecutor is not a witness, and he should not
be permitted to add to the record either by subtle
Page 416 U. S. 651
or gross improprieties. Those who have experienced the full
thrust of the power of government when leveled against them know
that the only protection the citizen has is in the requirement for
a fair trial. The assurance of the Court that we make no retreat
from constitutional government by today's decision has therefore a
Activist judges have brought federal habeas corpus into
disrepute at the present time. It is guaranteed by the
Constitution. It is a built-in restraint on judges -- both state
and federal -- and it is also a restraint on prosecutors who are
officers of the court. Our activist tendencies should promote not
law and order, but constitutional law and order. Judges. too, can
be tyrants, and often have been. Prosecutors are often eager to
take almost any shortcut to win, yet, as I have said, they
represent not an ordinary party, but We the People. As I have
noted, their duty is as much "to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one," Berger v. United
at 295 U. S.
It is, I submit, quite "improper" for a prosecutor to insinuate
to the jury the existence of evidence not in the record and which
could not be introduced without the privilege of
The Supreme Judicial Court of Massachusetts had difficulty with
this case when it came before it on direct appeal, two Justices,
which included the Chief Justice, dissenting, * Commonwealth
Page 416 U. S. 652
Mass. ___, 277
. The Court of Appeals was also divided, 473 F.2d
1236. Our federal district courts and courts of appeals are much
closer to law administration in the respective States than are we
in Washington, D.C. They are responsible federal judges who know
the Federal Constitution as well as we do. Their error in issuing
the Great Writ -- or in refusing to do so -- would, in my judgment,
have to be egregious for us to grant a petition for certiorari.
When a court of appeals honors the Constitution by granting the
Great Writ, or, in its solemn judgment, denies it, we should let
the matter rest there, save for manifest error.
I would affirm the judgment below.
MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL would affirm the
judgment below for the reasons stated in 416 U.
* Chief Justice Tauro said in dissent:
"The prosecutor's argument in the instant case permitted or
perhaps even suggested an inference that the defendant had conceded
his guilt and was merely hoping for something a little less than a
verdict of murder in the first degree. This diminished his chance
for a fair trial to a far greater degree than would have the
publication in a newspaper of his criminal background. Unlike a
newspaper, the prosecutor ostensibly speaks with the authority of
his office. The prosecutor's"
"personal status and his role as a spokesman for the government
tend[ed] to give to what he . . . [said] the ring of authenticity .
. . tend[ing] to impart an implicit stamp of believability."
"Hall v. United States,
419 F.2d 582, 58584 (5th Cir.).
The prosecutor's remarks probably called for a mistrial. In any
event, the judge's failure to instruct the jury adequately and with
sufficient force to eliminate the serious prejudice to the
defendant constitutes fatal error. Moreover, the judge's routine
final instructions to the jury were far from sufficient to correct
the error. By then, the defendant's position had so deteriorated
that his chances for a fair deliberation of his fate by the jury
were virtually eliminated."
___ Mass. at ___, 277 N.E.2d at 112.