A total denial of the opportunity for final summation in a
nonjury criminal trial as well as in a jury trial deprives the
accused of the basic right to make his defense, and a New York
statute granting every judge in a nonjury criminal trial the power
to deny such summation before rendition of judgment denies the
accused the assistance of counsel guaranteed by the Sixth Amendment
of the Constitution as applied against the States by the
Fourteenth. Pp.
422 U. S.
856-865.
43 App.Div.2d 816, 351 N.Y.S.2d 368, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and BLACKMUN, JJ., joined.
post, p.
422 U. S.
865.
MR. JUSTICE STEWART delivered the opinion of the Court.
A New York law confers upon every judge in a nonjury criminal
trial the power to deny counsel any opportunity to make a summation
of the evidence before the rendition of judgment. N.Y.Crim.Proc.Law
§ 320.20(3)(c)
Page 422 U. S. 854
(1971). [
Footnote 1] In the
case before us, we are called upon to assess the constitutional
validity of that law.
I
The appellant was brought to trial in the Supreme Court of
Richmond County, N.Y., upon charges of attempted robbery in the
first and third degrees and possession of a dangerous instrument.
[
Footnote 2] He waived a
jury.
The trial began on a Thursday, and, after certain preliminaries,
the balance of that day and most of Friday were spent on the case
for the prosecution. The complaining witness, Allen Braxton,
testified that the appellant had approached him outside his home in
a Staten Island housing project at about six o'clock on the evening
of September 15, 1971, and asked for money. He said that, when he
refused this demand, the appellant had swung a knife at him. On
cross-examination, the appellant's lawyer attempted to impeach the
credibility of this evidence by demonstrating inconsistencies
between Braxton's testimony and other sworn statements that Braxton
had previously made. [
Footnote
3] The only other
Page 422 U. S. 855
witness.for the prosecution was the police officer who had
arrested the appellant upon the complaint of Braxton. The officer
testified that Braxton had reported the alleged incident to him,
and that the appellant, when confronted by the officer later in the
evening, had denied Braxton's story and said that he had been
working for a Mr. Taylor at the time of the alleged offense. The
officer testified that he had then arrested the appellant and found
a small knife in his pocket. [
Footnote 4]
At the close of the case for the prosecution, the court granted
a defense motion to dismiss the charge of possession of a dangerous
instrument on the ground that the knife in evidence was too small
to qualify as a dangerous instrument under state law. The trial was
then adjourned for the two-day weekend.
Proceedings did not actually resume until the following Monday
afternoon. The first witness for the defense
Page 422 U. S. 856
was Donald Taylor, who was the appellant's employer. He
testified that he recalled seeing the appellant on the job premises
at about 5:30 p.m. on the day of the alleged offense. The appellant
then took the stand and denied Braxton's story. He said that he had
been working on a refrigerator at his place of employment during
the time of the alleged offense, and further testified that
Braxton, a former neighbor, had threatened on several occasions to
"fix" him for refusing to give Braxton money for wine and
drugs.
At the conclusion of the case for the defense, counsel made a
motion to dismiss the robbery charges. This motion was denied. The
appellant's lawyer then requested to "be heard somewhat on the
facts." The trial judge replied: "Under the new statute, summation
is discretionary, and I choose not to hear summations." The judge
thereupon found the appellant guilty of attempted robbery in the
third degree, and subsequently sentenced him to serve an
indeterminate term of imprisonment with a maximum of four years.
The conviction was affirmed without opinion by an intermediate
appellate court. [
Footnote 5]
Leave to appeal to the New York Court of Appeals was denied. An
appeal was then brought here, and we noted probable jurisdiction.
419 U.S. 893.
II
The Sixth Amendment guarantees to the accused in all criminal
prosecutions the rights to a "speedy and
Page 422 U. S. 857
public trial," to an "impartial jury," to notice of the "nature
and cause of the accusation," to be "confronted" with opposing
witnesses, to "compulsory process" for defense witnesses, and to
the "Assistance of Counsel." [
Footnote 6] These fundamental rights are extended to a
defendant in a state criminal prosecution through the Fourteenth
Amendment. [
Footnote 7]
The decisions of this Court have not given to these
constitutional provisions a narrowly literalistic construction.
More specifically, the right to the assistance of counsel has been
understood to mean that there can be no restrictions upon the
function of counsel in defending a criminal prosecution in accord
with the traditions of the adversary factfinding process that has
been constitutionalized in the Sixth and Fourteenth Amendments. For
example, in
Ferguson v. Georgia, 365 U.
S. 570, the Court held constitutionally invalid a state
statute that, while permitting the defendant to make an unsworn
statement to the court and jury, prevented defense counsel from
eliciting the defendant's testimony through direct examination.
Similarly, in
Brooks v Tennessee, 406 U.
S. 605, the Court found unconstitutional a state law
Page 422 U. S. 858
that restricted the right of counsel to decide "whether, and
when in the course of presenting his defense, the accused should
take the stand."
Id. at
406 U. S. 613.
The right to the assistance of counsel has thus been given a
meaning that ensures to the defense in a criminal trial the
opportunity to participate fully and fairly in the adversary
factfinding process.
There can be no doubt that closing argument for the defense is a
basic element of the adversary factfinding process in a criminal
trial. Accordingly, it has universally been held that counsel for
the defense has a right to make a closing summation to the jury, no
matter how strong the case for the prosecution may appear to the
presiding judge. [
Footnote 8]
The issue has been considered less often
Page 422 U. S. 859
in the context of a so-called bench trial. But the overwhelming
weight of authority, in both federal and state courts, holds that a
total denial of the opportunity for final argument in a nonjury
criminal trial is a denial of the basic right of the accused to
make his defense. [
Footnote
9]
One of many cases so holding was
Yopps v. state, 228
Md. 204, 178 A.2d 879 (1962). The defendant in that case, indicted
for burglary, was tried by the court without a jury. The defendant,
in his testimony, admitted being in the vicinity of the offense,
but denied any involvement in the crime. At the conclusion of the
testimony, the trial judge announced a judgment of guilty. Defense
counsel objected, stating that he wished to present argument on the
facts. But the trial judge refused to hear any argument on the
ground that only a question of credibility
Page 422 U. S. 860
was involved, and that, therefore, counsel's argument would not
change his mind. The Maryland Court of Appeals held that the trial
court's refusal to permit defense counsel to make a final summation
violated the defendant's right to the assistance of counsel under
the State and Federal Constitutions:
"The Constitutional right of a defendant to be heard through
counsel necessarily includes his right to have his counsel make a
proper argument on the evidence and the applicable law in his
favor, however simple, clear, unimpeached, and conclusive the
evidence may seem, unless he has waived his right to such argument,
or unless the argument is not within the issues in the case, and
the trial court has no discretion to deny the accused such
right."
Id. at 207, 178 A.2d at 881.
The widespread recognition of the right of the defense to make a
closing summary of the evidence to the trier of the facts, whether
judge or jury, finds solid support in history. In the 16th and 17th
centuries, when notions of compulsory process, confrontation, and
counsel were in their infancy, the essence of the English criminal
trial was argument between the defendant and counsel for the Crown.
Whatever other procedural protections may have been lacking, there
was no absence of debate on the factual and legal issues raised in
a criminal case. [
Footnote
10] As the rights to compulsory process, to confrontation, and
to counsel developed, [
Footnote
11] the adversary system's commitment
Page 422 U. S. 861
to argument was neither discarded nor diluted. Rather, the
reform in procedure had the effect of shifting the primary function
of argument to summation of the evidence at the close of trial, in
contrast to the "fragmented" factual argument that had been typical
of the earlier common law. [
Footnote 12]
Page 422 U. S. 862
It can hardly be questioned that closing argument serves to
sharpen and clarify the issues for resolution by the trier of fact
in a criminal case. For it is only after all the evidence is in
that counsel for the parties are in a position to present their
respective versions of the case as a whole. Only then can they
argue the inferences to be drawn from all the testimony, and point
out the weaknesses of their adversaries' positions. And, for the
defense, closing argument is the last clear chance to persuade the
trier of fact that there may be reasonable doubt of the defendant's
guilt.
See In re Winship, 397 U.
S. 358.
The very premise of our adversary system of criminal justice is
that partisan advocacy on both sides of a case will best promote
the ultimate objective that the guilty be convicted and the
innocent go free. In a criminal trial, which is, in the end,
basically a factfinding process, no aspect of such advocacy could
be more important than the opportunity finally to marshal the
evidence for each side before submission of the case to
judgment.
This is not to say that closing arguments in a criminal case
must be uncontrolled, or even unrestrained. The presiding judge
must be, and is, given great latitude in controlling the duration
and limiting the scope of closing summations. He may limit counsel
to a reasonable time, and may terminate argument when continuation
would be repetitive or redundant. He may ensure that argument does
not stray unduly from the mark, or otherwise impede the fair and
orderly conduct of the trial. In all these respects, he must have
broad discretion.
See generally 5 R. Anderson, Wharton's
Criminal Law and Procedure § 2077 (1957).
Cf. American Bar
Association Project on Standards for Criminal Justice, The
Prosecution Function § 5.8, pp. 126-129, and the Defense Function §
7.8, pp. 277-282 (App.Draft 1971).
Page 422 U. S. 863
But there can be no justification for a statute that empowers a
trial judge to deny absolutely the opportunity for any closing
summation at all. The only conceivable interest served by such a
statute is expediency. Yet the difference in any case between total
denial of final argument and a concise but persuasive summation
could spell the difference, for the defendant, between liberty and
unjust imprisonment. [
Footnote
13]
Some cases may appear to the trial judge to be simple -- open
and shut -- at the close of the evidence. And surely, in many such
cases, a closing argument will, in the words of Mr. Justice
Jackson, be "likely to leave [a] judge just where it found him."
[
Footnote 14] But, just as
surely, there will be cases where closing argument may correct a
premature misjudgment and avoid an otherwise erroneous verdict. And
there is no certain way for a trial judge to identify accurately
which cases these will be, until the judge has heard the closing
summation of counsel. [
Footnote
15]
Page 422 U. S. 864
The present case is illustrative. This three-day trial was
interrupted by an interval of more than two days -- a period during
which the judge's memory may well have dimmed, however
conscientious a note-taker he may have been. At the conclusion of
the evidence on the trial's final day, the appellant's lawyer might
usefully have pointed to the direct conflict in the trial testimony
of the only two prosecution witnesses concerning how and when the
appellant was found on the evening of the alleged offense.
[
Footnote 16] He might also
have stressed the many inconsistencies, elicited on
cross-examination, between the trial testimony of the complaining
witness and his earlier sworn statements. [
Footnote 17] He might reasonably have argued
that the testimony of the appellant's employer was entitled to
greater credibility than that of the complaining witness, who,
according to the appellant, had threatened to "fix" him because of
personal differences in the past. There is no way to know whether
these or any other appropriate arguments in summation might have
affected the ultimate judgment in this case. The credibility
assessment was solely for the trier of fact. But before that
determination was made, the appellant, through counsel, had a right
to be heard in summation of the evidence from the point of view
most favorable to him. [
Footnote
18]
Page 422 U. S. 865
In denying the appellant this right under the authority of its
statute, New York denied him the assistance of counsel that the
Constitution guarantees. Accordingly, the judgment before us is
vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
Section 320.20(3)(c) provides
"The court may in its discretion permit the parties to deliver
summations. If the court grants permission to one party, it must
grant it to the other also. If both parties deliver summations, the
defendant's summation must be delivered first."
By contrast, New York law explicitly grants a right to make a
"closing statement" in every civil case. N.Y.Civ.Prac. Rule 4016
(1963).
[
Footnote 2]
N.Y. Penal Law §§ 110.00/160.15, 110.00/160.05, 265.05
(1975).
[
Footnote 3]
On cross-examination, of Braxton, the appellant's lawyer
demonstrated the following inconsistencies: first, Braxton
testified at trial that, after running into his house to evade the
appellant, he did not look back outside to see where the appellant
had gone; but before the grand jury, Braxton had said that, after
entering his house, he had looked outside and the appellant was
gone. Second, Braxton testified at trial that the knifeblade was
shiny; but, in his grand jury testimony, he had said that he could
not remember if it was shiny or not. Third, Braxton testified at
trial that the appellant had asked him for money in a "soft" voice;
but, before the grand jury, he had stated that the request for
money was "kind of loud." Fourth, Braxton testified at trial that
the appellant had swung a blade at him once; but in the felony
complaint filed the day after the alleged crime, he had stated that
the appellant had swung a knife at him "a couple of times."
[
Footnote 4]
There was a major inconsistency between the police officer's
testimony and that of Braxton. Braxton testified that he was
walking down the street with the officer at about 6:45 p.m. when
they came across the appellant. But the officer testified that he
had searched for the appellant with Braxton until only about 6:30
p.m., when they had separated, and that about an hour later he had
seen the appellant and Braxton on opposite sides of Broadway. Thus,
Braxton testified that he and the officer were together when they
found the appellant about 6:45 p.m., while the officer's testimony
was that he had separated from Braxton about 6:30 p.m., and that he
next saw Braxton and the appellant on opposite sides of a street at
about 7:30 p.m.
[
Footnote 5]
The court subsequently certified that, in affirming the
judgment, it had rejected the appellant's constitutional
claims:
"Upon the appeal herein, there was presented and passed upon the
following constitutional question, namely, whether relator's rights
under the Fourth, Sixth and Fourteenth Amendments were denied by
the trial court's application of paragraph (c) of subdivision 3 of
CPL 320.20 to refuse appellant permission to deliver a summation.
This court considered appellant's said conviction and determined
that none of his constitutional rights was violated."
[
Footnote 6]
The Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury . . . [,] to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor. and to have the
Assistance of Counsel for his defence."
[
Footnote 7]
See Klopfer v. North Carolina, 386 U.
S. 213 (speedy trial);
In re Oliver,
333 U. S. 257
(public trial);
Duncan v. Louisiana, 391 U.
S. 145 (jury trial);
Cole v. Arkansas,
333 U. S. 196
(notice of nature and cause of accusation);
Pointer v.
Texas, 380 U. S. 400
(confrontation);
Washington v. Texas, 388 U. S.
14 (compulsory process);
Gideon v. Wainwright,
372 U. S. 335, and
Argersinger v. Hamlin, 407 U. S. 25
(assistance of counsel).
[
Footnote 8]
See, e.g., Jackson v. State, 239 Ala. 38, 193 So. 417
(1940);
Yeldell v. State, 100 Ala. 26, 14 So. 570 (1894);
People v. Green, 99 Cal. 564, 34 P. 231 (1893);
State
v. Hoyt, 47 Conn.518 (1880);
Hall v. State, 119 Fla.
38, 160 So. 511 (1935);
Williams v. State, 60 Ga. 367
(1878);
Porter v. State, 6 Ga.App. 770, 65 S.E. 814
(1909);
State v. Gilbert, 65 Idaho 210, 142 P.2d 584
(1943);
People v. McMullen, 300 Ill. 383, 133 N.E. 328
(1921);
Lynch v. State, 9 Ind. 541 (1857);
State v.
Verry, 36 Kan. 416, 13 P. 838 (1887);
Sizemore v.
Commonwealth, 240 Ky. 279, 42 S.W.2d 328 (1931);
State v.
Cancienne, 50 La.Ann. 1324, 24 So. 321 (1898);
Wingo v.
State, 62 Miss. 311 (1884);
State v. Page, 21 Mo. 257
(1855);
State v. Tighe, 27 Mont. 327, 71 P. 3 (1903);
State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941);
People v. Marcelin, 23 App.Div.2d 368, 260 N.Y.S.2d 560
(1965);
State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925);
Weaver v. State, 24 Ohio St. 584 (1874);
State v.
Rooway, 45 Ore. 601, 78 P. 987 (1904),
rehearing, 45
Ore. 611, 81 P. 234 (1905);
Stewart v. Commonwealth, 117
Pa. 378, 11 A. 370 (1887);
State v. Ballenger, 202 S.C.
155, 24 S.E.2d 175 (1943);
Word v. Commonwealth, 30 Va.
743 (1831);
State v. Mayo, 42 Wash. 540, 85 P. 251 (1906);
Seattle v. Erickson, 55 Wash. 675, 104 P. 1128 (1909).
One treatise states the general rule as follows:
"The presentation of his defense by argument to the jury, by
himself or his counsel, is a constitutional right of the defendant
which may not be denied him, however clear the evidence may seem to
the trial court."
5 R. Anderson, Wharton's Criminal Law and Procedure § 2077
(1957).
[
Footnote 9]
See United States v. Walls, 443 F.2d 1220 (CA6 1971);
Thomas v. District of Columbia, 67 App.D.C. 179, 90 F.2d
424 (1937);
United States ex rel. Spears v. Johnson, 327
F. Supp. 1021 (ED Pa.1971),
rev'd on other grounds, 463
F.2d 1024 (CA3 1972);
United States ex rel. Wilco v.
Pennsylvania, 273 F.
Supp. 923 (ED Pa.1967);
Floyd v. State, 90 So. 2d
105 (Fla.1956);
Olds v. Commonwealth, 10 Ky. 465
(1821);
Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962);
People v. Thomas, 390 Mich. 93,
210
N.W.2d 776 (1973);
Decker v. State, 113 Ohio St. 512,
150 N.E. 74 (1925);
Commonwealth v. McNair, 208 Pa.Super.
369, 222 A.2d 599 (1966);
Commonwealth v. Gambrell, 450
Pa. 290, 301 A.2d 596 (1973);
Anselin v. State, 72
Tex.Cr.R. 17, 160 S.W. 713 (1913);
Walker v. State, 133
Tex.Cr.R. 300, 110 S.W.2d 578 (1937);
Ferguson v. State,
133 Tex.Cr.R. 250, 110 S.W.2d 61 (1937).
Cf. Collingsworth v.
Mayo, 173 F.2d 695, 697 (CA5 1949);
State v.
Hollingsworth, 160 La. 26, 106 So. 662 (1925).
But see
People v. Manske, 399 Ill 176, 77 N.E.2d 164 (1948).
Cf.
People v. Berger, 288 Ill. 47, 119 N.E. 975 (1918);
Casterlow v. State, 256 Ind. 214,
267 N.E.2d
552 (1971);
Reed v. State, 232 Ind. 68,
111 N.E.2d
661 (1953);
Lewis v. State, 11 Ga.App. 14, 74 S.E. 442
(1912).
[
Footnote 10]
Stephen has described the trial procedure in this period as a
"long argument between the prisoner and the counsel for the Crown."
1 J. Stephen, History of the Criminal Law of England 326 (1883).
For a fuller description of the trial process in that period,
see id. at 325-326, 350.
[
Footnote 11]
See 7 Will. 3, c. 3, § 1 (1695); 1 Anne, Stat. 2, c. 9,
§ 3 (1701); 6 & 7 Will. 4, c.114, § 1 (1836).
[
Footnote 12]
Cf. Stephen,
supra, n 10, at 349.
In the Colonies, where a similar reform in criminal defendants'
rights occurred, common practice, if not right, apparently gave to
the accused the opportunity to sum up his case in closing argument.
For example, Zephaniah Swift, in an early colonial treatise on the
law in Connecticut, wrote:
"When the exhibition of evidence is closed, the attorney for the
state opens the argument, the counsel for the prisoner follow[s],
the attorney for the state then closes the argument, and the chief
justice then sums up the evidence in his charge delivered to the
jury, in which he states, in the most candid and impartial manner,
the evidence and the law, and the arguments of the counsel for the
state, as well as the prisoner. . . ."
2 Z. Swift, A System of the Laws of the State of Connecticut 401
(1796).
With a lesser degree of certainty, a modern scholar concludes
that, in the trial of capital offenses in colonial Virginia, it was
likely, but not certain, that the accused would be given an
opportunity to make a closing argument in summation at the end of
the trial.
See H. Rankin, Criminal Trial Proceedings in
the General Court of Colonial Virginia 101 (1965).
In England, in 1865, the right of the defendant in a criminal
trial to make a closing argument, either by himself or by counsel
if he was represented, was given express statutory recognition:
"[U]pon every Trial . . . whether the Prisoners . . . or any of
them, shall be defended by Counsel or not . . . such Prisoner . . .
shall be entitled . . . when all the Evidence is concluded to sum
up the Evidence respectively."
Criminal Procedure Act of 1865, 28 Vict., c. 18, § 2. This
remains the rule in England. 10 Halsbury's Laws of England § 777,
pp. 422-423 (3d ed.1955).
See also T. Butler & M.
Garsia, Archibold's Pleading, Evidence and Practice in Criminal
Cases, § 558 (37th ed.1969).
Cf. R. v. Wainwright, 13 Cox
Cr.Cas. 171 (1875);
R. v. Wickham, 55 Cr.App.R.199 (1971)
(noted at 1971 Crim.L.Rev. 233).
[
Footnote 13]
We deal in this case only with final argument or summation at
the conclusion of the evidence in a criminal trial. Nothing said in
this opinion is to be understood as implying the existence of a
constitutional right to oral argument at any other stage of the
trial or appellate process.
[
Footnote 14]
R. Jackson, The Struggle for Judicial Supremacy 301 (1941).
[
Footnote 15]
The contention has been made that, while a right to make closing
argument should be recognized in a jury trial, there is
insufficient justification for such a right in the context of a
bench trial. This view rests on the premise that a judge, with
legal training and experience, will be likely to see the case
clearly, rendering argument superfluous, or to recognize that
further illumination of the issues would be helpful, in which case
he would permit closing argument.
We find this contention unpersuasive. Judicial training and
expertise, however it may enhance judgment, does not render memory
or reasoning infallible. Moreover, in one important respect,
closing argument may be even more important in a bench trial than
in a trial by jury. As MR. JUSTICE POWELL has observed, the
"collective judgment" of the jury "tends to compensate for
individual shortcomings and furnishes some assurance of a reliable
decision." Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev.
1, 4 (1966). In contrast, the judge who tries a case presumably
will reach his verdict with deliberation and contemplation, but
must reach it without the stimulation of opposing viewpoints
inherent in the collegial decisionmaking process of a jury.
[
Footnote 16]
See n 4,
supra.
[
Footnote 17]
See n 3,
supra.
[
Footnote 18]
A defendant who has exercised the right to conduct his own
defense has, of course, the same right to make a closing argument.
See Faretta v. California, ante p.
422 U. S. 806.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, dissenting.
I
The Court has made of this a very curious case. What began as a
constitutional challenge to a statute which gives trial courts
discretion as to whether "parties" may deliver summations has been
transformed into an exploration of the right to counsel -- although
no one doubts that appellant was competently represented throughout
the proceedings which resulted in his conviction. Today's opinion,
in deriving from the right to counsel further rights relating to
the conduct of a trial, expands the earlier holdings in
Ferguson v. Georgia, 365 U. S. 570
(1961), and
Brooks v. Tennessee, 406 U.
S. 605 (1972). In each of these three instances, one
must presume, in view of the Court's analytical approach, that,
regardless of the intrinsic importance of the rights involved, they
are enforced only because the accused has a prior right to the
assistance of a third party in the preparation and presentation of
his defense.
I think that, in each instance, a statement from Mr. Justice
Frankfurter's separate opinion in
Ferguson is
a
propos: "This is not a right to counsel case." 365 U.S. at
365 U. S. 599.
In the present case, the crucial fact is not that counsel wishes to
present a summation of the evidence, but that the
defendant -- whether through counsel or otherwise --
wishes to make such a summation. Of course,
Page 422 U. S. 866
I do at suggest that the rights enforced in these cases are
without basis, at least in particular cases, in the Due Process
Clause of the Fourteenth Amendment.
Cf. id. at
365 U. S.
598-601 (opinion of Frankfurter, J.);
Brooks v.
Tennessee, supra, at
406 U. S. 618
(REHNQUIST, J., dissenting). But I do suggest that the Court's
analytical framework, and its resulting prophylactic rule, are
wrongly employed to decide this case.
I would have thought that, in
Faretta v. California,
ante, p.
422 U. S. 806, the
Court had recanted its approach in
Ferguson and
Brooks. In
Faretta, the Court concluded that it
is the Sixth Amendment, and not the Right-to-Counsel Clause of that
Amendment, which "constitutionalizes the right in an adversary
criminal trial to make a defense as we know it."
Ante at
422 U. S. 818.
Yet, in the present case, we are informed that it is the
Right-to-Counsel Clause which constitutionalizes the right to
present a defense "in accord with the traditions of the adversary
factfinding process."
Ante at
422 U. S. 857.
Not being content merely to contradict
Faretta by holding
that entitlement to the traditions of our judicial system depends
upon the right to retain counsel, the Court also states that, "of
course, the same right to make a closing argument" is available to
those who choose not to exercise their right to counsel.
Ante at
422 U. S. 864
n. 18. To complete the confusion, the Court does not explain the
latter
ipse dixit, but does cite one case --
Faretta.
II
The Due Process Clause of the Fourteenth Amendment has long been
recognized as assuring "fundamental fairness" in state criminal
proceedings.
See, e.g., Lisenba v. California,
314 U. S. 219,
314 U. S. 236
(1941);
Moore v. Dempsey, 261 U. S.
86,
261 U. S. 90-91
(1923). Throughout the history of the Clause, we have generally
considered the question of
Page 422 U. S. 867
fairness on a case-by-case basis, reflecting the fact that the
elements of fairness vary with the circumstances of particular
proceedings. As the Court observed in
Snyder v.
Massachusetts, 291 U. S. 97,
291 U. S.
116-117 (1934):
"Due process of law requires that the proceedings shall be fair,
but fairness is a relative, not an absolute concept. . . . What is
fair in one set of circumstances may be an act of tyranny in
others."
See, e.g., Sheppard v. Maxwell, 384 U.
S. 333 (196);
Spencer v. Texas, 385 U.
S. 554 (1967);
Chambers v. Mississippi,
410 U. S. 284
(1973);
Cupp v. Naughten, 414 U.
S. 141 (1973).
However, in some instances, the Court has engaged in a process
of "specific incorporation," whereby certain provisions of the Bill
of Rights have been applied against the States.
See the
cases cited
ante at
422 U. S. 857
n. 7. In making the decision whether or not a particular provision
relating to the conduct of a trial should be incorporated, we have
been guided by whether the right in question may be deemed
essential to fundamental fairness -- an analytical approach which
is compelled if we are to remain true to the basic orientation of
the Due Process Clause.
See, e.g., In re Oliver,
333 U. S. 257,
333 U. S.
270-271 (1948) (public trial);
Duncan v.
Louisiana, 391 U. S. 145,
391 U. S.
155-158 (1968) (jury trial);
Pointer v. Texas,
380 U. S. 400,
380 U. S.
403-404 (1965) (confrontation);
Washington v.
Texas, 388 U. S. 14,
388 U. S. 17-19
(1967) (compulsory process);
Gideon v. Wainwright,
372 U. S. 335,
372 U. S. 342
(1963) (appointed counsel). But once we have determined that a
particular right should be incorporated against the States, we have
abandoned case-by-case considerations of fairness. Incorporation,
in effect, results in the establishment of a strict prophylactic
rule, one which is to be generally observed in every case
regardless of its particular circumstances. It is a judgment on the
part of
Page 422 U. S. 868
this Court that the probability of unfairness in the absence of
a particular right is so great that denigration of the right will
not be countenanced under any circumstances. These judgments by
this Court reflect similar judgments made by the Constitution's
Framers with regard to the Federal Government.
Beyond certain of the specified rights in the Bill of Rights,
however, I do not understand the basis for abandoning the
case-by-case approach to fundamental fairness. There are a myriad
of rules and practices governing the conduct of criminal
proceedings which may or may not in particular circumstances be
necessary to assure fundamental fairness. Obvious examples are the
rules governing the introduction and testing of evidence, as well
as, I think, the New York rule governing summations in nonjury
trials. Such matters are not specifically dealt with in the text of
the Constitution, nor are they subject to the judgment that uniform
application of a particular rule is necessary because the
likelihood of unfairness is too great when that rule is not
observed. As to such matters it is appropriate, and frequently
necessary, that trial judges be accorded considerable discretion,
subject of course to both appellate review on an abuse of
discretion standard and, ultimately, to the fundamental fairness
inquiry under the Fourteenth Amendment.
The present case is a prime example of why a prophylactic rule
with regard to summations in nonjury trials is thoroughly
inappropriate. The case was tried before a judge who, unlike a
jury, may take notes on testimony, and who is experienced in both
judging the credibility of witnesses and testing the relevance of
their testimony to the elements which must be proved to obtain a
conviction. The case was conceptually and factually a simple one,
involving no more than whether one was
Page 422 U. S. 869
to believe the victim, despite the inconsistencies in his
testimony, or the defendant. [
Footnote
2/1] The judge had previously permitted appellant's counsel to
summarize the evidence, on the occasion of the motion to dismiss at
the close of the State's case. That appellant's counsel had
considerable faith in the judge's familiarity with, and ability to
organize, the evidence is shown by the transcript of that earlier
summation:
"[MR. ADAMS:] Do you want to hear me extensively on that, Judge?
Or I have a witness here, I can go on, or would you rather hear me
on some lengthy argument subsequently, Judge?"
"THE COURT: I will hear anything you have to say."
"MR. ADAMS: All right. Judge, I believe here that, as a matter
of law ,we have a doubt here. Firstly, on this first witness of the
prosecution here, Judge. There were numerous inconsistencies, and
I will not bore the Court reading that. Of course, the Court
has copious notes on it, and I am sure it is very fresh in the
Court's mind. But on top of that, Judge, we have a
questionable complainant, with a questionable way of how it
happened, no witness other than this complainant."
"An officer who checked out this particular matter testified
here and said that the man was working at that time. A definite
denial by the defendant. And I believe that, as a matter of law,
Judge, there is a reasonable doubt here."
App. 66 (emphasis added). Similarly, when the opportunity to
summarize was
Page 422 U. S. 870
denied, appellant's counsel did not so much as suggest that he
thought it necessary to refresh the judge's memory as to certain
matters. [
Footnote 2/2] It should
also be noted that, in his earlier argument counsel had referred to
most of the matters which the Court today suggests might have
usefully been brought to the judge's attention in a final
summation.
See ante at
422 U. S. 864.
Finally, the fact that the judge conducted this trial in a
fair-minded fashion, and would not arbitrarily prevent a summation
which could be expected to clarify his understanding of the case,
is evidenced by his dismissal of one count over the vigorous
protests of the prosecution.
Whatever theoretical effect the denial of argument may have had
on the judgment of conviction, its practical effect on the outcome
must have been close to nothing. The trial judge was not conducting
a moot court; he was sitting as the finder of fact in a trial in
which he had been present during the testimony of every single
witness. No experienced advocate would insist on presenting
argument to such a judge after he had indicated his belief that
argument would not be of assistance. Trial counsel here did not
insist, and the claim which
Page 422 U. S. 871
is today sustained by this Court is urged by other counsel.
The truth of the matter is that appellant received a fair trial,
and I do not read the Court's opinion to claim otherwise. The
opinion instead establishes a right to summation in criminal trials
regardless of circumstances, by tagging that right onto one of the
specifically incorporated rights. It thereby conveniently avoids
the difficulties of being unable to characterize appellant's trial
as fundamentally unfair, but only at the expense of ignoring the
logical difficulty of adorning the specifically incorporated rights
with characteristics which are not themselves necessary for
fundamental fairness. [
Footnote
2/3]
The nature of the right which the Court today creates is as
curious as its genesis. Apparently it requires nothing more than
pro forma observance, since the trial judge "must be and
is given great latitude" in controlling the duration and limiting
the scope of closing summations. He may determine what is a
"reasonable" time for argument, and at what point the argument
becomes repetitive or redundant, or strays "unduly" from the mark.
"In all these respects he must have broad discretion."
Ante at
422 U. S. 862.
That is, after 30 seconds, or some other minimal period of
argument, the judge is free to exercise his discretion. It is not
clear why this should be so. If it is
Page 422 U. S. 872
true that
"there is no certain way for a trial judge to identify
accurately [those cases in which closing argument may be
beneficial], until the judge has heard the closing summation of
counsel,"
ante at
422 U. S. 863,
it is equally true that he cannot determine whether continued
argument will be repetitive, redundant, or otherwise useless until
he has heard the continued argument. But, in any event, the
constitutional issue does rather quickly become framed once again
according to the standards which should have governed all along --
whether or not the judge's actions in the particular case deprived
the defendant of a trial which was fundamentally fair. [
Footnote 2/4]
By propagating a right to summation -- despite such a right's
lack of textual basis, and despite the inability reasonably to
conclude that the right is so basic that we cannot chance trial
court discretion in the matter -- the Court has furthered the
practice of reviewing state criminal trials in a piecemeal fashion.
The incident upon which this reversal is based was but one stage in
a carefully conducted trial, and cannot be claimed to have
permeated the entire proceeding as would trial without a jury, or
without counsel. The Court is thus disregarding the basic question
of whether the proceeding by which a defendant is deprived of his
liberty is fundamentally fair.
The Court's decision derives no support either from logic or
from the Amendment it professes to apply. Since it reverses a
criminal conviction which was fairly obtained, I dissent.
[
Footnote 2/1]
The employer's credibility was not at issue. Not only was he
vague as to the times at which he had seen appellant at his garage,
but that garage was located only 31/2 blocks from the scene of the
crime. App. 76, 86.
[
Footnote 2/2]
The colloquy at the end of the trial was as follows:
"MR. ADAMS: Judge, at this time I respectfully move to -- make
two motions, Judge. Firstly, that the Court dismiss the two counts,
first count and the second count of the indictment on the grounds
the People have failed to make out a
prima facie case; and
on the further grounds the People have failed to prove the
defendant guilty of each and every part and parcel of the crimes
charged in count one and count two beyond a reasonable doubt as a
matter of law, and as a matter of fact."
"THE COURT: Motion denied. I will take a short recess to
deliberate, and I will give you a verdict."
"MR. ADAMS: Well, can I be heard somewhat on the facts?"
"THE COURT: Under the new statute, summation is discretionary,
and I choose not to hear summations."
"THE CLERK: Remand."
App. 92.
[
Footnote 2/3]
While the Court,
ante at
422 U. S. 862,
presents a variety of arguments supporting the wisdom and
desirability of generally permitting closing arguments in nonjury
trials, none of them impress me as rising to the level of
fundamental fairness. They would be of substantial merit if
presented to the New York Legislature, but are hardly relevant to
the constitutional inquiry which it is our duty to perform. As for
the Court's final flourish ("no aspect of such advocacy could be
more important"), it is obvious hyperbole which can only be uttered
in complete disregard of such matters as cross-examination, the
selection of trial strategy and witnesses, and attempts to exclude
unconstitutionally obtained evidence.
[
Footnote 2/4]
I would also think it not unlikely under the Court's holding
that post-trial briefing would be an adequate substitute for oral
summation, since it meets the concerns which the Court expresses as
the basis for its newly found constitutional right.
See
ante at
422 U. S.
862.