1. So far as the Fourteenth Amendment is concerned, the presence
of the defendant in a prosecution for felony is a condition of due
process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only. P.
291 U. S.
105.
2. In a state prosecution for murder, the accused was denied
permission to attend a view, which was ordered by the court on
motion of the prosecution, at the opening of the trial. The jurors,
under a sworn bailiff, visited the scene of the crime, accompanied
by the judge, the counsel for both parties and the court
stenographer. The counsel, acting as showers by the permission of
the judge, pointed out particular features of the scene and asked
the jurors to observe them, but there was no statement of the
evidence. A stenographic record was made of everything that was
said or done. The defendant, at the trial, virtually admitted that
the place visited was the right one, and if there had been failure
to point out anything material, he had full opportunity to prove
the fact and ask for another view.
Held, that the viewing
in the absence of the accused was not a denial of due process under
the Fourteenth Amendment. P.
291 U. S.
108.
3. Statements to the jury pointing out the specific objects to
be noticed have been a traditional accompaniment of a view in
England and in this country, and this procedure was not displaced
by the Fourteenth Amendment. P.
291 U. S.
110.
4. Designation of counsel for the parties as the showers is also
an ancient practice, and cannot be prejudicial to the defendant. P.
291 U. S.
113.
5. Assuming that the knowledge derived from a view is evidence,
still a view is not a trial, nor any part of a trial, in the sense
in which a trial was understood at common law. P.
291 U. S.
113.
Page 291 U. S. 98
6. To transfer to a view the constitutional privileges
applicable to a trial would be forgetful of history. P.
291 U. S.
114.
7. Irrespective of whether a view be labeled as part of the
"trial," and the knowledge so derived as "evidence," the question
whether exclusion of the defendant not by a statutory mandate, but
by a discretionary ruling of the court, violates due process of law
is determined by conceptions of fairness and justice applied to the
particular facts. P.
291 U. S.
114.
8. A statement made by the judge during a view in the absence of
the defendant, to the effect that one of the structures pointed out
was not there at the homicide --
held improper, but
harmless, both because it was not material and because it was
confirmed by the accused and his counsel at the trial. P.
291 U. S.
118.
9. A view constitutionally taken in the absence of the defendant
is not to be adjudged unconstitutional because the court told the
jury it was evidence. P.
291 U. S.
121.
282 Mass. 401; 185 N.E. 376, affirmed.
CERTIORARI, 290 U.S. 606, to review a judgment entered on the
affirmance of a conviction of murder.
Page 291 U. S. 102
MR. JUSTICE CARDOZO delivered the opinion of the Court.
On April 9, 1931, James M. Kiley was shot to death at a gasoline
station at Somerville, Massachusetts. Three men, Garrick, Donnellon
and the petitioner Snyder, joined in the murder and in the
attempted robbery that led to it. Garrick confessed to his part in
the crime, and became a witness for the state. Donnellon and Snyder
were tried together and sentenced to be put to death. The jury
found upon abundant evidence that the guilt of each had
Page 291 U. S. 103
been established beyond a reasonable doubt. At the trial and on
appeal, Snyder made the claim that, through the refusal of the
trial judge to permit him to be present at a view, there had been a
denial of due process of law under the Fourteenth Amendment of the
Constitution of the United States. The Supreme Judicial Court of
Massachusetts affirmed the conviction. 282 Mass. 41, 185 N.E. 376.
A writ of certiorari brings the case here.
At the opening of the trial, there was a motion by the
Commonwealth that the jury be directed to view the scene of the
crime. This motion was granted. In granting it, the court acted
under a Massachusetts statute which provides "The court may order a
view by a jury impaneled to try a criminal case." General Laws of
Massachusetts, c. 234, § 35. The court appointed counsel for
Donnellon and for Snyder to represent their respective clients at
the place to be viewed. Counsel for Donnellon moved that he be
permitted to go there with his client after the view, but did not
ask that his client be present with the jury. The court stated that
such an order would probably be made. Counsel for Snyder moved that
his client be permitted to view the scene with the jury, invoking
the protection of the federal constitution. This motion was denied.
The jurors were then placed in charge of bailiffs duly sworn.
Accompanied by these bailiffs and also by the judge, the court
stenographer, the District Attorney, and the counsel for the
defendants, they went forth to make their view.
The first stopping place was at the filling station, 13
Somerville Avenue. Entering the station, the District Attorney
pointed out to the jurors the particular parts of the building that
he wished them to observe. He asked them to note the window at the
rear, its position with reference to the entrance, the position of
other windows to the right, the size of the room, the angle made by
a partition, and the location of other objects. Counsel for
Page 291 U. S. 104
Snyder called attention to the view from within the building
looking out, and to the condition of the floor. Leaving the station
by the front door, the jury viewed the building from the other side
of the street. The District Attorney asked that note be made of the
driveway to the right and left of the station, the three pumps in
front, and also the width of the street. Counsel for Snyder called
attention to the nature of the travel, the setback of the station
from the roadway, and, in particular, the possibility of observing
from without what was taking place within. After the visit to the
station, the jurors were taken a short distance away, where they
were asked to make note of the layout of the streets. They then
went back to the station, the District Attorney saying that he had
omitted to direct their attention to the lights. The lights were
then observed, the dimensions of a fence in front of them, and
also, once more, the gasoline pumps. The District Attorney stated
that the middle pump was not there at the time of the homicide.
Counsel for the petitioner answered that he had no knowledge on the
subject, but would accept his adversary's statement. Thereupon, the
judge, who had guided the proceeding, stated the agreement to the
jurors assembled on the walk. "It is agreed," he said,
"that, at the time of the offense, that is, on April 9, 1931,
there were but two pumps in front of the gasoline station, the one
on the extreme right that is painted green and the one on the
extreme left that is painted black. Those two were there. The one
in the middle, with the blue striping on it, was not there."
After the completion of the view, the group returned to the
courthouse, and the trial went on. In charging the jury, the judge
said,
"Now what have you before you on which to form your judgment and
to render your finding and your verdict? The view, the testimony
given by the witnesses, and the exhibits comprise the evidence that
is before you."
The question in this court is whether a
Page 291 U. S. 105
view in the absence of a defendant who has made demand that he
be present is a denial of due process under the Fourteenth
Amendment.
The Commonwealth of Massachusetts is free to regulate the
procedure of its courts in accordance with its own conception of
policy and fairness unless, in so doing, it offends some principle
of justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.
Twining v. New Jersey,
211 U. S. 78,
211 U. S. 106,
211 U. S. 111,
211 U. S. 112;
Rogers v. Peck, 199 U. S. 425,
199 U. S. 434;
Maxwell v. Dow, 176 U. S. 581,
176 U. S. 604;
Hurtado v. California, 110 U. S. 516;
Frank v. Mangum, 237 U. S. 309,
237 U. S. 326;
Powell v. Alabama, 287 U. S. 45,
287 U. S. 67.
Its procedure does not run foul of the Fourteenth Amendment because
another method may seem to our thinking to be fairer or wiser or to
give a surer promise of protection to the prisoner at the bar.
Consistently with that amendment, trial by jury may be abolished.
Walker v. Sauvinet, 92 U. S. 90;
Maxwell v. Dow, supra; N.Y. Central R. Co. v. White,
243 U. S. 188,
243 U. S. 208;
Wagner Electric Co. v. Lyndon, 262 U.
S. 226,
262 U. S. 232.
Indictments by a grand jury may give way to informations by a
public officer.
Hurtado v. California, supra; Gaines v.
Washington, 277 U. S. 81,
277 U. S. 86.
The privilege against self-incrimination may be withdrawn and the
accused put upon the stand as a witness for the state.
Twining
v. New Jersey, supra. What may not be taken away is notice of
the charge and an adequate opportunity to be heard in defense of
it.
Twining v. New Jersey, supra; Powell v. Alabama,
supra, pp.
287 U. S. 68,
287 U. S. 71;
Holmes v. Conway, 241 U. S. 624.
Cf. Blackmer v. United States, 284 U.
S. 421,
284 U. S.
440.
We assume in aid of the petitioner that, in a prosecution for a
felony, the defendant has the privilege under the Fourteenth
Amendment to be present in his own person whenever his presence has
a relation, reasonably substantial, to the fulness of his
opportunity to defend
Page 291 U. S. 106
against the charge. Thus, the privilege to confront one's
accusers and cross-examine them face to face is assured to a
defendant by the Sixth Amendment in prosecutions in the federal
courts (
Gaines v. Washington, supra, at p.
277 U. S. 85),
and, in prosecutions in the state courts, is assured very often by
the constitutions of the states. For present purposes, we assume
that the privilege is reinforced by the Fourteenth Amendment,
though this has not been squarely held.
Cf. Schwab v.
Berggren, 143 U. S. 442,
143 U. S. 448,
143 U. S. 450;
West v. Louisiana, 194 U. S. 28;
Diaz v. United States, 223 U. S. 442,
223 U. S. 455;
Blackmer v. United States, supra. Hopt v. Utah,
110 U. S. 574, has
been distinguished and limited.
Frank v. Mangum, supra,
pp.
237 U. S. 340,
237 U. S. 341.
Cf. Patton v. United States, 281 U.
S. 276. Again, defense may be made easier if the accused
is permitted to be present at the examination of jurors or the
summing up of counsel, for it will be in his power, if present, to
give advice or suggestion, or even to supersede his lawyers
altogether and conduct the trial himself.
See Lewis v. United
States, 146 U. S. 370, a
prosecution in the federal courts. In such circumstances also, we
make a like assumption as to the scope of the privilege created by
the federal constitution.
Diaz v. United States, supra. No
doubt the privilege may be lost by consent, or, at times, even by
misconduct.
Diaz v. United; States, supra. Cf.
Sir James Fitzjames Stephen, Digest of the Law of Criminal
Procedure, Art. 302. Our concern is with its extension when
unmodified by waiver, either actual or imputed. In all the cases
thus assumed, the presence of the defendant satisfies the test that
was put forward a moment ago as basic and decisive. It bears, or
may fairly be assumed to bear, a relation, reasonably substantial,
to his opportunity to defend. Nowhere in the decisions of this
court is there a dictum, and still less a ruling, that the
Fourteenth Amendment assures the privilege of presence when
presence would be useless, or the benefit but a
Page 291 U. S. 107
shadow. What has been said, if not decided, is distinctly to the
contrary.
Howard v. Kentucky, 200 U.
S. 164,
200 U. S. 175;
Valdez v. United States, 244 U. S. 432,
244 U. S. 445.
Cf. Frank v. Mangum, supra, and particularly the
dissenting opinion, at p.
237 U. S. 346.
The underlying principle gains point and precision from the
distinction everywhere drawn between proceedings at the trial and
those before and after. Many motions before trial are heard in the
defendant's absence, and many motions after trial or in the
prosecution of appeals.
Cf. Schwab v. Bergren, supra, and Lewis
v. United States, supra. Confusion of thought will result if
we fail to mark the distinction between requirements in respect of
presence that have their source in the common law and requirements
that have their source, either expressly or by implication, in the
federal constitution. Confusion will result again if the privilege
of presence be identified with the privilege of confrontation,
which is limited to the stages of the trial when there are
witnesses to be questioned.
"It was intended to prevent the conviction of the accused upon
depositions or
ex parte affidavits, and particularly to
preserve the right of the accused to test the recollection of the
witness in the exercise of the right of cross-examination."
Dowdell v. United States, 221 U.
S. 325,
221 U. S. 330.
See also Wigmore, Evidence, vol. 3, §§ 1395, 1397,
collating the decisions. Nor has the privilege of confrontation at
any time been without recognized exceptions, as for instance, dying
declarations or documentary evidence.
Dowdell v. United States,
supra. Cf. Robertson v. Baldwin, 165 U.
S. 275,
165 U. S. 282;
Motes v. United States, 178 U. S. 458,
178 U. S. 472,
178 U. S. 473.
The exceptions are not even static, but may be enlarged from time
to time if there is no material departure from the reason of the
general rule.
Commonwealth v. Slavski, 245 Mass. 405, 415,
140 N.E. 465;
cf. West v. Louisiana, supra. So far as the
Fourteenth Amendment is concerned, the presence of a defendant is a
condition of due
Page 291 U. S. 108
process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.
We are thus brought to an inquiry as to the relation between the
defendant's presence at a view and the fundamental justice assured
to him by the Constitution of the United States.
At the outset, we consider a bare inspection, and nothing more,
a view where nothing is said by anyone to direct the attention of
the jury to one feature or another. The Fourteenth Amendment does
not assure to a defendant the privilege to be present at such a
time. There is nothing he could do if he were there, and almost
nothing he could gain. The only shred of advantage would be to make
certain that the jury had been brought to the right place, and had
viewed the right scene. If he felt any doubt about this, he could
examine the bailiffs at the trial and learn what they had looked
at. The risk that they would lie is no greater than the risk that
attaches to testimony about anything. "Constitutional law, like
other mortal contrivances, has to take some chances."
Blinn v.
Nelson, 222 U. S. 1,
222 U. S. 7. Here,
the chance is so remote that it dwindles to the vanishing point. If
the bailiffs were to bear false witness as to the place they had
shown, the lie would be known to the jury. There is no immutable
principle of justice that secures protection to a defendant against
so shadowy a risk. The argument is made that, conceivably, the
place might have been changed, and in a way that would be material.
In that event, the fact could be brought out by appropriate
inquiry. There could be inquiry of witnesses in court, and of
counsel out of court. Description would disclose the conditions at
the view, and the defendant or his witnesses could prove what the
conditions were before. He could do nothing more though he had been
there with the jury. Indeed, the record makes it clear that, upon
request, he would have been allowed to go there afterwards in
company with his
Page 291 U. S. 109
counsel. Opportunity was ample to learn whatever there was need
to know.
If the risk of injustice to the prisoner is shadowy, at its
greatest, it ceases to be even a shadow when he admits that the
jurors were brought to the right place and shown what it was right
to see. That, in substance, is what happened here. On the trial,
photographs and diagrams of the scene of the homicide were put in
evidence by the Commonwealth and placed before the jury. There was
no suggestion by the defendant or his counsel that these
photographs and diagrams did not truly represent the place that had
been seen upon the view. There was no suggestion of any change
except the one that was conceded. The defendant took the stand and
admitted that he was at the gasoline station at the time of the
crime. He tried to reduce the grade of his wrongdoing by testifying
that the shot had been fired by his codefendant Donnellon, and that
larceny, not robbery, was the aim of the conspiracy.
* In the course of
his testimony, he described his own and Donnellon's movements with
the aid of the diagram in evidence. At the end of the trial, he
made a brief statement to the jury, supplementing the argument that
had been made by his counsel. "I am sorry," he said, "that I had
any part in the crime. I am sorry for the grief I have caused. But
I did not fire the fatal shot. That is all." Nowhere is there a
suggestion of any doubt as to the place. Like concessions are
implicit in the summing up of counsel. His argument reminds the
jurors of what they had seen upon
Page 291 U. S. 110
the view, and of the dimensions of the building, which are shown
also on the diagram. The place is undisputed.
If it be true that there is no denial of due process as the
result of a bare inspection in the absence of a defendant, the
question remains whether such a denial results where counsel are
permitted, without any statement of the evidence, to point out
particular features of the scene and to request the jury to observe
them. The courts of Massachusetts hold that statements, thus
restricted, are proper incidents of a view. "The essential features
may be pointed out by the counsel. No witnesses are heard. . . .
There can be no comment or discussion."
Commonwealth v.
Dascalakis, 246 Mass. 12, 29, 140 N.E. 470, 477;
"One or two attorneys representing both the Commonwealth and the
defendant go on the view, it being permissible to them, in the
presence of each other and of the officers of the court, merely to
point out to the jury 'marks, matters or things,' but not otherwise
to speak to the jury."
Ibid. The rule in Massachusetts is that these acts are
permissible though the defendant is not present (
ibid.),
and though he is kept away under protest.
See Commonwealth v.
Belenski, 276 Mass. 35; 176 N.E. 501, which was followed in
the case at bar.
Commonwealth v. Snyder, supra. We are to
determine whether the Fourteenth Amendment prescribes anything to
the contrary
Obviously, the difference between a view at which everyone is
silent and a view accompanied by a request to note this feature or
another is one of degree, and nothing more. The mere bringing of a
jury to a particular place, whether a building or a room or a wall
with a bullet hole, is, in effect, a statement that this is the
place which was the scene of the offense and a request to examine
it. When the tacit directions are made explicit, the defendant is
not wronged unless the supplement of words so transforms the
quality of the procedure that injustice will be done if the
defendant is kept away. Statements to the jury
Page 291 U. S. 111
pointing out the specific objects to be noted have been a
traditional accompaniment of a view for about two centuries, if not
longer. The Fourteenth Amendment has not displaced the procedure of
the ages.
Corn Exchange Bank v. Coler, 280 U.
S. 218;
Ownbey v. Morgan, 256 U. S.
94;
Twining v. New Jersey, supra, at pp.
211 U. S. 100,
211 U. S.
101.
As early as 1747, there is the record of a precedent that
exhibits the remedy in action. The practice then was to place the
jury in the charge of "showers," who were sworn to lead them to the
view. The defendant in a civil action complained that the
plaintiff's shower had misbehaved himself in his comments to the
jury.
"The court discharged the rule, being of opinion the showers may
show marks, boundaries, etc., to enlighten the viewers, and may say
to them, 'These are the places which, on the trial, we shall adapt
our evidence to.'"
Goodtitle v. Clark, Barnes, 457. At that time, views
were not taken in criminal cases without the consent of both the
parties, the Crown as well as the defendant, except, it seems, upon
indictments for maintaining a nuisance.
Rex v. Redman,
1756, 1 Kenyon 384; s.c. Sayer's Rep. 303;
Commonwealth v.
Handren, 261 Mass. 294, 297, 158 N.E. 894;
but see
Anonymous, 1815, 2 Chitty 422.
Cf. 1 Burr.Rep. 252.
In 1825, however, a statute applicable to England and Wales
supplied the defect of power, if defect there formerly had been. 6
George IV, c. 50, s. 23. Thereafter, in any case, "either civil or
criminal," a view might be ordered in the discretion of the court.
The form of oath administered to the showers appears in the
reports. Thus, in
Regina v. Whalley, 1847, 2 Cox Crim.Rep.
231, the oath administered was this:
"You swear you will attend this jury and well and truly point
out to them the place in which the offense for which the prisoner
T.W. stands charged is alleged to have been committed; you shall
not speak to them touching the supposed offence whereof the said
T.W. is so charged, only so far as relates to describing
Page 291 U. S. 112
the place aforesaid."
See also Queen v. Martin, L.R., 1 Crown Cases Reserved
378; Tidd's Practice, vol. 2, pp. 797, 798; Gude's Crown Practice,
London, 1828, vol. 2, pp. 655, 656;
cf. Wigmore, Evidence,
vol. 3, §§ 1802, 1803, and cases cited. So also, in our own
country, the power to order a view in criminal cases has been made
certain by statutes enacted in nearly all the states (
see
the statutes collated in Wigmore on Evidence, vol. 2, § 1163),
though there are instances in which the power has been treated as
inherent.
State v. Perry, 121 N.C. 533; 27 S.E. 997;
Commonwealth v. Knapp, 9 Pick. 496, 515. The statutes,
when enacted, conform very generally to the practice in the English
courts, provision being made for the presence of the judge, or, in
his discretion, for the appointment of showers sworn in the ancient
form.
Cf. the statutes and decisions in Wigmore, Evidence,
vol. 3, §§ 1802, 1803, and vol. 2, § 1163,
and see Brooklyn v.
Patchen, 8 Wend. 47, 65;
State v. Perry, supra, at p.
536.
When the scene is explained by showers who are not the counsel
for the parties, a defendant gains nothing by being present at a
view any more than he gains where there is only a bare inspection
without an explanatory word. He has no privilege in such
circumstances, and certainly no constitutional privilege, to speak
to the showers and give suggestions or advice.
"We do not see what good the presence of the prisoner would do,
as he could neither ask nor answer questions, nor in any way
interfere with the acts, observations or conclusions of the
jury."
People v. Bonney, 19 Cal. 426, 446. If they fail to
point out anything material, he may prove the fact upon the trial,
and ask for another view. He had the same privilege here, for there
was a stenographic transcript of all that was said and done. Never,
at any stage of the proceeding, has there been a suggestion by the
defendant
Page 291 U. S. 113
or his counsel that there was need of something more.
The situation is not changed to his prejudice because the
showers, in this instance, were the counsel for the parties. The
choice of counsel for that purpose has its roots in ancient
practice. Tidd's Practice, vol. 2, pp. 797, 798; Wigmore, Evidence,
vol. 3, § 1803:
cf. 1 Burr. 252. Far from being harmful,
it supplies an additional assurance that nothing helpful to either
side will be overlooked upon the view. True, indeed, it is that,
when counsel are the showers, the defendant may be able, if he is
present, to give suggestion or advice, or so at least we may
assume. Constitutional immunities and privileges do not depend upon
these accidents. The Fourteenth Amendment does not say that showers
are at liberty, in the absence of the defendant, to point out the
things to be viewed if the showers are not counsel, but are not at
liberty to do so if they happen to be counsel. The least a
defendant must do, if he would annul the practice upon a view which
the Commonwealth has approved by the judgment of its courts, is to
show that, in the particular case in which the practice is exposed
to challenge, there is a reasonable possibility that injustice has
been done.
Cf. Rutherford v. Commonwealth, 78 Ky. 639;
Howard v. Kentucky, supra. No one can read what was said
at this view in the light of the uncontroverted facts established
at the trial, and have even a passing thought that the presence of
Snyder would have been an aid to his defense.
There is an approach to the subject from the viewpoint of
history that clarifies the prospect. We may assume that the
knowledge derived from an inspection of the scene may be
characterized as evidence. Even if this be so, a view is not a
"trial," nor any part of a trial, in the sense in which a trial was
understood at common law. This is seen from two circumstances. In
the first place,
Page 291 U. S. 114
the judge is not required to be present at a view, though he may
go there if he will. In the second place, the practice for many
years was to have a committee of the jurors, the usual number being
six, attend at the view to represent the whole body.
See
the rules laid down by Lord Mansfield in 1 Burr. Rep. 252;
also the provisions of the Act of 6 George IV, c. 50, §
23, 24 [1825], by which the practice was made uniform in criminal
and civil cases;
and compare Wigmore, Evidence, vol. 2, §
1165, and the cases cited. We have no thought to suggest that a
view by a part of a jury is permissible today. That question is not
before us. There is significance nonetheless in the fact that it
was permissible in England, the home of the principle that a
defendant charged with felony has the privilege of confronting his
accusers and of being present at his trial. Certain it is that, in
the land where these maxims had their genesis and from which they
were carried to our shores, the proceeding known as a trial was
thought of as something very different from the proceeding known as
a view. To transfer to a view the constitutional privileges
applicable to a trial is to be forgetful of our history.
A fertile source of perversion in constitutional theory is the
tyranny of labels. Out of the vague precepts of the Fourteenth
Amendment, a court frames a rule which is general in form, though
it has been wrought under the pressure of particular situations.
Forthwith another situation is placed under the rule because it is
fitted to the words, though related faintly, if at all, to the
reasons, that brought the rule into existence. A defendant in a
criminal case must be present at a trial when evidence is offered,
for the opportunity must be his to advise with his counsel
(
Powell v. Alabama, supra), and cross-examine his
accusers.
Dowdell v. United States, supra.; Commonwealth v.
Slavski, supra. Cf. Felts v. Murphy, 201 U.
S. 123. Let the words "evidence" and "trial" be
extended
Page 291 U. S. 115
but a little, and the privilege will apply to stages of the
cause at which the function of counsel is mechanical or formal, and
at which a scene, and not a witness, is to deliver up its message.
In such circumstances, the solution of the problem is not to be
found in dictionary definitions of evidence or trials. It is not to
be found in judgments of the courts that, at other times or in
other circumstances, the presence of a defendant is a postulate of
justice. There can be no sound solution without an answer to the
question whether, in the particular conditions exhibited by the
record, the enforced absence of the defendant is so flagrantly
unjust that the Constitution of the United States steps in to
forbid it. What we are subjecting to revision is not the action of
a legislature excluding a defendant from a view at all times or in
all conditions. What is here for revision is the action of the
judicial department of a state excluding the defendant in a
particular set of circumstances, and the justice or injustice of
that exclusion must be determined in the light of the whole record.
Cf. Howard v. Kentucky, supra; Chicago, B. & Q. R. Co. v.
Chicago, 166 U. S. 226,
166 U. S. 234,
166 U. S. 235.
Discretion has not been abdicated. To the contrary, the record
makes it clear that discretion has been exercised. Much is made of
a supposed analogy between a view and a photograph, but the
analogy, whatever its superficial force, is partial, and
misleading. The photograph, to be admissible, should be verified by
the oath of the photographer, who must be subject to
cross-examination as to the manner of its taking. It is common
knowledge that a camera can be so placed, and lights and shadows so
adjusted, as to give a distorted picture of reality. Nor is there
need for us to hold that conditions can never arise in which
justice will be outraged if there is a view in the defendant's
absence. Enough for present purposes that they have not arisen
here. "A statute may be invalid as applied to one state of facts an
yet valid as applied
Page 291 U. S. 116
to another."
Dahnke-Walker Co. v. Bondurant,
257 U. S. 282,
257 U. S. 289;
DuPont v. Commissioner, 289 U. S. 685,
289 U. S. 688.
If this is true of the action of the legislative department of the
state laying down a general rule, it is even more plainly true of
the action of judicial or administrative officers dealing only with
the instance.
Cf. Nectow v. Cambridge, 277 U.
S. 183. We view the facts in their totality.
True, indeed, it is that constitutional privileges or immunities
may be conferred so explicitly as to leave no room for an inquiry
whether prejudice to a defendant has been wrought through their
denial. In saying this, we put aside cases within the rule of
de minimis. If the defendant in a federal court were to be
denied the opportunity to be confronted with the "witnesses against
him," the denial of the privilege would not be overlooked as
immaterial because the evidence thus procured was persuasive of the
defendant's guilt. In the same way, privileges, even though not
explicit, may be so obviously fundamental as to bring us to the
same result. A defendant who has been denied an opportunity to be
heard in his defense has lost something indispensable, however
convincing the
ex parte showing. But here, in the case at
hand, the privilege, if it exists, is not explicitly conferred, nor
has the defendant been denied an opportunity to answer and defend.
The Fourteenth Amendment has not said in so many words that he must
be present every second or minute, or even every hour, of the
trial. If words so inflexible are to be taken as implied, it is
only because they are put there by a court, and not because they
are there already, in advance of the decision. Due process of law
requires that the proceedings shall be fair, but fairness is a
relative, not an absolute, concept. It is fairness with reference
to particular conditions or particular results.
"The due process clause does not impose upon
Page 291 U. S. 117
the States a duty to establish ideal systems for the
administration of justice, with every modern improvement and with
provision against every possible hardship that may befall."
Ownbey v. Morgan, supra, p.
256 U. S. 110.
What is fair in one set of circumstances may be an act of tyranny
in others. This court has not yet held that, even upon a trial in
court, the absence of a defendant for a few moments while formal
documents are marked in evidence will vitiate a judgment.*
Cf.
Commonwealth v. Kelly, 292 Pa. 418, 141 Atl. 246. But we do
not need to dwell upon the measure of the privilege at such a time,
or in such conditions. Whatever it may be, not even an intimation
will be found in our decisions that there is a denial of due
process if the accused be excluded from a view, though present at
every stage of the proceedings in the court. It is one thing to say
that the prevailing practice is to permit the accused to accompany
the jury if he expresses such a wish. It is another thing to say
that the practice may not be changed without a denial of his
privileges under the Constitution of.the United States. To hold
this in the light of the historic concept of a view as something
separate from a trial in court and in the light of the shadowy
relation between the defendant's
Page 291 U. S. 118
presence at such a time and his ability to defend, is to travel
far away from the doctrine of
Hurtado v. California and
Twining v. New Jersey.
One episode at the view must have a word of criticism. The
statement by the judge that one of the three pumps was not there at
the homicide goes beyond the bounds of explanation appropriate for
showers. No objection on this score was made by the defendant,
though he had or could have had the minutes of the proceeding. The
blunder did not harm him, for there is no hint in all the evidence
that the presence or absence of the pump had any bearing on the
verdict. The situation is much the same as in cases where there has
been misconduct by the jury. The verdict is not upset for such a
cause if there was no substantial harm.
People v. Johnson,
110 N.Y. 134, 144; 17 N.E. 684,
People v. Dunbar Contracting
Co., 215 N.Y. 416, 426, 109 N.E. 554;
United States v.
Davis, 103 Fed. 457, 467. But there is another answer more
convincing, if these are insufficient. After returning from the
view, the District Attorney offered in evidence a diagram of the
station, and said to the jury, "It is agreed that this third pump
was not there at the time of the offense." To this, defendant and
his counsel gave assent by acquiescence. In effect, the agreement
was thus renewed and confirmed as if then made for the first time.
The defendant was not hurt, because it had been made once
before.
Whether a defendant must be present at a view has been
considered in the state courts with varying conclusions. Nearly
always, the argument has been directed to the local constitutions,
generally to a provision that the accused must be confronted with
the witnesses against him, sometimes a specific mandate that he be
present at the trial. Never, so far as our search of the books
informs us, has the privilege been established in opposition to
the
Page 291 U. S. 119
local practice as an essential condition of due process under
the federal constitution. Some court have put their decision on the
ground that a view is part of the trial.
State v.
McGinnis, 12 Idaho 336, 85 Pac. 1089;
Freeman v.
Commonwealth, 226 Ky. 850, 10 S.W.2d 827;
Noell v.
Commonwealth, 135 Va. 600, 619, 115 S.E. 679;
Benton v.
State, 30 Ark. 328, 350. Others have held that it is not.
People v. Thorn, 156 N.Y. 286, 50 N.E. 947;
State v.
Rogers, 145 Minn. 303, 177 N.W. 358;
Washington v.
State, 86 Fla. 533, 96 So. 605;
State v. Mortensen,
26 Utah 312, 73 Pac. 562, 633;
cf. State v. Congdon, 14
R.I. 458, 463;
State v. Hilsinger, 167 Wash. 427, 437,
438, 9 P.2d 357. A trial, they remind us, is appointed to be held
in a courthouse or a place designated by statute with a judge or
magistrate presiding.
People v. Thorn, at p. 297. A view
may be had anywhere. Some courts, placing the emphasis on the
privilege of confrontation, have thought that a view is equivalent
to an examination of a witness, and that the privilege of
attendance may not even be waived.
Noell v. Commonwealth,
supra; State v. McCausland, 82 W.Va. 525, 96 S.E. 938;
Benton v. State, supra; Foster v. State, 70 Miss. 755; 12
So. 822;
State v. Stratton, 103 Kan. 226, 173 Pac. 300.
Other courts have held, and plainly with the better reason, that
physical objects are not witnesses, even though they have the
quality of evidence, and that the defendant is at liberty to waive
the privilege to view them, if such a privilege exists.
People
v. Thorn, supra; Elias v. Territory, 9 Ariz. 1, 76 Pac. 605;
Blythe v. State, 47 Ohio 234, 24 N.E. 268;
State v.
Hartley, 22 Nev. 342, 40 Pac. 372;
State v. Buzzell,
59 N.H. 65.
Cf. Patton v. United States, supra.* Still
others, though conceding the possibility of
Page 291 U. S. 120
waiver, uphold the privilege to be present if due demand is
made.
People v. Bush, 6 Cal. 623, 10 Pac. 169;
People
v. Auerbach, 176 Mich. 23, 141 N.W. 869;
Carroll v.
State, 5 Neb. 31;
State v. Hilsinger, supra; Sasse v.
State, 68 Wis. 530, 32 N.W. 849;
Chance v. State, 156
Ga. 428, 119 S.E. 303;
People v. Palmer, 43 Hun 397.
Massachusetts takes the position that waiver is unnecessary, and
that the defendant may be excluded in the discretion of the judge.
Commonwealth v. Belenski, supra; Commonwealth v. Snyder,
supra. So also does Minnesota.
State v. Rogers,
supra. In none of the cases where the privilege was upheld did
the defendant make the claim that there had been an infringement of
his rights under the Fourteenth Amendment.
The decisions in the federal courts are, none of them,
controlling.
Howard v. Kentucky, supra, sustained a
judgment of conviction against the claim of a denial of due process
where the court, in the absence of the defendant, had discharged a
juror for misconduct and substituted another. There was evidence,
however, leading to an
Page 291 U. S. 121
inference of waiver by the defendant and his counsel.
Diaz
v. United States, 223 U. S. 442, had
to do with the privilege of confrontation, and drew an inference of
waiver where the defendant had willfully absented himself after the
trial had been begun.
Cf. Sir James Fitzjames Stephen,
Digest of the Law of Criminal Procedure, Art. 302;
Smellie's
Case, 14 Crim.App. Reports 128.
Frank v. Mangum,
supra, found a waiver of the privilege of presence at the
rendition of the verdict. None of these cases was concerned with
the procedure at a view.
Valdez v. United States, supra,
considered a provision of the Philippine Code which, confers the
privilege of confrontation, and held that, consistently therewith,
the scene of the crime might be viewed by the judge with the
consent of the defendant's counsel, though without the knowledge of
the client. The court added that, "apart from any question of
waiver," it would be pressing the privilege of confrontation too
far to apply it in such circumstances, and, moreover that, in the
circumstances of the case, the absence of the defendant was plainly
immaterial, it "being difficult to divine how the inspection . . .
added to or took from the case as presented."
We find it of no moment that the judge in this case described
the view as evidence. The Supreme Judicial Court of Massachusetts
has said of a view that "its chief purpose is to enable the jury to
understand better the testimony which has or may be introduced."
Commonwealth v. Dascalakis, supra. Even so, its inevitable
effect is that of evidence, no matter what label the judge may
choose to give it.
Commonwealth v. Handren, supra. Such is
the holding of many well considered cases. Wigmore, vol. 2, § 1168,
pp. 705
et seq., vol. 3, §§ 1802, 1803, collating the
decisions. To say that the defendant may be excluded from the scene
if the court tells the jury that
Page 291 U. S. 122
the view has no other function than to give them understanding
of the evidence, but that there is an impairment of the
constitutional privileges of a defendant thus excluded if the court
tells the jury that the view is part of the evidence -- to make the
securities of the constitution depend upon such quiddities is to
cheapen and degrade them.
The law, as we have seen, is sedulous in maintaining for a
defendant charged with crime whatever forms of procedure are of the
essence of an opportunity to defend. Privileges so fundamental as
to be inherent in every concept of a fair trial that could be
acceptable to the thought of reasonable men will be kept inviolate
and inviolable, however crushing may be the pressure of
incriminating proof. But justice, though due to the accused, is due
to the accuser also. The concept of fairness must not be strained
till it is narrowed to a filament. We are to keep the balance
true.
The constitution and statutes and judicial decisions of the
Commonwealth of Massachusetts are the authentic forms through which
the sense of justice of the People of that Commonwealth expresses
itself in law. We are not to supersede them on the ground that they
deny the essentials of a trial because opinions may differ as to
their policy or fairness. Not all the precepts of conduct precious
to the hearts of many of us are immutable principles of justice,
acknowledged
semper ubique et ab omnibus (
Otis v.
Parker, 187 U. S. 606,
187 U. S.
609), wherever the good life is a subject of concern.
There is danger that the criminal law will be brought into contempt
-- that discredit will even touch the great immunities assured by
the Fourteenth Amendment -- if gossamer possibilities of prejudice
to a defendant are to nullify a sentence pronounced by a court of
competent jurisdiction in obedience to local law, and set the
guilty free. The judgment is
Affirmed.
Page 291 U. S. 123
* Under the law of Massachusetts, homicide is murder in the
first degree when committed "with deliberately premeditated malice
aforethought" or in the commission or attempted commission of a
crime that would be punishable, if there were no homicide, with
imprisonment for life. Robbery by one armed with a dangerous weapon
is a crime so punishable, but not larceny or attempted larceny.
Mass.General Laws, c. 265, §§ 1 aud 17.
* What was said in
Hopt v. Utah, supra, and
Schwab
v. Bergren, supra, on the subject of the presence of a
defendant was dictum, and no more.
See this opinion,
ante p.
291 U. S. 106.
We may say the same of
Lewis v. United States, supra, with
the added observation that it deals with the rule at common law,
and not with constitutional restraints.
There are decisions in the state courts that a conviction will
stand even though rulings have been made by the trial court in the
absence of the defendant if it appears that they could not by any
possibility have resulted to his hurt.
Whittaker v. State,
173 Ark. 1172, 294 S.W. 397;
Lowman v. State, 80 Fla. 18,
85 So. 166. The Supreme Court of Pennsylvania held in
Commonwealth v. Kelly, supra, that the burden was on the
defendant to show a probability of injury.
* Cases relating to the procedure at a view are not to be
confused with cases where the defendant was absent during the
examination of witnesses or the charge of the judge. Examples of
such cases are
Slocovitch v. State, 46 Ala. 227;
People v. Beck, 305 Ill. 593, 137 N.E. 454;
State v.
Hutchinson, 163 La. 146, 111 So. 656;
Duffy v. State,
151 Md. 456, 135 Atl. 189;
State v. Jackson, 88 Mont. 420,
293 Pac. 309;
State v. Dixon, 185 N.C. 727, 117 S.E. 170;
State v. Schasker, 60 N.D. 462, 235 N.W. 345;
State v.
Chandler, 128 Ore. 204, 274 Pac. 303. In most, if not all,
there was an express statutory or constitutional requirement of
presence at the trial, a requirement so clear as to leave little
room for construction. One court has gone so far as to require the
presence of the defendant upon a motion for a new trial (
State
v. Hoffman, 78 Mo. 256), in opposition to the judgments of
this court in
Schwab v. Berren and
Lewis v. United
States, supra.
As to the rule where the crime is of the grade of a misdemeanor
only,
see United States v. Santos, 27 Fed.Cas. 954;
United States v. Shelton, 6 F.2d 897;
Gray v.
State, 158 Tenn. 370, 13 S.W.2d 793.
Cf. Hopt v. Utah,
supra, at p.
110 U. S.
576.
MR. JUSTICE ROBERTS, dissenting.
The petitioner and two others were charged with murder committed
in an attempt to rob a gasoline station. The petitioner and one of
his codefendants were tried together; the third testified for the
Commonwealth.
There is no dispute that, when the three embarked on their evil
enterprise, all were armed, and it is not denied that they
approached the station with intent to commit either larceny or
robbery; but the record exhibits grave contradictions as to which
of them fired the fatal shot, and as to the petitioner's
abandonment of the common plan before the shot was fired. The
situation and size of the station, its arrangement, its contents,
the location and size of doors and windows, and the position of
surrounding objects were vital factors in corroboration or
contradiction of the varying accounts given in the testimony of the
three participants.
After the jury had been empaneled and sworn, the district
attorney moved for a view of the scene of the murder. The request
was granted. The district attorney then made a short statement to
the jury, telling them they were to view the premises and that,
when they returned from the view, he would make a fuller opening.
In the course of a colloquy between counsel and the judge, the
latter announced that he would appoint the defendants' counsel to
go on the view as representing their respective clients. Counsel
for the petitioner moved that his client be permitted to accompany
the jury on the view, asserting this was the defendant's right
under the federal constitution. The motion was denied, and an
exception reserved to the ruling.
The judge, the official stenographer, the district attorney, and
counsel for the defendants accompanied the jury to the scene. The
judge controlled the entire proceeding, and everything that was
said or done was taken by the stenographer and made a part of the
record of
Page 291 U. S. 124
the trial. The pointing out of features of the scene by the
district attorney went beyond a mere showing, and what he said
closely approached argument. [
Footnote 1] During the progress of the view, the court
formulated and placed of record a stipulation as to changes which
had occurred since the shooting. [
Footnote 2] In his charge to the jury, the judge said:
Page 291 U. S. 125
"Now, what have you before you on which to form your judgment
and to render your finding and verdict? The view, the testimony
given by the witnesses, and the exhibits, comprise the evidence in
this case, comprise the evidence that is before you. [
Footnote 3]"
"
* * * *"
"As I say, it is for the jury to say, from all the evidence
before you, taking into consideration what it is contended outside
of the evidence that you have relative to the firing of any shot --
the conduct of any of the parties just before and just after, and
any appearances or any evidence that you may gather from the
appearance of the locality itself, the testimony relative to the
result of the shot, the course of it, and what was done. All that
is a part of the surrounding evidence and the circumstances that
you shall take into consideration. And then, having taken all the
surrounding circumstances into consideration, it is for you to say
from all the evidence before you, whether or not it was a
withdrawal."
In Massachusetts, what the jury observes in the course of a view
is evidence in the cause. In
Tully v. Fitchburg R. Co.,
134 Mass. 499, 503, it was said:
"In many cases, and perhaps in most, except those for the
assessment of damages, a view is allowed for the purpose
Page 291 U. S. 126
of enabling the jury better to understand and apply the evidence
which is given in court; but it is not necessarily limited to this,
and, in most cases of a view, a jury must of necessity acquire a
certain amount of information, which they may properly treat as
evidence in the case."
And in
Commonwealth v. Dascalakis, 246 Mass. 12, 29-30,
140 N.E. 470, 478, a prosecution for homicide, the Supreme Judicial
Court held:
"The things thus seen by the jurors could not well be banished
from their minds. A view often dispenses with the necessity of
detailed description by plan or word of mouth. Inevitably that
which the jury see on a view will be utilized in reaching a
verdict. In that sense, that which is disclosed on a view is
evidence. It is rightly described as such. Expressions to that
effect are in numerous decisions."
In
Commonwealth v. Handren, 261 Mass. 294, 297, 158
N.E. 894, 896, the court observed: "And the knowledge which the
jurors thus acquire is evidence in the case."
Of such weight is the knowledge thus obtained that it may tip
the scales in favor of the sufficiency of the evidence to sustain a
verdict. Thus, in
Hanks v. Boston & A. R. Co., 147
Mass. 495, 499, 18 N.E. 218, 220, where the question was whether
the case ought to have been submitted to the jury or a binding
direction given, it was said: "It is to be observed that the jury
may have been materially aided by a view taken by them of the
locality."
Compare Smith v. Morse, 148 Mass. 407, 410, 19 N.E.
393.
It necessarily follows that the court may instruct the jury to
take into consideration what they saw. In
Commonwealth v.
Mara, 257 Mass.198, 209, 153 N.E. 793, 795, the ruling
was:
Page 291 U. S. 127
"There was no error in the part of the instructions which
permitted the Jury to consider in deciding this question what they
observed on the view."
And in
Commonwealth v. Mercier, 257 Mass. 353, 365, 153
N.E. 834, 836, this was said:
"The defendant also excepted to the statement by the trial judge
to the jury that what they would see on the view would be competent
evidence for them to consider. . . . There was no error in the
statement of the judge as to the right of the jury to consider as
evidence what was seen by them on the view."
In the light of these rulings, which were concretely applied in
this case, the question is whether the denial of petitioner's
request to be present at the view deprived him of the due process
guaranteed by the Fourteenth Amendment. This court has never had
occasion to pass upon the precise point, but many pronouncements
regarding the requirements of due process seem to leave no doubt as
to the proper resolution of the issue.
The concept of due process is not technical. Form is disregarded
if substantial rights are preserved. [
Footnote 4] In whatsoever proceeding, whether it affect
property or liberty or life, the Fourteenth Amendment commands the
observance of that standard of common fairness the failure to
observe which would offend men's sense of the decencies and
proprieties of civilized life. It is fundamental that there can be
no due process without reasonable notice and a fair hearing.
[
Footnote 5] Though the usual
and customary forms of procedure be disregarded, the hearing may
nevertheless
Page 291 U. S. 128
be fair if it safeguards the defendant's substantial rights.
The States need not adopt a particular form of accusation,
[
Footnote 6] or prescribe any
one method of trial, [
Footnote
7] or adhere to any set mode of selecting the triers of fact.
[
Footnote 8] To conform to
modern conditions, they may substitute a new form of procedure for
one long practised and recognized. [
Footnote 9] But, whatever the form or method of procedure
adopted, they remain always subject to the prohibition against that
which is commonly thought essentially unfair to him who is to be
afforded a hearing. Tested by this principle, the trial of an issue
beyond the claim asserted, [
Footnote 10] the participation of a Judge affected with a
personal interest in the result, [
Footnote 11] the forcing of a trial under pressure of mob
domination, [
Footnote 12] or
the deprivation of the right to present evidence bearing on the
issue, [
Footnote 13] have
been adjudged to deny due process. And this court has recently
decided that, in the trial of a capital offense, due process
includes the right of the accused to be represented by counsel.
[
Footnote 14]
Our traditions, the Bills of Rights of our federal and state
constitutions, state legislation and the decisions of the courts of
the nation and the states, unite in testimony that the privilege of
the accused to be present throughout
Page 291 U. S. 129
his trial is of the very essence of due process. The trial, as
respects the prisoner's right of presence in the constitutional
sense, does not include the formal procedure of indictment or
preliminary steps antecedent to the hearing on the merits, or
stages of the litigation after the rendition of the verdict,
[
Footnote 15] but does
comprehend the inquiry by the ordained trier of fact from beginning
to end. [
Footnote 16]
Speaking generally of the administration of criminal justice
throughout the nation, this court has said: [
Footnote 17]
"A leading principle that pervades the entire law of criminal
procedure is that, after indictment found, nothing shall be done in
the absence of the prisoner;"
and, in enforcing the mandate of a territorial statute, this
language was used: [
Footnote
18]
"Such being the relation which the citizen holds to the public,
and the object of punishment for public wrongs, the legislature has
deemed it essential to the protection of one whose life or liberty
is involved in a prosecution for felony that he shall be personally
present at the trial, that is, at every stage of the trial when his
substantial rights may be affected by the proceedings against him.
If he be deprived of his life or liberty without being so present,
such deprivation would be without that due process of law required
by the Constitution."
To allay the apprehensions of the people lest the federal
government invade their liberties, the first ten amendments to the
Constitution were adopted. The Sixth assures one accused of crime
that, if prosecuted under federal law, he shall have a public
trial, be informed of the nature and cause of the accusation, be
confronted with
Page 291 U. S. 130
the witnesses against him, and have the assistance of counsel
for his defense. But the purpose that all trials, in state as well
as national tribunals, should not lack the same quality of fairness
is evidenced by the embodiment of a guarantee of similar import in
the constitution of every state in the Union. [
Footnote 19] Out of excess of caution, the
fundamental law of many of the States specifically safeguards the
right of the accused, "to appear and defend in person." [
Footnote 20] But mere differences in
phraseology have not obscured the fact that all these instruments
were intended to secure the same great privilege -- a fair hearing.
Accordingly, the courts have uniformly and invariably held that the
Sixth Amendment, as respects federal trials, and the analogous
declarations of right of the state constitutions touching trials in
state courts, secure to the accused the privilege of presence at
every stage of his trial. This court has so declared. In commenting
upon the section of the Philippine Civil Government Act which
extends to the accused in all criminal prosecutions "the right to
be heard by himself and counsel," this was said:
"An identical or similar provision is found in the constitutions
of the several States, and its substantial equivalent
Page 291 U. S. 131
is embodied in the Sixth Amendment to the Constitution of the
United States. . . . In cases of felony, our courts, with
substantial accord, have regarded it [the right so granted] as
extending to every stage of the trial, inclusive of the empaneling
of the jury and the reception of the verdict, and as being scarcely
less important to the accused than the right of trial itself.
[
Footnote 21]"
And, as if to make assurance doubly sure, the legislatures of
many of the States have adopted statutes redundant to the
constitutional mandate explicitly declaring the right of the
accused to be present at his trial. [
Footnote 22]
In the light of the universal acceptance of this fundamental
rule of fairness that the prisoner may be present throughout his
trial, it is not a matter of assumption, but a certainty, that the
Fourteenth Amendment guarantees the observance of the rule.
It has been urged that the prisoner's privilege of presence is
for no other purpose than to safeguard his opportunity to
cross-examine the adverse witnesses. But the privilege goes deeper
than the mere opportunity to cross-examine, and secures his right
to be present at every stage of the trial. The cases cited in the
margin, [
Footnote 23] while
by no
Page 291 U. S. 132
means exhausting the authorities, sufficiently illustrate and
amply sustain the proposition that the right is fundamental and
assures him who stands in jeopardy that he may in person, see, hear
and know all that is placed before the tribunal having power by its
finding to deprive him of liberty or life. It would be tedious and
unnecessary to quote the language used in vindication of the
privilege. The books are full of discussions of the subject.
The accused cannot cross-examine his own witnesses. Will it be
suggested that, for this reason, he may be excluded from the
courtroom while they give their evidence? He cannot cross-examine
documents or physical exhibits. But documents, plans, maps,
photographs, the clothing worn by the victim and by the perpetrator
of the alleged crime, the weapon used, and other material objects
may be more potent than word of mouth to carry conviction to the
jury's mind; and so of the physical appearance of the scene of the
crime. No reason is apparent why, if the accused may be excluded
from a view, he may not also be excluded from the courtroom while
such documentary and physical evidence is proffered to and examined
by the jury. The opportunity for cross-examination of witnesses is
only one of many reasons for the defendant's presence throughout
the trial. In no State save in the Commonwealth of Massachusetts,
and in no
Page 291 U. S. 133
cases save in those there recently decided, has the privilege or
the fundamental nature of the right it preserves been questioned or
denied. As the cases show, [
Footnote 24] the right of presence exists at every step
in the trial, whether it be during the giving of oral testimony,
the submission of a document, the presentation of physical
exhibits, the argument of counsel, the charge of the court, or the
rendition of the verdict.
It cannot successfully be contended that as the Sixth Amendment
has no application to trials in state courts, and the Fourteenth
does not draw to itself and embody the provisions of state
constitutions (
Patterson v. Colorado, 205 U.
S. 454), the due process secured by the Fourteenth
Amendment does not embrace a right secured by those instruments. In
Powell v. Alabama, supra, the argument that the conclusion
would be difficult that the right to counsel specifically preserved
by the Sixth Amendment was also within the intendment of the due
process clause of the Fourteenth, was answered thus:
"In . . .
Chicago, Burlington & Quincy R. Co. v.
Chicago, 166 U. S. 226,
166 U. S.
241, this court held that a judgment of a state court,
even though authorized by statute, by which private property was
taken for public use without just compensation, was in violation of
the due process of law required by the Fourteenth Amendment,
notwithstanding that the Fifth Amendment explicitly declares that
private property shall not be taken for public use without just
compensation. This holding was followed in
Norwood v.
Baker, 172 U. S. 269,
172 U. S.
277;
Smyth v. Ames, 169 U. S.
466,
169 U. S. 524, and
San
Diego Land Co. v. National City, 174 U. S.
739,
174 U. S. 754."
"Likewise, this court has considered that freedom of speech and
of the press are rights protected by the due process clause of the
Fourteenth Amendment, although, in the First Amendment, Congress is
prohibited in specific
Page 291 U. S. 134
terms from abridging the right.
Gitlow v. New York,
268 U. S.
652,
268 U. S. 666;
Stromberg
v. California, 283 U. S. 359,
283 U. S.
368;
Near v. Minnesota, 283 U. S.
697,
283 U. S. 707."
". . . The rule is an aid to construction, and, in some
instances, may be conclusive; but it must yield to more compelling
considerations whenever such considerations exist. The fact that
the right involved is of such a character that it cannot be denied
without violating those 'fundamental principles of liberty and
justice which lie at the base of all our civil and political
institutions' (
Hebert v. Louisiana, 272 U. S.
312,
272 U. S. 316), is obviously
one of those compelling considerations which must prevail in
determining whether it is embraced within the due process clause of
the Fourteenth Amendment, although it be specifically dealt with in
another part of the Federal Constitution."
(Pp.
287 U. S. 66,
287 U. S.
67.)
If, then, a view of the premises where crime is alleged to have
been committed is a part of the process of submission of data to
the triers of fact upon which judgment is to be founded; if the
knowledge thereby gained is to play its part with oral testimony
and written evidence in striking the balance between the state and
the prisoner, it is a part of the trial. If this is true, the
Constitution secures the accused's presence. In this conclusion,
all the courts, save those of Massachusetts, agree. Such difference
of view as the authorities exhibit as to the prisoner's right to be
present at a view arises out of a disagreement on the question
whether the view is a part of the trial whether it is, in effect,
the taking of evidence. The great weight of authority is that it
forms a part of the trial, and, for that reason, a defendant who so
desires is entitled to be present. [
Footnote 25] Many decisions hold that he may waive
the
Page 291 U. S. 135
privilege; [
Footnote 26]
but an examination of the cases discloses none (with a single
possible exception) where a denial of his request to accompany the
jury on the view has not been held reversible error. And the
statements that a view is at a part of the trial, or that it is not
the taking of evidence, and denying, on that ground, the
defendant's right to be present, are invariably found in cases
where the defendant requested the view and did not ask to accompany
the jury, or waived, either expressly or by conduct, his right so
to do. Such statements are dicta, since the accused waived whatever
right he had. Moreover, in several of the opinions which deny the
right, it is said that the prisoner ought always to be allowed to
accompany the jury if he so requests. [
Footnote 27]
Page 291 U. S. 136
It is true there is disagreement as to the nature and function
of a view. On the one hand, the assertion is that its purpose is
merely to acquaint the jury with the scene, and thus enable them
better to understand the testimony, and hence it forms no part of
the trial and is not the taking of evidence. On the other, the
suggestion is that the jury are bound to carry in mind what they
see, and form their judgment from the knowledge so obtained, and so
the view amounts to the taking of evidence. [
Footnote 28] The distinction seems too fine for
practical purposes; but however that may be, discussion of this
abstract question is unimportant in a case like the present, where
the view was held to be evidence, and the jury were expressly so
instructed.
The respondent urges that, whatever may have been the
petitioner's right, the record demonstrates he could have suffered
no harm by reason of his absence. The argument is far from
convincing in the light of the circumstances and the rule announced
by the court as respects the use the jury were at liberty to make
of the knowledge gained by their view of the premises. But if it
were clear that the verdict was not affected by knowledge gained on
the view, or that the result would have been the same had the
appellant been present, still the denial of his constitutional
right ought not be condoned
Nor ought this court to convert the inquiry from one as to the
denial of the right into one as to the prejudice suffered by the
denial. To pivot affirmance on the question of the amount of harm
done the accused is to beg the constitutional question involved.
The very substance of the defendant's right is to be present. By
hypothesis, it is
Page 291 U. S. 137
unfair to exclude him. As this court has recently said with
respect to disregard of the mandate of the Sixth Amendment
respecting trial by jury: [
Footnote 29]
"But the constitutional question cannot thus be settled by the
simple process of ascertaining that the infraction assailed is
unimportant when compared with similar but more serious infractions
which might be conceived. . . . It is not our province to measure
the extent to which the Constitution has been contravened and
ignore the violation if, in our opinion, it is not, relatively, as
bad as it might have been."
A distinction has always been observed in the meaning of due
process as affecting property rights, and as applying to procedure
in the courts. In the former aspect, the requirement is satisfied
if no actual injury is inflicted and the substantial rights of the
citizen are not infringed; the result, rather than the means of
reaching it, is the important consideration. But where the conduct
of a trial is involved, the guarantee of the Fourteenth Amendment
is not that a just result shall have been obtained, but that the
result, whatever it be, shall be reached in a fair way. Procedural
due process has to do with the manner of the trial; dictates that,
in the conduct of judicial inquiry certain fundamental rules of
fairness be observed; forbids the disregard of those rules; and is
not satisfied, though the result is just, if the hearing was
unfair.
In this case, the view was a part of the trial. The jury were
not sent to the scene in the custody of bailiffs who had no
knowledge of the place or the circumstances of the crime. They were
not instructed to view the premises so as to better understand the
testimony. They went forth with the judge presiding, the
stenographer officiating, the District Attorney and the counsel of
the defendants. As has been shown, more than a mere view of the
Page 291 U. S. 138
premises was had. Matters were called to the jury's attention in
detail so that they could form judgments of distance, relative
position, the alignments of objects, all having a crucial bearing
upon the truthfulness of the testimony subsequently given, and they
were told they might take their own estimates of these matters in
corroboration or contradiction of the other evidence. Little
wonder, in these circumstances, that the court felt it right to
appoint the defendants' counsel to accompany the jury on the view.
If the prisoners were entitled to this protection, by the same
token, they were entitled themselves to be present.
I think that the petitioner was deprived of a constitutional
right, and that the judgment should be reversed.
MR. JUSTICE BRANDEIS, MR. JUSTICE SUTHERLAND and MR. JUSTICE
BUTLER concur in this opinion.
[
Footnote 1]
The following are outstanding instances:
"The Court: Now, Mr. Volpe, if you are ready."
"Mr. Volpe. Just first stand here, gentlemen, and take a look
inside of the gasoline station. Now step in, please."
"(The following occurred inside the filling station:)"
"Mr. Volpe: Now, gentlemen, I call your attention to this glass
here (indicating), this window (indicating the back window of the
filling station), about the position of the glass, and I ask you to
look at that, and the relative position of the entrance, especially
to the right or to the left, coming in through the door. And then
this oil tank here on the right of this window; the other two
windows on the right of the building, and I want you to take note
of the size of the room, and this telephone here, and these two
doors, one on each side of the telephone. Take note, also, of the
location of this other gas tank over here, back of the door; this
desk on the left. Also look out the window at the back, and notice
the gravel in the yard, and the fence there."
"
* * * *"
"Mr. Volpe: I want you to take a view of the other side of the
sidewalk from this location, and note the driveway on the right of
the gas station, and on the left, and these two pumps, or three
pumps, noticing the distance from the pumps on the entrance of the
gas station."
"Now, I would like to have you come over here and take a look at
the gas station as it sits back there."
"(The jury were taken across the street to the opposite
sidewalk.)"
"Mr. Volpe: I want you to get a look at the whole layout, the
right-hand entrance and the left-hand entrance over there, where
that car is standing. Take particular notice of the width of this
street, and, as you stand here, notice the bridge going towards
Union Square, with the right and left driveways."
[
Footnote 2]
What occurred is shown by the notes as follows:
"Mr. Volpe: That middle pump wasn't there at the time."
"The Court: It is agreed that the only pumps that were there
were the two outside pumps, and that the middle, or blue one, was
not there."
"Mr. Volpe: Yes, your Honor."
"The Court: I can state that to them."
"(The jury left the bus and assembled on the sidewalk.)"
"The Court: Now, it is agreed that, at the time of the offense
-- that is, on April 9, 1931 -- there were but two pumps in front
of the gasoline station, the one on the extreme right, that is
painted green, and the one on the extreme left, that is painted
black. Those two were there. The one in the middle, with the blue
striping on it, was not there. It is also suggested that the jurors
look at the street lights from that corner down there (indicating),
and the situation of those lights and those down the street."
[
Footnote 3]
During the trial, when certain plans were being put in evidence,
the judge said: "What they [the jury] saw is to be taken equally
with any evidence that is before them."
[
Footnote 4]
Hurtado v. California, 110 U.
S. 516,
110 U. S. 524,
110 U. S. 532;
Louisville & N. R. Co. v. Schmidt, 177 U.
S. 230,
177 U. S. 236;
Simon v. Craft, 182 U. S. 427,
182 U. S. 436;
Holmes v. Conway, 241 U. S. 624.
[
Footnote 5]
Hagar v. Reclamation District No. 108, 111 U.
S. 701,
111 U. S. 708;
Hooker v. Los Angeles, 188 U. S. 314,
188 U. S. 318;
Twining v. New Jersey, 211 U. S. 78,
211 U. S.
111.
[
Footnote 6]
Hurtado v. California, supra; Caldwell v. Texas,
137 U. S. 692;
Bolln v. Nebraska, 176 U. S. 83;
Barrington v. Missouri, 205 U. S. 483.
[
Footnote 7]
Walker v. Sauvinet, 92 U. S. 90;
Maxwell v. Dow, 176 U. S. 581;
Jordan v. Massachusetts, 225 U. S. 167.
[
Footnote 8]
Brown v. New Jersey, 175 U. S. 172;
Howard v. Kentucky, 200 U. S. 164;
Rawlins v. Georgia, 201 U. S. 638.
[
Footnote 9]
Hurtado v. California, supra, 110 U. S. 528,
110 U. S. 529;
Twining v. New Jersey, supra, 211 U. S.
111.
[
Footnote 10]
Windsor v. McVeigh, 93 U. S. 274,
93 U. S. 282;
Standard Oil Co. v. Missouri, 224 U.
S. 270,
224 U. S.
281-282.
[
Footnote 11]
Tumey v. Ohio, 273 U. S. 510.
[
Footnote 12]
Moore v. Dempsey, 261 U. S. 86.
[
Footnote 13]
Saunders v. Shaw, 244 U. S. 317.
[
Footnote 14]
Powell v. Alabama, 287 U. S. 45.
[
Footnote 15]
Schwab v. Berggren, 143 U. S. 442;
Dowdell v. United States, 221 U.
S. 325,
221 U. S.
331.
[
Footnote 16]
Hopt v. Utah, 110 U. S. 574;
Lewis v. United States, 146 U. S. 370;
Diaz v. United States, 223 U. S. 442.
[
Footnote 17]
Lewis v. United States, supra, p.
146 U. S.
372.
[
Footnote 18]
Hopt v. Utah, supra, p.
110 U. S.
579.
[
Footnote 19]
In two States (California and Nevada), the constitutions omit
reference to the right of the accused to confront the witness
against him; but the omission is supplied by statute:
Cal.Stats.1911, Ch. 187, p. 364, Penal Code, § 686; Nevada Compiled
Laws, 1929, Vol. 5, § 10654.
[
Footnote 20]
Arizona, Const. of 1910, Art. II, § 24; California, Const. of
1879, Art. I, § 13; Colorado, Const. of 1876, Art. II, § 16; Idaho,
Const. of 1889, Art. I, § 13; Illinois, Const. of 1870, Art. 2, §
9; Kansas, Const. of 1859, Bill of Rights, § 10; Missouri, Const.
of 1875, Art. II, § 22; Montana, Const. of 1889, Art. III, § 16;
Nebraska, Const. of 1875, Art. I, § 11; Nevada, Const. of 1864,
Art. I, § 8; New Mexico, Const. of 1911, Art. II, § 14 (as
amended); New York, Const. of 1894, Art. I, § 6; North Dakota,
Const. of 1889, Art. I, § 13; Ohio, Const. of 1851, (as amended
Sept. 3, 1912), Art. I, § 10; South Dakota, Const. of 1889, Art.
VI, § 7; Utah, Const. of 1895, Art. I, § 12; Washington, Const. of
1889, Art. I § 22; Wyoming, Const. of 1889, Art. I, § 10.
[
Footnote 21]
Diaz v. United States, supra, p.
223 U. S.
454.
[
Footnote 22]
La.Code Crim.Proc. (Dart 1932), Art. 365.Ann.Laws of Mass., Vol.
9, Ch. 278, § 6; Comp.Laws Michigan, 1929, Vol. 3, Ch. 287, §
17129; Revised Codes of Montana, 1921, Vol. 4, Part II, Ch. 1, §
11611; Nevada Comp.Laws, 1929, Vol. 5, § 10654, § 10921; New York
Code of Crim.Proc., Cahill, § 8, par. 2; No.Dak.Comp.Laws, 1913,
Vol. 2, § 10393; Code of Laws of South Carolina, 1932, § 996;
Vermont General Laws 1917, § 2496; Virginia Code of 1930, § 4894;
Pierce's Washington Code, § 1086-324; Wisconsin Statutes 1931, §
357.07; Wyoming Revised Statutes, 1931, § 33-903.
[
Footnote 23]
Slocovitch v. State, 46 Ala. 227;
Whittaker v.
State, 173 Ark. 1172, 294 S.W. 397;
Lowman v. State,
80 Fla. 18, 85 So. 166;
Chance v. State, 156 Ga. 428, 119
S.E. 303;
People v. Beck, 305 Ill. 593, 137 N.E. 454;
Batchelor v. State, 189 Ind. 69, 125 N.E. 773;
State
v. Reidel, 26 Iowa 430;
Riddle v. Commonwealth, 216
Ky. 220, 287 S.W. 704;
State v. Hutchinson, 163 La. 146,
111 So. 656;
Duffy v. State, 151 Md. 456, 135 Atl. 189;
Commonwealth v. Cody, 165 Mass, 133, 42 N.E. 575;
State v. Dinman, 177 Minn. 283, 225 N.W. 82;
Foster v.
State, 70 Miss. 755, 12 So. 822;
State v. Hoffman, 78
Mo. 256,
State v. Jackson, 88 Mont. 420, 293 Pac. 309;
Miller v. State, 29 Neb. 437, 45 N.W. 451;
State v.
Duvel, 103 N.J.L. 715, 137 Atl. 718;
People v.
Perkins, 1 Wend. 91;
State v. Dixon, 185 N.C. 727,
117 S.E. 170;
State v. Schasker, 60 N.D. 462, 235 N.W.
345;
Cole v. State, 35 Okla.Cr.Rep. 50, 248 Pac. 347;
State v. Chandler, 128 Ore. 204, 274 Pac. 303;
Cray v.
State, 158 Tenn. 370, 13 S.W.2d 793;
Schafer v.
State, 118 Tex.Cr. Rep. 500, 40 S.W.2d 147;
State v.
Mannion, 19 Utah 505, 57 Pac. 542;
Palmer v.
Commonwealth, 143 Va. 592, 130 S.E. 398;
State v.
Shutzler, 82 Wash. 365, 144 Pac. 284;
State v.
Howerton, 100 W.Va. 501, 130 S.E. 655.
[
Footnote 24]
See the cases cited in notes
16 and |
16 and
S. 97fn23|>23.
[
Footnote 25]
Benton v. State, 30 Ark. 328;
People v. Bush,
68 Cal. 623, 10 Pac. 169, 71 Cal. 602, 12 Pac. 781;
Washington
v. State, 86 Fla. 533, 98 So. 605;
Chance v. State,
156 Ga. 428, 19 S.E. 303;
State v. McGinnis, 12 Idaho 336,
85 Pac. 1089;
Freeman v. Commonwealth, 226 Ky. 850, 10
S.W.2d 827;
State v. Bertin, 24 La.Ann. 46;
People v.
Auerbach, 176 Mich. 23, 45, 141 N.W. 869 (
semble);
Bailey v. State, 147 Miss. 428, 112 So. 594;
Carroll
v. State, 5 Neb. 31;
Colletti v. State, 12 Oh.App.
104;
Watson v. State, 166 Tenn. 400, 61 SW.2d 476;
State v. Mortensen, 26 Utah 312, 73 Pac 562, 633;
Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679;
State v. Hilsinger, 167 Wash. 427, 9 P.2d 357;
State
v. McCausland, 82 W.Va. 525, 96 S.E. 938.
[
Footnote 26]
Whitley v. State, 114 Ark. 243, 169 S.W. 952;
People v. Searle, 33 Cal. App. 228, 164 Pac. 819;
Haynes v. State, 71 Fla. 585, 72 So. 180;
State v.
Stratton, 103 Kan. 226, 173 Pac. 300;
State v.
Hartley, 22 Nev. 342, 40 Pac. 372;
Colletti v. State,
12 Oh.App. 104;
Starr v. State, 5 Okla.Cr. Rep. 440, 115
Pac. 356;
State v. Congdon, 14 R.I. 458;
Jenkins v.
State, 22 Wyo. 34, 134 Pac. 260, 135
id. 74
[
Footnote 27]
Elias v. Territory, 9 Ariz. 1, 76 Pac. 605;
Shular
v. State, 105 Ind. 289, 4 N.E. 870;
but see Barber v.
State, 199 Ind. 146, 155 N.E. 819;
State v. Rogers,
145 Minn. 303, 177 N.W. 358;
People v. Thorn, 156 N.Y.
286, 50 N.E. 947;
State v. Sing, 114 Ore. 267, 274, 229
Pac. 921;
Commonwealth v. Van Horn, 188 Pa. 143, 41 Atl.
469;
State v. Collins, 125 S.C. 267, 118 S.E. 423. The
last mentioned case, while apparently a decision against the right,
contains but a mere statement on the subject without reference to
the occurrences at the trial, and is probably based upon a waiver.
It cites as authority
State v. Suber, 89 S.C. 100, 71 S.E.
466, which is a clear case of waiver. If this is not so, the case
apparently stands alone.
[
Footnote 28]
[
Footnote 29]
Patton v. United States, 281 U.
S. 276,
281 U. S.
292.