1. A person charged with crime in a federal court is entitled by
the Sixth Amendment to the assistance of counsel for his defense.
P.
304 U. S.
462.
2. This right may be waived, but the waiver must be an
intelligent one, and whether there was such must depend upon the
particular facts and circumstances, including background,
experience, and conduct of accused. P.
304 U. S.
464.
3. It is a duty of a federal court in the trial of a criminal
case to protect the right of the accused to counsel, and, if he has
no counsel, to determine whether he has intelligently and
competently waived the right. It would be fitting that such
determination be made a matter of record. P.
304 U. S.
465.
4. If the accused is not represented by counsel and has not
competently and intelligently waived his constitutional right, the
Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his life or his liberty.
P.
304 U. S.
468.
5. The question whether the assistance of counsel was
intelligently and competently waived by the prisoner at his trial
may be determined in habeas corpus proceedings on proofs
aliunde. P.
304 U. S.
467.
92 F.2d 748, reversed.
CERTIORARI, 303 U.S. 629, to review the affirmance of a judgment
of the District Court discharging a writ of habeas corpus.
See 13 F. Supp.
253.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner, while imprisoned in a federal penitentiary, was
denied habeas corpus by the District Court. [
Footnote 1] Later,
Page 304 U. S. 459
that court granted petitioner a second hearing, prompted by
"the peculiar circumstances surrounding the case and the desire
of the court to afford opportunity to present any additional facts
and views which petitioner desired to present."
Upon consideration of the second petition, the court found that
it did "not substantially differ from the" first, "and for the
reasons stated in the decision in that case" the second petition
was also denied.
Petitioner is serving sentence under a conviction in a United
States District Court for possessing and uttering counterfeit
money. It appears from the opinion of the District Judge denying
habeas corpus that he believed petitioner was deprived, in the
trial court, of his constitutional right under the provision of the
Sixth Amendment that "In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence." [
Footnote 2]
However, he held that proceedings depriving petitioner of his
constitutional right to assistance of counsel were not
sufficient
"to make the trial void and justify its annulment in a habeas
corpus proceeding, but that they constituted trial errors or
irregularities which could only be corrected on appeal."
The Court of Appeals affirmed, [
Footnote 3] and we granted certiorari due to the
importance of the questions involved. [
Footnote 4]
The record discloses that:
Petitioner and one Bridwell were arrested in Charleston, South
Carolina, November 21, 1934, charged with
Page 304 U. S. 460
feloniously uttering and passing four counterfeit twenty-dollar
Federal Reserve notes and possessing twenty-one such notes. Both
were then enlisted men in the United States Marine Corps, on leave.
They were bound over to await action of the United States Grand
Jury, but were kept in jail due to inability to give bail. January
21, 1935, they were indicted; January 23, 1935, they were taken to
court, and there first given notice of the indictment; immediately
were arraigned, tried, convicted and sentenced that day to four and
one-half years in the penitentiary, and January 25, were
transported to the Federal Penitentiary in Atlanta. While counsel
had represented them in the preliminary hearings before the
commissioner in which they -- some two months before their trial --
were bound over to the Grand Jury, the accused were unable to
employ counsel for their trial. Upon arraignment, both pleaded not
guilty, said that they had no lawyer, and -- in response to an
inquiry of the court -- stated that they were ready for trial. They
were then tried, convicted and sentenced, without assistance of
counsel.
"Both petitioners lived in distant cities of other states, and
neither had relatives, friends, or acquaintances in Charleston.
Both had little education, and were without funds. They testified
that they had never been guilty of nor charged with any offense
before, and there was no evidence in rebuttal of these statements.
[
Footnote 5]"
In the habeas corpus hearing, petitioner's evidence developed
that no request was directed to the trial judge to appoint counsel,
but that such request was made to the District Attorney, who
replied that, in the State of trial (South Carolina), the court did
not appoint counsel unless the defendant was charged with a capital
crime. The District Attorney denied that petitioner made
request
Page 304 U. S. 461
to him for counsel or that he had indicated petitioner had no
right to counsel. The Assistant District Attorney testified that
Bridwell "cross-examined the witnesses"; and, in his opinion,
displayed more knowledge of procedure than the normal layman would
possess. He did not recall whether Bridwell addressed the jury or
not, but the clerk of the trial court testified "that Mr. Johnson
[Bridwell?] conducted his defence about as well as the average
layman usually does in cases of a similar nature." Concerning what
he said to the jury and his cross-examination of witnesses,
Bridwell testified
"I tried to speak to the jury after the evidence was in during
my trial over in the Eastern District of South Carolina. I told the
jury, 'I don't consider myself a hoodlum as the District Attorney
has made me out several times.' I told the jury that I was not a
native of New York as the District Attorney stated, but was from
Mississippi, and only stationed for government service in New York.
I only said fifteen or twenty words. I said I didn't think I was a
hoodlum, and could not have been one of very long standing because
they didn't keep them in the Marine Corps."
"I objected to one witness' testimony. I didn't ask him any
questions, I only objected to his whole testimony. After the
prosecuting attorney was finished with the witness, he said, 'Your
witness,' and I got up and objected to the testimony on the grounds
that it was all false, and the Trial Judge said any objection I had
I would have to bring proof or disproof."
Reviewing the evidence on the petition for habeas corpus, the
District Court said [
Footnote
6] that, after trial, petitioner and Johnson
". . . were remanded to jail, where they asked the jailer to
call a lawyer for them, but were not permitted to contact one. They
did not, however, undertake to get any message to the judge. "
Page 304 U. S. 462
". . . January 25th, they were transported by automobile to the
Federal Penitentiary in Atlanta, Ga. arriving . . . the same
day."
"There, as is the custom, they were placed in isolation and so
kept for sixteen days without being permitted to communicate with
anyone except the officers of the institution, but they did see the
officers daily. They made no request of the officers to be
permitted to see a lawyer, nor did they ask the officers to present
to the trial judge a motion for new trial or application for appeal
or notice that they desired to move for a new trial or to take an
appeal."
"On May 15, 1935, petitioners filed applications for appeal
which were denied because filed too late."
The " . . . time for filing a motion for new trial and for
taking an appeal has been limited to three and five days."
[
Footnote 7]
One. The Sixth Amendment guarantees that, "In all
criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence." This is one of the
safeguards of the Sixth Amendment deemed necessary to insure
fundamental human rights of life and liberty. Omitted from the
Constitution as originally adopted, provisions of this and other
Amendments were submitted by the first Congress convened under that
Constitution as essential barriers against arbitrary or unjust
deprivation of human rights. The Sixth Amendment stands as a
constant admonition that, if the constitutional safeguards it
provides be lost, justice will not "still be done." [
Footnote 8] It embodies a realistic
recognition of the obvious truth that the average defendant does
not have the professional legal skill to protect
Page 304 U. S. 463
himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by
experienced and learned counsel. That which is simple, orderly and
necessary to the lawyer, to the untrained layman may appear
intricate, complex and mysterious. Consistently with the wise
policy of the Sixth Amendment and other parts of our fundamental
charter, this Court has pointed to " . . . the humane policy of the
modern criminal law . . ." which now provides that a defendant " .
. . if he be poor, . . . may have counsel furnished him by the
state . . . not infrequently . . . more able than the attorney for
the state." [
Footnote 9]
The
". . . right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is
incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial
without a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his
defence, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
[
Footnote 10]"
The Sixth Amendment withholds from federal courts, [
Footnote 11] in all criminal
proceedings, the power and authority to deprive an accused of his
life or liberty unless he has or waives the assistance of
counsel.
Page 304 U. S. 464
Two. There is insistence here that petitioner waived
this constitutional right. The District Court did not so find. It
has been pointed out that "courts indulge every reasonable
presumption against waiver" of fundamental constitutional rights,
[
Footnote 12] and that we
"do not presume acquiescence in the loss of fundamental rights."
[
Footnote 13] A waiver is
ordinarily an intentional relinquishment or abandonment of a known
right or privilege. The determination of whether there has been an
intelligent waiver of the right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the
accused.
Patton v. United States, 281 U.
S. 276, decided that an accused may, under certain
circumstances, consent to a jury of eleven and waive the right to
trial and verdict by a constitutional jury of twelve men. The
question of waiver was there considered on direct appeal from the
conviction, and not by collateral attack on habeas corpus. However,
that decision may be helpful in indicating how, and in what manner,
an accused may -- before his trial results in final judgment and
conviction -- waive the right to assistance of counsel. The
Patton ease noted approvingly a state court decision
[
Footnote 14] pointing out
that the humane policy of modern criminal law had altered
conditions which had existed in the "days when the accused could
not testify in his own behalf, [and] was not furnished Counsel,"
and which had made it possible to convict a man when he was
"without money, without counsel, without ability to summon
witnesses and not permitted to tell his own story, . . ."
Page 304 U. S. 465
The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court in
which the accused -- whose life or liberty is at stake -- is
without counsel. This protecting duty imposes the serious and
weighty responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused. While
an accused may waive the right to counsel, whether there is a
proper waiver should be clearly determined by the trial court, and
it would be fitting and appropriate for that determination to
appear upon the record.
Three. The District Court, holding petitioner could not
obtain relief by habeas corpus, said:
"It is unfortunate if petitioners lost their right to a new
trial through ignorance or negligence, but such misfortune cannot
give this Court jurisdiction in a habeas corpus case to review and
correct the errors complained of."
The purpose of the constitutional guaranty of a right to counsel
is to protect an accused from conviction resulting from his own
ignorance of his legal and constitutional rights, and the guaranty
would be nullified by a determination that an accused's ignorant
failure to claim his rights removes the protection of the
Constitution. True, habeas corpus cannot be used as a means of
reviewing errors of law and irregularities -- not involving the
question of jurisdiction -- occurring during the course of trial;
[
Footnote 15] and the "writ
of habeas corpus cannot be used as a writ of error." [
Footnote 16] These principles,
however, must be construed and applied so as to preserve -- not
destroy -- constitutional safeguards of human life and liberty. The
scope of inquiry in habeas corpus proceedings has been broadened --
not narrowed -- since the adoption of the Sixth
Page 304 U. S. 466
Amendment. In such a proceeding, "it would be clearly erroneous
to confine the inquiry to the proceedings and judgment of the trial
court," [
Footnote 17] and
the petitioned court has
"power to inquire with regard to the jurisdiction of the
inferior court, either in respect to the subject matter or to the
person, even if such inquiry . . . [involves] an examination of
facts outside of, but not inconsistent with, the record. [
Footnote 18]"
Congress has expanded the rights of a petitioner for habeas
corpus, [
Footnote 19] and
the
". . . effect is to substitute for the bare legal review that
seems to have been the limit of judicial authority under the common
law practice, and under the Act of 31 Car. II, c. 2, a more
searching investigation, in which the applicant is put upon his
oath to set forth the truth of the matter respecting the causes of
his detention, and the court, upon determining the actual facts, is
to 'dispose of the party as law and justice require.'"
"There being no doubt of the authority of the Congress to thus
liberalize the common law procedure on habeas corpus in order to
safeguard the liberty of all persons within the jurisdiction of the
United States against infringement through any violation of the
Constitution or a law or treaty established thereunder, it results
that, under the sections cited, a prisoner in custody pursuant to
the final judgment of a state court of criminal jurisdiction may
have a judicial inquiry in a court of the United States into the
very truth and substance of the causes of his detention, although
it may become necessary to look behind and beyond the record of his
conviction to a sufficient extent to test the jurisdiction of the
state court to proceed to a judgment against him. . . . "
Page 304 U. S. 467
". . . it is open to the courts of the United States upon an
application for a writ of habeas corpus to look beyond forms and
inquire into the very substance of the matter. . . . [
Footnote 20]"
Petitioner, convicted and sentenced without the assistance of
counsel, contends that he was ignorant of his right to counsel, and
incapable of preserving his legal and constitutional rights during
trial. Urging that -- after conviction -- he was unable to obtain a
lawyer; was ignorant of the proceedings to obtain new trial or
appeal and the time limits governing both, and that he did not
possess the requisite skill or knowledge properly to conduct an
appeal, he says that it was -- as a practical matter -- impossible
for him to obtain relief by appeal. If these contentions be true in
fact, it necessarily follows that no legal procedural remedy is
available to grant relief for a violation of constitutional rights
unless the courts protect petitioner's rights by habeas corpus. Of
the contention that the law provides no effective remedy for such a
deprivation of rights affecting life and liberty, it may well be
said -- as in
Mooney v. Holohan, 294 U.
S. 103,
294 U. S. 113
-- that it "falls with the premise." To deprive a citizen of his
only effective remedy would not only be contrary to the
"rudimentary demands of justice," [
Footnote 21] but destructive of a constitutional guaranty
specifically designed to prevent injustice.
Since the Sixth Amendment constitutionally entitles one charged
with crime to the assistance of counsel, compliance with this
constitutional mandate is an essential jurisdictional prerequisite
to a federal court's authority to deprive an accused of his life or
liberty. When this
Page 304 U. S. 468
right is properly waived, the assistance of counsel is no longer
a necessary element of the court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not
represented by counsel and has not competently and intelligently
waived his constitutional right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction and sentence depriving him
of his life or his liberty. A court's jurisdiction at the beginning
of trial may be lost "in the course of the proceedings" due to
failure to complete the court -- as the Sixth Amendment requires --
by providing counsel for an accused who is unable to obtain
counsel, who has not intelligently waived this constitutional
guaranty, and whose life or liberty is at stake. [
Footnote 22] If this requirement of the
Sixth Amendment is not complied with, the court no longer has
jurisdiction to proceed. The judgment of conviction pronounced by a
court without jurisdiction is void, and one imprisoned thereunder
may obtain release by habeas corpus. [
Footnote 23] A judge of the United States -- to whom a
petition for habeas corpus is addressed -- should be alert to
examine "the facts for himself when if true as alleged they make
the trial absolutely void." [
Footnote 24]
It must be remembered, however, that a judgment cannot be
lightly set aside by collateral attack, even on habeas corpus. When
collaterally attacked, the judgment of a court carries with it a
presumption of regularity. [
Footnote 25] Where a defendant, without counsel,
acquiesces in a trial resulting in his conviction and later seeks
release by the extraordinary remedy of habeas corpus, the burden of
proof rests upon him to establish that he did not competently and
intelligently waive his constitutional
Page 304 U. S. 469
right to assistance of counsel. If, in a habeas corpus hearing,
he does meet this burden and convinces the court by a preponderance
of evidence that he neither had counsel nor properly waived his
constitutional right to counsel, it is the duty of the court to
grant the writ.
In this case, petitioner was convicted without enjoying the
assistance of counsel. Believing habeas corpus was not an available
remedy, the District Court below made no findings as to waiver by
petitioner. In this state of the record, we deem it necessary to
remand the cause. If -- on remand -- the District Court finds from
all of the evidence that petitioner has sustained the burden of
proof resting upon him and that he did not competently and
intelligently waive his right to counsel, it will follow that the
trial court did not have jurisdiction to proceed to judgment and
conviction of petitioner, and he will therefore be entitled to have
his petition granted. If petitioner fails to sustain this burden,
he is not entitled to the writ.
The cause is reversed and remanded to the District Court for
action in harmony with this opinion.
Reversed.
MR. JUSTICE REED concurs in the reversal.
MR. JUSTICE McREYNOLDS is of opinion that the judgment of the
court below should be affirmed.
MR. JUSTICE BUTLER is of the opinion that the record shows that
petitioner waived the right to have counsel, that the trial court
had jurisdiction, and that the judgment of the Circuit Court of
Appeals should be affirmed.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
[
Footnote 1]
13 F. Supp.
253.
[
Footnote 2]
The Sixth Amendment of the Constitution provides that,
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and 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 3]
92 F.2d 748.
[
Footnote 4]
303 U.S. 629.
[
Footnote 5]
Opinion of the District Judge,
13 F. Supp.
253, 254.
[
Footnote 6]
13 F. Supp.
253, 254.
[
Footnote 7]
13 F. Supp. at 256;
see Rules of Practice and Procedure
(Criminal Appeals Rules), adopted May 7, 1934, II, III.
[
Footnote 8]
Cf. Palko v. Connecticut, 302 U.
S. 319,
302 U. S.
325.
[
Footnote 9]
Patton v. United States, 281 U.
S. 276,
281 U. S.
308.
[
Footnote 10]
Powell v. Alabama, 287 U. S. 45,
287 U. S. 68,
69.
[
Footnote 11]
Cf., 32 U. S. The
Mayor, 7 Pet. 243,
32 U. S. 247;
Edwards v.
Elliott, 21 Wall. 532,
88 U. S.
557
[
Footnote 12]
Aetna Ins. Co. v. Kennedy, 301 U.
S. 389,
301 U. S. 393;
Hodges v. Easton, 106 U. S. 408,
106 U. S.
412.
[
Footnote 13]
Ohio Bell Telephone Co. v. Public Utilities Comm'n,
301 U. S. 292,
301 U. S.
307.
[
Footnote 14]
Hack v. State, 141 Wis. 346, 351, 124 N.W. 492.
[
Footnote 15]
Cf. 28 U. S. 3
Pet.193;
Knewal v. Egan, 268 U. S. 442;
Harlan v. McGourin, 218 U. S. 442.
[
Footnote 16]
Woolsey v. Best, 299 U. S. 1,
299 U. S. 2.
[
Footnote 17]
Frank v. Mangum, 237 U. S. 309,
237 U. S.
327.
[
Footnote 18]
In re Mayfield, 141 U. S. 107,
141 U. S. 116;
Cuddy, Petitioner, 131 U. S. 280.
[
Footnote 19]
28 U.S.C. ch. 14, ยง 451,
et seq.
[
Footnote 20]
Frank v. Mangum, supra, 237 U. S. 330,
237 U. S. 331;
cf. Moore v. Dempsey, 261 U. S. 86;
Mooney v. Holohan, 294 U. S. 103;
Hans Nielsen, Petitioner, 131 U.
S. 176.
[
Footnote 21]
Cf. Mooney v. Holohan, supra, 294 U. S.
112.
[
Footnote 22]
Cf., Frank v. Mangum, supra, 237 U. S.
327.
[
Footnote 23]
Hans Nielsen, Petitioner, supra.
[
Footnote 24]
Cf. Moore v. Dempsey, 261 U. S. 86,
261 U. S. 92;
Patton v. United States, 281 U. S. 276,
281 U. S. 312,
281 U. S. 313.
[
Footnote 25]
Cuddy, Petitioner, supra.