Sixth Amendment
Right to Confront Witnesses
Pointer v. Texas (1965)
380 U.S. 400 (1965)
Vote: 9-0
Decision: Reversed and remanded
Majority: Black, joined Warren, Douglas, Clark, Harlan, Brennan, White, and Goldberg
Concurrence: Harlan
Concurrence: Stewart
Concurrence: Goldberg
MR. JUSTICE BLACK delivered the opinion of the Court.
The Sixth Amendment provides in part that:
“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him … and to have the Assistance of Counsel for his defence.”
Two years ago, in Gideon v. Wainwright, [(1963)], we held that the Fourteenth Amendment makes the Sixth Amendment’s guarantee of right to counsel obligatory upon the States. The question we find necessary to decide in this case is whether the Amendment’s guarantee of a defendant’s right “to be confronted with the witnesses against him,” which has been held to include the right to cross-examine those witnesses, is also made applicable to the States by the Fourteenth Amendment.
The petitioner Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing … on a charge of having robbed Kenneth W. Phillips. … At this hearing, an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer. Phillips, as chief witness for the State, gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. Apparently Dillard tried to cross-examine Phillips, but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing. Petitioner was subsequently indicted on a charge of having committed the robbery. Some time before the trial was held, Phillips moved to California. After putting in evidence to show that Phillips had moved and did not intend to return to Texas, the State at the trial offered the transcript of Phillips’ testimony given at the preliminary hearing as evidence against petitioner. Petitioner’s counsel immediately objected to introduction of the transcript, stating, “Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant.”
Similar objections were repeatedly made by petitioner’s counsel, but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing, and therefore had been “accorded the opportunity of cross-examining the witnesses there against him.” The Texas Court of Criminal Appeals … affirmed petitioner’s conviction, rejecting his contention that use of the transcript to convict him denied him rights guaranteed by the Sixth and Fourteenth Amendments. We granted certiorari to consider the important constitutional question the case involves.
. … In Gideon v. Wainwright, in which this Court held that the Sixth Amendment’s right to the assistance of counsel is obligatory upon the States, we did so on the ground that “a provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment.”
And last Term, in Malloy v. Hogan, [(1964)], in holding that the Fifth Amendment’s guarantee against self-incrimination was made applicable to the States by the Fourteenth, we reiterated the holding of Gideon that the Sixth Amendment’s right to counsel guarantee is “a fundamental right, essential to a fair trial,'” and “thus was made obligatory on the States by the Fourteenth Amendment.” We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right, and is made obligatory on the States by the Fourteenth Amendment.
. … The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. …
. … There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law. …
. … We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is “to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan.
Under this Court’s prior decisions, the Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. … The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. … Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.
Reversed and remanded.
MR. JUSTICE HARLAN, concurring in the result.
I agree that, in the circumstances the admission of the statement in question deprived the petitioner of a right of “confrontation” assured by the Fourteenth Amendment. I cannot subscribe, however, to the constitutional reasoning of the Court.
The Court holds that the right of confrontation guaranteed by the Sixth Amendment in federal criminal trials is carried into state criminal cases by the Fourteenth Amendment. This is another step in the onward march of the long-since discredited “incorporation” doctrine.
For me, this state judgment must be reversed because a right of confrontation is “implicit in the concept of ordered liberty,” Palko v. Connecticut, [(1937)], reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth.
While either of these constitutional approaches brings one to the same end result in this particular case, there is a basic difference between the two in the kind of future constitutional development they portend. The concept of Fourteenth Amendment due process embodied in Palko and a host of other thoughtful past decisions now rapidly falling into discard, recognizes that our Constitution tolerates, indeed encourages, differences between the methods used to effectuate legitimate federal and state concerns, subject to the requirements of fundamental fairness “implicit in the concept of ordered liberty.” The philosophy of “incorporation,” on the other hand, subordinates all such state differences to the particular requirements of the Federal Bill of Rights and increasingly subjects state legal processes to enveloping federal judicial authority. …
. … The “incorporation” doctrines, whether full blown or selective, are both historically and constitutionally unsound and incompatible with the maintenance of our federal system on even course.
Illinois v. Allen (1970)
397 U.S. 337 (1970)
Vote: 9-0
Decision: Reversed
Majority: Black, joined by Burger, Douglas, Harlan, Brennan, Stewart, White, and Marshall
Concurrence: Brennan
Concurrence: Douglas
MR. JUSTICE BLACK delivered the opinion of the Court.
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him. … ” We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while, at the same time, he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.
The issue arose in the following way. The respondent, Allen, was convicted by an Illinois jury of armed robbery, and was sentenced to serve 10 to 30 years in the Illinois State Penitentiary. The evidence against him showed that, on August 12, 1956, he entered a tavern in Illinois and, after ordering a drink, took $200 from the bartender at gunpoint. The Supreme Court of Illinois affirmed his conviction. … Later, Allen filed a petition for a writ of habeas corpus in federal court, alleging that he had been wrongfully deprived by the Illinois trial judge of his constitutional right to remain present throughout his trial. Finding no constitutional violation, the District Court declined to issue the writ. The Court of Appeals reversed. …
The facts surrounding Allen’s expulsion from the courtroom are set out in the Court of Appeals’ opinion sustaining Allen’s contention:
“After his indictment and during the pretrial stage, the petitioner [Allen] refused court-appointed counsel and indicated to the trial court on several occasions that he wished to conduct his own defense. After considerable argument by the petitioner, the trial judge told him,”
“I’ll let you be your own lawyer, but I’ll ask Mr. Kelly [court-appointed counsel] [to] sit in and protect the record for you, insofar as possible.”
“The trial began on September 9, 1957. After the State’s Attorney had accepted the first four jurors following their voir dire examination, the petitioner began examining the first juror and continued at great length. Finally, the trial judge interrupted the petitioner, requesting him to confine his questions solely to matters relating to the prospective juror’s qualifications. At that point, the petitioner started to argue with the judge in a most abusive and disrespectful manner. At last, and seemingly in desperation, the judge asked appointed counsel to proceed with the examination of the jurors. The petitioner continued to talk, proclaiming that the appointed attorney as not going to act as his lawyer. He terminated his remarks by saying, ‘When I go out for lunchtime, you’re [the judge] going to be a corpse here.’ At that point, he tore the file which his attorney had and threw the papers on the floor. The trial judge thereupon stated to the petitioner, ‘One more outbreak of that sort and I’ll remove you from the courtroom.’ This warning had no effect on the petitioner. …
“After more abusive remarks by the petitioner, the trial judge ordered the trial to proceed in the petitioner’s absence. The petitioner was removed from the courtroom. The voir dire examination then continued, and the jury was selected in the absence of the petitioner.”
“After a noon recess, and before the jury was brought into the courtroom, the petitioner, appearing before the judge, complained about the fairness of the trial and his appointed attorney. He also said he wanted to be present in the court during his trial. In reply, the judge said that the petitioner would be permitted to remain in the courtroom if he ‘behaved [himself] and [did] not interfere with the introduction of the case.’ The jury was brought in and seated. Counsel for the petitioner then moved to exclude the witnesses from the courtroom. The [petitioner] protested this effort on the part of his attorney, saying:”
“There is going to be no proceeding. I’m going to start talking and I’m going to keep on talking all through the trial. There’s not going to be no trial like this. I want my sister and my friends here in court to testify for me.”
“The trial judge thereupon ordered the petitioner removed from the courtroom.”
After this second removal, Allen remained out of the courtroom during the presentation of the State’s case in chief, except that he was brought in on several occasions for purposes of identification. … After the prosecution’s case had been presented, the trial judge reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly. Allen gave some assurances of proper conduct, and was permitted to be present through the remainder of the trial, principally his defense, which was conducted by his appointed counsel.
The Court of Appeals went on to hold that the Supreme Court of Illinois was wrong in ruling that Allen had, by his conduct, relinquished his constitutional right to be present, declaring that:. … “In light of the decision in Hopt v. Utah, (1884) and Shields v. United States, (1927), as well as the constitutional mandate of the sixth amendment, we are of the view that the defendant should not have been excluded from the courtroom during his trial despite his disruptive and disrespectful conduct. The proper course for the trial judge was to have restrained the defendant by whatever means necessary, even if those means included his being shackled and gagged.”
The Court of Appeals felt that the defendant’s Sixth Amendment right to be present at his own trial was so “absolute” that, no matter how unruly or disruptive the defendant’s conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did. Therefore the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial, and that the judge’s ultimate remedy … is to bind and gag him. We cannot agree that the Sixth Amendment, the cases upon which the Court of Appeals relied, or any other cases of this Court so handicap a trial judge in conducting a criminal trial. …
It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges … must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.
Trying a defendant for a crime while he sits bound and gagged before the judge and jury would, to an extent, comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. …
. … Allen was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner. Under these circumstances, we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendments to be present throughout his trial.
. …
We do not hold that removing this defendant from his own trial was the only way the Illinois judge could have constitutionally solved the problem he had. We do hold, however, that there is nothing whatever in this record to show that the judge did not act completely within his discretion. Deplorable as it is to remove a man from his own trial, even for a short time, we hold that the judge did not commit legal error in doing what he did.
The judgment of the Court of Appeals is
Reversed.
Estelle v. Williams (1976)
425 U.S. 501 (1976)
Vote: 6-2
Decision: Reversed and remanded
Majority: Burger, joined by Stewart, White, Blackmun, Powell, and Rehnquist
Concurrence: Powell, joined by Stewart
Dissent: Brennan, joined by Marshall
Not participating: Stevens
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to determine whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws.
In November, 1970, respondent Williams was convicted in state court in Harris County, Tex., for assault with intent to commit murder with malice. The crime occurred during an altercation between respondent and his former landlord on the latter’s property. The evidence showed that respondent returned to the apartment complex where he had formerly resided to visit a female tenant. While there, respondent and his former landlord became involved in a quarrel. Heated words were exchanged, and a fight ensued. Respondent struck the landlord with a knife in the neck, chest, and abdomen, severely wounding him.
Unable to post bond, respondent was held in custody while awaiting trial. When he learned that he was to go on trial, respondent asked an officer at the jail for his civilian clothes. This request was denied. As a result, respondent appeared at trial in clothes that were distinctly marked as prison issue. Neither respondent nor his counsel raised an objection to the prison attire at any time.
A jury returned a verdict of guilty on the charge of assault with intent to murder with malice. The Texas Court of Criminal Appeals affirmed the conviction. Williams then sought release in the United States District Court on a petition for a writ of habeas corpus. Although holding that requiring a defendant to stand trial in prison garb was inherently unfair, the District Court denied relief on the ground that the error was harmless.
The Court of Appeals reversed. …
The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. …
. …
The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that a accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. … This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that … an unacceptable risk is presented of impermissible factors coming into play.
That such factors cannot always be avoided is manifest in Illinois v. Allen, (1970), where we expressly recognized that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant … ,” yet the Court upheld the practice when necessary to control a contumacious defendant. …
Unlike physical restraints, permitted under Allen, compelling an accused to wear jail clothing furthers no essential state policy. … Indeed, the State of Texas asserts no interest whatever in maintaining this procedure.
Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment.
. …
Consequently, the courts … have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury. This is apparently an accepted practice in Texas courts, including the court where respondent was tried.
Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights. … .
. …
The record is clear that no objection was made to the trial judge concerning the jail attire either before or at any time during the trial. This omission plainly did not result from any lack of appreciation of the issue, for respondent had raised the question with the jail attendant prior to trial. At trial, defense counsel expressly referred to respondent’s attire during voir dire. The trial judge was thus informed that respondent’s counsel was fully conscious of the situation.
Despite respondent’s failure to raise the issue at trial, the Court of Appeals held:
“Waiver of the objection cannot be inferred merely from failure to object if trial in prison garb is customary in the jurisdiction.”
The District Court had concluded that, at the time of respondent’s trial, the majority of nonbailed defendants in Harris County were indeed tried in jail clothes. From this, the Court of Appeals concluded that the practice followed in respondent’s case was customary.
However, that analysis ignores essential facts adduced at the evidentiary hearing. Notwithstanding the evidence as to the general practice in Harris County, there was no finding that nonbailed defendants were compelled to stand trial in prison garments if timely objection was made to the trial judge. On the contrary, the District Court concluded that the practice of the particular judge presiding in respondent’s case was to permit any accused who so desired to change into civilian clothes. …
Significantly, at the evidentiary hearing respondent’s trial counsel did not intimate that he feared any adverse consequences attending an objection to the procedure. There is nothing to suggest that there would have been any prejudicial effect on defense counsel had he made objection, given the decisions on this point in that jurisdiction. …
Nothing in this record, therefore, warrants a conclusion that respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. Nor can the trial judge be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. … Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.
Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court … is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.
The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.
I dissent. The Court’s statement that
“[t]he defendant’s clothing is so likely to be a continuing influence throughout the trial that … an unacceptable risk is presented of impermissible factors” affecting the jurors’ judgment, thus presenting the possibility of all unjustified verdict of guilt, concedes that respondent’s trial in identifiable prison garb constituted a denial of due process of law. The judgment setting aside respondent’s conviction is nevertheless reversed on the ground that respondent was not compelled by the State to wear the prison garb. The Court does not … rest the reversal on a finding that respondent … consented to be tried in such attire, and thus had waived his due process right. Rather, for the first time, the Court confines due process protections by defining a right that materially affects the fairness and accuracy of the factfinding process in terms of state compulsion. … The end result of this definitional approach is to impute the effect of waiver to the failure of respondent or his counsel to apprise the trial judge of respondent’s objection to being tried in prison garb. This … introduces into this Court’s jurisprudence a novel and dangerously unfair test of surrender of basic constitutional rights to which I cannot agree. The Court concedes that respondent was denied due process of law: there is a due process violation if the State denies an accused’s objection to being tried in such garb, and, as will be developed, there is no relevant constitutional difference concerning that due process right if the accused has not objected to the practice.
. …
Identifiable prison garb … surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt. … The prejudice may only be subtle, and jurors may not even be conscious of its deadly impact, but … [j]urors … may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs. …
Trial in identifiable prison garb also entails additional dangers to the accuracy and objectiveness of the factfinding process. For example, an accused considering whether to testify in his own defense must weigh in his decision how jurors will react to his being paraded before them in such attire. … And the problem will most likely confront the indigent accused who appears in prison garb only because he was too poor to make bail. …
. …
Even under the Court’s standard of compelled appearance, the judgment of the Court of Appeals should be affirmed. The Court’s holding relies on the per curiam statement … that a defendant may not willingly proceed to trial in prison garb and later protest that fact. Yet … the District Court in this case expressly found that respondent had not willingly gone to trial in identifiable prison garb, and that finding was affirmed by the Court of Appeals. …
Since the Court does not hold that that finding of the two courts is clearly erroneous, the finding is conclusive on us for the purpose of deciding the merits, and compels affirmance of the Court of Appeals.
. …
