MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, a pauper, has been convicted and sentenced to prison. After conviction the court-appointed lawyer, who represented him at the trial, withdrew his appearance with the approval of the court. The present court-appointed attorney is a different person, appointed by the Court of Appeals after the indigent had prepared pro se a petition for leave to appeal in forma pauperis. The District Court denied leave to appeal in forma pauperis. The Court of Appeals, although empowered to allow the appeal (Coppedge v. United States, 369 U.S. 438, 455), merely allowed petitioner to proceed in forma pauperis for purposes of the appeal "to the extent of having the stenographic transcript of the testimony and evidence presented by the government prepared at the expense of the United States," as those parts of the transcript were the only ones that relate "to the conclusory allegations" formulated by the indigent defendant pro se. See Ingram v. United States, 315 F.2d 29, 30-31. After a petition for rehearing was denied, petitioner moved the Court of Appeals for a transcript of the balance of the proceedings in the District Court. This motion was denied by a divided Bench. The case is here on certiorari. 373 U.S. 902.
We deal with the federal system where the appeal is a matter of right (Coppedge v. United States, supra, at 441; 28 U. S. C. §§ 1291, 1294), and where the appellant is entitled to "the aid of counsel unless he insists on being his own." Johnson v. United States, 352 U.S. 565, 566. Congress has buttressed that right of appeal in several ways. It has provided in 28 U. S. C. § 1915 that any federal court may authorize an "appeal" in forma pauperis,
We have here a case where an appeal in forma pauperis has not yet been allowed. But whether counsel seeks an entire transcript at that stage or later on, the problem seems to us to be the same.
A court-appointed counsel who represents the indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. Coppedge v. United States, supra, at 446; Ingram v. United States, supra.
We deal here only with the statutory scheme and do not reach a consideration of constitutional requirements. We see no escape from the conclusion that either where the requirements of a nonfrivolous appeal prescribed by Coppedge v. United States, supra, are met, or where such a showing is sought to be made, and where counsel on appeal was not counsel at the trial, the requirements placed on him by Ellis v. United States, supra, will often make it seem necessary to him to obtain an entire transcript.
We conclude that this counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution.
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, concurring.
I join the Court's opinion which is written narrowly within the framework of prior decisions. I concur separately, however, to state my conviction that in the interests of justice this Court should require, under our supervisory power, that full transcripts be provided, without limitation, in all federal criminal cases to defendants who cannot afford to purchase them, whenever they seek to prosecute an appeal.
The problem here arises out of the different procedures by which criminal appeals taken by indigent and nonindigent defendants are processed in the District of
Following the conviction and sentencing of an indigent defendant, his court-appointed trial lawyer often withdraws from the case.
If the District Court has denied leave to appeal in forma pauperis, and if "the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing . . ." that the case presents a nonfrivolous issue. Coppedge v. United States, 369 U.S. 438, 446. A "record of sufficient completeness" has been interpreted by the Court of Appeals for the District of Columbia to mean "the portion of the transcript of proceedings which relates to the conclusory allegations" made by the defendant in his pro se application. Ingram v. United States, 114 U. S. App. D. C. 283, 285, 315 F.2d 29, 31. After receiving the relevant portion of the transcript, the appointed lawyer has the duty of preparing a memorandum showing, if he can, that the case presents a nonfrivolous issue and that leave to appeal should be granted. If the lawyer finds what he considers a nonfrivolous claim of error in the portion of the transcript he has been given, he files the memorandum. If the court then agrees that there is a nonfrivolous issue, it must grant leave to appeal in forma pauperis, and the same previously described procedure is then followed as would be followed if leave had been granted originally by the District Court or the Court of Appeals.
The lawyer who has satisfied himself that the transcript originally ordered contains no nonfrivolous issue may, however, decide to request additional portions of the transcript before seeking to withdraw from the case. If his examination of the original portions of the transcript leads him to suspect specific error in other portions of the transcript, the Court of Appeals, upon being presented with these new claims of error, will order the production of those portions of the transcript relating to these claims.
Where the appointed lawyer can find no nonfrivolous claim of error in the portion of the transcript relating to the claims raised in the defendant's pro se application but has no idea whether the remainder of the transcript will disclose any such claim, he cannot in good conscience allege any new claim of error to which additional portions of the transcript would be relevant. Nor can he, without being furnished with the remainder of the transcript, conclude in good conscience that the case presents no issue which is nonfrivolous.
This case, therefore, although it arises in the context of a request for portions of a transcript, raises fundamental questions concerning the proper role of appointed counsel on appeal. If the function of appointed counsel is essentially to aid the court, as amicus curiae, in assessing the claims of errors made in the pro se petition and in determining whether they include a nonfrivolous issue, then the practice now prevailing is perfectly suited to its end. It is then entirely logical to give the appointed lawyer only those portions of the transcript relating to the pro se claims of error, and to permit him to withdraw from the case if those portions of the transcript reveal no nonfrivolous claims. However, if the proper function of the appointed lawyer is essentially the same as that of the retained lawyer—to be an effective advocate in an adversary system—then there can be no justification for limiting him to those portions of the transcript relating to the claims of error raised by his indigent and often illiterate client and for permitting—indeed in effect requiring —him to withdraw from the case without examining the remainder of the trial transcript. It cannot seriously be suggested that a retained and experienced appellate lawyer would limit himself to the portions of the transcript designated by his client or even by the trial attorney, especially where the Courts of Appeals may, and not infrequently do, reverse convictions for "plain errors" not raised at trial.
The opinion of the Court agrees with this conclusion as it relates to "one whose lawyer on appeal enters the case after the trial is ended." Ante, at 280. I believe that it is equally applicable to one whose appointed lawyer on appeal was also his lawyer at trial. No responsible retained lawyer who represents a defendant at trial will rely exclusively on his memory (even as supplemented by trial notes) in composing a list of possible trial errors which delimit his appeal. Nor should this be required of an appointed lawyer. An appointed lawyer, whether or not he represented the defendant at trial, needs a complete trial transcript to discharge his full responsibility of preparing the memorandum supporting the application to proceed in forma pauperis.
I conclude, therefore, that the interests of equal justice and the viability of our adversary system
Providing a complete transcript to all defendants who cannot afford to purchase one will not create an undue financial burden on the Government. Statistics for the last three years for which figures are available indicate that almost 90% of the criminal trials in the District of Columbia lasted three days or less and that a "transcript of a three-day trial will generally cost less than $200 to prepare . . . ."
Finally, the foregoing discussion leads me to the ultimate conclusion that the cause of equal justice is unduly hindered by the cumbersome obstacles to appeal which have been erected by the procedure for screening frivolous attempts to appeal in forma pauperis. I agree, therefore, with my Brothers STEWART and BRENNAN, in their concurring opinion in Coppedge, 369 U. S., at 458, that "each Court of Appeals might well consider whether its task could not be more expeditiously and responsibly performed by simply" eliminating the entire process for screening in forma pauperis appeals and by treating such appeals in the same manner as paid appeals are now
MR. JUSTICE CLARK, concurring in the result.
A half dozen years ago, 28 U. S. C. § 1915 clearly directed that no indigent appeal may be taken "if the trial court certifies in writing that it is not taken in good faith." The words of the statute are identical today but the Court's interpretations have stripped them of the apparent congressional meaning. In Johnson v. United States, 352 U.S. 565 (1957), we said that counsel must be appointed to represent an indigent who wishes to contest the validity of a certificate under § 1915 and that such counsel must be "enabled to show that the grounds for seeking an appeal from the judgment of conviction are not frivolous and do not justify the finding that the appeal is not sought in good faith." At 566. In Farley v. United States, 354 U.S. 521 (1957), counsel for the indigent claimed that the evidence was insufficient to justify the conviction, and this Court required a transcript to be furnished on that point. A year later in Ellis v. United States, 356 U.S. 674 (1958), it appeared that counsel appointed by the Court of Appeals "performed essentially the role of amici curiae," at 675, and the Court held that "representation in the role of an advocate is required," ibid., vacating the judgment on the
Today we are faced with the question whether counsel, appointed on an appeal to represent an indigent, but not present at the trial of the case in the District Court, is entitled to a full transcript so as to enable him to determine whether plain error or defects affecting substantial rights occurred during the trial. As I see the problem, the Government has not met the burden placed upon it by the above language in Coppedge, namely to sustain the frivolity of the appeal, insofar as plain error is concerned. It appears to me that the Government must furnish the full transcript in order to enable petitioner's new counsel to determine whether plain error occurred during the trial, and likewise to enable the Court of Appeals to pass upon the point.
While I dissented in Coppedge as well as Farley, I feel bound by their holdings and therefore concur in the result here. In so doing, I trust that when Congress adopts the
MR. JUSTICE HARLAN, dissenting.
I think the Court should not, in the name of exercising its supervisory powers, engraft this further requirement on 28 U. S. C. § 1915.
Four members of the Court would go further. They would furnish complete transcripts as a matter of course to all indigent appellants, whether or not represented at the appellate stage by the same lawyer who acted for them
Granting that § 1915 has not caught up with this Court's recent pronouncements in this area (see concurring opinion of CLARK, J., ante, pp. 296-298) and that, as recommended in the recent report of the Attorney General's Committee,
A balanced solution of a problem having such unforeseeable ramifications requires consideration of the informed views of those on the firing line of the administration of criminal justice—District judges, Circuit judges, United States attorneys, defense lawyers and Legal Aid Societies—and exploration of differing conditions among the Circuits. It might be concluded that a nationwide requirement of this sort would be unsound, and that the matter is best left for discrete treatment by the Judicial Councils in the various Circuits, subject of course to constitutional limitations. Remotely situated as this Court is from the day-to-day workings of the criminal system, it should hesitate to promulgate blanket requirements on this subject based largely upon theoretical considerations. Cf. Sanders v. United States, 373 U.S. 1, 23 (dissenting opinion of this writer).
I would dispose of this case as the Government suggests by remanding it to the Court of Appeals for further consideration in light of that court's subsequent decision in Ingram v. United States, 315 F.2d 29. I do not understand this Court's decision to rest on constitutional grounds, nor do I think it well could.
". . . when a pro se petition is filed, upon direct appeal from judgment of conviction, and the claims of error stated therein (e. g., `insufficiency of evidence,' `unlawful search and seizure,') are so conclusory in nature that `their substance cannot adequately be ascertained,' counsel will be appointed and, simultaneously, the portion of the transcript of proceedings which relates to the conclusory allegations will be ordered so that appointed counsel may determine their merit. Of course, counsel will not be limited to the transcript initially allowed if he can in good conscience advance other claims of error requiring additional portions of the transcript." Id., at 30-31.
". . . the new counsel is operating under serious handicaps. Normally he has no prior acquaintance with the trial proceedings and no personal knowledge of the case which would form a basis for sound judgment. Normally no transcript is in existence at this stage, so he cannot make his own independent analysis of the trial proceedings.
"In order to investigate whether the appeal involves one or more `not plainly frivolous' issues, counsel may examine the formal documents on record in the trial court; he may interview his client; he may discuss the case with defendant's trial counsel and with the prosecutor; he may try to work out with the prosecutor an `agreed statement' of the case, despite the fact that he lacks the information necessary to assure himself that the agreed statement would be an accurate one; he may ask the official court reporter as a courtesy to read back certain limited portions of the reporter's shorthand notes (or all of them, if the trial was a short one); and it has been suggested —though perhaps without too much regard for the practicalities of some situations—that he may even interview the trial judge and seek to inspect any notes which the trial judge kept of the trial proceedings. Such efforts are apt to be incredibly time-consuming and frustrating, and sometimes may arouse in counsel a feeling that he would be well advised to avoid future assignments of appellate in forma pauperis work. But worse than that, in many instances these efforts will be wholly unsatisfactory as a means of safeguarding the defendant's rights.
"Recollections and notes of trial counsel and of others are apt to be faulty and incomplete. Frequently, issues simply cannot even be seen—let alone assessed—without reading an accurate transcript. Particularly is this true of questions relating to evidence or to the judge's charge; and it may also apply to many other types of questions. Moreover, the actual record (if appellate counsel could have it to inspect) might disclose issues substantial enough to constitute probable or possible `plain error,' even though trial counsel was not aware of their existence; and the indigent should have the same opportunity as the wealthy to urge that plain error should be noticed on appeal. In short, a conscientious counsel freshly entering the case at the appellate stage normally is likely to conclude that a full or partial transcript of the trial proceedings will be indispensable if the requisite `dependable record' is to be obtained as a basis for evaluating the case."
"Unless good cause is shown for an earlier hearing, the appellate court shall set the appeal for argument on a date not less than 30 days after the filing in that court of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit. Preference shall be given to appeals in criminal cases over appeals in civil cases."
The Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice described this phase of the process as follows: "[T]he convicted defendant must file a notice of appeal within ten days after the entry of the judgment, if the right to appeal is to be preserved. Since an assigned counsel under present practices often does not conceive it to be part of his obligations to advise the defendant of his right to appeal or to assist in perfecting that right, and since many district courts do not routinely advise the defendant of his appeal rights, some financially disadvantaged defendants, because of their ignorance of the jurisdictional requirements, irrevocably lose their rights to appeal. The defendant who is unable to pay the costs of a trial transcript or to pay court costs is required to apply for leave to appeal in forma pauperis. The application, which is in affidavit form, contains allegations of financial incapacity and the reasons relied on by defendant to obtain redress in the appellate courts. Because normally no provision is made for counsel at this stage of the proceedings, the application is often inexpertly prepared and conceived, frequently resulting in injury to the defendant's interests and to the sound administration of justice." Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice, Report on Poverty and the Administration of Federal Criminal Justice (1963), 100 (hereinafter cited as Attorney General's Report).
The Bar Association of the District of Columbia, in their brief amicus curiae, state that "On the basis of [their] experience as appointed counsel, [they] believe strongly that providing a trial transcript in every case will significantly reduce the number of collateral attack proceedings under 28 U. S. C. 2255, habeas corpus, or coram nobis." The Attorney General's Report also points out "the fact that the free accessibility and quality of appellate review has reduced collateral attacks on sentences imposed by courts martial [where the `record is supplied the defendant at government expense'] to an absolute minimum." Attorney General's Report, at 109. Thus, the automatic provision of free transcripts to all federal criminal defendants who cannot afford to purchase them would seem to be entirely consistent with the spirit of our recent decision in Bartone v. United States, 375 U.S. 52, where the Court observed that "It is more appropriate, whenever possible, to correct errors reachable by the appeal rather than remit the parties to a new collateral proceeding." Id., at 54.
Kemp was arrested on November 24, 1960. At the time of the opinion ordering his release, he had been confined well over two years. Attorney General's Report, at 103-104.
Even if I were to assume, as the Government argues, that requiring the provision of free services for indigents may sometimes have the effect of placing them in a more advantageous position than that of the defendant who, while not indigent, has limited financial resources, the answer to this problem would not be to deny the means of an effective appeal to the former; it would be to make such means more easily available to the latter, by broadening the concept of "indigency," see note 7, supra, by adopting a system whereby the accused pays what he can afford and the Government pays the rest, or by providing some or all of these resources freely to anyone who requests them regardless of financial ability. See note 13, supra.
"(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."