MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioner was convicted of disturbing the peace, by indecent proposals to and offensive contact with an 18-year-old hitchhiker to whom he is said to have given a ride in his car. The trial judge charged the jury that "you cannot find the defendant guilty on the unsupported and uncorroborated testimony of the complainant alone." The petitioner's federal claim derives from the admission of a police officer's testimony, introduced to corroborate the hitchhiker's testimony. The Mississippi Supreme Court held that the officer's testimony was improperly admitted as the fruit of "an unlawful search and was in violation of § 23, Miss. Constitution 1890." 154 So.2d 289, 294.
The Mississippi Supreme Court first filed an opinion which reversed petitioner's conviction and remanded for a new trial. The court held that the wife's consent to the search of the car did not waive petitioner's constitutional rights, and noted that the "[t]estimony of the State's witness . . . is, in effect, uncorroborated without the evidence disclosed by the inspection of defendant's automobile." 154 So. 2d, at 296 (advance sheet).
After the first opinion was handed down, the State filed a Suggestion of Error, pointing out that petitioner was in fact represented at his trial by competent local counsel, as well as by out-of-state lawyers. Thereupon the Mississippi Supreme Court withdrew its first opinion and filed a new opinion in support of a judgment
It is, of course, a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, even where those judgments also decide federal questions. The principle applies not only in cases involving state substantive grounds, Murdock v. City of Memphis, 20 Wall. 590, but also in cases involving state procedural grounds. Compare Herb v. Pitcairn, 324 U.S. 117, 125-126, with Davis v. Wechsler, 263 U.S. 22. But it is important to distinguish between state substantive grounds and state procedural grounds. Where the ground involved is substantive, the determination of the federal question cannot affect the disposition if the state court decision on the state law question is allowed to stand. Under the view taken in Murdock of the statutes conferring appellate jurisdiction
These justifications have no application where the state ground is purely procedural. A procedural default which is held to bar challenge to a conviction in state courts, even on federal constitutional grounds, prevents implementation of the federal right. Accordingly, we have consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question. Cf. Lovell v. City of Griffin, 303 U.S. 444, 450. As Mr. Justice Holmes said:
Only last Term, we reaffirmed this principle, holding that a state appellate court's refusal, on the ground of mootness, to consider a federal claim, did not preclude our independent determination of the question of mootness; that is itself a question of federal law which this Court must ultimately decide. Liner v. Jafco, Inc., 375 U.S. 301. These cases settle the proposition that a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest. In every case we must inquire whether the enforcement of a procedural forfeiture serves such a state interest. If it does not, the
The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided. But on the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner's motion at the close of the State's evidence asking for a directed verdict because of the erroneous admission of the officer's testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. For example, if there was sufficient competent evidence without this testimony to go to the jury, the motion for a directed verdict might have been denied, and the case submitted to the jury with a properly worded appropriate cautionary instruction.
We have no reason, however, to decide that question now or to express any view on the merits of petitioner's substantial constitutional claim.
Only evidence extrinsic to the record before us can establish the fact of waiver, and the State should have an opportunity to establish that fact. In comparable cases arising in federal courts we have vacated the judgments of conviction and remanded for a hearing, suspending the determination of the validity of the conviction pending the outcome of the hearing. See United States v. Shotwell Mfg. Co., 355 U.S. 233; Campbell v. United States, 365 U.S. 85. We recently adopted a similar procedure to determine an issue essential to the fairness of a state conviction. See Jackson v. Denno, 378 U.S. 368, 393-394; Boles v. Stevenson, 379 U.S. 43. We think a similar course is particularly desirable here, since a dismissal on the basis of an adequate state ground would not end this case; petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately bypassed the orderly procedure of the state courts. Fay v. Noia, supra, at 438.
Of course, in so remanding we neither hold nor even remotely imply that the State must forgo insistence on its procedural requirements if it finds no waiver. Such a finding would only mean that petitioner could have a federal court apply settled principles to test the effectiveness of the procedural default to foreclose consideration of his constitutional claim. If it finds the procedural default ineffective, the federal court will itself decide the merits of his federal claim, at least so long as the state court does not wish to do so. By permitting the Mississippi courts to make an initial determination of waiver, we serve the causes of efficient administration of criminal justice, and of harmonious federal-state judicial relations. Such a disposition may make unnecessary the processing
It is so ordered.
MR. JUSTICE BLACK, dissenting.
Petitioner contends that his conviction was based in part on evidence obtained by an allegedly unlawful search in violation of the United States Constitution. I would decide this federal question here and now. I do not believe that the Mississippi procedural trial rule relied on by the State can shut off this Court's review, nor do I find a particle of support for the Court's suggestion that
As far as the issue of waiver is concerned, I agree with the Mississippi Supreme Court, which considered the failure to object one of the "honest mistakes" which any lawyer might make,
Nor do I believe that Mississippi's procedural rule concerning the stage of a trial at which constitutional objections should be made is the kind of rule that we should accept as an independent, adequate ground for the State Supreme Court's refusal to decide the constitutional question raised by petitioner. In Williams v. Georgia, 349 U.S. 375, this Court held that where a State allows constitutional questions "to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right."
After stating this to be the rule it followed, and citing a number of its past decisions which stated and applied the same rule, the highest court of Mississippi, in the opinion quoted from, because of that rule reversed a conviction obtained through the use of unconstitutionally seized evidence, even though as in the present case there had been no objection made at the time the evidence was presented. The court noted that it had applied this same rule in other cases where proper objection had not been made at the trial, citing its holdings in Fisher v. State, 145 Miss. 116, 110 So. 361, and Carter v. State, 198 Miss. 523, 21 So.2d 404. In all of those cases the defendant appears to have been represented by local counsel. Yet this Court now apparently holds that the state court may, if it chooses to do so, depart from its prior cases and apply a new, stricter rule against this defendant and thereby prevent this Court from reviewing the case to see that his federal constitutional rights were safeguarded. I do not believe the cherished federal constitutional right of a defendant to object to unconstitutionally seized evidence
For these reasons I dissent from the disposition of this case.
MR. JUSTICE HARLAN, with whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, dissenting.
Flying banners of federalism, the Court's opinion actually raises storm signals of a most disquieting nature. While purporting to recognize the traditional principle that an adequate procedural, as well as substantive, state ground of decision bars direct review here of any federal claim asserted in the state litigation, the Court, unless I wholly misconceive what is lurking in today's opinion, portends a severe dilution, if not complete abolition, of the concept of "adequacy" as pertaining to state procedural grounds.
In making these preliminary observations I do not believe I am seeing ghosts. For I cannot account for the remand of this case in the face of what is a demonstrably adequate state procedural ground of decision by the Mississippi Supreme Court except as an early step toward extending in one way or another the doctrine of Fay v. Noia, 372 U.S. 391, to direct review. In that case, decided only two Terms ago, the Court turned its back on history (see dissenting opinion of this writer, at 448 et seq.), and did away with the adequate state ground doctrine in federal habeas corpus proceedings.
Believing that any step toward extending Noia to direct review should be flushed out and challenged at its earliest appearance in an opinion of this Court, I respectfully dissent.
The Mississippi Supreme Court did not base its ultimate decision upon petitioner's federal claim that his wife's consent could not validate an otherwise improper police search of the family car, but on the procedural ground that petitioner (who was represented by three experienced lawyers) had not objected at the time the fruits of this search were received in evidence. This Court now strongly implies, but does not decide (in view of its remand on the "waiver" issue) that enforcement of the State's "contemporaneous-objection" rule was inadequate as a state ground of decision because the petitioner's motion for a directed verdict of acquittal afforded the trial judge a satisfactory opportunity to take "appropriate corrective action" with reference to the allegedly inadmissible evidence. Thus, it is suggested, this may be a situation where "giving effect to the contemporaneous-objection rule for its own sake `would be to force resort to an arid ritual of meaningless form.' " (Ante, p. 449.)
From the standpoint of the realities of the courtroom, I can only regard the Court's analysis as little short of fanciful. The petitioner's motion for a verdict could have provoked one of three courses of action by the trial judge, none of which can reasonably be considered as depriving the State's contemporaneous-objection rule of its capacity to serve as an adequate state ground.
1. The trial judge might have granted the directed verdict. But had this action been appropriate, the Supreme Court of Mississippi, in its first opinion, would have ordered the prosecution dismissed. Since it did not, and the matter is entirely one of state law, further speculation by this Court should be foreclosed.
3. The remaining course of action is the example given by the Court; the trial judge could have denied the motion for a directed verdict, but, sua sponte, called for elaboration of the argument, determined that the search of the automobile was unconstitutional, and given cautionary instructions to the jury to disregard the inadmissible evidence when the case was submitted to it.
The practical difficulties with this approach are manifestly sufficient to show a substantial state interest in their avoidance, and thus to show an "adequate" basis for the State's adherence to the contemporaneous-objection rule. To make my point I must quote the motion for directed verdict in full.
The single sentence in the first motion (supra, p. 460) is the only direct reference to the search and seizure question from beginning to end of the trial.
As every trial lawyer of any experience knows, motions for directed verdicts are generally made as a matter of course at the close of the prosecution's case, and are generally denied without close consideration unless the case is clearly borderline. It is simply unrealistic in this context to have expected the trial judge to pick out the single vague sentence from the directed verdict motion and to have acted upon it with the refined imagination the Court would require of him. Henry's three lawyers apparently regarded the search and seizure claim as makeweight. They had not mentioned it earlier in the trial and gave no explanation for their laxity in raising it. And when they did mention it, they did so in a cursory and conclusional sentence placed in a secondary position in a directed verdict motion. The theory underlying the search and seizure argument—that a wife's freely given permission to search the family car is invalid —is subtle to say the very least, and as the matter
Contrast with this the situation presented by a contemporaneous objection. The objection must necessarily be directed to the single question of admissibility; the judge must inevitably focus on it; there would be no doubt as to the appropriate form of relief, and the effect of the trial judge's decision would be immediate rather than remote. Usually the proper timing of an objection will force an elaboration of it. Had objection been made in this case during the officer's testimony about the search, it would have called forth of its own force the specific answer that the wife had given her permission and, in turn, the assertion that the permission was ineffective. The issue, in short, would have been advertently
Thus the state interest which so powerfully supports the contemporaneous-objection rule is that of maximizing correct decisions and concomitantly minimizing errors requiring mistrials and retrials. The alternative for the State is to reverse a trial judge who, from a long motion, fails to pick out and act with remarkable imagination upon a single vague sentence relating to admissibility of evidence long since admitted. A trial judge is a decision-maker, not an advocate. To force him out of his proper role by requiring him to coax out the arguments and imaginatively reframe the requested remedies for the counsel before him is to place upon him more responsibility than a trial judge can be expected to discharge.
There was no "appropriate corrective action" that could have realistically satisfied the purposes of the contemporaneous-objection rule. Without question the State had an interest in maintaining the integrity of its procedure, and thus without doubt reliance on the rule in question is "adequate" to bar direct review of petitioner's federal claim by this Court.
The real reason for remanding this case emerges only in the closing pages of the Court's opinion. It is pointed out that even were the contemporaneous-objection rule considered to be an adequate state ground, this would not, under Fay v. Noia, preclude consideration of Henry's federal
What does all this signify? The States are being invited to voluntarily obliterate all state procedures, however conducive they may be to the orderly conduct of litigation, which might thwart state-court consideration of federal claims. But what if the States do not accept the invitation? Despite the Court's soft-spoken assertion that "settled principles" will be applied in the future, I do not think the intimation will be missed by any discerning reader of the Court's opinion that at the least a substantial dilution of the adequate state-ground doctrine may be expected. A contrary prediction is belied by the implication of the opinion that under "settled principles," the contemporaneous-objection rule relied upon in this case could be declared inadequate.
To me this would not be a move toward "harmonious" federalism; any further disrespect for state procedures, no longer cognizable at all in federal habeas corpus, would be the very antithesis of it. While some may say that, given Fay v. Noia, what the Court is attempting to do is justifiable as a means of promoting "efficiency" in the administration of criminal justice, it is the sort of
Believing that the judgment below rests on an adequate independent state ground, I would dismiss the writ issued in this case as improvidently granted.
"Q. Does that mean there is a discretion in the [state] court where it can waive [a failure to object] if it sees fit under the circumstances?
"A. It did so in that case I'm talking about [Brooks v. State, infra in text] where in several respects the defendant's rights were just completely trampled.
"Q. It means that it's not an absolutely rigid, unbreakable, irrevocable rule?
"A. That's right. That's right, your honor.
"Q. And that the court can waive it if the circumstances in its judgment justify?
"A. That's correct."
The Court's suggestion (ante, p. 449, n. 4) that we may proceed on the speculation that the Mississippi Supreme Court "overlooked" the renewal of the motion for directed verdict made at the completion of the case hardly requires comment.