MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioner's three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim, petitioner filed a motion alleging that he was indigent, and asking for a free transcript of the first trial. The trial court denied his motion, and the North
Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal.
In prior cases involving an indigent defendant's claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.
We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner's failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.
But the court below did not use the language of "particularized need." It rested the decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript. The second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. In these circumstances, the court suggested that petitioner's memory and that of his counsel should have furnished an adequate substitute for a transcript. In addition, the court pointed to the
We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial.
For these reasons the judgment is Affirmed.
MR. JUSTICE BLACKMUN concurs in the result, but he would dismiss the petition for certiorari as having been improvidently granted.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting.
After the State's first murder prosecution of the petitioner ended in a hung jury in November 1969, Britt was retried, convicted, and sentenced to 30 years' imprisonment. During the interim between the two trials, the petitioner made a showing of indigency and asked that the State provide him with a free transcript of the mistrial. The trial court denied his motion despite Britt's contention that because a more affluent defendant could purchase such a transcript as a matter of right a denial of his request would offend the principle of Griffin v. Illinois, 351 U.S. 12 (1956). On appeal, the North Carolina Court of Appeals was likewise unconvinced by Britt's equal protection claim and affirmed the trial court's refusal to order a free transcript, stating that
Griffin v. Illinois, supra, at 19, established the now familiar principle that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." While Griffin involved only the provision of a free transcript to an indigent on direct appeal, its underlying principle has achieved broader usage. We have witnessed a steady growth of its applications to other transcript cases,
Here the request was for a mistrial transcript, whereas in Roberts a motion had been made for a preliminary hearing transcript. In the ways in which either might be used I can perceive no differences. In both sets of circumstances it would seem that defendants would be interested in better trial preparation and in better positions from which to challenge discrepancies in government witnesses' stories.
The North Carolina Court of Appeals, however, has rejected the Griffin-Roberts-Wilson cases and sought refuge in the pre-Roberts authority of Nickens v. United States, 116 U. S. App. D. C. 338, 323 F.2d 808 (1963), which had emphasized, as did the court below, the defendant's failure to articulate a particular need for a transcript, the continuity of defense counsel, and the availability of the court reporter.
The primary rationale offered to support the holding below is that the petitioner failed to make a showing of a particularized need for a mistrial transcript. Presumably
Similarly, while counsel is studying mistrial minutes, the precise words used by a witness might trigger mental
It is unnecessary, however, to speculate as to how often helpful subtleties in mistrial transcripts might actually be found because, as a more general matter, at least two compelling interests would be routinely served by providing paupers with free transcripts, even in cases where counsel were unable to specify the precise nature of the benefits of such discovery. As mentioned earlier, one such interest is that of effective trial preparation by counsel (who may realize that his counterpart, the prosecutor, will employ a similar document supplied at the State's expense during his own trial preparation). The other interest is that of anticipating possible discrepancies in prosecution witnesses' statements and in being prepared immediately to challenge such contradictions. See Wilson, supra, at 897. Because wealthier defendants tend to purchase transcripts as a matter of course simply on the strength of these recurring interests, it would appear that these benefits are ordinarily worth the fiscal burden of providing the documents regardless of how the cost of reproducing minutes may be distributed.
When viewed in the broader context of a defendant's complete lack of criminal discovery procedures, the importance of a mistrial transcript becomes even clearer. Many commentators have criticized the persistent common-law prohibition against discovery by criminal defendants,
North Carolina's presentation of an anti-discovery policy is evidenced not only in its reluctance to enact a modern code to permit such procedures but also in its occasional one-sided legislation concerning related matters. For example, while a local prosecutor has an absolute right to inspect the files of the State Bureau of Investigation which pertain to one of his local inquiries, an accused may inspect such evidence only upon court order procured for good cause. See N. C. Gen. Stat. § 114-15 (1966). Even a common-law request for a bill of particulars to clarify an indictment normally does not require a prosecutor to divulge names of his witnesses or the nature of his physical or documentary evidence.
This Court has been sensitive to the persuasive arguments for more liberal rules of criminal discovery.
The provision in North Carolina permitting defendants to purchase mistrial minutes is obviously an important exception to the common-law prohibition. A mistrial transcript contains not only prosecution witnesses' names and addresses but their stories under oath and it contains the entire theory of the government's case. Such a document is a complete dossier of the opposing case for which even the most liberalized rules of civil discovery have no equivalent. While this exception endures, the State may not condition its availability upon financial considerations which effectively deprive the poor of this valuable tool.
The lower court's opinion suggests that whatever legitimate uses generally might be made of mistrial minutes could alternatively be accomplished by counsel's calling as a witness the court reporter of the previous prosecution. See also Nickens v. United States, 116 U. S. App. D. C., at 341, 323 F. 2d, at 811. However satisfactorily that suggestion might facilitate impeachment of government witnesses, it should be clear that the procedure would provide no assistance in preparing counsel for trial.
Moreover, the procedure of calling a court reporter to verify hostile witnesses' contradictions has been discredited by trial commentators, including Professor Robert Keeton:
Indeed these hazards were painfully present in United States ex rel. Wilson v. McMann, supra, in which Wilson's attorney erroneously believed he remembered an inconsistent statement of a prosecution witness who had testified at the prior mistrial. At the second trial the lawyer quizzed the witness concerning this prior remark but the witness denied having ever made it. The judge decided to delay the trial until the reporter of the mistrial could read back the precise words used by the witness. After "considerable delay and perhaps some inconvenience to the jurors" counsel learned that he had been mistaken and that no contradiction, at least on the suspected issue, had existed. Id., at 898.
I would reverse the judgment below.
"[T]he law enforcement agency is often at the scene of the crime shortly after its commission. While at the scene, the police have better access to witnesses with fresher recollections. They are authorized to confiscate removable evidence. In addition, the financial and investigatory resources of law enforcement agencies permit an extensive analysis of all relevant evidence.
"The defendant has the option of hiring a private investigator. However, the investigator will probably get to the scene long after the occurrence of the crime and after the police have made their investigation and removed all relevant physical evidence. The defendant's investigator may have difficulty viewing the scene if it is on private property. Witnesses may be less accessible; their recollections will probably be less precise. Indeed they may choose not to cooperate at all with the defendant's investigator. However, it may all be irrelevant if, as is often the case, the defendant is unable to afford an investigator or is incarcerated pending trial.
"The defendant is helpless to cope with the uncooperative witness while the prosecutor has numerous means to compel testimony. First, there is the possibility of [a] coroner's inquest or a preliminary hearing. And if the prosecution prefers not to have the defense present, some jurisdictions allow the prosecution to take testimony while the defendant and his attorney are excluded. The uncooperative witness can be subpoenaed to appear before the grand jury and required to testify, again without the presence of the defense. The defense cannot, usually, discover the grand jury minutes.
"Many states require that the defendant give notice of intended alibi or insanity defenses. The prosecution's burden, in bringing a charge, in contrast, has been substantially lessened. Mere recitation of the statute may be a sufficient pleading of the charge. Amendments to the indictment or information are liberally allowed; duplicity and variances are no longer serious defects. Liberal pleading rules deprive the defendant of effective notice of the circumstances of the offense." Norton, Discovery in the Criminal Process, 61 J. Crim. L. C. & P. S. 11, 13-14 (1970).
See generally Handzel, Criminal Law: Pre-Trial Discovery—The Right of an Indigent's Counsel to Inspect Police Reports, 14 St. Louis U. L. J. 310 (1969); Moore, Criminal Discovery, 19 Hastings L. J. 865 (1968); A State Statute to Liberalize Criminal Discovery, 4 Harv. J. Legis. 105 (1967). Comment, Disclosure and Discovery in Criminal Cases: Where Are We Headed?, 6 Duquesne U. L. Rev. 41 (1967); Golden & Palik, Bibliography: Criminal Discovery, 5 Tulsa L. J. 207 (1968); Symposium: Discovery in Federal Criminal Cases, 33 F. R. D. 47 (1963); Brennan, Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U. L. Q. 279.
"There is a strong possibility that solicitors (consciously or unconsciously) withhold evidence favorable to the defendant. . . ." Id., at 16.
In addition to the discussion of such procedures in State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964), see State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965) (access to police reports and notes denied); State v. Overman, supra, at 468, 153 S. E. 2d, at 57; see also Goldman v. United States, 316 U.S. 129 (1942), cited with approval in Goldberg, supra, at 191, 134 S. E. 2d, at 341, holding that a defendant has no right to inspect memoranda used by prosecution witnesses to refresh their memories. See generally the restatement of the common-law rules of discovery, cited by the Goldberg court, supra, at 191, 134 S. E. 2d, at 340, in 23 C. J. S., Criminal Law §§ 955 (1) and (2).