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.
The Court of Appeals reversed on the basis of its own prior holding in Hernandez v. Beto, 443 F.2d 634 (CA5), cert. denied, 404 U.S. 897 (1971). 500 F.2d 206. The Fifth Circuit disagreed with the District Court solely on the issue of harmless error.
The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U.S. 162, 172 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
To implement the presumption, courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).
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,
That such factors cannot always be avoided is manifest in Illinois v. Allen, 397 U.S. 337 (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 . . . ," id., at 344; yet the Court upheld the practice when necessary to control a contumacious defendant. For that reason, the Court authorized removal of a disruptive defendant from the courtroom or, alternatively, binding and gagging of the accused until he agrees to conduct himself properly in the courtroom.
Unlike physical restraints, permitted under Allen, supra, compelling an accused to wear jail clothing furthers no essential state policy. That it may be more convenient for jail administrators, a factor quite unlike the substantial need to impose physical restraints upon contumacious defendants,
Similarly troubling is the fact that compelling the accused to stand trial in jail grab 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
The Fifth Circuit, in this as well as in prior decisions, has not purported to adopt a per se rule invalidating all convictions where a defendant had appeared in identifiable prison clothes. That court has held, for instance, that the harmless-error doctrine is applicable to this line of cases. 500 F. 2d, at 210-212. See also Thomas v. Beto, 474 F.2d 981, cert. denied, 414 U.S. 871 (1973); Hernandez v. Beto, supra, at 637. Other courts are in accord. Bentley v. Crist, 469 F.2d 854, 856 (CA9 1972); Watt v. Page, 452 F.2d 1174, 1176-1177 (CA10), cert. denied, 405 U.S. 1070 (1972). In this case, the Court of Appeals quoted the language of Mr. Justice Douglas, speaking for the Court in Harrington v. California, 395 U.S. 250 (1969):
In Chapman v. California, 386 U.S. 18 (1967), the Court, speaking through Mr. Justice Black, held:
In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F.2d 556 (CA5), cert. denied, 411 U.S. 971 (1973), the Court of Appeals declined to overturn a conviction where the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. "No prejudice can result from seeing that which is already known." 472 F. 2d, at 557. In the present case, the Court of Appeals concluded:
Contra: People v. Roman, 35 N.Y.2d 978, 324 N.E.2d 885 (1975).
Consequently, the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The
Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights.
Similarly, the Ninth Circuit has indicated that the courts must determine whether an accused "was in fact compelled to wear prison clothing at his state court trial." Bentley v. Crist, 469 F. 2d, at 856. See also Dennis v. Dees, 278 F.Supp. 354, 359 (ED La. 1968), disapproved on other grounds, United States ex rel. Stahl v. Henderson, supra, at 557; People v. Roman, 35 N. Y. 2d, at 978-979, 324 N. E. 2d, at 885-886; People v. Shaw, 381 Mich. 467, 164 N.W.2d 7 (1969).
The record is clear that no objection was made to the
Despite respondent's failure to raise the issue at trial, the Court of Appeals held:
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. Ibid.
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:
The state judge's policy was confirmed at the evidentiary hearing by the prosecutor and by a defense attorney who practiced in the judge's court.
Significantly, at the evidentiary hearing respondent's trial counsel did not intimate that he feared any adverse consequences attending an objection to the procedure.
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.
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 as to being tried in such clothes, for whatever reason,
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 STEVENS took no part in the consideration or decision of this case.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, concurring.
I concur in the opinion of the Court. As the Court's opinion and the dissenting opinion take such divergent views of the case, I write separately to identify specifically the considerations I deem controlling.
Respondent, Harry Lee Williams, was tried while clad in prison issue. Despite differences over the relevance of "compulsion" in this case, the Court opinion and the dissenting opinion essentially agree that a defendant has a constitutional right not to be so tried. The disagreement is over the significance to be attributed to Williams' failure to object at trial.
As relevant to this case, there are two situations in which a conviction should be left standing despite the claimed infringement of a constitutional right. The first situation arises when it can be shown that the substantive right in question was consensually relinquished. The other situation arises when a defendant has made an "inexcusable procedural default" in failing to object at a time when a substantive right could have been protected.
Williams was represented by retained, experienced counsel. It is conceded that his counsel was fully aware of the "prison garb" issue
This case thus presents a situation that occurs frequently during a criminal trial—namely, a defendant's failing to object to an incident of trial that implicates a constitutional right. As is often the case in such situations, a timely objection would have allowed its cure. As is also frequently the case with such trial-type rights as that involved here, counsel's failure to object in itself is susceptible of interpretation as a tactical choice. Ante, at 507-508.
It is my view that a tactical choice or procedural default of the nature of that involved here ordinarily should operate,
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 an unjustified verdict of guilt, ante, at 505, concedes that respondent's trial in identifiable prison garb
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, ante, at 504-505, 505, 512, 512-513, 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.
One of the essential due process safeguards that attends the accused at his trial is the benefit of the presumption of innocence—"that bedrock `axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.' " In re Winship, 397 U.S. 358, 363 (1970), quoting Coffin v. United States, 156 U.S. 432, 453 (1895). See also, e. g., Deutch v. United States, 367 U.S. 456, 471 (1961); Sinclair v. United States, 279 U.S. 263, 296-297 (1929).
Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt. Jurors may speculate that the accused's pretrial incarceration, although often the result of his inability to raise bail, is explained by the fact he poses a danger to the community or has a prior criminal record; a significant danger is thus created of corruption of the factfinding process through mere suspicion. The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well
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. It is surely reasonable to be concerned whether jurors will be less likely to credit the testimony of an individual whose garb brands him a criminal. And the problem will most likely confront the indigent accused who appears in prison garb only because he was too poor to make bail. In that circumstance, the Court's concession that no prosecutorial interest is served by trying the accused in prison clothes, ante, at 505, has an ironical ring.
In light of the effect of trial in prison garb in denying the accused the benefit of the presumption of innocence and undercutting the reasonable-doubt standard, it escapes me how the Court can delineate the right established in this case as the right not to be compelled to wear prison garb. If, as the Court holds, the clothes of the accused who has unsuccessfully objected to wearing prison garb (and thus is "compelled" to wear them) unconstitutionally disadvantages his case, obviously the prison clothes of the nonobjecting accused are similarly
JUSTICES POWELL and STEWART concur in this evisceration of fundamental due process rights, but on the basis of a rationale essentially different from the rationale of the Court's opinion. In that circumstance their joining in the Court's opinion is puzzling. For although the opinion of the Court, admittedly obscure, may be interpreted either as importing the concept of "compulsion" into areas to which it is inapposite or as diluting the standard for waiver of fundamental constitutional rights, the concurring opinion would prefer to reverse the Court of Appeals on the ground that respondent—or more properly, respondent's attorney—committed "an inexcusable procedural default" or "tactical choice" that precludes his present assertion of this substantive right. Ante, at 513, 514. Because the concurring opinion obfuscates various issues, and because the import of this statement and the true rationale of the concurring opinion are brought into better focus by today's opinion for the Court in Francis v. Henderson, post, p. 536, which does properly present a question of procedural default, it
One concept is that of "waiver" which, at least with respect to constitutional rights affecting the fairness and accuracy of the factfinding process, means that the accused has engaged in conduct which may be characterized as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U. S., at 464; see n. 6, supra. If an accused has knowingly waived rights to which he was otherwise entitled, he has not, on the merits of his claim, been unconstitutionally deprived of anything. A separate concept is that of "procedural default," which involves the manner in which an accused may forfeit rights by not asserting them according to the strictures of a State's procedural rules. If the accused has committed a procedural default, there may never be an adjudication of the underlying constitutional claim on the merits. That problem was addressed in Fay v. Noia, 372 U.S. 391 (1963), which held that "the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id., at 438. However, Fay was emphatic that it was to be "very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus," id., at 439, and unambiguously explained that the "deliberate by-pass" test for procedural defaults was the analogue of the "knowing and intelligent" waiver standard for loss of constitutional rights in the absence of a procedural rule concerning their assertion:
See also Francis v. Henderson, post, at 543-545, and n. 2 (BRENNAN, J., dissenting). When an accused has deliberately bypassed the State's mechanisms for adjudicating constitutional rights, a federal court generally need not address the merits of the underlying constitutional claim; as a corollary, when the state courts address the constitutional claim on the merits, the State may not seek to prohibit habeas relief on the ground that the accused was precluded from raising the claim due to a procedural default. See, e. g., Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9 (1975).
With this background in mind, two glaring inadequacies
Second, and even more basic, the concurring opinion, without reference to the holding of Fay and without citing any precedent, would reverse the Court of Appeals under a standard which directly repudiates Fay and which implicitly undermines its precedential value with respect to the assertion in habeas proceedings of all constitutional rights. The concurring opinion, which converts the "deliberate by-pass" test of Fay into an "inexcusable" default test, would find an "inexcusable" procedural default in the mere failure to object to an unconstitutional practice, reasoning that if there had been a timely objection the unconstitutional action would have been remedied. Such logic could, as a hind-sight matter, probably be invoked any time counsel inadvertently or inexplicably fails to object contemporaneously to the deprivation of his client's fundamental rights, and the Fay knowing-and-intelligent-bypass test would thus be rendered a hollow shell. Indeed, the concurring opinion would also appear to shift the Fay burden of proof, in a case in which an unconstitutional deprivation of an accused's rights has been shown, by requiring the accused to show that the default was not "inexcusable" rather than requiring the State to show that the default was "deliberate."
In any event, if the concurring opinion means that my Brothers STEWART and POWELL are forsaking the teaching of precedents such as Fay, I respectfully suggest that they have the clear responsibility not to do so by indirection, and to explicate at least the contours and outer limits of the novel and dangerous doctrines which they are formulating. See generally Francis v. Henderson, post, p. 542 (BRENNAN, J., dissenting). It is simply unacceptable that my Brethren, who concede that respondent was convicted in derogation of his constitutionally secured presumption of innocence, should nevertheless sanction his unconstitutional confinement on the basis of "procedural default" principles which are neither articulated nor justified in a case calling for such analysis, see Francis v. Henderson, and which are then conjured up as the ground for decision in a case in which those unarticulated principles are not even legitimately implicated. This hardly passes as reasoned adjudication, and is a grave disservice both to this Court and to the litigants who must come before it.
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 of the Court of Appeals for the Fifth Circuit
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
The jury's attention to respondent's jail garb was first directed by the prosecution on voir dire.
At least, in light of the District Court's finding that there was no knowing and voluntary waiver and that trial objections were deterred by the then prevalent trial climate, I should think the Court would remand for further factual development concerning the practice in Harris County at the time of respondent's trial.
The Second Circuit has noted in a different context:
"Federal courts, including the Supreme Court, have declined to notice [alleged] errors not objected to below even though such errors involve a criminal defendant's constitutional rights." United States v. Indiviglio, 352 F.2d 276, 280 (1965), cert. denied, 383 U.S. 907 (1966).
The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation.
"We do not paint with a broad brush these types of cases. Each case must be considered in its own factual context." 443 F. 2d, at 637.
Moreover, there is nothing in the record in Hernandez to suggest that the state trial judge had, as here, a longstanding practice, known to members of the bar, to permit any defendant to change into civilian clothes on request. See infra, at 510-511.
"I have never compelled a defendant to go to trial in jail clothes, and on every occasion when a defendant or his attorney requested that he be allowed to wear civilian clothes at his trial I have granted the request." 364 F. Supp., at 338.
The Court's reliance on Illinois v. Allen, 397 U.S. 337 (1970), is particularly inexplicable. See ante, at 505. For the Court in Allen held that "courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 464 (1938)," and further held that the accused could only be deprived of his right to be present at trial "if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." 397 U. S., at 343. Allen thus requires knowing, voluntary, and intelligent waiver of the constitutional right to be present at trial, the standard that in my view also applies to trial in prison garb.
In a single reported case, Garcia v. Beto, 452 F.2d 655 (CA5 1971), a defense attorney testified that given the particular circumstances of the case, in which he sought to portray his client as a drunk, he thought that by emphasizing the difference between the accused and the jurors he would be aided in making that defense. The Fifth Circuit found that this deliberate trial strategy constituted a waiver of the right to be tried in civilian clothes. Although the other cases cited by the Court today noted the Garcia opinion, none involved such a trial tactic. See Watt v. Page, 452 F.2d 1174, 1176 (CA10 1972) (noting that cases refer to the "possibility" that there may be a trial strategy and remanding for an evidentiary hearing on the matter); Anderson v. Watt, 475 F.2d 881, 882 (CA10 1973) (affirming grant of habeas relief since no trial strategy was shown); Barber v. State, 477 S.W.2d 868, 870 (Tex. Crim. App. 1972) (asserting that the Fifth Circuit in Garcia noted that a defendant "often wants to be tried in jail clothing and that it is common for a defense counsel to prove before the jury how long the accused has been confined in jail"; however, no demonstration was made that such was true in Barber's case or in any case other than Garcia, and the Garcia case never suggested that the practice was "common"). The single instance in which a defense attorney, confronted with the fact his client was being tried in prison garb, attempted to employ that fact to invoke jury sympathy and thereby waived any right he otherwise had to trial in civilian garb, hardly supports the Court's conclusion that defendants "frequently" hope to benefit by this "tactic," ante, at 508, or the concurring opinion's similarly myopic statement that "counsel's failure to object in itself is susceptible of interpretation as a tactical choice," ante, at 514. See also n. 3. supra. In any event, even if there were situations in which trial in prison garb was deliberately employed as a defense tactic, that would only justify a decision that those individuals waived their rights. Cf., e. g., Barker v. Wingo, 407 U.S. 514, 525-529 (1972).
Moreover, there is no reason in this case why the Court should reassess the finding of two courts that respondent did not willingly proceed to trial in prison garb. Petitioner did not challenge that holding in his petition for a writ of certiorari, and sought resolution only of the basic question whether trial in prison garb is so inherently prejudicial that it destroys the presumption of innocence.
"This defendant is sitting in jail clothes. I am assuming he's been in jail to the time of this trial. You are not to take this into consideration. The fact a man is in jail clothes shouldn't make you feel he is guilty any more than if he were in street clothes.
"The second thing, oftentimes evidence will come out that a person has been in jail for seven months or eight months awaiting trial. By the same token, this should not be taken into consideration on your verdict, because you are supposed to go straight down the line, guilty or not guilty, and not let how a person is dressed influence your decision." Exhibits, pp. 30-31.
Subsequently the prosecutor, again addressing a single juror, stated, id., at 33:
"You have heard the questions I asked. I have gone over reasonable doubt, gone over the business of how the defendant was dressed, the fact he may or may not have been in the jail all this time."
If the jurors had ignored respondent's garb until then, these statements surely directed their attention to it.
The Court of Appeals did not address respondent's contention that respondent was denied effective assistance of counsel, in light of its holding with respect to respondent's prison-garb contention. When the Court of Appeals now addresses the issue on remand, it should of course do so in light of the fact that the Court today declares that there were "ample grounds" for an objection to trial in prison garb, see ante, at 512 n. 8, concurring opinion, ante, at 514 n. 1, and the fact that trial counsel concededly had no tactical or other reason for desiring that respondent be tried in prison garb, see n. 11, supra.