Annotation 15 - Fourteenth Amendment



The Supreme Court's guardianship of state criminal justice systems under the due process clause has never been subject to precise statement of metes and bounds. Rather, the Court in each case must ask whether the challenged practice or policy violates ''a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.'' 1 The question is whether a claimed right is ''implicit in the concept of ordered liberty,'' whether it partakes ''of the very essence of a scheme of ordered liberty.'' 2 Inevitably, judgment expresses a determination that certain practices do or do not ''offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.'' 3 More recently, the Court has eschewed as too abstract an inquiry as to whether some procedural safeguard was necessary before a system could be imagined which would be regarded as civilized without that safeguard. Rather, ''[t]he recent cases . . . have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country. The question thus is whether given this kind of system a particular procedure is fundamental--whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. . . . [Therefore the limitations imposed by the Court on the States are] not necessarily fundamental to fairness in every criminal system that might be imagined but [are] fundamental in the context of the criminal processes maintained by the American States.'' 4

Applying this analysis the Court in recent years has held that practically all the criminal procedural guarantees of the Bill of Rights--the Fourth, Fifth, Sixth, and Eighth Amendments--contain limitations which are fundamental to state criminal justice systems and that the absence of one or the other particular guarantees denies a suspect or a defendant due process of law. 5 However, the due process clause of the Fourteenth Amendment is not limited to those specific guarantees spelled out in the Bill of Rights, 6 but rather contains protection against practices and policies which may fall short of fundamental fairness without running afoul of a specific provision. 7

The Elements of Due Process

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine .-- ''Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.'' 8 Acts which are made criminal ''must be defined with appropriate definiteness.'' 9 ''There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act . . . or in regard to the applicable tests to ascertain guilt.'' 10 Statutes which lack the requisite definiteness or specificity are commonly held ''void for vagueness.'' Such a statute may be pronounced wholly unconstitutional (unconstitutional ''on its face''), 11 or, if the statute could be applied to both prohibitable and to protected conduct and its valuable effects outweigh its potential general harm, it could be held unconstitutional as applied. 12 Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void, 13 while one that does not reach such protected conduct will either be upheld because it is applied to clearly proscribable conduct, or voided as applied when the conduct is marginal and the proscription is unclear. 14

The Court voided for vagueness a statute providing that any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who had been convicted at least three times of being a disorderly person, or who had been convicted of any crime in that or any other State, is to be considered a gangster and subject to fine or imprisonment. The Court observed that neither at the common law nor by statute are the words ''gang'' and ''gangster'' given definite meaning, that the enforcing agencies and courts were free to construe the terms broadly or narrowly, and that the phrase ''known to be a member'' was ambiguous. The statute was held void on its face, and the Court refused to allow specification of details in the particular indictment to save it because it was the statute, not the accusation, that prescribed the rule to govern conduct. 15

Possibly concluding a controversy of long standing with regard to the validity of vagrancy laws as generally written, 16 a unanimous Court in Papachristou v. City of Jacksonville 17 struck down for vagueness an ordinance which punished ''dissolute persons who go about begging, . . . common night walkers, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . persons neglecting all lawful business and habitually spending their time by frequenting house of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children. . . .'' The ordinance was invalid, said Justice Douglas for the Court, because it did not give fair notice, did not require specific intent to commit an unlawful act, permitted and encouraged arbitrary and erratic arrests and convictions, committed too much discretion to policemen, and criminalized activities which by modern standards are normally innocent. Similarly, an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was impermissibly vague; because it encroached on the freedom of assembly it was void on its face. 18 But an ordinance punishing ''suspicious persons'' was void only as applied to a person engaging in ambiguous conduct which it was possible to fit within the ordinance's definition. 19 A statute authorizing conviction for disorderly conduct of any person who refuses to move on upon police request and who is intent on causing inconvenience, annoyance, or alarm was upheld against facial challenge and as applied to one interfering with police ticketing of a car for valid reasons. 20

A state statute imposing severe, cumulative punishments upon contractors with the State who pay their workmen less than the ''current rate of per diem wages in the locality where the work is performed'' was held to be ''so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'' 21 Similarly, a statute which allowed jurors to require an acquitted defendant to pay the costs of the prosecution, elucidated only by the judge's instruction to the jury that the defendant should only have to pay the costs if it thought him guilty of ''some misconduct'' though innocent of the crime with which he was charged, was found to fall short of the requirements of due process. 22 But the Court sustained as neither too vague nor indefinite a state law which provided for commitment of a psychopathic personality by probate action akin to a lunacy proceeding and which had been construed by the state court as applying to those persons who, by habitual course of misconduct in sexual matters, have evidenced utter lack of power to control their sexual impulses and are likely to inflict injury. The underlying conditions--habitual course of misconduct in sexual matters and lack of power to control impulses and likelihood of attack on others--were viewed as calling for evidence of past conduct pointing to probable consequences and as being as susceptible of proof as many of the criteria constantly applied in criminal proceedings. 23

Other Aspects of Statutory Notice .--Conceptually related to the problem of definiteness in criminal statutes is the problem of the requisite notice a person must have that a statute commands that something not be done or alternatively that unless something is done criminal liability will result. Ordinarily, it can be said that ignorance of the law affords no excuse, that everyone is presumed to know that certain things may not be done. Moreover, in other instances, the subject matter or conduct may be sufficient to alert one that there are regulatory laws which must be observed. 24 In still other instances, the requirement of ''scienter'' may take care of the problem in that there may be a statutory requirement of intent expressed through some form of the word ''willful,'' 25 but the Court has so far failed in dealing with those cases involving strict liability to develop the implications of the mens rea requirement. 26 There remains the case of Lambert v. California, 27 invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering. Emphasizing that the act of being in the city was not itself blameworthy, the Court voided the conviction, holding that the failure to register was quite ''unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.'' ''Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.'' 28

Entrapment .--Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems. Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth Amendment, and in other respects informers may be utilized, which may implicate several constitutional provisions. Sometimes, however, police agents may ''encourage'' persons to engage in criminal behavior, by seeking to buy from them or to sell to them narcotics or contraband or by seeking to determine if public employees or officers are corrupt by offering them bribes. The Court has dealt with this issue in terms of the ''entrapment'' defense, though it is unclear whether the basis of the defense is one of statutory construction--the legislature would not have intended to punish conduct induced by police agents--one of supervisory authority of the federal courts to deter wrongful police conduct, or one of due process command. 29

The Court has employed the so-called ''subjective approach'' to evaluating the defense of entrapment. This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, ''the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.'' 30 If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement. 31 On the other hand, ''[w]hen the Government's quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.'' 32 An ''objective approach,'' while rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the state legislatures. 33 The objective approach disregards the defendant's predisposition and looks to the inducements used by government agents. If the government employed means of persuasion or inducement creating a substantial risk that the person tempted will engage in the conduct, the defense is available. 34 Typically, entrapment cases have risen in the narcotics area, 35 but more recently, as in the ''Abscam'' controversy, the focus has been on public corruption and the offering of bribes to public officials. 36

Criminal Identification Process .--The conduct by police of identification processes seeking to identify the perpetrators of crimes--by lineups, showups, photographic displays, and the like--can raise due process problems. For postindictment lineups and showups conducted before June 12, 1967, 37 for preindictment lineups and showups, 38 and for identification processes at which the defendant is not present, 39 the question of the admissibility of an in-court identification or of testimony about an out-of-court identification is whether there is ''a very substantial likelihood of misidentification,'' and that question must be determined ''on the totality of the circumstances.'' 40

''Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.'' 41 But, balancing the factors that it thought furnished the guidance for decision, the Court declined to lay down a per se rule of exclusion of an identification because it was obtained under conditions of unnecessary suggestiveness alone, feeling that the fairness standard of due process does not require an evidentiary rule of such severity. 42

Initiation of the Prosecution .--Indictment by a grand jury is not a requirement of due process; a State may proceed instead by information. 43 Due process does require that, whatever the procedure, a defendant must be given adequate notice of the offense charged against him and for which he is to be tried, 44 even aside from the requirements of the Sixth Amendment. Where, of course, a grand jury is utilized, it must be fairly constituted and free from prejudicial influences. 45

Fair Trial .--The provisions of the Bill of Rights now applicable to the States contain basic guarantees of a fair trial--right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. ''Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.'' 46 Conversely, ''as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.'' 47

Bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one's right to a fair trial. Thus, in Tumey v. Ohio 48 it was held to violate due process to vest trial of offenders in a judge who received, in addition to his salary, the costs imposed on a convicted defendant, and who was also mayor of the municipality which received part of the money collected in fines. The influence of contemptuous misbehavior in court upon the impartiality of the presiding judge who may cite for contempt and sentence contemnors has divided the Court. 49 Due process is also violated by the participation of a biased or otherwise partial juror, but there is no presumption that jurors who are potentially compromised are in fact prejudiced; ordinarily the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. 50 Exposure to pretrial publicity does not necessarily bias jurors. Thus, a trial judge's refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant's right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. 51 It is not a denial of due process for the prosecution to call the jury's attention to the defendant's prior criminal record when the object is to enable the jury, which has the sentencing function as well as the guilt-determination function, once it has determined guilt or innocence and if the former, to increase the sentence which would otherwise be given under a recidivist statute. 52

Mob domination of a trial so as to rob the jury of its judgment on the evidence presented, is, of course, a classic due process violation. 53 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury's exposure to it. 54 A state rule permitting the televising of certain trials was struck down on the grounds that the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted influence of television upon the conduct of witnesses, that the judge's ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be harassed by his television exposure. 55 Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not altogether preclude the televising of state criminal trials. 56

It is permissible for the State to require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, but due process requires reciprocal discovery in such circumstances, necessitating that the State give defendant pretrial notice of its rebuttal evidence on the alibi issue. 57 Because of the possible impairment of the presumption of innocence in the minds of the jurors, due process is violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes. 58 Ordinary evidentiary rules of criminal trials may in some instances deny a defendant due process. Thus, the combination in a trial of two rules (1) that denied defendant the right to cross-examine his own witness, whom he had called because the prosecution would not, in order to elicit evidence exculpatory to defendant and (2) that denied defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, under all the circumstances, denied defendant his constitutional right to present his own defense in a meaningful way. 59 Basic to due process is the right to testify in one's own defense; this right may not be restricted, the Court has held, by a state's per se rule excluding all hypnotically refreshed testimony. 60 Even though the burden on defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction, under some circumstances it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence. 61 It does not deny a de fendant due process to subject him initially to trial before a nonlawyer police court judge when there is a later trial de novo available under the State's court system. 62


[Footnote 1] Twining v. New Jersey, 211 U.S. 78, 106 (1908).

[Footnote 2] Palko v. Connecticut, 302 U.S. 319, 325 (1937).

[Footnote 3] Rochin v. California, 342 U.S. 165, 169 (1952).

[Footnote 4] Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968).

[Footnote 5] Supra, pp. 957-64.

[Footnote 6] Justice Black thought the Fourteenth Amendment should be limited in this regard to the specific guarantees found elsewhere in the Bill of Rights. See, e.g., In re Winship, 397 U.S. 358, 377 (1970) (dissenting). For Justice Harlan's response, see id. at 372 n.5 (concurring).

[Footnote 7] In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt in criminal cases, such proof is a due process requirement. For other recurrences to general due process reasoning, as distinct from reliance on more specific Bill of Rights provisions, see, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973); Wardius v. Oregon, 412 U.S. 470 (1973); Mullaney v. Wilbur, 421 U.S. 684 (1975); Estelle v. Williams, 425 U.S. 501 (1976); Henderson v. Kibbe, 431 U.S. 145 (1977); Patterson v. New York, 432 U.S. 197 (1977); Taylor v. Kentucky, 436 U.S. 478 (1978); Kentucky v. Whorton, 441 U.S. 786 (1979); Sandstrom v. Montana, 442 U.S. 510 (1979); Hicks v. Oklahoma, 447 U.S. 343 (1980).

[Footnote 8] Musser v. Utah, 333 U.S. 95, 97 (1948). ''Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.'' Grayned v. City of Rockford, 408 U.S. 104, 108 -09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982).

[Footnote 9] Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

[Footnote 10] Winters v. New York, 333 U.S. 507, 515 -16 (1948). Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972).

[Footnote 11] Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974).

[Footnote 12] Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 494 -95 (1982).

[Footnote 13] Winters v. New York, 333 U.S. 507, 509 -10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940).

[Footnote 14] E.g., United States v. National Dairy Corp., 372 U.S. 29 (1963).

[Footnote 15] Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953).

[Footnote 16] E.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting).

[Footnote 17] 405 U.S. 156 (1972).

[Footnote 18] Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965). Bouie v. City of Columbia, 378 U.S. 347 (1964), voided conviction on trespass charges arising out of a sit-in at a drugstore lunch counter since the trespass statute did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so. And see Kolender v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry stop provide ''credible and reliable'' identification is facially void as encouraging arbitrary enforcement).

[Footnote 19] Palmer v. City of Euclid, 402 U.S. 544 (1971).

[Footnote 20] Colten v. Kentucky, 407 U.S. 104 (1972).

[Footnote 21] Connally v. General Construction Co., 269 U.S. 385 (1926).

[Footnote 22] Giaccio v. Pennsylvania, 382 U.S. 399 (1966).

[Footnote 23] Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940).

[Footnote 24] E.g., United States v. Freed, 401 U.S. 601 (1971).

[Footnote 25] E.g., Boyce Motor Lines v. United States, 342 U.S. 337 (1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v. United States, 325 U.S. 91, 101 -03 (1945) (plurality opinion).

[Footnote 26] E.g., Morissette v. United States, 342 U.S. 246 (1952).

[Footnote 27] 355 U.S. 225 (1957).

[Footnote 28] Id. at 228, 229-30.

[Footnote 29] For a thorough evaluation of the basis for and the nature of the entrapment defense, see Seidman, The Supreme Court, Entrapment, and Our Criminal Justice Dilemma, 1981 Sup. Ct. Rev. 111. The statutory basis was said to be the ground in the Court's first discussion of the issue, Sorrells v. United States, 287 U.S. 435, 446 -49 (1932), and that basis remains the choice of some Justices. Hampton v. United States, 425 U.S. 484, 488 -89 (1976) (plurality opinion of Justices Rehnquist and White and Chief Justice Burger). The supervisory power basis was argued by Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380 (1958) (concurring). Utilization of that power was rejected in United States v. Russell, 411 U.S. 423, 490 (1973), and by the plurality in Hampton, supra, 490. The Hampton plurality thought the due process clause would never be applicable, no matter what conduct government agents engaged in, unless they violated some protected right of the defendant, and that inducement and encouragement could never do that; Justices Powell and Blackmun, id. at 491, thought that police conduct, even in the case of a predisposed defendant, could be so outrageous as to violate due process. The Russell and Hampton dissenters did not clearly differentiate between the supervisory power and due process but seemed to believe that both were implicated. Id. at 495 (Justices Brennan, Stewart, and Marshall); Russell, supra, 439 (Justices Stewart, Brennan, and Marshall). The Court again failed to clarify the basis for the defense in Mathews v. United States, 485 U.S. 58 (1988), holding that a defendant in a federal criminal case who denies commission of the crime is entitled to assert an ''inconsistent'' entrapment defense where the evidence warrants, and in Jacobson v. United States, 112 S. Ct. 1535, 1540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because government solicitation induced the defendant to purchase child pornography).

[Footnote 30] Jacobson v. United States, 112 S. Ct. 1535, 1540 (1992). Here the Court held that the government had failed to prove that the defendant was initially predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover ''sting'' operation. For several years government agents had sent the defendant mailings soliciting his views on pornography and child pornography, and urging him to obtain materials in order to fight censorship and stand up for individual rights.

[Footnote 31] Sorrells v. United States, 287 U.S. 435, 451 -52 (1932); Sherman v. United States, 356 U.S. 369, 376 -78 (1958); Masciale v. United States, 356 U.S. 386, 388 (1958); United States v. Russell, 411 U.S. 423, 432 -36 (1973); Hampton v. United States, 425 U.S. 484, 488 -489 (1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun concurring).

[Footnote 32] Jacobson v. United States, 112 S. Ct. 1535, 1543 (1992).

[Footnote 33] See American Law Institute, Model Penal Code Sec. 2.13 (Official Draft, 1962); National Commission on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code Sec. 702(2) (Final Draft, 1971).

[Footnote 34] Sorrells v. United States, 287 U.S. 435, 458 -59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496 -97 (1976) (Justice Brennan dissenting).

[Footnote 35] Thus, in Sorrells and Sherman government agents solicited defendants, in Russell the agents supplied an ingredient, which was commonly available, and in Hampton the agents supplied an essential and difficult to obtain ingredient.

[Footnote 36] The defense was rejected as to all the ''Abscam'' defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106 (1982).

[Footnote 37] Stovall v. Denno, 388 U.S. 293 (1967).

[Footnote 38] Kirby v. Illinois, 406 U.S. 682 (1972).

[Footnote 39] United States v. Ash, 413 U.S. 300 (1973).

[Footnote 40] Neil v. Biggers, 409 U.S. 188, 196 -201 (1972); Manson v. Brathwaite, 432 U.S. 98, 114 -17 (1977). The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall v. Denno, 388 U.S. 293 (1967); Simmons v. United States, 390 U.S. 377 (1968); Foster v. California, 394 U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).

[Footnote 41] Neil v. Biggers, 409 U.S. 188, 198 (1972).

[Footnote 42] Manson v. Brathwaite, 432 U.S. 98, 107 -14 (1977). The evaluative factors were what the per se rule and the less strict rule contributed to excluding unreliable eyewitness testimony from jury consideration, to deterrence of suggestive procedures, and to the administration of justice. The possibility of a per se rule in post- Stovall cases had been left open in Neil v. Biggers, 409 U.S. 188, 199 (1972). Due process does not require that the in-court hearing to determine whether to exclude a witness' identification as arrived at improperly be out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981).

[Footnote 43] Hurtado v. California, 110 U.S. 516 (1884). The Court has also rejected an argument that due process requires that criminal prosecutions go forward only on a showing of probable cause. Albright v. Oliver, 114 S. Ct. 807 (1994) (holding that there is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

[Footnote 44] Smith v. O'Grady, 312 U.S. 329 (1941) (guilty plea of layman unrepresented by counsel to what prosecution represented as a charge of simple burglary but which was in fact a charge of ''burglary with explosives'' carrying a much lengthier sentence is void). See also Cole v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of conviction and sentence on ground that evidence showed defendant guilty under a section of the statute not charged violated due process); In re Ruffalo, 390 U.S. 544 (1968) (disbarment in proceeding on charge which was not made until after lawyer had testified denied due process); Rabe v. Washington, 405 U.S. 313 (1972) (affirmance of obscenity conviction because of the context in which a movie was shown--grounds neither covered in the statute nor listed in the charge--was invalid).

[Footnote 45] Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas, 339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Hernandez v. Texas, 347 U.S. 475 (1954); Pierre v. Louisiana, 306 U.S. 354 (1939). See infra, pp. 1854-57. On prejudicial publicity, see Beck v. Washington, 369 U.S. 541 (1962).

[Footnote 46] Snyder v. Massachusetts, 291 U.S. 97, 116 , 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943).

[Footnote 47] Lisenba v. California, 314 U.S. 219, 236 (1941).

[Footnote 48] 273 U.S. 510 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest--a pending suit on an indistinguishable claim--to recuse).

[Footnote 49] E.g., Fisher v. Pace, 336 U.S. 155 (1949); Ungar v. Sarafite, 376 U.S. 575 (1964); Holt v. Virginia, 381 U.S. 131 (1965); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); Johnson v. Mississippi, 403 U.S. 212 (1971); Taylor v. Hayes, 418 U.S. 488 (1974). See generally Illinois v. Allen, 397 U.S. 337 (1970). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: ''A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.'' In re Murchison, 349 U.S. 133, 136 (1955).

[Footnote 50] Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor's office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167 -72 (1950) (government employees on jury).

[Footnote 51] Mu'Min v. Virginia, 500 U.S. 415 (1991). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra p. 1415.

[Footnote 52] Spencer v. Texas, 385 U.S. 554 (1967).

[Footnote 53] Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923).

[Footnote 54] Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975).

[Footnote 55] Estes v. Texas, 381 U.S. 532 (1965).

[Footnote 56] Chandler v. Florida, 449 U.S. 560 (1981). The decision was unanimous but Justices Stewart and White concurred on the basis that Estes had established a per se constitutional rule which had to be overruled, id. at 583, 586, contrary to the Court's position. Id. at 570-74.

[Footnote 57] Wardius v. Oregon, 412 U.S. 470 (1973).

[Footnote 58] Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation).

[Footnote 59] Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 786 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession). But see Montana v. Egelhoff, 116 S. Ct. 2013 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea).

[Footnote 60] Rock v. Arkansas, 483 U.S. 44 (1987).

[Footnote 61] Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case, Kentucky v. Whorton, 441 U.S. 786 (1979), the Court reiterating that the totality of the circumstances must be looked to in order to determine if failure to so instruct denied due process. The circumstances emphasized in Taylor included the skeletal instruction on burden of proof combined with the prosecutor's remarks in his opening and closing statements inviting the jury to consider the defendant's prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with ''purposely or knowingly'' causing victim's death that ''law presumes that a person intends the ordinary consequences of his voluntary acts'' denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event State would not have carried its burden of proving guilt). And see Cupp v. Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 -55 (1973). For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state's burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)). Similarly, improper arguments by a prosecutor do not necessarily constitute ''plain error,'' and a reviewing court may consider in the context of the entire record of the trial the trial court's failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).

[Footnote 62] North v. Russell, 427 U.S. 328 (1976).

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