author: Mr. Justice White Mr. Justice Black,

text:
    SCOFIELD et al. v. NATIONAL LABOR RELATIONS BOARD et al.
    No. 273.
    Argued January 14, 1969.
    Decided April 1, 1969.

      James Urdan argued the cause and filed a brief for petitioners.

      Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Griswold, Arnold Ordman, and Dominick L. Manoli. John Silard argued the cause for respondent International Union, United Automobile Workers. With him on the brief were Joseph L. Rauh, Jr., and Stephen I. Schlossberg.

      Walter S. Davis filed a brief for the Wisconsin Manufacturers Assn, et al. as amici curiae urging reversal.
   Mr. Justice White

delivered the opinion of the Court.

Half the production employees of the Wisconsin Motor Corporation are paid on a piecework or incentive basis. They and the other employees are represented by respondent union, which has had contractual relations with the company since 1937. In 1938 the union initiated a ceiling on the production for which its members would accept immediate piecework pay. This was done at first by gentlemen’s agreement among the members, but since 1944 by union rule enforceable by fines and expulsion. As the rule functions now, members may produce as much as they like each day, but may only draw pay up to the ceiling rate. The additional production is “banked” by the company; that is, wages due for it are retained by the company and paid out to the employee for days on which the production ceiling has not been reached because of machine breakdown or for some other reason. If the member demands to be paid in full each pay period over the ceiling rate the company will comply, but the union assesses a fine of $1 for each violation, and in cases of repeated violation may fine the member up to $100 for “conduct unbecoming a union member.” Failure to pay the fine may lead to expulsion. As the trial examiner found, the company’s complaint is not and cannot be that “the employee, for the pay he receives, has not given the requisite quid pro quo in production.” 145 N. L. R. B. 1097, 1120. Rather, the question is the extent to which the group will forgo for pay the rest periods it has bargained for, and the discipline which the union may invoke to achieve unity toward this end which, the trial examiner found, was “manifestly a matter affecting the interest of the group and in which its collective bargaining strength hinges upon the cooperation of its individual components.” Ibid.

The collective bargaining contract between employer and union defines a “machine rate” of hourly pay guaranteed to the employees. The piecework rate, as defined by the contract, is set at such a level that “the average competent operator working at a reasonable pace [as determined by a time study] shall earn not less than the machine rate of his assigned task.” Allowances are made in the time study for setting up machinery, cleaning tools, fatigue, and personal needs. By ignoring these allowances or by speed and efficiency it is possible for an industrious employee to produce faster than the machine rate. If he does so, he is entitled to additional pay. Union members, however, are subject to the banking procedures imposed by the union rule.

The margin between the “machine” rate set by the contract and the ceiling rate set by the union was 100 per hour in 1944. As a result of collective bargaining between company and union over both the machine and ceiling rates, the margin has been increased to between 450 and 500, depending on the skill level of the job. The company has regularly urged the union to abandon the ceiling and has never agreed to refuse employees immediate pay for work done over the ceiling. However, the parties have bargained over the ceiling rate and the company has extracted from the union promises to increase the ceiling rate. The company opens its work records to the union to permit it to check compliance with the ceiling; pays union stewards for time spent in this checking activity as legitimate union business; and banks money for union members complying with the rule. The ceiling rate is also used in computing piece rate increases and in settling grievances.

This case arose in 1961 when a random card check by the union showed that petitioners, among other union members, had exceeded the ceiling. The union membership imposed fines of $50 to $100, and a year’s suspension from the union. Petitioners refused to pay the fines, and the union brought suit in state court to collect the fines as a matter of local contract law. Petitioners then initiated charges before the National Labor Relations Board, arguing that union enforcement of its rule through the collection of fines was an unfair labor practice. Petitioners asserted that their right to refrain from “concerted activities,” National Labor Relations Act, § 7, 49 Stat. 452, as amended, 29 U. S. C. § 157, was impaired by the union’s effort to “restrain or coerce” them, in violation of NLRA, § 8 (b)(1)(A). The trial examiner, after extensive findings, concluded that there was no violation of the Act, and his findings and recommendations were adopted by the Board, 145 N. L. R. B. 1097 (1964), whose order was enforced by the Court of Appeals for the Seventh Circuit, 393 F. 2d 49 (1968). We affirm.

I.

We are met at the outset with the contention that the petition for certiorari was untimely filed. In civil suits certiorari must be applied for “within ninety days after the entry of [the] judgment or decree” of which review is sought. 28 U. S. C. § 2101 (c). In this case an opinion of March 5, 1968, concluded that “upon presentation, an appropriate decree will be entered.” A decree was in fact entered on April 16, 1968. The petition for certiorari was docketed here on July 6, 1968, within 90 days of the decree but not of the opinion.

In our view, the petition for certiorari was timely filed. Petitioners here received a copy of the March 5 opinion, but were given no notice of any entry of judgment on that date, as would be required by Rule 36 of the new Federal Rules of Appellate Procedure, effective July 1, 1968. Since no notice was given and it could not have been clear to petitioners whether there was a March 5 judgment or not we hold, without abandoning the standard that a “judgment for our purposes is final when the issues are adjudged” and settled with finality, Market Street R. Co. v. Railroad Commission, 324 U. S. 548, 551-552 (1945); FTC v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206, 212 (1952), that in this case the relevant date is that of the entry of the decree. Cf. Rubber Co. v. Goodyear, 6 Wall. 153, 156 (1868).

II.

Section 8 (b)(1) makes it an unfair labor practice to “restrain or coerce (A) employees in the exercise of the rights guaranteed in [§ 7]: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . .

Based on the legislative history of the section, including its proviso, the Court in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 195 (1967), distinguished between internal and external enforcement of union rules and held that “Congress did not propose any limitations with respect to the internal affairs of unions, aside from barring enforcement of a union’s internal regulations to affect a member’s employment status.” A union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line during a strike was therefore enforceable against voluntary union members by expulsion or a reasonable fine. The Court thus essentially accepted the position of the National Labor Relations Board dating from Minneapolis Star & Tribune Co., 109 N. L. R. B. 727 (1954) where the Board also distinguished internal from external enforcement in holding that a union could fine a member for his failure to take part in picketing during a strike but that the same rule could not be enforced by causing the employer to exclude him from the work force or by affecting his seniority without triggering violations of §§ 8 (b)(1), 8 (b)(2), 8 (a)(1), 8 (a)(2), and 8 (a)(3). These sections form a web, of which §8 (b)(1)(A) is only a strand, preventing the union from inducing the employer to use the emoluments of the job to enforce the union’s rules.

This interpretation of §8 (b)(1), as the Court explained in Allis-Chalmers, 388 U. S., at 193-195, was reinforced by the Landrum-Griffin Act of 1959 which, although it dealt with the internal affairs of unions, including the procedures for imposing fines or expulsion, did not purport to overturn or modify the Board’s interpretation of § 8 (b) (1). And it was this interpretation which the Board followed in Allis-Chalmers and in the case now before us.

Although the Board’s construction of the section emphasizes the sanction imposed, rather than the rule itself, and does not involve the Board in judging the fairness or wisdom of particular union rules, it has become clear that if the rule invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating § 8 (b)(1). In both Skura and Marine Workers, the Board was concerned with union rules requiring a member to exhaust union remedies before filing an unfair labor practice charge with the Board. That rule, in the Board’s view, frustrated the enforcement scheme established by the statute and the union would commit an unfair labor practice by fining or expelling members who violated the rule.

The Marine Workers case came here and the result reached by the Board was sustained, the Court agreeing that the rule in question was contrary to the plain policy of the Act to keep employees completely free from coercion against making complaints to the Board. Frustrating this policy was beyond the legitimate interest of the labor organization, at least where the member’s complaint concerned conduct of the employer as well as the union.

Under this dual approach, § 8 (b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. This view of the statute must be applied here.

III.

In the case at hand, there is no showing in the record that the fines were unreasonable or the mere fiat of a union leader, or that the membership of petitioners in the union was involuntary. Moreover, the enforcement of the rule was not carried out through means unacceptable in themselves, such as violence or employer discrimination. It was enforced solely through the internal technique of union fines, collected by threat of expulsion or judicial action. The inquiry must therefore focus on the legitimacy of the union interest vindicated by the rule and the extent to which any policy of the Act may be violated by the union-imposed production ceiling.

As both the trial examiner and the Court of Appeals noted, union opposition to unlimited piecework pay systems is historic. Union apprehension, not without foundation, is that such systems will drive up employee productivity and in turn create pressures to lower the piecework rate so that at the new, higher level of output employees are earning little more than they did before. The fear is that the competitive pressure generated will endanger workers’ health, foment jealousies, and reduce the work force. In addition, the findings of the trial examiner were that the ceiling served as a yardstick for the settlement of job allowance grievances, that it has played an important role in negotiating the minimum hourly rate and that it is the standard for "factoring” the hourly rate raises into the piecework rate. The view of the trial examiner was that “in terms of a union’s traditional function of trying to serve the economic interests of the group as a whole, the Union has a very real, immediate, and direct interest in it.” 145 N. L. R. B., at 1135.

It is doubtless true that the union rule in question here affects the interests of all three participants in the labor-management relation: employer, employee, and union. Although the enforcement of the rule is handled as an internal union matter, the rule has and was intended to have an impact beyond the confines of the union organization. But as Allis-Chalmers and Marine Workers made clear, it does not follow from this that the enforcement of the rule violates §8 (b)(1) (A), unless some impairment of a statutory labor policy can be shown.

The principal contention of the petitioners is that the rule impedes collective bargaining, a process nurtured in many ways by the Act. But surely this is not the case here. The union has never denied that the ceiling is a bargainable issue. It has never refused to bargain about it as far as this record shows. Indeed, the union has at various times agreed to raise its ceiling in return for an increase in the piece rate, and the ceiling has been regularly used to compute the new piece rate. In light of this bargaining history it can hardly be said that the union rule has removed this issue from the bargaining table. The company has repeatedly sought an agreement eliminating the piecework ceiling, an agreement which, had it been obtained, unquestionably would have been violated by the union rule. But the company could not attain this. Although, like the union, it could have pressed the point to impasse, Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U. S. 203, 209-215 (1964), followed by strike or lockout, it has never done so. Instead, it has signed contracts recognizing the ceiling, has tolerated it, and has cooperated in its administration by honoring requests by employees to bank their pay for over-ceiling work. We discern no basis in the statutory policy encouraging collective bargaining for giving the employer a better bargain than he has been able to strike at the bargaining table.

Nor does the union ceiling itself or compliance with it by union members violate the collective contract. The company and the union have agreed to an incentive pay scale, but they have also established a guaranteed minimum or machine rate considerably below the union ceiling and defined in the contract as the rate of production of an average, efficient worker. The contract therefore leaves in the hands of the employee the option of taking full advantage of his allowances, performing only as an average employee and not reaching even the ceiling rate. At least there is nothing before us to indicate that the company disciplines individuals who work at only the machine rate or individuals who produce more but who choose not to exceed the union ceiling. The same decision can be made collectively by the union. Although it has agreed in the contract to a pay scale for production in excess of ceiling, that fact in the context of this case does not support an inference that the union has agreed not to impose the ceiling or that its action in announcing one is somehow contrary to the contract. And if neither union nor member is in breach of contract for establishing and adhering to the ceiling, it is equally clear that the rule neither causes nor invites a contract violation by the employer who stands ready to pay an employee for his over-ceiling production or to bank it at his request.

Petitioners purport to characterize the union rule as featherbedding, but it is hard to square this with the collective agreement that an average, efficient employee produces at a “machine” rate substantially below the ceiling. Beyond that, however, Congress has addressed itself specifically to the problem of featherbedding in § 8 (b)(6), making it an unfair labor practice “to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed . . . .” 61 Stat. 142, 29 U. S. C. § 158 (b)(6). This narrow prohibition was enacted partly because the Congress found it difficult to define with more particularity just where the area between shiftlessness and overwork should lie. Since Congress has addressed itself to the problem specifically and left a broad area for private negotiation, there is no present occasion for the courts to interfere with private decision. Indeed, there is no claim before us that the rule violates §8 (b)(6). If the company wants to require more work of its employees, let it strike a better bargain. The labor laws as presently drawn will not do so for it.

This leaves the possible argument that because the union has not successfully bargained for a contractual ceiling, it may not impose one on its own members, for doing so will discriminate between members and those others who are free to earn as much as the contract permits. All members of the bargaining unit, however, have the same contractual rights. In dealing with the employer as bargaining agent, the union has accorded all employees uniform treatment. If members are prevented from taking advantage of their contractual rights bargained for all employees it is because they have chosen to become and remain union members. In Allis-Chalmers, the union members were subject to the discipline of an internal rule which strengthened the union’s hand in bargaining and in this respect benefited both the members who obeyed the rule and the nonmembers who did not. The same is true here, and the price of obeying the rule is not as high as in Allis-Chahners. There the member could be replaced for his refusal to report to work during a strike; here he need simply limit his production and suffer whatever consequences that conduct may entail. If a member chooses not to engage in this concerted activity and is unable to prevail on the other members to change the rule, then he may leave the union and obtain whatever benefits in job advancement and extra pay may result from extra work, at the same time enjoying the protection from competition, the high piece rate, and the job security which compliance with the union rule by union members tends to promote.

That the choice to remain a member results in differences between union members and other employees raises no serious issue under § 8 (b) (2) and § 8 (a) (3) of the Act, because the union has not induced the employer to discriminate against the member but has merely forbidden the member to take advantage of benefits which the employer stands willing to confer. Those sections are not aimed at completely internal union discipline of union members, even though the discipline may result in the member’s refusal to accept work offered by the employer. Allis-Chalmers makes this quite clear.

The union rule here left the collective bargaining process unimpaired, breached no collective contract, required no pay for unperformed services, induced no discrimination by the employer against any class of employees, and represents no dereliction by the union of its duty of fair representation. In light of this, and the acceptable manner in which the rule was enforced, vindicating a legitimate union interest, it is impossible to say that it contravened any policy of the Act.

We affirm, holding that the union rule is valid and that its enforcement by reasonable fines does not constitute the restraint or coercion proscribed by § 8 (b)(1)(A).

Affirmed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Black,

dissenting.

Because the union members collected from their employer extra pay for piecework production in excess of that agreed upon by the union and the company, the union has tried the members, fined them, and suspended them from the union for one year. Section 8(b)(1) of the National Labor Relations Act makes it an unfair labor practice for a union to “restrain or coerce” employees in the exercise of their right under § 7 to refrain from any or all concerted activities. In this case the National Labor Relations Board held that the union did not commit' an unfair labor practice in coercing employees through fines and suspensions into refusing to engage in this concerted activity. I dissent from affirming this order of the Board for the reasons set out at length in my dissenting opinion in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 199 (1967).

       There is a union security clause in the current contract, giving each employee, after a 30-day waiting period, the option of becoming and remaining a member in good standing of the union, or of declining membership but paying the union a “service fee.”

       There is also a “day rate,” lower than the machine rate, which applies to periods in which the incentive worker has not been producing, or has produced scrap, through no fault of the company’s. That rate is of no concern here.

       Unless the rule or its enforcement impinges on some policy of the federal labor law, the regulation of the relationship between union and employee is a contractual matter governed by local law. As the trial examiner put it in this case, the Board “never intended ... to suggest that the disciplinary action [s] in enforcement of [union] rules . . . were affirmatively protected under the Act, as opposed to merely being not violations thereof.” It is thus a “federally unentered enclave” open to state law. 145 N. L. R. B., at 1133.

       The Board has long held that § 8 (b) (1) (A)’s legislative history requires a narrow construction which nevertheless proscribes unacceptable methods of union coercion, such as physical violence to induce employees to join the union or to join in a strike. In re Maritime Union, 78 N. L. R. B. 971, enforced, 175 F. 2d 686 (C. A. 2d Cir. 1949).

       The Court has held that the “policy of the Act is to insulate employees’ jobs from their organizational rights.” Radio Officers’ Union v. National Labor Relations Board, 347 U. S. 17, 40 (1954). As an employee, he may be a “good, bad, or indifferent” member so long as he meets the financial obligations of the union security contract. Thus the Board has found an unfair labor practice by union and employer where an employee was discharged for violation of a union rule limiting production. Printz Leather Co., 94 N. L. R. B. 1312 (1951). But as a union member, so long as he chooses to remain one, he is subject to union discipline.

       As part of the bill of rights of union members, the Landrum-Griffin Act guaranteed freedom of speech and assembly “Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” Pub. L. 86-257, Tit. I, §101 (a)(2), 73 Stat. 522, 29 U. S. C. §411 (a)(2).

       Local 188, International Union of Operating Engineers, 148 N. L. R. B. 679 (1964).

        Industrial Union of Marine & Shipbuilding Workers of America, 159 N. L. R. B. 1065 (1966).

        National Labor Relations Board v. Industrial Union of Marine & Shipbuilding Workers, 391 U. S. 418 (1968).

       The company prefers to employ the minimum number of the most energetic men available; a piecework pay scheme without a ceiling could help it obtain its objective of winnowing the men and reducing their piecework rate. Each employee, as well, has an interest in the ceiling. A slow worker would prefer a low ceiling to protect himself against invidious comparison with faster workers and a possible reduction of the work force beginning with him. A fast worker may prefer to earn as much as possible in a day and so desire a high ceiling or none at all. But all workers have an interest in maintaining a ceiling to the extent that it is necessary to prevent reductions in the piecework rate. The employer and the union (representing the group) may seek to vindicate their interests in bargaining. The individual member may express his interest within the union councils in determining what the group position shall be— and here the trial examiner found that the employees overwhelmingly approved of the ceiling — or through exercising the option of withdrawing from the union.

       The trial examiner suggests that if the ceilings did not exist, the management might well invent them to serve its own purposes: maintaining careful work standards and a low scrap rate, and permitting the prediction of production output. 145 N. L. R. B., at 1119-1120.

       Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, stated on the floor of the Senate that to do more “would require a practical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible.” By contrast, he said, “we did accept one provision” which “seemed to be a fairly clear case, easy to determine” and narrow. 93 Cong. Rec. 6441.


source: Caselaw Access Project

author: Mr. Justice White

license: Public Domain

text:
    CARDINALE v. LOUISIANA.
    No. 76.
    Argued February 24, 1969.
    Decided April 1, 1969.

      Nathan Greenberg argued the cause and filed a brief for petitioner.

      Preston H. Hufft argued the cause for respondent. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, William P. Schuler, Second Assistant Attorney General, and Leander H. Perez, Jr.

   Mr. Justice White

delivered the opinion of the Court.

Petitioner brutally murdered a woman near New Orleans, and then fled the State. He had been seen with his victim, and a warrant was issued for his arrest. In the course of his flight petitioner came to Tucson, Arizona, where he decided to surrender. He flagged down a police car and, after an interruption by the police to warn him that he need not speak, that his speech might be used against him, and that he had a right to contact an attorney, was taken to the station house where he poured out a confession. His confession was introduced in its entirety in the subsequent trial for murder in which petitioner was convicted and sentenced to death. Petitioner does not now contend that his confession was involuntary or that his admission of guilt to the Tucson police was inadmissible in evidence. He objects solely to the admission of those parts of his confession which he argues were both irrelevant and prejudicial in his trial for murder. A Louisiana statute requires that confessions must be admitted in their entirety, La. Rev. Stat. § 15:450, and petitioner contends that this is unconstitutional.

Although certiorari was granted to consider this question, the fact emerged in oral argument that the sole federal question argued here had never been raised, preserved, or passed upon in the state courts below. It was very early established that the Court will not decide federal constitutional issues raised here for the first time on review of state court decisions. In Crowell v. Randell, 10 Pet. 368 (1836), Justice Story reviewed the earlier cases commencing with Owings v. Norwood’s Lessee, 5 Cranch 344 (1809), and came to the conclusion that the Judiciary Act of 1789, c. 20, § 25, 1 Stat. 85, vested this Court with no jurisdiction unless a federal question was raised and decided in the state court below. “If both of these do not appear on the record, the appellate jurisdiction fails.” 10 Pet. 368, 391. The Court has consistently refused to decide federal constitutional issues raised here for the first time on review of state court decisions both before the Crowell opinion, Miller v. Nicholls, 4 Wheat. 311, 315 (1819), and since, e. g., Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., Inc., 360 U. S. 334, 342, n. 7 (1959); State Farm Mutual Automobile Ins. Co. v. Duel, 324 U. S. 154, 160-163 (1945); McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434-435 (1940); Whitney v. California, 274 U. S. 357, 362-363 (1927); Dewey v. Des Moines, 173 U. S. 193, 197-201 (1899); Murdock v. City of Memphis, 20 Wall. 590 (1875).

In addition to the question of jurisdiction arising under the statute controlling our power to review final judgments of state courts, 28 U. S. C. § 1257, there are sound reasons for this. Questions not raised below are those on which the record is very likely to be inadequate, since it certainly was not compiled with those questions in mind. And in a federal system it is important that state courts be given the first opportunity to consider the applicability of state statutes in light of constitutional challenge, since the statutes may be construed in a way which saves their constitutionality. Or the issue may be blocked by an adequate state ground. Even though States are not free to avoid constitutional issues on inadequate state grounds, O’Connor v. Ohio, 385 U. S. 92 (1966), they should be given the first opportunity to consider them.

In view of the petitioner’s admitted failure to raise the issue he presents here in any way below, the failure of the state court to pass on this issue, the desirability of giving the State the first opportunity to apply its statute on an adequate record, and the fact that a federal habeas remedy may remain if no state procedure for raising the issue is available to petitioner, the writ is dismissed for want of jurisdiction.

It is so ordered.

Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Fortas concur in the dismissal of the writ, believing it to have been improvidently granted.


author: Mr. Justice Fortas Mr. Justice Black,

text:
    FOSTER v. CALIFORNIA.
    No. 47.
    Argued November 19, 1968.
    Decided April 1, 1969.

      Kenneth L. Maddy, by appointment of the Court, 391 U. S. 902, argued the cause and filed briefs for petitioner.

      Doris H. Maier, Assistant Attorney General of California, argued the cause for respondent. With her on the brief were Thomas C. Lynch, Attorney General, and Charles P. Just, Deputy Attorney General.
   Mr. Justice Fortas

delivered the opinion of the Court.

Petitioner was charged by information with the armed robbery of a Western Union office in violation of California Penal Code § 211a. The day after the robbery one of the robbers, Clay, surrendered to the police and implicated Foster and Grice. Allegedly, Foster and Clay had entered the office while Grice waited in a car. Foster and Grice were tried together. Grice was acquitted. Foster was convicted. The California District Court of Appeal affirmed the conviction; the State Supreme Court denied review. We granted certiorari, limited to the question whether the conduct of the police lineup resulted in a violation of petitioner’s constitutional rights. 390 U. S. 994 (1968).

Except for the robbers themselves, the only witness to the crime was Joseph David, the late-night manager of the Western Union office.- After Foster had been arrested, David was called to the police station to view a lineup. There were three men in the lineup. One was petitioner. He is a tall man — close to six feet in height. The other two men were short — five feet, five or six inches. Petitioner wore a. leather jacket which David said was similar to the one he had seen underneath the coveralls worn by the robber. After seeing this lineup, David could not positively identify petitioner as the robber. He “thought” he was the man, but he was not sure. David then asked to speak to petitioner, and petitioner was brought into an office and sat across from David at a table. Except for prosecuting officials there was no one else in the room. Even after this one-to-one confrontation David still was uncertain whether petitioner was one of the robbers: “truthfully — I was not sure,” he testified at trial. A week or 10 days later, the police arranged for David to view a second lineup. There were five men in that lineup. Petitioner was the only person in the second lineup who had appeared in the first lineup. This time David was “convinced” petitioner was the man.

At trial, David testified to his identification of petitioner in the lineups, as summarized above. He also repeated his identification of petitioner in the courtroom. The only other evidence against petitioner which concerned the particular robbery with which he was charged was the testimony of the alleged accomplice Clay.

In United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a “critical stage” in the prosecution, at which the accused must be given the opportunity to be represented by counsel. That holding does not, however, apply to petitioner’s case, for the lineups in which he appeared occurred before June 12, 1967. Stovall v. Denno, 388 U. S. 293 (1967). But in declaring the rule of Wade and Gilbert to be applicable only to lineups conducted after those cases were decided, we recognized that, judged by the “totality of the circumstances,” the conduct of identification procedures may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. Id., at 302. See Simmons v. United States, 390 U. S. 377, 383 (1968); cf. P. Wall, Eye-Witness Identification in Criminal Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wigmore, Evidence § 786a (3d ed. 1940); 4, id., § 1130.

Judged by that standard, this case presents a compelling example of unfair lineup procedures. In the first lineup arranged by the police, petitioner stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber. See United States v. Wade, supra, at 233. When this did not lead to positive identification, the police permitted a one-to-one confrontation between petitioner and the witness. This Court pointed out in Stovall that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” 388 U. S., at 302. Even after this the witness’ identification of petitioner was tentative. So some days later another lineup was arranged. Petitioner was the only person in this lineup who had also participated in the first lineup. See Wall, supra, at 64. This finally produced a definite identification.

The suggestive elements in this identification procedure made it all but inevitable that David would identify petitioner whether or not he was in fact “the man.” In effect, the police repeatedly said to the witness, “This is the man.” See Biggers v. Tennessee, 390 U. S. 404, 407 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process.

In a decision handed down since the Supreme Court of California declined to consider petitioner’s case, it reversed a conviction because of the unfair makeup of a lineup. In that case, the California court said: “[W]e do no more than recognize . . . that unfairly constituted lineups have in the past too often brought about the conviction of the innocent.” People v. Caruso, 68 Cal. 2d 183, 188, 436 P. 2d 336, 340 (1968). In the present case the pretrial confrontations clearly were so arranged as to make the resulting identifications virtually inevitable.

The respondent invites us to hold that any error was harmless under Chapman v. California, 386 U. S. 18 (1967). We decline to rule upon this question in the first instance. Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice White, with whom Mr. Justice Harlan and Mr. Justice Stewart concur, being unwilling in this case to disagree with the jury on the weight of the evidence, would affirm the judgment.

Mr. Justice Black,

dissenting.

The Court here directs the California courts to set aside petitioner Foster’s conviction for armed robbery of the Western Union Telegraph Co. at Fresno, California. The night manager of the telegraph company testified before the court and jury that two men came into the office just after midnight, January 25, 1966, wrote a note telling him it was a holdup, put it under his face, and demanded money, flashed guns, took $531 and fled. The night manager identified Foster in the courtroom as one of the men, and he also related his identification of Foster in a lineup a week or so after the crime. The manager’s evidence, which no witness disputed, was corroborated by the testimony of a man named Clay, who was Foster’s accomplice in the robbery and who testified for the State. The testimony of these two eyewitnesses was also corroborated by proof that Foster and another person had committed a prior armed robbery of a Western Union office in another city six years before, when they appeared at the company’s office, presented a note to an employee announcing their holdup, flashed a gun, and fled with company money. In this case Foster’s attorney admitted conviction for the prior Western Union armed robbery. The circumstances of the two robberies appear to have been practically indistinguishable. Such evidence that a particular person committed a prior crime has been almost universally accepted as relevant and admissible to prove that the same person was responsible for a later crime of the same nature. A narration of these facts, falling from the lips of eyewitnesses, and not denied by other eyewitnesses, would be enough, I am convinced, to persuade nearly all lawyers and judges, unhesitatingly to say, “There was clearly enough evidence of guilt here for a jury to convict the defendant since, according to practice, and indeed constitutional command, the weight of evidence is for a jury, and not for judges.” Nevertheless the Court in this case looks behind the evidence given by witnesses on the stand and decides that because of the circumstances under which one witness first identified the defendant as the criminal, the United States Constitution requires that the conviction be reversed. The Court, however, fails to spell out exactly what should happen to this defendant if there must be a retrial, and thus avoids the apparently distasteful task of specifying whether (1) at the new trial the jury would again be permitted to hear the eyewitness’ testimony and the in-court identification, so long as he does not refer to the previous lineups, or (2) the eyewitness’ “tainted” identification testimony must be entirely excluded, thus compelling Foster’s acquittal. Objection to this ambiguity is the first of my reasons for dissent.

I.

The Court declares the judgment of conviction is reversed and the case remanded for further proceedings not inconsistent with this opinion. I am compelled to say that if I were the trial judge in this case I would not know how to proceed or how to decide whether the “error” in this case was harmless. Of course, when a confession is held to have been compelled, that confession must not be admitted to convict the defendant at all. But the situation in this case is not that simple. For the Court has in effect decided here that the officers of the law have so “arranged” lineups that the eyewitness to the robbery has been led to make an “irreparable mistaken identification.” In other words, no one now or hereafter can believe his identification of Foster as the robber. Since he and the accomplice are the only eyewitnesses, and since, in order to convict, California law requires evidence of an accomplice to be corroborated, the Court’s direction means, I suppose, that the trial judge here should dismiss the case. The Court’s dilemma, which leads to its ambiguous judgment as to the further disposition of this case, points, I think, to the irreparable harm done to the cause of justice by the Court’s holding in this case.

II.

Far more fundamental, however, is my objection to the Court’s basic holding that evidence can be ruled constitutionally inadmissible whenever it results from identification procedures that the Court considers to be “ ‘unnecessarily suggestive and conducive to irreparable mistaken identification.’ ” One of the proudest achievements of this country’s Founders was that they had eternally guaranteed a trial by jury in criminal cases, at least until the Constitution they wrote had been amended in the manner they prescribed. Only last year in Duncan v. Louisiana, 391 U. S. 145 (1968), this Court emphatically decided, over strong dissents, that this constitutional right to trial by jury in criminal cases is applicable to the States. Of course it is an incontestable fact in our judicial history that the jury is the sole tribunal to weigh and determine facts. That means that the jury must, if we keep faith with the Constitution, be allowed to hear eyewitnesses and decide for itself whether it can recognize the truth and whether they are telling the truth. It means that the jury must be allowed to decide for itself whether the darkness of the night, the weakness of a witness’ eyesight, or any other factor impaired the witness’ ability to make an accurate identification. To take that power away from the jury is to rob it of the responsibility to perform the precise functions the Founders most wanted it to perform. And certainly a Constitution written to preserve this indispensable, unerodible core of our system for trying criminal cases would not have included, hidden among its provisions, a slumbering sleeper granting the judges license to destroy trial by jury in whole or in part.

This brings me to the constitutional theory relied upon by the Court to justify its invading the constitutional right of jury trial. The Court here holds that:

“[J]udged by the ‘totality of the circumstances,’ the conduct of identification procedures may be ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to be a denial of due process of law. . . .
“Judged by that standard, this case presents a compelling example of unfair lineup procedures.” Ante, at 442.

I do not deny that the “totality of circumstances” can be considered to determine whether some specific constitutional prohibitions have been violated, such, for example, as the Fifth Amendment’s command against compelling a witness to incriminate himself. Whether evidence has been compelled is, of course, a triable issue of fact. And the constitutional command not to compel a person to be a witness against himself, like other issues of fact, must be determined by a resolution of all facts and the “totality” of them offered in evidence. Consequently were the Court’s legal formula posed for application in a coerced testimony case, I could agree to it. But it is not. Instead the Court looks to the “totality of circumstances” to show “unfair lineup procedures.” This means “unfair” according to the Court’s view of what is unfair. The Constitution, however, does not anywhere prohibit conduct deemed unfair by the courts. As we recently said in United States v. Augenblick, 393 U. S. 348, 352 (1969): “Rules of evidence are designed in the interests of fair trials. But unfairness in result is no sure measure of unconstitutionality.”

The Constitution sets up its own standards of unfairness in criminal trials in the Fourth, Fifth, and Sixth Amendments, among other provisions of the Constitution. Many of these provisions relate to evidence and its use in criminal cases. The Constitution provides that the accused shall have the right to compulsory process for obtaining witnesses in his favor. It ordains that evidence shall not be obtained by compulsion of the accused. It ordains that the accused shall have the right to confront the witnesses against him. In these ways the Constitution itself dictates what evidence is to be excluded because it was improperly obtained or because it is not sufficiently reliable. But the Constitution does not give this Court any general authority to require exclusion of all evidence that this Court considers improperly obtained or that this Court considers insufficiently reliable. Hearsay evidence, for example, is in most instances rendered inadmissible by the Confrontation Clause, which reflects a judgment, made by the Framers of the Bill of Rights, that such evidence may be unreliable and cannot be put in proper perspective by cross-examination of the person repeating it in court. Nothing in this constitutional plan suggests that the Framers drew up the Bill of Rights merely in order to mention a few types of evidence “for illustration,” while leaving this Court with full power to hold unconstitutional the use of any other evidence that the Justices of this Court might decide was not sufficiently reliable or was not sufficiently subject to exposure by cross-examination. On the contrary, as we have repeatedly held, the Constitution leaves to the States and to the people all these questions concerning the various advantages and disadvantages of admitting certain types of evidence. Spencer v. Texas, 385 U. S. 554 (1967); Michelson v. United States, 335 U. S. 469 (1948).

It has become fashionable to talk of the Court’s power to hold governmental laws and practices unconstitutional whenever this Court believes them to be “unfair,” contrary to basic standards of decency, implicit in ordered liberty, or offensive to “those canons of decency and fairness which express the notions of justice of English-speaking peoples . ...” All of these different general and indefinable words or phrases are the fruit of the same, what I consider to be poisonous, tree, namely, the doctrine that this Court has power to make its own ideas of fairness, decency, and so forth, enforceable as though they were constitutional precepts. When I consider the incontrovertible fact that our Constitution was written to limit and define the powers of the Federal Government as distinguished from the powers of States, and to divide those powers granted the United States among the separate Executive, Legislative, and Judicial branches, I cannot accept the premise that our Constitution grants any powers except those specifically written into it, or absolutely necessary and proper to carry out the powers expressly granted.

I realize that some argue that there is little difference between the two constitutional views expressed below:

One. No law should be held unconstitutional unless its invalidation can be firmly planted on a specific constitutional provision plus the Necessary and Proper Clause.
Two. All laws are unconstitutional that are unfair, shock the conscience of the Court, offend its sense of decency, or violate concepts implicit in ordered liberty.

The first of these two constitutional standards plainly tells judges they have no power to hold laws unconstitutional unless such laws are believed to violate the written Constitution. The second constitutional standard, based on the words “due process,” not only does not require judges to follow the Constitution as written, but actually encourages judges to hold laws unconstitutional on the basis of their own conceptions of fairness and justice. This formula imposes no “restraint” on judges beyond requiring them to follow their own best judgment as to what is wise, just, and best under the circumstances of a particular case. This case well illustrates the extremes to which the formula can take men who are both wise and good. Although due process requires that courts summon witnesses so that juries can determine the guilt or innocence of defendants, the Court, because of its sense of fairness, decides that due process deprives juries of a chance to hear witnesses who the Court holds could not or might not tell the truth.

I began my opposition to this fallacious concept of “due process” even before I became a member of this Court and expressed it formally soon after my service on the Court began. And it was not long before I emphasized that quite a different belief about the meaning of the phrase “due process” had long existed in our judicial history in opposition to the “decency and fairness” doctrine. See Chambers v. Florida, 309 U. S. 227, 235-236, n. 8 (1940).

My experience on the Court has confirmed my early belief that the “decency and fairness” due process test cannot stand consistently with our written Constitution.

III.

I agree with the Court that we should not undertake to pass on the question of harmless error for the first time in this Court. Under the Court’s holding, the case should be remanded to the state courts for decision of this question.

In recent years this Court has, in a series of cases, held that most of the Bill of Rights is now applicable against the States as well as against the Federal Government. This has brought about a tremendous increase in the number of state criminal cases involving federal questions, some of which depend on the particular facts and circumstances of the case. In Fifth Amendment confession cases, for example, courts must under prevailing practice hear evidence to determine whether confessions were compelled. This Court has power in cases of that kind to review evidence before the trial courts. No one can now predict with accuracy how great a number of such cases are destined to come before us, but all know it will be many. Should we not make it an almost invariable practice to accept lower court findings of fact on such issues, our Supreme Court is likely to find itself preoccupied with the business of a state court of criminal appeals, a condition not devoutly to be wished in the Court’s interest or in the interest of the administration of justice in general. This problem is magnified many times over when account is taken of the harmless-error rules that many States have now adopted, since these rules also raise factual issues involving a federal question whenever the error itself is federal. See Chapman v. California, 386 U. S. 18 (1967). If trial errors are found some courts along the line must determine whether the error was harmless. That question has, because of this Court’s judgment, now arisen in this case. I agree with the Court that we should not decide this question here. In the present posture of criminal law, there are simply too many federal questions in the state cases before us to defend a practice of our deciding in the first instance that there was no harmless error. There are many reasons for this other than the necessity of saving our time for the vastly more important issues we must decide. To say the least, the question whether an error in a particular case is harmless is an issue peculiarly for lower, not for the highest, appellate courts. Then, too, this issue can usually be tried more efficiently, and just as fairly, by the local court that tried the case or by the local appellate court that heard the first appeal. This Court was not established to try such minor issues of fact for the first time. Of course, I do not mean to suggest that there should be an ironclad rule always barring the Court from deciding an issue in cases if it plainly and manifestly appears that it would be egregiously unjust and undoubtedly wrong to leave an issue undecided. But I do not think this even distantly approaches being such a case. Even though I steadfastly believe the Court’s basic holding is error, I do agree that we should not establish a precedent of passing on harmless error for the first time in this Court before the courts below have had an opportunity to consider the question.

For the above reasons I dissent from the reversal and remand of this case.

       California law requires that an accomplice’s testimony be corroborated. California Penal Code § 1111. There was also evidence that Foster had been convicted for a similar robbery committed six years before.

       The reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution’s case is a matter for the jury. But it is the teaching of Wade, Gilbert, and
        Stovall, supra, that in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law.

       Counsel also admitted a prior felony conviction of assault with intent to commit rape, a circumstance relevant in California in connection with punishment.

       See Spencer v. Texas, 385 U. S. 554, 560-561 and n. 7 (1967); State v. Chance, 92 Ariz. 351, 377 P. 2d 197 (1962); Nester v. State, 75 Nev. 41, 334 P. 2d 524 (1959); Mosley v. State, 211 Ga. 611, 87 S. E. 2d 314 (1955); 2 J. Wigmore, Evidence § 416 (3d ed. 1940 and 1964 Supp.).

       The Court apparently means that the only other evidence against Foster in this case — his prior conviction for involvement in a crime of a similar type — is constitutionally admissible. See Spencer v. Texas, supra. But it may be doubtful whether this past conviction, although highly relevant to the question of guilt, could constitute corroboration of the accomplice’s testimony, within the meaning of the California requirement.

        Ante, at 442, quoting from Stovall v. Denno, 388 U. S. 293, 302 (1967).

        Malinski v. New York, 324 U. S. 401, 417 (opinion of Frankfurter, J.) (1945); see also Rochin v. California, 342 U. S. 165 (1952); Irvine v. California, 347 U. S. 128 (1954).

       See, e. g., 81 Cong. Rec. App., pt. 9, pp. 638-639; id., at 307.

       See, e. g., McCart v. Indianapolis Water Co., 302 U. S. 419, 423 (1938) (dissenting opinion).


author: Per Curiam.

text:
    MRKONJIC-RUZIC v. UNITED STATES.
    No. 880.
    Decided April 1, 1969.

      Gregory S. Stout for petitioner.

      Solicitor General Grisioold, Acting Assistant Attorney General Kossack, and Beatrice Rosenberg for the United States.
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the United States District Court for the Eastern District of California for further consideration in light of Alderman v. United States, ante, p. 165.

Mr. Justice Black dissents.


text:
    NICKOLICH v. OHIO.
    No. 1052.
    Decided April 1, 1969.

      George E. Tyack for appellant.

      E. Raymond Morehart for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    HOTEL & RESTAURANT EMPLOYEES UNION LOCAL NO. 556 et al. v. EMERY et ux., dba MAIN DINER.
    No. 988.
    Decided April 1, 1969.

      Solly Robins, Stanford Robins, J. W. Brown, Benjamin Gettler, and Jonas Katz for appellants.

      John S. Connolly for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    DeLURY et al. v. CITY OF NEW YORK.
    No. 1029.
    Decided April 1, 1969.

      Paul O’Dwyer, W. Bernard Richland, Morris Weiss-berg, and John J. DeLury, Jr., for appellants.

      J. Lee Rankin, Frederic S. Nathan, and Stanley Buchsbaum for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a properly presented federal question.


text:
    MITCHELL et al. v. RIDDELL, DISTRICT DIRECTOR OF INTERNAL REVENUE, et al.
    No. 1044.
    Decided April 1, 1969.

      Solicitor General Griswold, Assistant Attorney General Walters, and Gilbert E. Andrews for appellees.
   Per Curiam.

The motion to dismiss is granted .and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    MacQUARRIE v. McLAUGHLIN, REGISTRAR OF MOTOR VEHICLES.
    No. 1483,
    Misc.
    Decided April 1, 1969.
   Per Curiam.

The judgment is affirmed.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    FANNON v. UNITED STATES.
    No. 1274,
    Misc.
    Decided April 1, 1969.

      John J. Cleary for petitioner.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   Per Curiam.

The motion to supplement the record is granted. The motion for leave to proceed in -forma 'pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Illinois for further consideration in light of Alderman v. United States, ante, p. 165.

Mr. Justice Black dissents.


text:
    ROSE v. OHIO.
    No. 1460,
    Misc.
    Decided April 1, 1969.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    KAUFER v. UNITED STATES.
    No. 1041.
    Decided April 1, 1969.

      Frederick H. Block and Herbert Monte Levy for petitioner.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment is affirmed. Desist v. United States, ante, p. 244.

Mr. Justice Douglas and Mr. Justice Fortas dissent from the affirmance of the judgment.

Mr. Justice Harlan and Mr. Justice White would deny the petition for a writ of certiorari.


author: Mr. Chief Justice Warren Mr. Justice Black,

text:
    McCARTHY v. UNITED STATES.
    No. 43.
    Argued December 9, 1968.
    Decided April 2, 1969.

      Maurice J. McCarthy argued the cause for petitioner. With him on the briefs were Barnabas F. Sears and Wayland B. Cedarquist.

      James Van R. Springer argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Rogovin, Francis X. Beytagh, Jr., Beatrice Rosenberg, and Mervyn Hamburg.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

This case involves the procedure that must be followed under Rule 11 of the Federal Rules of Criminal Procedure before a United States District Court may accept a guilty plea and the remedy for a failure to follow that procedure.

On April 1, 1966, petitioner was indicted on three counts in the United States District Court for the Northern District of Illinois for violating § 7201 of the Internal Revenue Code. He was charged with “wilfully and knowingly” attempting to evade tax payments of $928.74 for 1959 (count 1), $5,143.70 for 1960 (count 2), and $1,207.12 for 1961 (count 3). At his arraignment two weeks later, petitioner, who was represented by retained counsel, pleaded not guilty to each count. The court scheduled his trial for June 30; but on June 29, it granted the Government’s motion to postpone the trial because of petitioner’s illness. The trial was rescheduled for July 15.

On that day, after informing the court that he had “advised . . . [petitioner] of the consequences of a plea,” defense counsel moved to withdraw petitioner’s plea of not guilty to count 2 and to enter a plea of guilty to that count. The District Judge asked petitioner if he desired to plead guilty and if he understood that such a plea waived his right to a jury trial and subjected him to imprisonment for as long as five years and to a fine as high as $10,000. Petitioner stated that he understood these consequences and wanted to plead guilty. The Government consented to this plea change and informed the court that if petitioner’s plea of guilty to count 2 were accepted, the Government would move to dismiss counts 1 and 3. Before the plea was accepted, however, the prosecutor asked the judge to inquire whether it had been induced by any threats or promises. In response to the judge’s inquiry, petitioner replied that his plea was not the product of either. He stated that it was entered of his “own volition.” The court ordered a presentence investigation and continued the case to September 14, 1966.

At the commencement of the sentencing hearing on September 14, petitioner asserted that his failure to pay taxes was “not deliberate” and that they would have been paid if he had not been in poor health. The prosecutor stated that the “prime consideration” for the Government’s agreement to move to dismiss counts 1 and 3 was petitioner’s promise to pay all taxes, penalties, and interest. The prosecutor then requested the court to refer expressly to this agreement. After noting that petitioner possessed sufficient attachable assets to meet these obligations, the court imposed a sentence of one year and a fine of $2,500. Petitioner’s counsel immediately moved to suspend the sentence. He emphasized that petitioner, who was then 65 years of age, was in poor health and contended that his failure to pay his taxes had resulted from his “neglectful” and “inadvertent” method of bookkeeping during a period when he had been suffering from a very serious drinking problem. Consequently, asserted petitioner’s counsel, “there was never any disposition to deprive the United States of its due.” The judge, however, after indicating he had examined the presentence report, stated his opinion that “the manner in which [petitioner’s] books were kept was not inadvertent.” He declined, therefore, to suspend petitioner’s sentence.

On appeal to the United States Court of Appeals for the Seventh Circuit, petitioner argued that his plea should be set aside because it had been accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. Specifically, petitioner contended (1) that the District Court had accepted his plea “without first addressing [him] . . . personally and determining that the plea [was] . . . made voluntarily with understanding of the nature of the charge . . . ,” and (2) that the court had entered judgment without determining “that there [was] ... a factual basis for the plea.” In affirming petitioner’s conviction, the Court of Appeals held that the District Judge had complied with Rule 11. The court implied that the Rule did not require the District Judge to address petitioner personally to determine if he understood the nature of the charge. The court also concluded that the colloquy at the sentencing hearing demonstrated that the judge had satisfied himself by an examination of the presentence report that the plea had a factual basis.

Because of the importance of the proper construction of Rule 11 to the administration of criminal law in the federal courts, and because of a conflict in the courts of appeals over the effect of a district court’s failure to follow the provisions of the Rule, we granted certiorari. 390 U. S. 1038 (1968). We agree with petitioner that the District Judge did not comply with Rule 11 in this case; and in reversing the Court of Appeals, we hold that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11. This decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges as additional grounds for reversal.

I.

Rule 11 expressly directs the district judge to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea. At oral argument, however, counsel for the Government repeatedly conceded that the judge did not personally inquire whether petitioner understood the nature of the charge. At one point, counsel stated quite explicitly: “The subject on which he [the District Judge] did not directly address the defendant, which is raised here, is the question of the defendant’s understanding of the charges.” Nevertheless, the Government argues that since petitioner stated his desire to plead guilty, and since he was informed of the consequences of his plea, the District Court “could properly assume that petitioner was entering that plea with a complete understanding of the charge against him.” (Emphasis added.)

We cannot accept this argument, which completely ignores the two purposes of Rule 11 and the reasons for its recent amendment. First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.

Prior to the 1966 amendment, however, not all district judges personally interrogated defendants before accepting their guilty pleas. With an awareness of the confusion over the Rule’s requirements in this respect, the draftsmen amended it to add a provision “expressly requiring] the court to address the defendant personally.” This clarification of the judge’s responsibilities quite obviously furthers both of the Rule’s purposes. By personally interrogating the defendant, not only will the judge be better able to ascertain the plea’s voluntariness, but he also will develop a more complete record to support his determination in a subsequent post-conviction attack.

These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.

Thus, in addition to directing the judge to inquire into the defendant’s understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea. The judge must determine “that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.”

To the extent that the district judge thus exposes the defendant’s state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea’s voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to “assumptions” not based upon recorded responses to his inquiries. For this reason, we reject the Government’s contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge.

II.

Having decided that the Rule has not been complied with, we must also determine the effect of that noncompliance, an issue that has engendered a sharp difference of opinion among the courts of appeals. In Heiden v. United States, 353 F. 2d 53 (1965), the Court of Appeals for the Ninth Circuit held that when the district court does not comply fully with Rule 11 the defendant’s guilty plea must be set aside and his case remanded for another hearing at which he may plead anew. Other courts of appeals, however, have consistently rejected this holding, either expressly or tacitly. Instead, they have adopted the approach urged by the Government, which is to place upon the Government the burden of demonstrating from the record of the Rule 11 hearing that the guilty plea was voluntarily entered with an understanding of the charge. See, e. g., Halliday v. United States, 380 F. 2d 270 (C. A. 1st Cir. 1967); Lane v. United States, 373 F. 2d 570 (C. A. 5th Cir. 1967). In these circuits, if volun-tariness cannot be determined from the record, the case is remanded for an evidentiary hearing on that issue. See, e. g., Kennedy v. United States, 397 F. 2d 16 (C. A. 6th Cir. 1968); Halliday v. United States, supra.

We are persuaded that the Court of Appeals for the Ninth Circuit has adopted the better rule. From the defendant’s perspective, the efficacy of shifting the burden of proof to the Government at a later voluntariness hearing is questionable. In meeting its burden, the Government will undoubtedly rely upon the defendant’s statement that he desired to plead guilty and frequently a statement that the plea was not induced by any threats or promises. This prima facie case for voluntariness is likely to be treated as irrebuttable in cases such as this one, where the defendant’s reply is limited to his own plaintive allegations that he did not understand the nature of the charge and therefore failed to assert a valid defense or to limit his guilty plea only to a lesser included offense. No matter how true these allegations may be, rarely, if ever, can a defendant corroborate them in a post-plea voluntariness hearing.

Rule 11 is designed to eliminate any need to resort to a later fact-finding proceeding “in this highly subjective area.” Heiden v. United States, supra, at 55. The Rule “contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset . . . .” Ibid. As the Court of Appeals for the Sixth Circuit explained in discussing what it termed the “persuasive rationale” of Heiden: “When the ascertainment is subsequently made, greater uncertainty is bound to exist since in the resolution of disputed contentions problems of credibility and of reliability of memory cannot be avoided . . . .” Waddy v. Heer, 383 F. 2d 789, 794 (1967). There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant’s understanding of the nature of the charge against him.

The wisdom of Rule ll’s requirements and the difficulty of achieving its purposes through a post-conviction voluntariness hearing are particularly apparent in this case. Petitioner, who was 65 years old and in poor health at the time he entered his plea, had been suffering from a serious drinking problem during the time he allegedly evaded his taxes. He pleaded guilty to a crime that requires a “knowing and willful” attempt to defraud the Government of its tax money; yet, throughout his sentencing hearing, he and his counsel insisted that his acts were merely “neglectful,” “inadvertent,” and committed without “any disposition to deprive the United States of its due.” Remarks of this nature cast considerable doubt on the Government’s assertion that petitioner pleaded guilty with full awareness of the nature of the charge. Nevertheless, confronted with petitioner’s statement that he entered his plea of his “own volition,” his counsel’s statement that he explained the nature of the charges, and evidence that petitioner did owe the Government back taxes, both the District Court and the Court of Appeals concluded that petitioner’s guilty plea was voluntary.

Despite petitioner’s inability to convince the courts below that he did not fully understand the charge against him, it is certainly conceivable that he may have intended to acknowledge only that he in fact owed the Government the money it claimed without necessarily admitting that he committed the crime charged; for that crime requires the very type of specific intent that he repeatedly disavowed. See Sansone v. United States, 380 U. S. 343 (1965). Moreover, since the elements of the offense were not explained to petitioner, and since the specific acts of tax evasion do not appear of record, it is also possible that if petitioner had been adequately informed he would have concluded that he was actually guilty of one of two closely related lesser included offenses, which are mere misdemeanors.

On the other hand, had the District Court scrupulously complied with Rule 11, there would be no need for such speculation. At the time the plea was entered, petitioner’s own replies to the court’s inquiries might well have attested to his understanding of the essential elements of the crime charged, including the requirement of specific intent, and to his knowledge of the acts which formed the basis for the charge. Otherwise, it would be apparent to the court that the plea could not be accepted. Similarly, it follows that, if the record had been developed properly, and if it demonstrated that petitioner entered his plea freely and intelligently, his subsequent references to neglect and inadvertence could have been summarily dismissed as nothing more than overzealous supplications for leniency.

We thus conclude that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule’s procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.

We therefore reverse the judgment of the Court of Appeals for the Seventh Circuit and remand the case for proceedings consistent with this opinion.

It is so ordered.

APPENDIX A TO OPINION OF THE COURT.

The relevant portion of the colloquy at the Rule 11 hearing on July 15 is as follows:

“Mr. Sokol [petitioner’s counsel]: ... If the Court please, I have advised Mr. McCarthy of the consequences of a plea. At this time, in his behalf I would like to withdraw the plea of not guilty heretofore entered to Count 2, and enter a plea of guilty to Count 2. There are three Counts.
“The Court: Is that satisfactory to the government?
“Mr. Hughes [Government counsel]: Satisfactory to the government, your Honor. The government will move to dismiss Counts 1 and 3.
“The Court: There will be a disposition in regard to the other Count?
“Mr. Sokol: He has just moved to dismiss Counts 1 and 3.
“The Court: Not until the plea is accepted and there is a judgment thereon.
“Mr. Hughes: Correct.
“The Court: This is tax evasion, five and ten?
“Mr. Hughes: Yes, your Honor, a maximum penalty of five years and $10,000.
“The Court: Mr. McCarthy, your lawyer tells me that you want to enter a plea of guilty to this second Count of this indictment; is that true?
“Defendant McCarthy: Yes, your Honor.
“The Court: You understand on your plea of guilty to the second Count of this indictment, you are waiving your right to a jury trial?
“Defendant McCarthy: Yes, your Honor.
“The Court: You understand on your plea of guilty you may be incarcerated for a term not to exceed five years?
“Defendant McCarthy: Yes, your Honor.
“The Court: You understand you may be fined in an amount not in excess of $10,000?
“Defendant McCarthy: Yes, your Honor.
“The Court: Knowing all that, you still persist in your plea of guilty?
“Defendant McCarthy: Yes, your Honor.
“The Court: The record will show that this defendant, after being advised of the consequences of his plea to Count 2 of this indictment, persists in his plea. The plea will be accepted. There will be a finding of guilty in the manner and form as charged in Count 2 of this indictment, judgment on that finding.
“Now, in regard to Counts 1 and 3?
“Mr. Hughes: Your Honor, the government will move to dismiss them. I would also request the Court to ask whether or not any promises or threats have been made.
“Mr. Sokol: No, no promises or threats.
“The Court: I am going to ask the defendant himself. Have any promises been made to you for entering a plea of guilty?
“Defendant McCarthy: No, your Honor.
“The Court: Has anybody threatened you that if you didn’t enter a plea of guilty something would happen to you?
“Defendant McCarthy: I beg your pardon?
“The Court: Has anybody threatened you to enter a plea of guilty?
“Defendant McCarthy: That’s right, of my own volition, your Honor.
“The Court: All right. Enter a pre-trial investigation order and continue the matter until the 14th day of September. Same bond may stand.”

APPENDIX B TO OPINION OF THE COURT.

The colloquy at the September 14 sentencing hearing included the following:

“Mr. Sokol [petitioner’s counsel]: ... If the Court please, apart from the wrecking of his physical health that has attended a number of the problems that relate to the drinking in this case, this man has experienced a kind of punishment, self-inflicted, which almost is a categorical listing of how he flees, actually, and I use that word advisedly, flees from consequence to punishment to additional consequence. It is a sad thing when at the age of sixty-five a man who has been able to rear, with the help of his wife, a fine family, has to leave a legacy such as this. I submit to the Court that he needs no deterrent. I cannot imagine a man — apart from the conventional contrition, he has actively sought out help in order to overcome what has become a very, very serious physical and psychological problem.
“When I spoke with Mr. Sanculius [the probation officer], I knew that we had given to him some reference to the fact and some attestations of the facts, supported the facts, that there had been a very, very serious psychological problem here.
“With respect to the tax case itself, he never took one single step to delude the investigating officer from the very, very start, and this was before Counsel was in the matter. He extended — in other words, he was open and he answered all questions readily.
“The Court: Yes, but his books were in such shape that it made it very difficult to — and that, in my opinion, was not inadvertent.
“Mr. Sokol: . . . When a man is neglectful and adopts a kind of a devious way of secreting himself from the government, that is one thing, and we are mindful they are kind of indicia of fraud. But where a man’s pattern is neglect of not only something like this — he is sloppy with respect to that, but in gross, in gross, unaccountable, so to speak.
“There was no direct relationship to the conse-squences of taxation. Now, I would like to point out in that connection that when the investigation commenced it zeroed in, and very, very properly, there was a disclosure made from the very, very first that in the case of the Blue Cross check, the matter of depositing that in a second account actually had absolutely nothing whatever to do with the government. At that time he had been very, very deeply involved in a protracted drinking situation and had been in the hospital for several weeks. His family, in order to avoid the matter of him really needing somebody to lead him around by the nose said, and his wife said, ‘You have to put yourself under the jurisdiction of your brother,’ and there was some indication that he was supposed to deposit this and he would not have disposition over his own assets. They did not feel that he could look out for himself. He was oppressed, and there is no sense in going over how people become so. In this particular case with a history after sixty-five years of this kind of a situation, one can perhaps guess without going into Freudian terms he was oppressed, and in order to free himself — and this had nothing to do with the government — in order to free himself from what he felt was a trap situation where he, at the age of sixty-two or sixty-three was being treated like a little boy, he put it in a different bank account. But there was never any disposition to deprive the United States of its due.
“He has never acted, actually, in what you would call normal consequence, because an interview with this man, even once, indicates that if he has — and it is like a little boy — if he has the consequence lying before him he says, ‘Oh, yes.’
“Mr. Sokol: He did not act in contemplation of avoiding taxation. That was a natural consequence of what can best be described as gross neglect, and criminal neglect, if you please.
“I could not have, in good conscience, recommended that he go into a plea if I did not feel that neglect has become criminal when it reaches a certain stage. But this was not a part of any elaborate scheme or any devious course of conduct where he was acting in contemplation of a tax return that—
“The Court: It took place over a series of four years, didn’t it, Counsel?
“Mr. Sokol: No, your Honor, because the real problem related to the matter of his avoiding the accountability not to his government but to the matter of the spending money.
“The Court: Well, I am sure that if the government had not stepped in, why, it would have lasted over a period of eight years.
“Mr. Sokol: No, he had already done this, apart from the fact that he had sought help with respect to the drinking, apart from the fact that he had sought help with respect to the psychiatric problem, and apart from the fact that he had already, so to speak, contained himself, he did, in addition, seek out the help of Mr. Abraham Angram, my associate counsel in the case, who was guiding him and he was on the right path. No, he had — I want to point out to the Court that this has occurred. This is fait accompli.”

Mr. Justice Black,

concurring.

I concur, though not without some doubt, in the reversal of the judgment of conviction in this case. Rule 11 of the Federal Rules of Criminal Procedure requires that the trial judge personally address a defendant who pleads guilty in order to ascertain if he understands the nature of the crime of which he has pleaded guilty. In this case the trial judge did not personally address the defendant but seems to have accepted the statement of the defendant’s lawyer that he had advised the petitioner of the consequences of a plea of guilty. I base my concurrence in the judgment not upon any “supervisory power” of this Court, however, but exclusively on the failure of the judge to first address the defendant personally, as required by Rule 11.

       The relevant portion of the colloquy at this hearing is quoted in Appendix A.

       Defense counsel's account of petitioner’s personal problems during the period he allegedly evaded his income taxes is quoted in Appendix B.

       Fed. Rule Grim. Proc. 11.

        Ibid. Both of these provisions were added by the 1966 amendment to Rule 11. The amendment became effective on July 1, 1966. It is italicized on the next page in the following quotation of the Rule:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

       387 F. 2d 838 (C. A. 7th Cir. 1968).

       The Advisory Committee suggests three methods of determining that a factual basis exists for a guilty plea: (1) inquiring of the defendant; (2) inquiring of the prosecutor; (3) examining the pre-sentence report. Fed. Rule Crim. Proc. 11, Notes of Advisory Committee on Criminal Rules.

       During 1968 approximately 86% (22,055 out of 25,674) of all convictions obtained in the United States district courts were pursuant to a plea of guilty or its substantial equivalent, a plea of nolo contendere. 1968 Director of the Administrative Office of the United States Courts Ann. Rep. 261.

       See nn. 22 and 23, infra.

       The Government agrees with the Court of Appeals that the record of the September 14 sentencing hearing demonstrates that the District Judge satisfied himself by examining the presentence report that there was a factual basis for the plea. However, because of the Government's concession at oral argument that the judge did not inquire whether petitioner understood the nature of the charge, and because of our holding that any noncompliance with Rule 11 is reversible error, we need not consider the Government’s contention that the record adequately supports the Court of Appeals’ conclusion that the district judge satisfied himself that there was a factual basis for the plea.

       See Waddy v. Heer, 383 F. 2d 789 (C. A. 6th Cir. 1967).

       See, e. g., Machibroda v. United States, 368 U. S. 487, 493 (1962); Von Moltke v. Gillies, 332 U. S. 708 (1948); Waley v. Johnston, 316 U. S. 101 (1942).

       See Stephens v. United States, 376 F. 2d 23 (C. A. 10th Cir.), cert. denied, 389 U. S. 881 (1967); Rimanich v. United States, 357 F. 2d 537 (C. A. 5th Cir. 1966); Kadwell v. United States, 315 F. 2d 667, 669 n. 6 (C. A. 9th Cir. 1963); Orfield, Pleas in Federal Criminal Procedure, 35 Notre Dame Law. 1, 31-32 (1959).
      Chief Judge Walter E. Hoffman of the United States District Court for the Eastern District of Virginia has stated that “[t]he multitude of questions presented by the arraignment and plea under Rules 10 and 11 furnish the most frequent basis for attack in the popular post-conviction remedy available to federal prisoners.” Hoffman, What Next in Federal Criminal Rules?, 21 Wash. & Lee L. Rev. 1, 8 (1964).

       See Fed. Rule Crim. Proc. 11, Notes of Advisory Committee on Criminal Rules.

        Ibid.

       See L. Orfield, Criminal Procedure Under the Federal Rules § 11:12 (1966); A. Enker, Perspectives on Plea Bargaining, President’s Comm’n on Law Enforcement and Administration of Justice, Task Force Report: The Courts, Appendix A, 116 (1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. Pa. L. Rev. 865, 871-872 (1964).

       See n. 11, supra.

         See D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 23 (1966); ABA Project on Minimum Standards for Criminal Justice: Standards Relating to Pleas of Guilty § 1.4 (a), commentary (Tent. Draft 1967).

       Fed. Rule Crim. Proc. 11, Notes of Advisory Committee on Criminal Rules.

        Ibid.

       The nature of the inquiry required by Rule 11 must necessarily vary from ease to case, and, therefore, we do not establish any general guidelines other than those expressed in the Rule itself. As our discussion of the facts in this particular case suggests, however, where the charge encompasses lesser included offenses, personally addressing the defendant as to his understanding of the essential elements of the charge to which he pleads guilty would seem a necessary prerequisite to a determination that he understands the meaning of the charge. In all such inquiries, “[m]atters of reality, and not mere ritual, should be controlling.” Kennedy v. United States, 397 F. 2d 16, 17 (C. A. 6th Cir. 1968).

       After two separate panels had applied Heiden retroactively without discussion in Geter v. United States, 353 F. 2d 208 (1965), and Freeman v. United States, 350 F. 2d 940, 943 (1965), in a subsequent en banc decision the Ninth Circuit held that it would not apply Heiden to cases in which the guilty plea was accepted before the date on which Heiden was decided. Castro v. United States, 396 F. 2d 345 (C. A. 9th Cir. 1968).

        Kennedy v. United States, 397 F. 2d 16 (C. A. 6th Cir. 1968) ; Halliday v. United States, 380 F. 2d 270 (C. A. 1st Cir. 1967) (“at least with respect to [pre-amended] Rule 11”); Stephens v. United States, 376 F. 2d 23 (C. A. 10th Cir.), cert. denied, 389 U. S. 881 (1967); Brokaw v. United States, 368 F. 2d 508 (C. A. 4th Cir. 1966), cert. denied, 386 U. S. 996 (1967) (at least where the defendant raises only the factual issues of voluntariness).

        United States v. Del Piano, 386 F. 2d 436 (C. A. 3d Cir. 1967), cert. denied, 392 U. S. 936 (1968); Lane v. United States, 373 F. 2d 570 (C. A. 5th Cir. 1967); United States v. Kincaid, 362 F. 2d 939 (C. A. 4th Cir. 1966); Bartlett v. United States, 354 F. 2d 745 (C. A. 8th Cir. 1966).

       See 8 J. Moore, Federal Practice ¶ 11.03 [1], at 11-22 (2d ed. 1968). But see United States v. Pate, 357 F. 2d 911 (C. A. 7th Cir. 1966).

        Sansone v. United States, 380 U. S. 343 (1965).

       Willfully filing a fraudulent or false return is a misdemeanor under § 7207 of the Internal Revenue Code, and willfully failing to pay taxes is a misdemeanor under § 7203 of the Code. The close interrelationship between these two offenses and the felony for which petitioner was convicted under § 7201 is explained in detail in Sansone.