author: Mr. Justice Marshall Mr. Justice White, . Mr. Chief Justice Burger,

text:
    PETERS v. KIFF, WARDEN
    No. 71-5078.
    Argued February 22, 1972
    Decided June 22, 1972
    Marshall, J., announced the Court’s judgment and delivered an opinion, in which Douglas and Stewart, JJ., joined. White, J., filed an opinion concurring in thé judgment, in which BreNNAN and Powell, JJ., joined, post, p. 505.- Burger, C. J., filed a dissenting opinion, in which BlackmuN and RehNQüist, JJ'., joined, post, p. 507.

      Edward T. M. Garland argued the cause and filed a brief for petitioner.

      Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, . and Courtney Wilder Stanton and David L. G. King, Jr., Assistant Attorneys General.

      Jack Greenberg, James M. Nabrit III, and Cluirles Stephen Ralston filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae, urging reversal.
   Mr. Justice Marshall

announced the judgment of the Court and an opinion in which Mr. Justice Douglas and Mr. Justice Stewart join.

Petitioner alleges that Negroes were, systematically excluded from the grand jury that indicted him and the petit jury that convicted him of burglary in the Superior Court of Muscogee County, Georgia. In consequence he contends that his conviction is invalid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because he is not himself a Negro, the respondent contends that he has hot suffered any unconstitutional discrimination, and that his conviction' must stand. ' On that ground, the Court of Appeals affirmed the denial of his petition for federal habeas corpus. 441 •F. 2d 370' (CA5 1971). We granted certiorari. 404 U. S. 964 (1971). We reverse.

I

At the- outset, we reject the contention that the only-issue before this Court is petitioner’s challenge to the composition of the grand jury that indicted him. The respondent argues that the challenge to the petit jury is not before us, because it fails to appear in the list of questions presented by the petition for certiorari. We do not regard that omission as controlling, however, in light of the fact that the two claims have been treated together at every stage of the proceedings below, they are treated together in the body of the petition for certiorari, and they are treated together in the brief filed by petitioner on. the merits in this Court. Petitioner cannot fairly be said to have abandoned his challenge to the petit jury, and the State has had ample opportunity to respond to that challenge, having done so at length below.

Moreover, in this case the principles governing the two claims are identical. First, it appears that the same selection process was used for both the grand jury and the petit jury. Consequently, the question whether jurors were in fact excluded on the basis of race will be answered the same way for both tribunals. Second, both the grand jury and the petit jury in this case must be measured solely by the general Fourteenth Amendment guarantees of due process and equal protection, and not by the specific constitutional provisions for the grand' jury and the petit jury. For the Fifth Amendment right to a grand jury does not apply in a state prosecution. Hurtado v. California, 110 IT. S. 516 (1884). And the Sixth Amendment right to a petit jury, made applicable to the States through the Due Process Clause of the Fourteenth Amendment in Duncan v. Louisiana, 391 U. S. 145 (1968), does not apply to state trials that took place before the decision in Duncan, as petitioner’s trial did. DeStefano v. Woods, 392 U.S. 631 (1968). Accordingly, we turn now to the commands of equal protection and of due process.

II

This Court has never before considered a white defendant’s challenge to the exclusion of Negroes from jury service. The essence of petitioner’s claim is this: that the tribunals that indicted and convicted him were constituted in a manner that is prohibited by the Constitution and by statute; that the impact of that error on any individual trial is unascertainable; and that consequently any indictment or conviction returned by such tribunals must be set aside.

There can be no doubt that, if petitioner’s allegations are true, both tribunals involved in this case were illegally constituted. He alleges that Negroes were systematically excluded from both the grand jury and the petit jury. This Court has repeatedly held that the Constitution prohibits such selection practices, with respect to the grand jury, the petit jury, or both. Moreover, Congress has made it a crime for a public official to exclude anyone from a grand or petit jury on the basis óf race, 18 U. S. C. § 243, and this Court upheld the statute, approving the congressional determination that such exclusion would violate the express prohibitions of the Equal Protection Clause. Ex parte Virginia, 100 U. S. 339 (1880). The crime, and the unconstitutional state action, occur whether the- defendant is white or Negro, whether he is acquitted or convicted. In short, when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim.

It is a separate question, however, whether petitioner is entitled to the relief he seeks on the basis of that constitutional violation. Respondent argues that even if the grand and petit juries were unconstitutionally selected, petitioner is not entitled to relief on that account because he has not shown how he was harmed by the error. It is argued that a Negro defendant’s right to challenge the exclusion of Negroes from jury service rests on a presumption that a jury so constituted will be prejudiced against him; that no such presumption is available to a white defendant; and consequently that a white defendant must introduce. affirmative evidence of actual harm in order to establish a basis for relief.

That argument takes too narrow a view of the kinds of harm that flow from discrimination in jury selection. The exclusion of Negroes from jury service, like the arbitrary exclusion of any other well-defined class of citizens, offends a number of related constitutional values.

In Strauder v. West Virginia, 100 U. S. 303, 308-309 (1880), this Court considered the question from the point of view of the Negro defendant’s right to equal protection of the laws. Btrauder was part of a landmark trilogy oí cases, in which this Court first dealt with the problem of racial discrimination in jury selection. In Strauder itself, a Negro defendant sought to remove his criminal trial to the federal. courts, pursuant to statute, on the. ground that Negroes were excluded by law from the grand and petit juries in .the state courts; the Court upheld his claim. In Virginia v. Rives, 100 U. S. 313 (1880), a Negro defendant sought removal on the ground that there were in fact no Negroes in the venire from which his jury was drawn; the Court held that, without more, his claim did not come within the precise terms of the removal statute. Finally, in Ex parte Virginia, 100 U. S. 330 (1880), a state judge challenged the' statute under which he was convicted for the federal crime of excluding Negroes from state grand and petit juries; the Court upheld the statute as a valid means of enforcing the Equal Protection Clause. Because each of these three cases was amenable to decision on the narrow basis of an analysis of the Negro defendant’s right to equal protection, the Court brought all three under that single analytical umbrella.

But even in 1880 the Court recognized that other constitutional values were implicated. In Btrauder, the Court observed that the exclusion of Negroes from jury service injures not only defendants, but also other members of the excluded class: it denies the class of potential jurors the “privilege of participating equally '. . . in the administration of justice,” 100 U. S., at 308, and it stigmatizes the whole class, even those who . do not wish to participate, by declaring them unfit for jury service and thereby putting “a-brand upon them, affixed by law, an assertion of their inferiority.” Ibid. It is now clear that injunctive relief is available to vindicate these interests of the excluded jurors and the stigmatized class. Carter v. Jury Commission of Greene County, 396 U. S. 320 (1970); Turner v. Fouche, 396 U. S. 346 (1970); White v. Crook, 251 F. Supp. 401 (MD Ala. 1966).

Moreover, the Court has also. recognizecLthat the exclusion of a discernible class from jury service injures not only those defendants who belong to the excluded, class, but other defendants as well, in that it destroys the possibility that the jury will reflect a representative cross section of the community. In Williams v. Florida, 399 U. S. 78 (1970), we sought to delineate some of the essential features of the jury that is guaranteed, in certain circumstances, by the Sixth Amendment. We concluded that it comprehends; inter alia, “a fair possibility for obtaining a representative cross-section of the community.” 399 U. S., at 100. Thus if the Sixth Amendment were applicable here, and petitioner were challenging a pqst-Duncan petit jury, he would clearly have standing to challenge the systematic exclusion of any identifiable group from jury service.

The precise question in this case, then, is whether a State may subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition, and leave the defendant without recourse on the ground that he had in any event no right to a grand or petit jury at all. We conclude, for reasons that follow, that to do so denies the defendant due process of law.

Ill

“A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136 (1955). The due process right to a competent and impartial tribunal is quite separate from the right to any particular form of proceeding. Due process requires a competent and impartial tribunal in administrative hearings, Goldberg v. Kelly, 397 U. S. 254, 271 (1970), and in trials to a judge, Tumey v. Ohio, 273 U. S. 510 (1927). Similarly, if a State chooses, quite apart from constitutional compulsion, to use a grand or petit jury, due process imposes limitations on the composition of that Jury-

Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law. Thus a defendant cannot, consistent with due process, be subjected to trial by an insane juror, Jordan v. Massachusetts, 225 U. S. 167, 176 (1912), by jurors who are intimidated by the threat of mob violence, Moore v. Dempsey, 261 U. S. 86 (1923), or by jurors who have formed a fixed opinion about the case from newspaper publicity, Irvin v. Dowd, 366 U. S. 717 (1961).

Moreover, even if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias. This rule, too, was well established long before the right to jury trial was made applicable in state trial's, and does not depend on it. Thus it has been invoked in trials to a judge, e. g., Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955); Mayberry v. Pennsylvania, 400 U. S. 455 (1971); and in pre-Duncan state jury trials, e. g., Turner v. Louisiana, 379 U. S. 466 (1965); Estes v. Texas, 381 U. S. 532, 550 (1965). In Tumey v. Ohio, supra, this Court held that a judge could not, consistent with due process, try a case when he had a financial stake in the outcome, notwithstanding the possibility that he might resist the temptation to be influenced by that interest. And in Turner v. Louisiana, supra, the Court held that a jury could not, consistent with due process, try a case after it had been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association. , As this Court said in In re Murchison, supra, “[f] airness 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.” 349 U. S., at 136.

These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create' the appearance of bias in the decision of j individual cases, and they increase the risk of actual ¡ bias as well.

If it were possible to say with confidence that the risk of bias resulting from the arbitrary action involved here is confined to cases involving Negro defendants, then perhaps the right to challenge the tribunal on . that ground could be similarly confined. The case of the white defendant might then be thought to present a species of" harmless error.

But the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact.that is too subtle and too pervasive to admit of confinement to particular issues or particular cases. First, if we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of- race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society.

Moreover, we are unwilling to make the assumption Ji that the exclusion of Negroes has relevance only for j j issues involving race. When any large and identifiable1 segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance, in any case that may be presented.

It is in the nature of the practices here challenged that proof of actual harm, or. lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958); In re Winship, 397 U. S. 358, 370-373 (1970) (Harlan, J., concurring). In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.

■ Accordingly, we hold that, whatever his race, a criminal ¡defendant has standing to challenge the systein used to select his grand or petit jury, on the ground that it Arbitrarily excludes from service the members of any race, and thereby denies him due process of law. This certainly is true in this case, where the claim is that Negroes were systematically excluded from jury service. For Congress has made such exclusion a crime. 18 U. S. C. § 243.

IV

Having resolvfed the question of standing, we turn briefly to the further disposition of this case. There is, of course, no question here of justifying the .system under attack. For whatever may be the law with regard to other exclusions from jury service, it is clear beyond all doubt that the exclusion of Negroes cannot pass constitutional muster. Accordingly, if petitioner’s allegations are correct, and Negroes were systematically excluded from his grand and petit juries, then he was indicted, and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand. Since he was precluded from proving the facts alleged in support of his claim, the judgment must be reversed and the case remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice White,

with whom Mr. Justice Brennan and Mr. Justice Powell join, concurring in the judgment.

Since March 1, 1875, the criminal laws of the United States have contained a proscription to the following effect:

“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude . . . .”

By this unambiguous provision, now contained in 18 U. S. C. § 243, Congress put cases involving exclusions from jury service on grounds of race in a class, by themselves. “For us the majestic generalities of thé Fourteenth Amendment are thus reduced to a concrete statutory command when cases involve race or color which is wanting in every other case of alleged discrimination.” Fay v. New York, 332 U. S. 261, 282-283 (1947).

The consequence is that where jury commissioners disqualify citizens on the grounds of racé, they fail “to perform their constitutional duty — recognized by § 4 of the Civil Rights Act of March 1, 1875 . . . and fully established since the decision in 1881 of Neal v. Delaware . . . not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds.” Hill v. Texas, 316 U. S. 400, 404 (1942). Thus, “no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid .... [I]t is our duty as well as the State’s to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare' a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained.” Id., at 406.

It is true that the defendant in Hill was a Negro and petitioner here is a white man. It is also true that there is no case in this Court-setting aside a conviction for arbitrary exclusions of a class of citizens from jury service where the defendant was not a member of the excluded class. I also recognize that, as in this case, the courts of appeals reflecting the generally accepted constitutional view, have rejected claims such as petitioner presents here. For me, however, the rationale and operative language of Hill v. Texas suggest a broader sweep; and I would implement the strong statutory policy of § 243, which reflects the central concern of the Fourteenth Amendment with racial discrimination, by permitting petitioner to challenge his conviction on the grounds that Negroes were arbitrarily excluded from the grand jury that indicted him. This is the better view, and it is time that we now recognized it in this case and as the standard governing criminal proceedings instituted hereafter. Hence, I join the judgment of the Court.

. Mr. Chief Justice Burger,

with whom Mr. Justice Blackmun and Mr. Justice Behhquist join, dissenting.

There is no longer any question, of course, that persons may not be excluded from juries on account of ráce. Such exclusions are plainly unlawful and deserving of condemnation. That, however, is not the issue before us. The real issue is whether such illegality necessarily voids a criminal conviction, absent any demonstration of prejudice,, or basis for presuming prejudice, to the accused.

Petitioner was indicted for the offense of burglary on June 6, 1966, and thereafter convicted. The conviction was reversed on direct appeal, and the case was remanded for a new trial. Petitioner was retried on December 8, 1966, was found guilty, and was sentenced to 10 years' imprisonment. Petitionér is not a Negro and the record in no way suggests that race was relevant in the proceedings against him. At trial, petitioner made no challenge to the method of selection of the grand and petit juries, and he made no challenge to the array of the petit jury. In his appeal to the Court of Appeals of Georgia, petitioner still made no claim, addressed to the method of selection of the grand and petit juries. His conviction was affirmed.

Seven months after his trial, petitioner filed a writ of habeas corpus in the United States District Court, asserting for the first time that Negroes were systematically excluded from the grand and petit juries. If petitioner’s allegations are true, then the officials responsible fór the jury selection acted in violation of the Constitution, denying potential Negro jurors the equal opportunity to participate in the administration of justice. Strauder v. West Virginia, 100 U. S. 303, 308 (1880). Moreover, if petitioner’s allegations are true, the responsible officials are subject to criminal penalties. 18 U. S. C. § 243. However, in order for petitioner’s conviction to be set aside, it is not enough to show merely that there has been some unconstitutional or unlawful action at the trial level. ' It must be established that petitioner’s conviction has resulted from the denial of federally secured rights properly asserted by him. See Alderman v. United States, 394 U. S. 165, 171-174 (1969); cf. Jones v. United States, 362 U. S. 257, 261 (1960).

The opinions in support of the majority position do not hold that if petitioner’s allegations are true, he has been denied the equal protection of the, laws. The Court has held in a long line of cases that a Negro defendant is denied equal protection'.by the systematic exclusion of Negroes from jury service. See, e. g., Whitus v. Georgia, 385 U. S. 545. (1967); Avery v. Georgia, 345 U. S. 559 (1953); Norris v. Alabama, 294 U. S. 587 (1935); Carter v. Texas, 177 U. S. 442 (1900) ; Strauder v. West Virginia, 100 U. S. 303 (1880). These decisions have been predicated from the beginning on the judicially noticeable fact “that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.” Strauder v. West Virginia, supra, at 309. See also Gibson v. Mississippi, 162 U. S. 565, 581 (1896); Bush v. Kentucky, 107 U. S. 110, 117 (1883); Neal v. Delaware, 103 U. S. 370, 386 (1881); Ex parte Virginia, 100 U. S. 339, 345 (1880). This presumption of prejudice derives from the fact that the defendant is a member of the excluded class, but the Court has never intimated that a defendr ant is the, victim of unconstitutional discrimination if he does not claim that members of his own race have been excluded. See Alexander v. Louisiana, 405 U. S. 625, 633 (1972).

While the opinion of Me. Justice Mabshall refrains from relying on the Equal Protection Clause, it concludes that if petitioner’s allegations are true, he has been denied due. process of law. The opinion seeks to equate petitioner’s position with that of a defendant who has been; tried before a biased tribunal or one lacking the indicia of impartiality. It has been held that an accused is denied due process if the trier of fact is mentally incompetent, Jordan v. Massachusetts, 225 U. S. 167 (1912), has a personal interest in the outcome of the proceedings, Turney v. Ohio, 273 U. S. 510 (1927), has been subjected to pressures making a dispassionate decision unlikely, Irvin v. Dowd, 366 U. S. 717 (1961), Moore v. Dempsey 261 U. S. 86 (1923), cf. Turner v. Louisiana, 379 U. S. 466 (1965), or has had direct personal involvement with the events underlying a criminal contempt charge. Mayberry v. Pennsylvania, 400 U. S. 455 (1971); In re Murchison, 349 U. S. 133 (1955). This case plainly falls in none of those categories.

Although the prior cases have not required a showing that the trier of fact was actually affected by prejudice in its deliberations, in every case the circumstances were such as to create a serious “probability of unfairness.” In re Murchison, 349 U. S., at 136. Recognizing this limitation, the Court in Witherspoon v. Illinois, 391 U. S. 510 (1968), found no denial of due process where the determination of guilt had been entrusted to a jury from which persons opposed to the death penalty had been excluded. The Court rejected as “tentative and fragmentary” scientific evidence tending to show “that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.” 391 U. S., at 517. The Court went on to state,

“We -simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In fight of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.” 391 U. S., at 517-518.

See also Fay v. New York, 332 U. S. 261, 280-281 (1947). Here three members of the Court would establish such a per se rule without the benefit of tentative, fragmentary, or any other kind of empirical data indicating that all-white juries tend to be prejudiced against white defendants in nonracial criminal proceedings.

The opinion of Mr. Justice Marshall seeks to magnify this wholly speculative likelihood of prejudice by noting that the effect of excluding “any large and identifiable segment of the community ... is to remove from the jury room qualities of human nature and varieties of human experience, the range of which .is unknown and perhaps unknowable,” and “that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” Ante, at 503-504. I completely agree that juries should not be deprived of the insights of the various segments of the community, for the “common-sense judgment of a jury,” referred to in Duncan v. Louisiana, 391 U. S. 145, 156 (1968), is surely enriched when all voices can be heard. But we are not here concerned with the essential attributes of trial by jury. In fact, since petitioner was tried two years before this Court’s decision in Duncan, there was no constitutional requirement that he be tried before a jury at all. DeStefano v. Woods, 392 U. S. 631 (1968). Had the State of Georgia proceeded to try petitioner before a judge, I assume the Court would not find it a denial of due process if the judge were not the embodiment of all the “qualities of human nature and varieties of human experience.” I do not mean to minimize the importance of these values, but they really have very little to do with the narrow question whether petitioner was convicted by a prejudiced tribunal.

Nor do I believe that the illegality of the alleged exclusion can be viewed as tipping the scales toward finding a denial of due process. The question of a jury’s bias or prejudice is totally factual in nature. If the possibility of prejudice is too remote or speculative to support a finding of unconstitutionality, a different result cannot be justified by relying on the element of illegality. The constitutional and statutory prohibition against süch conduct is extraneous to the due .process question, for it in no way renders the possibility of prejudice less remote or less speculative. If this were a borderline case on the facts, it might conceivably be appropriate to resolve the doubt against the State due to its complicity in the alleged unlawful discrimination. But, judging from all existing authority, this is not a close case at all.

The opinion of Mr. Justice White concurring in the judgment, as I read it, rests on the statutory prohibition against racially exclusive juries found in 18 U. S. C. § 243. The opinion draws on dictum in Hill v. Texas, 316 U. S. 400, 404 (1942), a case involving a .Negro , defendant, as expressing the “better view” that § 243 invalidates the conviction of any man tried before a jury from which persons have been excluded on account of race.

A closer look at the statute is warranted. From all indications,' § 243 was intended to serve two purposes: first, to make explicit what was implicit in the Fourteenth Amendment, that persons cannot be denied the right to serve on juries because of their race; and second, to prevent racial exclusions from juries by providing criminal penalties for persons violating the statutory command. See Ex parte Virginia, 100 U. S. 339 (1880); Neal v. Delaware, 103 U. S. 370, 386 (1881). Insofar as the statute is declarative of rights secured by the Equal Protection Clause," it provides no authority for reaching a- result that the Constitution itself does not require. No case has ever held that § 243 confers extra-constitutional rights on criminal defendants, and there is no support for the view that Congress intended to confer such rights when it enacted this legislation in 1875.

The opinion concurring in the judgment suggests that an expansive reading of § 243 is appropriate to “implement the strong statutory policy” against the exclusion of persons from jury service on the basis of race. Under this interpretation, the statute is viewed not so much as safeguarding the rights of the white defendant, but as providing a prophylaxis against discriminatory action in all cases, regardless of any harm that might befall the accused. While Congress surely had the power to implement the policies of the Fourteenth Amendment in this manner, it chose instead to deter such violations of the Fourteenth Amendment by imposing criminal sanctions. It has been apparent, at least until recently, that such sanctions have not satisfactorily served to deter.. But it is not for this Court to correct the inadequacies of a statutory enactment. Moreover, it does nothing to promote adherence to the policies of the Fourteenth Amendment to allow a criminal defendant who has made no objection at trial and who has no credible claim of personal prejudice to mount a post-conviction attack alleging that discriminatory jury selection has taken place in the past.

       The history of this litigation is long and- complicated. Petitioner was indicted on June 6, 1966. His first trial resulted in a conviction that was reversed on Fourth Amendment grounds, 114 Ga. App. 595, 152 S. E. 2d 647 (1966). A second trial, held on December 8, 1966, resulted in the conviction challenged here, which was affirmed, 115 Ga. App. 743, 156 S. E. 2d 195 (1967). Petitioner for the first time raised the claim of discriminatory jury selection in a petition for federal habeas corpus, which was summarily denied on July 5, 1967. The Court of Appeals affirmed on the ground that petitioner had failed to exhaust then-available state remedies with respect to his otherwise highly col-orable claim, 397 F. 2d 731, 735-741 (CA5 1968). Petitioner then filed a second petition for federal habeas corpus on the same ground, alleging that intervening state court decisions clearly foreclosed his claim in the state courts. That petition was denied on the grounds (1) that it was repetitious, (2) that petitioner had failed to exhaust, and (3) that his claims were lacking in merit. App. 15. The Court of Appeals again affirmed, rejecting the first two grounds and resting entirely on the third, i. e., rejecting petitioner’s substantive claims. 441 F. 2d 370 (1971). The exhaustion point thus having been resolved in petitioner’s favor below, the State quite properly does not press it here.

       See Brief for Appellee in Court of Appeals 28-43.

       The jury lists were made up from the tax digests, which were by law segregated according to race; moreover, the jury lists contained a proportion of Negroes much smaller than the proportion in the population or intthe tax digests.- The jury-selection system of Muscogee County, Georgia, was explored in detail and struck down as unconstitutional in Vanleeward v. Rutledge, 369 F. 2d 584 (CA5 1966), contemporaneously with petitioner’s trial. On petitioner’s first federal appeal, the Court of Appeals suggested, though it did not hold, that the Vanleeward findings and conclusions oh this point ihould be regarded as conclusive with respect to Peters, and thereby the expense and delay of a full evidentiary hearing might be avoided, 397 F. 2d, at 740.

       A number of state courts and lower federal courts have imposed a “same class” rule on challenges to discriminatory jury selection, holding that the exclusion of a class from jury service is subject to challenge only by a member of the excluded class. Only a few courts have rejected the rule; e. g., Allen v. State, 110 Ga. App. 56, 137 S. E. 2d 711 (1964) (not followed by other panels of same court); State v. Madison, 240 Md. 265, 213 A. 2d 880 (1965). The cases are collected, and criticized, in Note, The Defendant’s Challenge to a Racial Criterion in Jury Selection, 74 Yale L. J. 919 (1965). See also Note, The Congress, The Court and Jury Selection; 52 Va. L. Rev. 1069 (1966); This Court avoided passing on the "same class” rule in Fay v. New York, 332 U. S. 261, 289-290 (1947), and has never since then approved or rejected it.

       He also claims his own rights under the Equal Protection Clause have been violated, a claim we need not consider in light of our disposition.

        Alexander v. Louisiana, 405 U. S. 625 (1972); Arnold v. North Carolina, 376 U. S. 773 (1964); Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. Georgia, 350 U. S.. 85 (1955); Cassell v. Texas, 339 U. S. 282 (1950); Hill v. Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940); Pierre v. Louisiana, 306 U. S. 354 (1939); Rogers v. Alabama, 192 U. S. 226 (1904); Carter v. Texas, 177 U. S. 442 (1900); Bush v. Kentucky, 107 U. S. 110 (1883).

        Avery v. Georgia, 345 U. S. 559 (1953); Hollins v. Oklahoma, 295 U. S. 394 (1935).

        Sims v. Georgia, 389 U. S. 404 (1967); Jones v. Georgia, 389 U. S. 24 (1967) ; Whitus v. Georgia, 385 U. S. 545 (1967); Coleman v. Alabama, 377 U. S. 129 (1964); Patton v. Mississippi, 332 U. S. 463 (1947); Hale v. Kentucky, 303 U. S. 613 (1938); Norris v.
        Alabama, 294 U. S. 587 (1935); Martin v. Texas, 200 U. S. 316 (1906); Neal v. Delaware, 103 U. S. 370 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880).

       The principle of the representative jury was first articulated by this Court as a requirement of equal protection, in cases vindicating the right of a Negro defendant to challenge the systematic exclusion of Negroes from his grand and petit juries. E. g., Smith v. Texas, 311 U. S. 128, 130 (1940). Subsequently, in the exercise of its supervisory power over federal courts, this Court extended the principle, to permit any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. E. g., Glasser v. United States, 315 U. S. 60, 83-87 (1942); Thiel v. Southern, Pacific Co., 328 U. S. 217, 220 (1946); Ballard v. United States, 329 U. S. 187 (1946). Finally it emerged as an aspect of the constitutional right to jury trial in Williams v. Florida, 399 U. S. 78, 100 (1970).

       It is of course a separate question whether his challenge would prevail, i. e., whether the exclusion might be found to have sufficient justification. . See Rawlins v. Georgia, 201 U. S. 638, 640 (1906), holding that' a State may exclude certain occupational categories from jury service “on the bona fide ground that it [is] , for the good of the community that their regular work should not be interrupted.” We have no occasion here to consider what interests might justify an exclusion, or what standard should be applied, since the only question in this case is not the validity of an exclusion but simply standing to challenge it.

       Or the class may be expanded slightly to include white civil rights workers, see Allen v. State, 110 Ga. App. 56, 62, 137 S. E. 2d 711, 715 (1964) (alternative holding).

       In rejecting, for the federal courts, the exclusion of women from jury service, this Court made the following observations, which are equally relevant to the exclusion of other discernible groups:
      “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.” Ballard v. United States, 329 U. S. 187, 193-194 (1946) (footnote omitted).

        Hill v. Texas, 316 U. S. 400, 406 (1942).

      The passage quoted from Hill v. Texas, supra, even if taken at face value, does not mandate reversal in,this case. It is expressly limited to the case where “timely objection has laid bare a discrimination in the selection of grand jurors . , . .” 316 U. S., at 406. As indicated earlier, petitioner first made his allegations seven months after his trial. Moreover, assuming, arguendo, that there is a statutory right not to be tried before a racially exclusive jury, it is not clear to me why petitioner’s failure to raise the matter in the state courts should not preclude him from raising it on a. federal habeas attack. The Court has spoken of a presumption against the waiver of fundamental, constitutional rights, see, e. g., Johnson v. Zerbst, 304 U. S. 458, 464 (1938), but has never intimated that a similar presumption should apply with respect to statutory rights.


source: Caselaw Access Project

author: Me. Justice Powell Mr. Justice White,

license: Public Domain

text:
    BARKER v. WINGO, WARDEN
    No. 71-5255.
    Argued April 11, 1972
    Decided June 22, 1972
    Powell, J., .delivered the opinion for a unanimous Court. White, J., filed a concurring opinion, in which BkeNNAN, J., joined, post, p. 536.

      James E. Milliman argued the cause for petitioner pro hac vice. With him on the brief were Norvie L. Lay and J. Chester Porter.

      Robert W. Willmott, Jr.> Assistant Attorney General of Kentucky, argued the cause for respondent pro hac vice. With him on the brief was Ed W. Hancock, Attorney General.
    Briefs of amici curiae were filed by Solicitor General Griswold for the United States, and by Thomas D. Barr for the Lawyers Committee for Civil Rights Under Law.
   Me. Justice Powell

delivered the opinion of the Court.

Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, this Court has dealt with that right on infrequent occasions. See Beavers v. Haubert, 198 U. S. 77 (1905); Pollard v. United States, 352 U. S. 354 (1957); United States v. Ewell, 383 U. S. 116 (1966); United States v. Marion, 404 U. S. 307 (1971). See also United States v. Provoo, 17 F. R. D. 183 (D. Md.), aff’d, 350 U. S. 857 (1955). The Court’s opinion in Klopfer v. North Carolina, 386 U. S. 213 (1967), established that the right to a sjoeedy trial is “fundamental” and is imposed by the 'Due Process Clause of the Fourteenth Amendment on the States. See Smith v. Hooey, 393 U. S. 374 (1969); Dickey v. Florida, 398 U. S. 30 (1970). As Mr. Justice Brennan pointed out in his concurring opinion in Dickey, in none, of these cases have we attempted to set out the criteria-}?y which the speedy trial right is to be judged. 398 U. S., at 40-41. This case compels us to make such an attempt.

I

On July 20, 1958, in Christian County, Kentucky, an elderly couple was beaten to death by intruders wielding an iron tire tool. Two suspects, Silas Manning and Willie Barker, the petitioner, were arrested shortly thereafter. The grand jury indicted them on September 15. Counsel was appointed on September 17, and Barker’s trial was set for October 21. The Commonwealth had a stronger case against .Manning, and it believed that Barker could not be convicted unless Manning testified against him. Manning was naturally unwilling to incriminate himself. Accordingly, on October 23, the day Silas Manning was brought to trial, the Commonwealth sought and obtained the first of what was to be a series of 16 continuances of Barker’s trial. Barker made no objection. By first convicting Manning, the Commonwealth would remove possible problems of self-incrimination and would be able to assure his testimony against Barker.

The Commonwealth encountered more than a few difficulties in its prosecution of Manning. The first trial ended in a hung jury. A second trial resulted in a conviction, but the Kentucky Court of Appeals reversed because of the admission of evidence obtained by an illegal search. Manning v. Commonwealth, 328 S. W. 2d 421 (1959). At his third trial, Manning was again convicted, and the Court of Appeals again reversed because the trial court had not granted a change of venue. Manning v. Commonwealth, 346 S. W. 2d 755 (1961). A fourth trial résulted in á hung jury. Finally, after five trials, Manning was convicted, in March 1962, of murdering one victim, and after a sixth trial, in December 1962, he was convicted of murdering the other.

The Christian County Circuit Court holds three terms each year — in February, June, and September. Barker’s initial trial was to take place in the Septémber term of 1958. The first continuance postponed it until the February 1959 term. The second continuance was granted for one month only. Every term thereafter for as long as the Manning prosecutions were in process, the Comtr monwealth routinely moved to continue Barker’s case to thé next term. When the case was continued from the June 1959 term until the. following September, Barker, having spent 10 months in jail, obtained his release by posting a $5,000 bond. He thereafter remained free in the community until his trial. Barker made no objection, through his counsel, to the first 11 continuances.

When on February 12, 1962, the Commonwealth moved for the twelfth time to continue the case until the following term, Barker’s counsel filed a motion to dismiss the indictment. The motion to dismiss was denied two weeks later, and the Commonwealth’s motion for a continuance was granted. The Commonwealth was granted further continuances in June 1962 and Séptem-ber 1962, to which Barker did not object.

In February 1963, the first term of court following Manning’s final conviction, the Commonwealth moved to set Barker’s trial for March 19. But on the day scheduled for trial, it again moved for a continuance until the June term. It gave as its reason the illness of the ex-sheriff who was the chief investigating officer in the . case. To this continuance, Barker objected unsuccessfully.

The witness was still unable to testify in June, and the trial, which had been siet for June 19, was continued again until the September term over Barker’s ' objection. This time the court announced that the case would be dismissed for lack of prosecution if it were-not tried during the next term. The final trial date was set for October' 9, 1963. On that date, Barker again moved to dismiss the' indictment, and this time specified that his right to a speedy trial had been violated. The motion was denied; the trial commenced with Manning.as the chief prosecution witness; Barker was convicted and given a life, sentence.

Barker appealed his conviction to the Kentucky Court of Appeals, relying in part on his speedy trial claim. The court affirmed. Barker v. Commonwealth, 385 S. W. 2d 671 (1964). In February 1970 Barker petitioned for habeas corpus in the United States District Court for the Western District of Kentucky. Although the District Court rejected the petition without holding a hearing, the court granted petitioner leave to appeal in forma pauperis and a certificate of probable cause to appeal. On appeal, the Court of Appeals for the Sixth Circuit, affirmed the District Court. 442 F. 2d 1141 (1971). It ruled that Barker had waived his speedy trial claim for the entire period before February 1963, the date on which the court believed he had first objected to the delay by filing a motion to dismiss. In this belief the court was mistaken, for the record reveals that the motion was filed in February 1962. The Commonwealth so conceded at oral argument before this Court. The court held further that the remaining period after the date on which Barker first raised his claim and before his trial — which it thought was only eight months but which was actually 20 months — was not unduly long. In addition, the court held that Barker had shown no resulting prejudice, and that the illness of the ex-sheriff was a valid justification for the delay. We granted Barker’s petition for certiorari. 404 U. S. 1037 (1972).

II

The right to a speedy trial is generically different from any of the other , rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial • has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious and brutal murder of which he was ultimately convicted! Moreover, the longer an accused is free awaiting trial, the inore tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect , on rehabilitation.

. If an accused cannot make bail, he is generally confined, as was Barker for 10 months, in a local jail. This contributes to the overcrowding and generally deplorable . state of those institutions. Lengthy exposure to these ' conditions “has a destructive effect on human character and makes the rehabilitation of the individual offender much more difficult.” At times the result may even be violent rioting. Finally, lengthy pretrial detention is costly. The cost of maintaining a prisoner in jail varies from $3 to $9 per day, and this amounts to millions across the Nation. In addition, society loses wages which might have been earned, and it must often support families of incarcerated breádwinners. .

A second difference between the right to speedy trial and the accused’s other constitutional rights is that deprivation of the right may work to the accused’s advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.

Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossiblé to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial. If, for example, the- State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects. It is impossible to do more than generalize about when those circumstances exist. There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right to a jury trial. Thus, as we recognized in Beavers v. Haubert, supra, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case:

“The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It' does’not preclude the rights of public justice.” 198 U. S., at 87.

The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.

Ill

Perhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience jn protecting the right. The first suggestion is that we hold that the Constitution requires a criminal defendant' to be offered a trial within a specified time period. The result of such a ruling would have the virtue of clarifying when the right is infringed and of simplifying courts’ application of it. Recognizing this, some legislatures have enacted laws, and some courts have adopted procedural rules which more narrowly define the right. The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed. This type of rule is also recommended by the American Bar Association.

But such a result would require this Court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.

The second suggested alternative would restrict consideration of the right to those cases in which the accused has demanded a speedy trial. Most States have recognized what is loosely referred' to as the “demand rule,” although eight States reject it. It is not clear, however, precisely what is meant by that term. Although every federal court of appeals that has considered the question has endorsed some kind of demand rule, some have regarded the rule within the concept of waiver, whereas others have viewed it as a factor to be weighed in assessing whether there has been a deprivation of the speedy trial right. We shall' refer to the former approach as the demand-waiver doctrine. The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right. This essentially was the approach the Sixth Circuit took below.

Such an approach,, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights. The Court has defined waiver as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Courts should “indulge every reasonable presumption against waiver,” Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 393 (1937), and they should “not presume acquiescence in the loss of fundamental rights,” Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U. S. 292, 307 (1937). In Carnley v. Cochran, 369 U. S. 606 (1962), we held:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused . was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver.” Id., at 516.

The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e. g., Miranda v. Arizona, 384 U. S. 436, 475-476 (1966); Boykin v. Alabama, 395 U. S. 238 (1969).

In excépting the right to speedy trial from the rule of waiver we have applied to other fundamental rights, courts that have applied the demand-waiver rule have relied on the assumption that delay usually works for the benefit of the accused and on the absence of any readily ascertainable time in the criminal process for a defendant to be given the choice of exercising or waiving his right. But it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant’s ability to defend himself. Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.

The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society.has a particular interest in bringing swift prosecutions, and. society’s representatives are the ones who should protect that interest.

It is also noteworthy that such a rigid view of the demand-waiver rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client’s right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own, case, he may be unable to obtain a speedy trial for his client.at the end of that time. Since under the demand-waiver rule no time runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has been made. Thus, if the first demand is made three months after arrest in a jurisdiction which prescribes a six-month rule, the prosecution will have a total of nine months — which may be wholly unreasonable under the circumstances. The result in practice is likely to be either an automatic, pro forma demand made immediately after appointment of counsel or delays which, but for the demand-waiver rule, would not be tolerated. Such a result is not consistent with the interests of defendants, society, or the Constitution.

We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.

In ruling that a defendant has some responsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. Such cases have involved rights which must be exercised or waived at a specific time or under clearly identifiable circumstances, such as the rights to plead not guilty, to demand a jury trial, to exercise the privilege against self-incrimination, and to have the assistance of counsel. We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.

We, therefore, reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is*>a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

IV

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether. a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of. delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should bé assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather, than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

We have already discussed the third factor, the defendant’s responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength óf his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety .and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior, to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. See cases cited in n. 33, supra.

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult- and sensitive balancing process. But, because we are dealing with a fundamental right pf the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

V

The difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial — well over five years — was extraordinary. Only seven months of that period can be attributed to a strong excuse, the illness of the ex-sheriff who was in charge of the investigation. Perhaps some delay would have been permissible under ordinary circumstances, so that Manning could be utilized as a witness in Barker’s trial, but more than four years was too long a period, particularly since a good part of that period was attributable to the Commonwealth’s failure or inability to try Manning under circumstances that comported with due process.

Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living fop,, over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker’s witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory — one on the part of a prosecution witness — which were in no way significant to the outcome.

More important than the absence of serious prejudice, is the fact that Barker did not want a speedy trial. Counsel was appointed for Barker immediately after his indictment and represented him throughout the period. No question is raised as to the competency of such counsel. Despite the fact that counsel had notice of the motions for continuances, the record shows no action whatever taken between October 21, 1958, and February 12, 1962, that could be construed as the assertion of the speedy trial right. On the latter date, in response to another motion for continuance, Barker moved to dismiss the indictment. The record does not show on what ground this motion was based, although it is clear that no alternative motion was made for an immediate trial. Instead the • record strongly suggests that while he hoped to take, advantage of the delay in which he had acquiesced and thereby obtain a dismissal of the charges, he definitely did not want to be tried. Counsel conceded as much at oral argument:

“Your honor, I would concede that Willie Mae Barker probably — I don’t know this for a fact— probably did not want to be tried. I don’t think any man wants to be tried. And I don’t consider this a liability on his behalf. I don’t blame him.” Tr. of Oral Arg. 39.

The probable reason for Barker’s attitude was that he was gambling on Manning’s acquittal. The evidence was not very strong against Manning, as the reversals and hung juries suggest, and Barker undoubtedly thought that if Manning were acquitted, he would never be tried. Counsel also conceded this:

“Now, it’s true that the reason for this delay was the Commonwealth of Kentucky’s desire to secure the testimony of the accomplice, Silas Manning. And it’s true that if Silas Manning were never convicted, Willie Mae Barker would never have been convicted. We concede this.” Id., at 15.

That Barker was gambling on Manning’s acquittal is also • suggested by ■ his failure, following the pro forma motion to dismiss filed in February 1962, to object to the. Commonwealth’s next two motions for continuances. Indeed, it was not until March 1963, after Manning’s convictions were ■ final, that Barker, having lost his gamble, began to object to further continuances. At that time, the Commonwealth’s excuse was the illness of the ex-sheriff, which Barker has conceded justified the further delay.

We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant- has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional, right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. We hold, therefore, that Barker was not deprived of his due process right to a speedy trial.

The judgment of the Court of Appeals is

Affirmed.

Mr. Justice White,

with whom Mr. Justice Brennan joins, concurring.

Although the Court rejects petitioner’s, speedy trial claim and affirms denial of his petition for habeas corpus, it is apparent that had Barker not so clearly acquiesced in the major delays involved in this case, the result would have been otherwise. From the Commonwealth’s point of view, it is fortunate that the case was set for early trial and that postponements took place only upon formal requests to which Barker had opportunity to object.

Because the Court broadly assays the factors going into constitutional judgments under the speedy trial provision, it is appropriate to emphasize that one of the major purposes of the provision is to guard against inordinate delay between public charge and trial, which,wholly aside from possible prejudice-to a defense on the merits, may “seriously interfere with the defendant’s liberty, whether he is free on.bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” United States v. Manon, 404 U. S. 307, 320 (1971). These factors are more serious for some than for others, but they are inevitably present in every case- to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty. It is also, true that many defendants will believe that time is on their side and will prefer to suffer whatever disadvantages delay may entail. But, for those who desire an early trial, these personal factors should prevail if the only countervailing considerations offered by the State are those connected with crowded dockets and prosecutorial case loads. A defendant desiring a speedy trial, therefore, should have it within some reasonable time; and only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay. Only if such special considerations are in the case and if they outweigh the inevitable personal prejudice resulting from delay would it be necessary to consider whether there has been or would be prejudice to the defense at trial. “[T]he major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.” United States v. Marion, supra, at 320.

Of course, cases will differ among themselves as to the allowable time between charge and trial so as to. permit prosecution and. defense adequately to prepare their case. But unreasonable delay in run-of-the-mill, criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal-justice system are limited and that each case must await its turn. As the Court points out, this approach also subverts the State’s own goals in seeking to enforce its criminal laws.

       The Sixth Amendment provides:
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

       “We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment.” 386 U. S., at 223.

       There is no explanation in the record why, although Barker’s initial trial, was set for October 21, no continuance was sought until October 23, two days after the trial should have begun.

       Apparently Maiming chose not to appeal these final two convictions.

       The written motion Barker filed alleged that he had objected to every continuance since February 1959. The record does not reflect any objections until the motion to dismiss, filed in February 1962, and the objections to the continuances sought by the Commonwealth in March 1963 and June 1963.

       Tr. of Oral Arg. 33.

       Report of the President’s Commission on Crime in the District of Columbia 256 (1966).

       In Washington, D. C., in 1968, 70.1% of the persons arrested for robbery and released prior to trial were re-arrested while-on bail. Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev. 1223, 1236 (1969), citing Report of the Judicial Council. Committee to Study the Operation of the Bail Reform Act in the District of Columbia 20-21 (1969).

       The number of these offenses has been increasing. See Annual Report of the Director of the Administrative Office of the-United States Courts, 1971, p. 321.

       “[I]t is desirable that punishment should follow .offence as closely as possible; for its impression upon the minds of men is weakened by distance, and, besides, distance adds to the uncertainty of punishment, by affording new chances of escape.” J. Bentham, The Theory of Legislation 326 (Ogden ed. 1931).

       To Establish Justice, To Insure Domestic Tranquility, Final Report of the National Commission on the Causes and Prevention of Violence 152 (1969).

       Testimony of James V. Bennett, Director, Bureau of Prisons, Hearings on Federal Bail Procedures before the Subcommittee on Constitutional Rights and the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 88th Cong., 2d Sess., 46 (1964).

         E. g., the “Tombs” riots in New York City in 1970. N. Y. Times, Oct. 3,1970, p. 1; col. 8.

       The Challenge of Crime in a Free Society, A Report-by the President’s Commission on Law Enforcement and Administration of Justice 131 (1967).

       “[I]n large measure because of'the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious' effect both upon the rights of the accused and upon the ability of .society to protect itself.” United States v. Ewell, 383 U. S. 116, 120 (1966).

       Mr. Justice White noted in his opinion for the Court in Ewell, supra, at 121, that overzealous application of this remedy would infringe “the societal interest in trying people accused of crime, rather than granting them immunization because of legal error. . . .”

       For examples, see American Bar Association Project on Standards for Criminal Justice, Speedy Trial 14-16 (Approved Draft 1968); Note, The Right, to & Speedy Criminal Trial, 57 Col. L. Rev. 846, 863 (1957).

       Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (1971).

       ABA Project, supra, n. 17, at 14. For an example of a proposed statutory rule, see Note, The Lagging Right to a Speedy Trial, 51 Va. L. Rev. 1587, 1619 (1965).

        E. g., Pines v. District. Court of Woodbury County, 233 Iowa 1284, 10 N. W. 2d 574 (1943). See generally Note, The Right to a Speedy Criminal Trial, 57 Col. L. Rev. 846, 853 (1957); Note, The Lagging Right to a Speedy Trial, 51 Va. L. Rev. 1587, 1601-1602 (1965).

       See State v. Maldonado, 92 Ariz. 70, 373 P. 2d 583 (ere banc), cert. denied, 371 U. S. 928 (1962) ; Hicks v. People, 148 Colo. 26, 364 P. 2d 877 (1961) (ere banc); People v. Prosser, 309 N. Y. 353, 130 N. E. 2d 891 (1955); Zehrlaut v. State, 230 Ind. 175,102 N. E. 2d 203 (1951); Flanary v. Commonwealth, 184 Va. 204, 35 S. E. 2d 135 (1945); Ex parte Chalfant, 81 W. Va. 93, 93 S. E. 1032 (1917); State v. Hess, 180 Kan. 472, 304 P. 2d 474 (1956); State v. Dodson, 226 Ore. 458, 360 P. 2d 782 (1961). But see State v. Vawter, 236 Ore. 85, 386 P. 2d 915 (1963).

       See United States v. Hill, 310 F. 2d 601 (CA4 1962); Bruce v. United States, 351 F. 2d 318 (CA5 1965), cert. denied, 384 U. S. 921 (1966); United States v. Perez, 398 F. 2d 658 (CA7 1968), cert. denied, 393 U. S. 1080 (1969); Pietch v. United States, 110 F. 2d 817 (CA10), cert. denied, 310 U. S. 648 (1940); Smith v. United States, 118 U. S. App. D. C. 38, 331 F. 2d 784 (1964) (ere banc). The opinion below in this case demonstrates that the Sixth Circuit takes a similar approach.
      As an indication of the importance which these courts have attached to the demand rule, see Perez, supra, in which the court held that a defendant waived any speedy trial claim, because he knew of an indictment and made no demand for an immediate trial, even though the record gave no indication that he was represented by counsel at the time when he should have'made his demand, and even though he was not informed by the court or the prosecution of his right to a speedy trial.

       Although stating that they recognize a demand rule, the approach of the Eighth and Ninth Circuits seems to be that a denial of speedy trial can be found despite an absence of a demand under some circumstances. See Bandy v. United States, 408 F. 2d 518 (CA8 1969) (a purposeful or oppressive delay may overcome a failure to demand); Moser v. United States, 381 F. 2d 363 (CA9 1967) (despite a failure to demand, the court balanced other considerations).
      The Second Circuit’s approach is unclear. There are cases in which a failure to demand is strictly construed- as a waiver. E. g., United States v. DeMasi, 445 F. 2d 251 (1971). In other cases, the court has seemed to be willing to consider claims in which there was no demand. E. g., United States ex rel. Solomon v. Mancusi, 412 F. 2d 88, cert. denied, 396 U. S. 936 (1969). Certainly the District Courts in the Second Circuit have not regarded the demand rule as being rigid. See United States v. Mann, 291 F. Supp. 268 (SDNY 1968); United States v. Dillon, 183 F. Supp. 541 (SDNY 1960).
      The First Circuit also seems to reject the more rigid approach. Compare United States v. Butler, 426 F. 2d 1275 (1970), with Needel v. Scafati, 412 F. 2d 761, cert. denied, 396 U. S. 861 (1969).

       See n. 2, supra.

       “If a defendant deliberately by passes state procedure for some strategic, tactical, or other reason, a federal judge on habeas corpus may deny relief if he finds that the by-passing was the considered choice of the petitioner. The demand doctrine presupposes that failure to demand trial is a deliberate choice for supposed advantage on the assumption that delay always benefits the accused, but the delay does not inherently benefit the accused any more than it does the state. Consequently, a man should not be presumed to have exercised a deliberate choice because of silence or inaction that could equally mean that he is unaware of the necessity for a demand.” Note, The Lagging Right to a Speedy Trial, 51 Va. L. Rev. 1587, 1610 (1965) (footnotes omitted).

       As Mr. Chief Justice Burger wrote for the Court, in. Dickey v. Florida:

      “Although a great many accused persons seek' to put off the com frontation as long as possible, the right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.” 398 U. S. 30, 37-38 (1970) (footnote omitted).

       As a circuit judge, Mr. Justice BlackmuN wrote:
      “The government and, for that matter, the trial court are not without responsibility for the expeditious trial of criminal cases. The burden for trial promptness is not solely upon the defense. The right to ‘a speedy . . . trial’ is constitutionally guaranteed and, as such, is not to be honored only for the vigilant and the knowledgeable.” Hodges v. United States, 408 F. 2d 543, 551 (CA8 1969).

       The American' Bar Association also rejects the rigid demand-waiver rule:
      “One reason for this' position is that there are a number of situations, such as where the defendant is unaware of the charge or where the defendant is without counsel, in which it is unfair to require a demand .... Jurisdictions with a demand requirement are faced with the continuing problem of defining exceptions, a process which has not always been carried out with uniformity .... More important, the demand requirement is inconsistent with the public interest in prompt disposition of criminal cases. . . . [T]he trial of a criminal , case should not be unreasonably delayed merely because the defendant does not think that it is in his best interest to seek prompt disposition of the charge.” ABA Project, supra, n. 17, at 17. .

       Nothing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought. See n. 18, supra.

       See, e. g., United States v. Simmons, 338 F. 2d 804, 807 (CA2 1964), cert. denied, 380 U. S. 983 (1965); Note, The Right to a Speedy Trial, 20 Stan. L. Rev. 476, 478 n. 15 (1968).
      In his concurring opinion in Dickey, Mr. Justice Brennan identified three factors for consideration: the source of the delay, the reasons for it, and whether the delay prejudiced the interests protected by the right. 398 U. S., at 48. He included consideration of the defendant's failure to assert his right in the cause-of-delay category, and he thought the length of delay was relevant primarily to the reasons for delay and its prejudicial effects. Id., n. 12. In essence, however, there is little difference between his approach and the one we adopt today. See also Note, The Right to a Speedy Trial, supra, for another slightly different approach.

       For example, the First Circuit thought a delay of nine months overly long, absent a good reason, in a case that depended on eyewitness testimony. United States v. Butler, 426 F. 2d 1275, 1277 (1970).

       We have indicated on previous occasions that it is improper for the prosecution intentionally to delay “to gain some tactical advantage over [defendants] or to harass them.” United States v. Marion, 404 U. S. 307, 325 (1971). See Pollard v. United States, 352 U. S. 354, 361 (1957).

        United States v. Ewell, 383 U. S., at 120; Smith v. Hooey, 393 U. S. 374, 377-378 (1969). In Klopfer v. North Carolina, 386 U. S. 213, 221-222 (1967), we indicated that a defendant awaiting trial on bond might be subjected to public scorn, deprived of employment, and chilled in the exercise of his right to speak for, associate with, and participate in unpopular political causes.

       See To Establish Justice, To Insure Domestic Tranquility, Final Report of the National Commission on the Causes and Prevention of Violence 152 (1969).

       There is statistical evidence that persons who are detained between arrest and trial are more likely to receive prison séntences than those.who obtain pretrial release, although other factors bear upon this correlation. See Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study, 39 N. Y. U. L. Rev. 631 (1964).

       For an example of how the speedy trial issue should be approached, see Judge Frankel’s excellent opinion in United States v. Mam, 291 F. Supp. 268 (SDNY 1968).

       Tr. of Oral Arg. 39.

        Id., at 4.

       Hindsight is, of course, 20/20, but we cannot help noting that if Barker had moved immediately and persistently for a speedy trial following indictment, and if he had been successful, he would have undoubtedly been acquitted since Manning’s testimony was crucial to the Commonwealth’s case. It could not have been anticipated at the outset, however, that Manning would have been tried six times over a four-year period. Thus, the decision to gamble on Manning’s acquittal may have been a prudent choice at the time it was made.

       At oral argument, counsel for Barker stated i
      “That was after the sheriff, the material witness, was ill; the man who had arrested the petitioner,’ yes. And the Sixth Circuit held that this was a sufficient reason for delay, and we don’t deny this. We concede that this was sufficient for the delay from March 1963 to October, but it does.not explain the delays prior to that.” Tr. of Oral Arg. 19-20.