author: Per Curiam. Mr. Justice Douglas,

text:
    BOARD OF SCHOOL COMMISSIONERS OF THE CITY OF INDIANAPOLIS et al. v. JACOBS et al.
    No. 73-1347.
    Argued December 11, 1974
    Decided February 18, 1975

      Lila J. Young argued the cause for petitioners. With her on the briefs were Harold H. Bredell and Lawrence McTurnan.

      Craig Eldon Pinkus argued the cause for respondents. With him on the brief was Ronald E. Elberger.

   Per Curiam.

This action was brought in the District Court by six named plaintiffs seeking to have declared unconstitutional certain regulations and rules promulgated by the petitioner Board and to have the enforcement of those regulations and rules enjoined, as well as seeking other relief no longer relevant to this case. In the complaint, the named plaintiffs stated that the action was brought as a class action pursuant to Fed. Rules Civ. Proc. 23 (a) and (b)(2), and further stated that “[pjlaintiff class members are all high school students attending schools managed, controlled, and maintained by the Board of School Commissioners of the City of Indianapolis.” At the time this action was brought, plaintiffs were or had been involved in the publication and distribution of a student newspaper, and they alleged that certain actions taken by petitioner Board or its subordinates, as well as certain of its rules and regulations, interfered or threatened to interfere with the publication and distribution of the newspaper in violation of their First and Fourteenth Amendment rights. The plaintiffs (respondents here) prevailed on the merits of their action in the District Court, 349 F. Supp. 605 (SD Ind. 1972), and the Court of Appeals, one judge dissenting in part, affirmed, 490 F. 2d 601 (CA7 1973). Petitioners brought the case to this Court, and we granted certiorari, 417 U. S. 929 (1974). At oral argument, we were informed by counsel for petitioners that all of the named plaintiffs in the action had graduated from the Indianapolis school system; in these circumstances, it seems clear that a case or controversy no longer exists between the named plaintiffs and the petitioners with respect to the validity of the rules at issue. The case is therefore moot unless it was duly certified as a class action pursuant to Fed. Rule Civ. Proc. 23, a controversy still exists between petitioners and the present members of the class, and the issue in controversy is such that it is capable of repetition yet evading review. Sosna v. Iowa, 419 U. S. 393 (1975). Because in our view there was inadequate compliance with the requirements of Rule 23 (c), we have concluded that the case has become moot.

The only formal entry made by the District Court below purporting to certify this case as a class action is contained in that court’s “Entry on Motion for Permanent Injunction,” wherein the court “conclude [d] and ordered” that “the remaining named plaintiffs are qualified as proper representatives of the class whose interest they seek to protect.” 349 F. Supp., at 611. No other effort was made to identify the class or to certify the class action as contemplated by Rule 23 (c)(1); nor does the quoted language comply with the requirement of Rule 23 (c)(3) that “[t]he judgment in an action maintained as a class action under subdivision ... (b)(2) . . . shall include and describe those whom the court finds to be members of the class.” The need for definition of the class purported to be represented by the named plaintiffs is especially important in cases like this one where the litigation is likefy to become moot as to the initially named plaintiffs prior to the exhaustion of appellate review. Because the class action was never properly certified nor the class properly identified by the District Court, the judgment of the Court of Appeals is vacated and the case is remanded to that court with instructions to order the District Court to vacate its judgment and to dismiss the complaint.

So ordered.

Mr. Justice Douglas,

dissenting.

In Sosna v. Iowa, 419 U. S. 393 (1975), we found no mootness problem where a named plaintiff belatedly satisfied the durational residency requirement which she had initially sought to attack. Our holding to that effect was based upon three factors which we found present in that case: (1) a certification of the suit as a class action; (2) a continuing injury suffered by other members of the class; and (3) a time factor which made it highly probable that any single individual would find his claim inevitably mooted before the full course of litigation had been run. Applying those principles to the present case, I would hold that an Art. Ill controversy exists and that the parties are therefore entitled to a ruling on the merits.

This suit was instituted as a class action on behalf of all high school students attending Indianapolis public schools. The record does not contain any written order formally certifying the class, but the absence of such a written order is too slender a reed to support a holding of mootness, particularly in the face of the incontrovertible evidence that certification was intended and did, in fact, take place. At the close of the second day of the proceedings on plaintiffs’ application for a temporary restraining order, the District Judge stated: “I will make a finding that this is an appropriate action, or a class action is appropriate insofar as this controversy is concerned.” Later, in his written opinion, he stated that the two named plaintiffs who had not graduated by the time of these proceedings were “qualified as proper representatives of the class whose interest they seek to protect.” 349 F. Supp. 605, 611. At oral argument, moreover, counsel for the Board of School Commissioners stated, in response to a question from us, that there had been a declaration of certification of class action. The findings of the lower court, coupled with the representations of counsel for the petitioners, provide, in my view, a more than ample basis for holding that the first Sosna criterion has been met.

The Court today, however, purports to find this case distinguishable from Sosna in terms of the adequacy of compliance below with the requirements of Fed. Rule Civ. Proc. 23 (c). A review of the record in Sosna discloses that the judgment entered by the District Court in that case does not in any way “include and describe those whom the court finds to be members of the class,” as required by Rule 23 (c) (3); nor is there anything in the record identifiable as a separate certification of the class in the sense which the Court finds to be contemplated by Rule 23 (c) (1). The District Court in Sosna, in its pretrial order, adopted a stipulation of the parties to the effect that the prerequisites for a class action were met, and that there were numerous persons barred by Iowa’s residency requirement from having their marriages dissolved; and in its final opinion, the District Court incorporated a bare reference to the fact that the suit was being treated as a class action. Sosna v. Iowa, 360 F. Supp. 1182, 1183 n. 5 (ND Iowa 1973). If these two factors alone were sufficient to establish proper certification of the class in Sosna, then I am at a loss to see why the factors catalogued earlier are not sufficient to establish proper certification in the instant case.

It is undoubtedly true that many federal district judges have been careless in their dealings with class actions, and have failed to comply carefully with the technical requirements of Rule 23. If we are to embark upon a program of scrupulous enforcement of compliance with those requirements, so be it; the end result may well be to avoid troublesome mootness problems of the sort which arose both here and in Sosna. Elementary principles of fairness to litigants suggest, however, that we should be reluctant to throw these respondents entirely out of court for their failure to induce the District Court to comply with technical requirements, when those requirements clearly were not being strictly enforced during the pend-ency of this litigation in the lower courts. And in particular, these principles of fairness suggest that the Court ought to provide a more reasoned explanation than it has given today for the difference in treatment which it has accorded to the appellants in Sosna and to the respondents herein.

With respect to the second Sosna criterion, it is clear that the Board intends to enforce the regulations struck down by the courts below unless it is flatly barred from doing so. A continuing dispute therefore exists between the Board and the members of the class, unless it can be said with some assurance that there are no class members who desire either to resurrect the “Corn Cob Curtain” or to distribute some comparable “underground” publication. The mere statement by counsel for the Board that the Corn Cob Curtain “is no longer in existence” can hardly be deemed to provide that assurance; to the contrary, the Board’s very insistence on the need for enforceable regulations reinforces the likelihood that the desire for unfettered expression will continue to breed clashes between Indianapolis high school students and the Board’s proposed regulations. The inference of a continuing controversy is, in my view, just as strong as that which we found sufficient in Sosna.

The Court’s readiness to find this controversy moot is particularly distressing in light of the issues at stake. True, there is no absolute time factor (such as that in Sosna) which will inevitably moot any future litigation over these regulations before it reaches a conclusion; it is conceivable that another plaintiff in a subsequent suit will be able to avoid the trap of mootness which the Court has sprung upon these unwitting parties. In remitting the underlying issues of this case to the course of some future, more expeditious lawsuit, however, we permit the Board to continue its enforcement, for an indefinite period of time, of regulations which have been held facially unconstitutional by both of the courts below. In allowing the Board to reimpose its system of prior restraints on student publications, wé raise a very serious prospect of the precise sort of chilling effect which has long been a central concern in ouf First Amendment decisions. New York Times Co. v. United States, 403 U. S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Blount v. Rizzi, 400 U. S. 410 (1971); Freedman v. Maryland, 380 U. S. 51 (1965); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Any student who desires to express his views in a manner which may be offensive to school authorities is now put on notice that he faces not only a threat of immediate suppression of his ideas, but also the prospect of a long and arduous court battle if he is to vindicate his rights of free expression. Not the least inhibiting of all these factors will be the knowledge that all his efforts may come to naught as his claims are mooted by circumstances beyond his control.

In view of these likely consequences of today’s decision, I am unable to join in the Court’s rush to avoid resolving this case on the merits.

      The named plaintiffs sought expunction from their respective records of certain information and compensatory and punitive damages against petitioners. These prayers for relief were denied by the District Court for failure of proof and no appeal was taken from this decision.

       Tr., Aug. 25, 1972, p. 368. This statement was made immediately after a discussion of whether the four plaintiffs who had previously graduated could be "proper representatives of a class,” ibid..; while tentatively holding that they could not, the District Judge permitted the action to continue in the names of the two plaintiffs who had not yet graduated. Ibid.; 349 F. Supp. 605, 611.

       Respondents’ complaint alleged that the plaintiff class members were “all high school students attending schools managed, controlled, and maintained by the Board of School Commissioners of the City of Indianapolis.” While there had been a suggestion in the trial court that the class might be broadened to include all Indianapolis public school students, it was conceded in the Court of Appeals that the case was concerned only with the application of petitioners’ rules in high schools. 490 F. 2d 601, 610. This concession is consistent with the scope of the class as defined in the complaint, and with the District Court’s obvious intent in finding the named plaintiffs to be “proper representatives of the class whose interest they seek to 'protect” (emphasis added). I see no serious problem, therefore, in defining the proper and intended scope of the class as approved by the trial court.

       Tr. of Oral Arg. 11.

       The Court of Appeals adverted at one point in its opinion to the issue of whether “plaintiffs or class members” would be bound by the judgment, 490 F. 2d, at 603, a reference which might be taken to suggest that that court as well harbored no doubts as to whether the suit was in fact proceeding as a class action.

       Tr. of Oral Arg. 4, 5.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    TRAIN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY v. CAMPAIGN CLEAN WATER, INC.
    No. 73-1378.
    Argued November 12, 1974
    Decided February 18, 1975

      Solicitor General Bork argued the cause for petitioner. With him on the briefs were Assistant Attorney General Hills, Deputy Solicitor General Friedman, Edmund W. Kitch, William L. Patton, Robert E. Kopp, Eloise E. Davies, and David M. Cohen.

      W. Thomas Jacks argued the cause for respondent. With him on the brief was Alan B. Morrison.

      Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, pro se, Robert H. O’Brien, Senior Assist-ant Attorney General, and Nicholas C. Yost, Deputy Attorney General, for the Attorney General of California; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Charles Alpert, Assistant Attorneys General, for the State of Michigan; by Warren Spannaus, Attorney General, Byron E. Starns, Deputy Attorney General, Peter W. Sipkins, Solicitor General, and Eldon G. Kaul, Special Assistant Attorney General, for the State of Minnesota; by William J. Brown, Attorney General, and Richard P. Fahey, and David E. Northrop, Assistant Attorneys General, for the State of Ohio; by John L. Hill, Attorney General, Larry F. York, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General of Texas, Robert W. Warren, Attorney General, and Theodore L. Priebe, Assistant Attorney General of Wisconsin, John C. Danforth, Attorney General, and Robert M. Lindholm, Assistant Attorney General of Missouri, Larry Derryberry, Attorney General, and Paul C. Duncan, Assistant Attorney General of Oklahoma, and Tern Miller, Attorney General, and Curt T. Schneider, Assistant Attorney General of Kansas, for the States of Texas, Wisconsin, Missouri, Oklahoma, and Kansas; by Andrew P. Miller, Attorney General, Gerald L. Baliles, Deputy Attorney General, and James E. Ryan, Jr., Assistant Attorney General, for the Commonwealth of Virginia; by Slade Gorton, Attorney General, Charles B. Roe, Jr., Senior Assistant Attorney General, and Martin J. Durkan and James B. McCabe, Special Assistant Attorneys General of Washington, and Israel Packel, Attorney General, and James R. Adams, Deputy Attorney General of Pennsylvania, for the State of Washington and the Commonwealth of Pennsylvania; and by Fletcher N. Baldwin, Jr., for the Center for Governmental Responsibility.

   Pee Curiam.

On January 15, 1973, respondent filed a complaint in the District Court seeking to compel the petitioner, as Administrator of the Environmental Protection Agency, to allot among the States the full sums authorized to be appropriated for fiscal years 1973 and 1974 by § 207 of the Federal Water Pollution Control Act, as added by the Amendments of 1972, 86 Stat. 839, 33 U. S. C. § 1287 (1970 ed., Supp. II), for federal grants to municipalities for construction of publicly owned waste treatment works. Although conceding in the trial court that the Administrator had a measure of discretion in making the allotments authorized by § 205 of the Act, 86 Stat. 837, 33 U. S. C. § 1285 (1970 ed., Supp. III), respondent asserted that the Administrator had abused his discretion by allotting only 45% of the sums authorized to be appropriated by § 207. In sustaining respondent’s position, the District Court rejected the holding by the United States District Court for the District of Columbia in City of New York v. Ruckelshaus, 358 F. Supp. 669 (1973), that the Administrator has no discretion to allot less than the full amounts authorized by the Act. The Court of Appeals proceeded on the premise that there was discretion to control or delay allotments but concluded that further proceedings were essential to determine whether the Administrator’s discretion had been abused. The Administrator petitioned for certiorari, asserting that the exercise of his discretion to allot funds under § 205 is not subject to judicial review. We granted certiorari, 416 U. S. 969 (1974), and heard the case with Train v. City of New York, ante, p. 35.

We held in Train v. City of New York that the Administrator has no authority under § 205 to allot less than the full amounts sought to be appropriated under § 207. Because that holding is at odds with the premise underlying the judgment of the Court of Appeals, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion and with the opinion in Train v. City of New York.

So ordered.

Mr. Justice Douglas concurs in the result.

      The petition also asserted that the doctrine of sovereign immunity foreclosed ordering the Administrator to allot funds that he had withheld in the course of exercising his discretion under the Act. In light of Train v. City of New York, ante, p. 35, and our disposition of the instant case, we need not address this question.


author: Per Curiam.

text:
    LEE et al. v. THORNTON, DISTRICT DIRECTOR, UNITED STATES CUSTOMS SERVICE, et al.
    No. 73-7006.
    Decided February 18, 1975
   Per Curiam.

Appellants brought actions in the District Court for the District of Vermont that challenged the constitutionality, facially and as applied, of various provisions of the customs laws, 46 Stat. 717 and 757, as amended, 19 U. S. C. §§ 1460 and 1618, that mandate procedures to effect forfeiture and remission or mitigation of penalties imposed after Border Patrol agents apprehended them and seized their vehicles when they crossed the border from Canada without passing through a customs station. The complaints sought (1) declaratory judgments that the challenged provisions were unconstitutional, (2) injunctions against their enforcement, (3) mandamus relief requiring the return of moneys paid as mitigated forfeitures or penalties based on violations of the customs laws, and (4) damages. A three-judge court was convened. The court held that it had jurisdiction under the Tucker Act, 28 U. S. C. § 1346 (a)(2), rejected appellants’constitutional claims, enjoined appel-lees from applying the customs laws except as construed by the court, declined to remit appellants’ fines, and returned to the single-judge District Court the question of damages.

The District Court held that it had jurisdiction of the complaints under the Tucker Act, and did not address other alternative bases of jurisdiction asserted in the complaints. The jurisdiction of the district courts under the Tucker Act over “[a]ny . . . civil action or claim against the United States . . . founded either upon the Constitution, or any Act of Congress . . .” does not include jurisdiction over appellants’ claims to enjoin enforcement of the challenged provisions of the customs laws. The Tucker Act empowers district courts to award damages but not to grant injunctive or declaratory relief. Richardson v. Morris, 409 U. S. 464 (1973); United States v. King, 395 U. S. 1 (1969); United States v. Sherwood, 312 U. S. 584, 589-591 (1941). It follows that the three-judge court was improperly convened, and this Court therefore has no jurisdiction to entertain the appeal based on the District Court’s refusal to grant injunctive relief founded on appellants’ additional constitutional claims. Appellants’ motion for leave to proceed in forma pauperis is granted, the judgment of the District Court is vacated, and the case is remanded for consideration of appellants’ other asserted bases of jurisdiction.

So ordered.

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


author: Mr. Chief Justice Burger Mr. Justice Blackmun, Mr. Justice Stewart,

text:
    UNITED STATES et al. v. BISCEGLIA
    No. 73-1245.
    Argued November 11-12, 1974
    Decided February 19, 1975

      Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General Bork, Assist

      ant Attorney General Crampton, and Deputy Solicitor General Wallace.

      William A. Watson argued the cause and filed a brief for respondent.

      The American Bankers Assn, filed a brief as amicus curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve the question whether the Internal Revenue Service has statutory authority to issue a “John Doe" summons to a bank or other depository to discover the identity of a person who has had bank transactions suggesting the possibility of liability for unpaid taxes.

I

On November 6 and 16, 1970, the Commercial Bank of Middlesboro, Ky., made two separate deposits with the Cincinnati Branch of the Federal Reserve Bank of Cleveland, each of which included $20,000 in $100 bills. The evidence is undisputed that the $100 bills were “paper thin” and showed signs of severe disintegration which could have been caused by a long period of storage under abnormal conditions. As a result the bills were no longer suitable for circulation and they were destroyed by the Federal Reserve in accord with established procedures. Also in accord with regular Federal Reserve procedures, the Cincinnati Branch reported these facts to the Internal Revenue Service.

It is not disputed that a deposit of such a large amount of high denomination currency was out of the ordinary for the Commercial Bank of Middlesboro; for example, in the 11 months preceding the two $20,000 deposits in $100 bills, the Federal Reserve had received only 218 $100 bills from that bank. This fact, together with the uniformly unusual state of deterioration of the $40,000 in $100 bills, caused the Internal Revenue Service to suspect that the transactions relating to those deposits may not have been reported for tax purposes. An agent was therefore assigned to investigate the matter.

After interviewing some of the bank’s employees, none of whom could provide him with information regarding the two $20,000 deposits, the agent issued a “John Doe” summons directed to respondent, an executive vice president of the Commercial Bank of Middlesboro. The summons called for production of “[t]hose books and records which will provide information as to the person(s) or firm(s) which deposited, redeemed or otherwise gave to the Commercial Bank $100 bills U. S. Currency which the Commercial Bank sent in two shipments of (200) two hundred each $100 bills to the Cincinnati Branch of the Federal Reserve Bank on or about November 6, 1970 and November 16, 1970.” This, of course, was simply the initial step in an investigation which might lead to nothing or might have revealed that there had been a failure to report money on which federal estate, gift, or income taxes were due. Respondent, however, refused to comply with the summons even though he has not seriously argued that compliance would be unduly burdensome.

In due course, proceedings were commenced in the United States District Court for the Eastern District of Kentucky to enforce the summons. That court narrowed its scope to require production only of deposit slips showing cash deposits in the amount of $20,000 and deposit slips showing cash deposits of $5,000 or more which involved $100 bills, and restricted it to the period between October 16, 1970, and November 16, 1970. Respondent was ordered to comply with the summons as modified.

The Court of Appeals reversed, holding that § 7602 of the Internal Revenue Code of 1954, 26 U. S. C. § 7602, pursuant to which the summons had been issued, “presupposes that the [Internal Revenue Service] has already identified the person in whom it is interested as a taxpayer before proceeding.” 486 F. 2d 706, 710. We disagree, and reverse the judgment of the Court of Appeals.

II

The statutory framework for this case consists of §§ 7601 and 7602 of the Internal Revenue Code of 1954, which provide:

“Section 7601. Canvass of districts for taxable persons and objects.
“(a) General rule.
“The Secretary or his delegate shall, to the extent he deems it practicable, cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed.
“Section 7602. Examination of books and witnesses.
“For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax ... or collecting any such liability, the Secretary or his delegate is authorized—
“(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
“(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to'appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
“(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.”

We begin examination of these sections against the familiar background that our tax structure is based on a system of self-reporting. There is legal compulsion, to be sure, but basically the Government depends upon the good faith and integrity of each potential taxpayer to disclose honestly all information relevant to tax liability. Nonetheless, it would be naive to ignore the reality that some persons attempt to outwit the system, and tax evaders are not readily identifiable. Thus, § 7601 gives the Internal Revenue Service a broad mandate to investigate and audit “persons who may be liable” for taxes and § 7602 provides the power to “examine any books, papers, records, or other data which may be relevant . . . [and to summon] any person having possession ... of books of account . . . relevant or material to such inquiry.” Of necessity, the investigative authority so provided is not limited to situations in which there is probable cause, in the traditional sense, to believe that a violation of the tax laws exists. United States v. Powell, 379 U. S. 48 (1964). The purpose of the statutes is not to accuse, but to inquire. Although such investigations unquestionably involve some invasion of privacy, they are essential to our self-reporting system, and the alternatives could well involve far less agreeable invasions of house, business, and records.

We recognize that the authority vested in tax collectors may be abused, as all power is subject to abuse. However, the solution is not to restrict that authority so as to undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and to prevent dishonest persons from escaping taxation thus shifting heavier burdens to honest taxpayers. Substantial protection is afforded by the provision that an Internal Revenue Service summons can be enforced only by the courts. 26 U. S. C. § 7604 (b); Reisman v. Caplin, 375 U. S. 440 (1964). Once a summons is challenged it must be scrutinized by a court to determine whether it seeks information relevant to a legitimate investigative purpose and is not meant “to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.” United States v. Powell, supra, at 58. The cases show that the federal courts have taken seriously their obligation to apply this standard to fit particular situations, either by refusing enforcement or narrowing the scope of the summons. See, e. g., United States v. Matras, 487 F. 2d 1271 (CA8 1973); United States v. Theodore, 479 F. 2d 749, 755 (CA4 1973); United States v. Pritchard, 438 F. 2d 969 (CA5 1971); United States v. Dauphin Deposit Trust Co., 385 F. 2d 129 (CA3 1967). Indeed, the District Judge in this case viewed the demands of the summons as too broad and carefully narrowed them.

Finally, we note that the power to summon and inquire in cases such as the instant one is not unprecedented. For example, had respondent been brought before a grand jury under identical circumstances there can be little doubt that he would have been required to testify and produce records or be held in contempt. In Blair v. United States, 250 U. S. 273 (1919), petitioners were summoned to appear before a grand jury. They refused to testify on the ground that the investigation exceeded the authority of the court and grand jury, despite the fact that it was not directed at them. Their subsequent contempt convictions were affirmed by this Court:

“[The witness] is not entitled to set limits to the investigation that the grand jury may conduct. . . . It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, not at the beginning.” Id., at 282.

The holding of Blair is not insignificant for our resolution of this case. In United States v. Powell, supra, Mr. Justice Harlan reviewed this Court’s cases dealing with the subpoena power of federal enforcement agencies, and observed:

“[T]he Federal Trade Commission . . . ‘has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ While the power of the Commissioner of Internal Revenue derives from a different body of statutes, we do not think the analogies to other agency situations are without force when the scope of the Commissioner’s power is called in question.” 379 U. S., at 57, quoting United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950).

Ill

Against this background, we turn to the question whether the summons issued to respondent, as modified by the District Court, was authorized by the Internal Revenue Code of 1954. Of course, the mere fact that the summons was styled “In the matter of the tax liability of John Doe” is not sufficient ground for denying enforcement. The use of such fictitious names is common in indictments, see, e. g., Baker v. United States, 115 F. 2d 533 (CA8 1940), cert. denied, 312 U. S. 692 (1941), and other types of compulsory process. Indeed, the Courts of Appeals have regularly enforced Internal Revenue Service summonses which did not name a specific taxpayer who was under investigation. E. g., United States v. Carter, 489 F. 2d 413 (CA5 1973); United States v. Turner, 480 F. 2d 272, 279 (CA7 1973); Tillotson v. Boughner, 333 F. 2d 515 (CA7), cert. denied, 379 U. S. 913 (1964). Respondent undertakes to distinguish these cases on the ground that they involved situations in which either a taxpayer was identified or a tax liability was known to exist as to an unidentified taxpayer. However, while they serve to suggest the almost infinite variety of factual situations in which a “John Doe” summons may be necessary, it does not follow that these cases define the limits of the Internal Revenue Service’s power to inquire concerning tax liability.

The first question is whether the words of the statute require the restrictive reading given them by the Court of Appeals. Section 7601 permits the Internal Revenue Service to investigate and inquire after “all persons . . . who may be liable to pay any internal revenue tax . . . .” To aid in this investigative function, § 7602 authorizes the summoning of “any . . . person” for the taking of testimony and examination of books which may be relevant for “ascertaining the correctness of any return, . . . determining the liability of any person ... or collecting any such liability . . . .” Plainly, this language is inconsistent with an interpretation that would limit the issuance of summonses to investigations which have already focused upon a particular return, a particular named person, or a particular potential tax liability.

Moreover, such a reading of the Internal Revenue Service’s summons power ignores the fact that it has a legitimate interest in large or unusual financial transactions, especially those involving cash. The reasons for that interest are too numerous and too obvious to catalog. Indeed, Congress has recently determined that information regarding transactions with foreign financial institutions and transactions which involve large amounts of money is so likely to be useful to persons responsible for enforcing the tax laws that it must be reported by banks. See generally California Bankers Assn. v. Shultz, 416 U. S. 21, 26-40 (1974).

It would seem elementary that no meaningful investigation of such events could be conducted if the identity of the persons involved must first be ascertained, and that is not always an easy task. Fiduciaries and other agents are understandably reluctant to disclose information regarding their principals, as respondent was in this case. Moreover, if criminal activity is afoot the persons involved may well have used aliases or taken other measures to cover their tracks. Thus, if the Internal Revenue Service is unable to issue a summons to determine the identity of such persons, the broad inquiry authorized by § 7601 will be frustrated in this class of cases. Settled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress. See NLRB v. Lion Oil Co., 352 U. S. 282, 288 (1957); United States v. American Trucking Assns., 310 U. S. 534, 542-544 (1940). No such congressional purpose is discernible in this case.

We hold that the Internal Revenue Service was acting within its statutory authority in issuing a summons to respondent for the purpose of identifying the person or persons who deposited 400 decrepit $100 bills with the Commercial Bank of Middlesboro within the space of a*’ few weeks. Further investigation may well reveal that such person or persons have a perfectly innocent explanation for the transactions. It is not unknown for taxpayers to hide large amounts of currency in odd places out of a fear of banks. But on this record the deposits were extraordinary, and no meaningful inquiry can be made until respondent complies with the summons as modified by the District Court.

We do not mean to suggest by this holding that respondent’s fears that the § 7602 summons power could be used to conduct “fishing expeditions” into the private affairs of bank depositors are trivial. However, as we have observed in a similar context:

“ ‘That the power may be abused, is no ground for denying its existence. It is a limited power, and should be kept within its proper bounds; and, when these are exceeded, a jurisdictional question is presented which is cognizable in the courts.’ ” McGrain v. Daugherty, 273 U. S. 135, 166 (1927), quoting People ex rel. McDonald v. Keeler, 99 N. Y. 463, 482 (1885).

So here, Congress has provided protection from arbitrary or capricious action by placing the federal courts between the Government and the person summoned. The District Court in this case conscientiously discharged its duty to see that a legitimate investigation was being conducted and that the summons was no broader than necessary to achieve its purpose.

The judgment of the Court of Appeals is reversed and the cause is remanded to it with directions to affirm the order of the District Court.

It is so ordered.

Mr. Justice Blackmun,

with whom Mr. Justice Powell joins,

concurring.

I join the Court’s opinion and its judgment, and add this word only to emphasize the narrowness of the issue at stake here. We decide today that the Internal Revenue Service has statutory authority to issue a summons to a bank in order to ascertain the identity of a person whose transactions with that bank strongly suggest liability for unpaid taxes. Under the circumstances here, there was an overwhelming probability, if not a certitude, that one individual or entity was responsible for the deposits. The uniformly deteriorated condition of the currency and the amount, combined with other unusual aspects, gave the Service good reason, and, indeed, the duty to investigate. The Service's suspicion as to possible liability was more than plausible. The summons was closely scrutinized and appropriately narrowed in scope by the United States District Court.

The summons, in short, was issued pursuant to a genuine investigation. The Service was not engaged in researching some general problem; its mission was not exploratory. The distinction between an investigative and a more general exploratory purpose has been stressed appropriately by federal courts, see, e. g., United States v. Humble Oil & Refining Co., 488 F. 2d 953, 958 (CA5 1974), pet. for cert. pending, No. 73-1827; United States v. Armour, 376 F. Supp. 318 (Conn. 1974), and that distinction is important to our decision here.

We need not decide in this case whether the Service has statutory authority to issue a “John Doe” summons where neither a particular taxpayer nor an ascertainable group of taxpayers is under investigation. At most, we hold that the Service is not always required to state a taxpayer’s name in order to obtain enforcement of its summons, and that under the circumstances of this case it is definitely not required to do so. We do not decide that a “John Doe” summons is always enforceable where the name of an individual is lacking and the Service’s pupose is other than investigative.

Upon this understanding, I join the Court’s opinion.

Mr. Justice Stewart,

with whom Mr. Justice Douglas joins,

dissenting.

The Court today says that it “recogniz[es] that the authority vested in tax collectors may be abused,” ante, at 146, but it is nonetheless unable to find any statutory limitation upon that authority. The only “protection” from abuse that Congress has provided, it says, is “placing the federal courts between the Government and the person summoned,” ante, at 151. But that, of course, is no protection at all, unless the federal courts are provided with a measurable standard when asked to enforce a summons. I agree with the Court of Appeals that Congress has provided such a standard, and that the standard was not met in this case. Accordingly, I respectfully dissent from the opinion and judgment of the Court.

Congress has carefully restricted the summons power to certain rather precisely delineated purposes:

“ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability.” 26 U. S. C. § 7602.

This provision speaks in the singular — referring to “the correctness of any return” and to “the liability of any person.” The delineated purposes are jointly denominated an “inquiry” concerning “the person liable for tax or required to perform the act,” and the summons is designed to facilitate the “ [examination of books and witnesses” which “may be relevant or material to such inquiry.” 26 U. S. C. §§7602 (1), (2), and (3). This language indicates unmistakably that the summons power is a tool for the investigation of particular taxpayers.

By contrast, the general duties of the IRS are vastly broader than its summons authority. For instance, § 7601 mandates a “[cjanvass of districts for taxable persons and objects.” Unlike § 7602, the canvassing provision speaks broadly and in the plural, instructing Treasury Department officials

“to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed.” (Emphasis added.)

Virtually all “persons” or “objects” in this country “may,” of course, have federal tax problems. Every day the economy generates thousands of sales, loans, gifts, purchases, leases, deposits, mergers, wills, and the like which — because of their size or complexity — suggest the possibility of tax problems for somebody. Our economy is “tax relevant” in almost every detail. Accordingly, if a summons could issue for any material conceivably relevant to “taxation” — that is, relevant to the general duties of the IRS — the Service could use the summons power as a broad research device. The Service could use that power methodically to force disclosure of whole categories of transactions and closely monitor the operations of myriad segments of the economy on the theory that the information thereby accumulated might facilitate the assessment and collection of some kind of a federal tax from somebody. Cf. United States v. Humble Oil & Refining Co., 488 F. 2d 953. And the Court’s opinion today seems to authorize exactly that.

But Congress has provided otherwise. The Congress has recognized that information concerning certain classes of transactions is of peculiar importance to the sound administration of the tax system, but the legislative solution has not been the conferral of a limitless summons power. Instead, various special-purpose statutes have been written to require the reporting or disclosure of particular kinds of transactions. E. g., 26 IJ. S. C. §§ 6049, 6051-6053, 31 U. S. C. §§ 1081-1083, 1101, and 1121— 1122, and 31 U. S. C. §§ 1141-1143 (1970 ed., Supp. III). Meanwhile, the scope of the summons power itself has been kept narrow. Congress has never made that power coextensive with the Service's broad and general canvassing duties set out in § 7601. Instead, the summons power has always been restricted to the particular purposes of individual investigation, delineated in § 7602.

Thus, a financial or economic transaction is not subject to disclosure through summons merely because it is large or unusual or generally “tax relevant”- — but only when the summoned information is reasonably pertinent to an ongoing investigation of somebody's tax status. This restriction checks possible abuses of the summons power in two rather obvious ways. First, it guards against an overbroad summons by allowing the enforcing court to prune away those demands which are not relevant to the particular, ongoing investigation. See, e. g., First Nat. Bank of Mobile v. United States, 160 F. 2d 532, 533-535. Second, the restriction altogether prohibits a summons which is wholly unconnected with such an investigation.

The Court today completely obliterates the historic distinction between the general duties of the IRS, summarized in § 7601, and the limited purposes for which a summons may issue, specified in § 7602. Relying heavily on § 7601, and noting that the IRS “has a legitimate interest in large or unusual financial transactions, especially those involving cash,” ante, at 149, the Court approves enforcement of a summons having no investigative predicate. The sole premise for this summons was the Service’s theory that the deposit of old wornout $100 bills was a sufficiently unusual and interesting transaction to justify compulsory disclosure of the identities of all the large-amount depositors at the respondent’s bank over a one-month period. That the summons was not incident to an ongoing, particularized investigation, but was merely a shot in the dark to see if one might be warranted, was freely conceded by the IRS agent who served the summons.

The Court’s opinion thus approves a breathtaking expansion of the summons power: There are obviously thousands of transactions occurring daily throughout the country which, on their face, suggest the possibility of tax complications for the unknown parties involved. These transactions will now be subject to forced disclosure at the whim of any IRS agent, so long only as he is acting in “good faith.” Ante, at 146.

This is a sharp and dangerous detour from the settled course of precedent. The decision of the Court of Appeals in this case has been explicitly accepted as sound by the Courts of Appeals of two other Circuits. See United States v. Berkowitz, 488 F. 2d 1235, 1236 (CA3), and United States v. Humble Oil & Refining Co., 488 F. 2d 953, 960 (CA5), cert. pending, No. 73-1827. No federal court has disagreed with it.

The federal courts have always scrutinized with particular care any IRS summons directed to a “third party,” i. e., to a party other than the taxpayer under investigation. See, e. g., United States v. Humble Oil & Refining Co., supra, at 963; Venn v. United States, 400 F. 2d 207, 211-212; United States v. Harrington, 388 F. 2d 520, 523. When, as here, the third-party summons does not identify the party under investigation, a presumption naturally arises that the summons is not genuinely investigative but merely exploratory- — -a device for general research or for the hit-or-miss monitoring of “unusual” transactions. Unless this presumption is rebutted by the Service, the courts have denied enforcement.

Thus, the IRS was not permitted to summon from a bank the names and addresses of all beneficiaries of certain types of trust arrangements merely on the theory that these arrangements were unusual in form or size. Mays v. Davis, 7 F. Supp. 596. Nor could the Service force a company to disclose the identity of whole classes of its oil land lessees merely on the theory that oil lessees commonly have tax problems. United States v. Humble Oil & Refining Co., supra. See also McDonough v. Lambert, 94 F. 2d 838; First Nat. Bank of Mobile v. United States, 160 F. 2d, at 533-535; Teamsters v. United States, 240 F. 2d 387, 390.

On the other hand, enforcement has been granted where the Service has been able to demonstrate that the John Doe summons was issued incident to an ongoing and particularized investigation. Thus, enforcement was granted of summonses seeking to identify the clients of those tax-return-preparation firms which prior investigation had shown to be less than honest or accurate in the preparation of sample returns. United States v. Theodore, 479 F. 2d 749; United States v. Turner, 480 F. 2d 272; United States v. Berkowitz, supra; United States v. Carter, 489 F. 2d 413. Similarly, enforcement was granted of summonses directed to an attorney, and his bank, seeking to identify the client for whom the attorney had mailed to the IRS a large, anonymous check, purporting to satisfy an outstanding tax deficiency of the client. Tillotson v. Boughner, 333 F. 2d 515; Schulze v. Rayunec, 350 F. 2d 666. Like the prior investigative work in the tax-return-preparer cases, the receipt of the mysterious check established the predicate of a particularized investigation which was necessary, under § 7602, to the enforcement of a summons. In each case, the Service had already proceeded to the point where the unknown individual’s tax liability had become a reasonable possibility, rather than a matter of sheer speculation.

Today’s decision shatters this long line of precedent. For this summons, there was absolutely no investigative predicate. The sole indication of this John Doe's tax liability was the unusual character of the deposit transaction itself. Any private economic transaction is now fair game for forced disclosure, if any IRS agent happens in good faith to want it disclosed. This new rule simply disregards the language of § 7602 and the body of established case law construing it.

The Court’s attempt to justify this extraordinary departure from established law is hardly persuasive. The Court first notes that a witness may not refuse testimony to a grand jury merely because the grand jury has not yet specified the “identity of the offender,” ante, at 147, quoting Blair v. United States, 250 U. S. 273, 282. This is true but irrelevant. The IRS is not a grand jury. It is a creature not of the Constitution but of legislation and is thus peculiarly subject to legislative constraints. See In re Groban, 352 U. S. 330, 346 (Black, J., dissenting). It is true that the Court drew an analogy between an IRS summons and a grand jury subpoena in United States v. Powell, 379 U. S. 48, 57, but this was merely to emphasize that an IRS summons does not require the support of “probable cause” to suspect tax fraud when the summons is issued incident to an ongoing, individualized investigation of an identified party. A major premise of Powell was that an extrastatutory “probable cause” requirement was unnecessary in view of the “legitimate purpose” requirements already specified in § 7602, 379 U. S., at 56-57.

The Court next suggests that this expansion of the summons power is innocuous, at least on the facts of this case, because the Bank Secrecy Act of 1970 itself compels banks to disclose the identity of certain cash depositors. Ante, at 149-150. Aside from the fact that the summons at issue here forces disclosure of some deposits not covered by the Act and its attendant regulations, the argument has a more basic flaw. If the summons authority of § 7602 allows preinvestigative inquiry into any large or unusual bank deposit, the 1970 Act was largely redundant. The IRS could have saved Congress months of hearings and debates by simply directing § 7602 summonses on a regular basis to the Nation’s banks, demanding the identities of their large cash depositors. In California Bankers Assn. v. Shultz, 416 U. S. 21, we gave extended consideration to the complex constitutional issues raised by the 1970 Act; some of those issues — e. g., whether and to what extent bank depositors have Fourth Amendment and Fifth Amendment rights to the secrecy of their domestic deposits — were left unresolved by the Court’s opinion, 416 U. S., at 67-75. If the disclosure requirements in the 1970 Act were already encompassed within the Service’s summons power, one must wonder why the Court labored so long and carefully in Shultz.

Finally, the Court suggests that respect for the plain language of § 7602 would “undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and prevents dishonest persons from escaping taxation and thus shifting heavier burdens to honest taxpayers.” Ante, at 146. But the federal courts have applied the strictures of § 7602, and its predecessors, for many decades without occasioning these dire effects. If such a danger exists, Congress can deal with it. But until Congress changes the provision of § 7602, it is our duty to apply the statute as it is written.

I would affirm the judgment of the Court of Appeals.

       The Internal Revenue Service agent testified:
      “Q. What possible tax effect could this have on the taxpayer if he is determined?

        “A. Well, it could be anything from nothing at all, a simple explanation, or it could be that this is money that has been secreted away for a period of time as a means of avoiding the tax.
      “Q. Then you really have not reached first base yet, is that correct?
      “A. That’s correct.”

       Respondent also argues that, even if the summons issued in this case was authorized by statute, it violates the Fourth Amendment. This contention was not passed upon by the Court of Appeals. In any event, as narrowed by the District Court the summons is at least as specific as the reporting requirements which were upheld against a Fourth Amendment challenge by banks in California Bankers Assn. v. Shultz, 416 U. S. 21, 63-70 (1974).

      The Service may not have reached “first base,” see ante, at 143 n. 1, but it had been at bat before, and it knew both the game and the ball park well.

       The canvassing duties and the summons power have always been found in separate and distinct statutory provisions. The spatial proximity of the two contemporary provisions is utterly without legal significance. 26 U. S. C. § 7806 (b). The general mandate to canvass and inquire, now found in § 7601, is derived from § 3172 of the Revised Statutes of 1874. See Donaldson v. United States, 400 U. S. 517, 523-524. The summons power, however, has different historical roots. Section 7602, enacted in 1954, was meant to consolidate and carry forward several prior statutes, with “no material change from existing law.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., A436; S. Rep. No. 1622, 83d Cong., 2d Sess., 617. The relevant prior statutes were §§ 3614 and 3615 (a)-(c) of the Internal Revenue Code of 1939. See Table II of the 1954 Code, 68A Stat. 969. Section 3614 granted the summons power to the Commissioner “for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made.” Sections 3615 (a)-(c) granted the summons power to “collectors” and provided that a “summons may be issued” whenever “any person” refuses to make a return or makes a false or fraudulent return. Thus, like the present § 7602, these earlier provisions clearly limited use of the summons power to the investigation of particular taxpayers.

       The summons here used a scattershot technique to learn the identity of the unknown depositor. Rather than merely asking bank officials who the depositor was, the IRS required production of all deposit slips exceeding specified amounts that had been filled out during the period when the suspect deposits were, presumably, made. Thus, enforcement of the summons, even as redrafted by the District Court, will doubtlessly apprise the IRS of the identities of many bank depositors other than the one who submitted the old and worn-out $100 bills.

       He testified at the enforcement hearing:
      “Q. What possible tax effect could this have on the taxpayer if he is determined?
      “A. Well, it could be anything from nothing at all, a simple explanation, or it could be that this is money that has been secreted away for a period of time as a means of avoiding the tax.
      “Q. Then you really have not reached first base yet, is that correct ?
      “A. That’s correct.”

       Pub. L. 91-508, 84 Stat. 1114, 12 U. S. C. §§ 1730d, 1829b, 1951-1959, and 31 U. S. C. §§ 1051-1062, 1081-1083, 1101-1105, 1121-1122. See California Bankers Assn. v. Shultz, 416 U. S. 21.

       As limited by the District Court, the summons calls for production of deposit slips showing cash deposits in the amount of $20,000 and deposit slips showing cash deposits of $5,000 or more involving $100 bills, for deposits made between October 16 and November 16, 1970. Current regulations under the Bank Secrecy Act require reporting only with respect to cash transactions exceeding $10,000. 31 CFR § 103.22 (1974).


author: Mr. Chief Justice Burger

text:
    DROPE v. MISSOURI
    No. 73-6038.
    Argued November 13, 1974
    Decided February 19, 1975

      Thomas C. Walsh argued the cause for petitioner. With him on the briefs was Charles A. Weiss.

      Neil MacFarlane, Assistant Attorney General of Missouri, argued the cause for respondent. With him on the brief were John C. Danforth, Attorney General, and David Robarás, Assistant Attorney General.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case to consider petitioner’s claims that he was deprived of due process of law by the failure of the trial court to order a psychiatric examination with respect to his competence to stand trial and by the conduct in his absence of a portion of his trial on an indictment charging a capital offense.

I

In February 1969 an indictment was returned in the Circuit Court of St. Louis, Mo., charging petitioner and two others with the forcible rape of petitioner’s wife. Following severance of petitioner’s case from those of the other defendants and a continuance, on May 27 his counsel filed a motion for a continuance until September, in order that petitioner might be examined and receive psychiatric treatment. Treatment had been suggested by a psychiatrist who had examined petitioner at his counsel’s request and whose report was attached to the motion. On the same date respondent, through the Assistant Circuit Attorney, filed a document stating that the State did not oppose the motion for a psychiatric examination. Apparently no action was taken on the motion, and petitioner’s case was continued until June 23, at which time his counsel objected to proceeding with the trial on the ground that he had understood the case would be continued until September and consequently was not prepared. He objected further “for the reason that the defendant is not a person of sound mind and should have a further psychiatric examination before the case should be forced to trial.” App. 19. The trial judge noted that the motion for a continuance was not in proper form and that, although petitioner’s counsel had agreed to file another, he had failed to do so, and he overruled his objections and directed that the case proceed to trial.

On June 24 a jury was empaneled, and the prosecution called petitioner’s wife as its first witness. She testified that petitioner participated with four of his acquaintances in forcibly raping her and subjecting her to other bizarre abuse and indignities, but that she had resumed living with him after the incident on the advice of petitioner’s psychiatrist and so that their children would be taken care of. On cross-examination, she testified that she had told petitioner’s attorney of her belief that her husband was sick and needed psychiatric care and that for these reasons she had signed a statement disavowing a desire to prosecute. She related that on several occasions when petitioner did not “get his way or [was] worried about something,” he would roll down the stairs. She could explain such behavior only by relating “what they told him many times at City Hospital, that is something he does upon hisself [sic].” Id., at 47. However, she also stated that she was not convinced petitioner was sick after talking to his psychiatrist, and that she had changed her. mind about not wanting to prosecute petitioner because, as she testified, he had “tried to choke me, tried to kill me” on the Sunday evening prior to trial. Id., at 52.

The prosecution called three more witnesses, but did not conclude its case, before adjournment on June 24. The following morning, petitioner did not appear. When the trial judge directed counsel to proceed, petitioner’s attorney moved for a mistrial “in view of the fact that the defendant, I am informed, shot himself this morning.” App. 63. The trial judge denied the motion, stating that he had already decided the matter would proceed for trial, and when petitioner’s counsel complained of the difficulty of proceeding without a client, the trial judge replied that the difficulty was brought about by petitioner, who was on bond and had a responsibility to be present. The prosecution then called four more witnesses and, after producing proof of a prior conviction, rested its case. Petitioner’s “Motion for Verdict of Acquittal,” including in effect a renewal of the motion for a mistrial, was denied, and his counsel stated that he had “no evidence to produce at this time under the circumstances.” Id., at 64. The jury returned a verdict of guilty, and on July 21, 1969, petitioner, who had been in the hospital for three weeks recovering from a bullet wound in the abdomen, appeared, and the trial court fixed the penalty at life imprisonment.

Petitioner filed a motion for a new trial, the burden of which was that the trial court had erred in proceeding with the trial when no evidence had been produced that his absence from the trial was voluntary. A hearing was held before the judge who had presided at trial. Petitioner testified that on June 25 he had gone to his brother’s house and that he remembered nothing concerning the shooting except that he felt a burning pain in his stomach and later woke up in the hospital. He testified he did not remember talking to anyone at the hospital. The State presented evidence that upon admission to the hospital petitioner stated that he had shot himself because of “ 'some problem with the law,’ ” id., at 90, and that he had told a policeman he had shot himself because “he was supposed to go to court for rape, and he didn’t do it; he rather be [sic] dead than to go to trial for something he didn’t do.” Id., at 97. The trial judge denied the motion. Stating that on the morning of petitioner’s failure to appear he had received information on the telephone which was checked with the hospital, the judge concluded that petitioner had the burden of showing that his absence was not voluntary and found on the basis of the evidence that his absence “ 'was due to his own voluntary act in shooting himself; done for the very purpose of avoiding trial.’ ” Id., at 103.

The Missouri Supreme Court affirmed, accepting the trial court’s finding, in ruling on petitioner’s motion for a new trial, that his absence was voluntary, and holding that there was “no logical basis” for positing a different rule with respect to waiver of the right to be present in capital cases than that which applies in felony cases generally. 462 S. W. 2d 677, 683-684. The Missouri Supreme Court also held that the denial of petitioner’s motion for a continuance of the trial in order to procure further psychiatric evaluation was not an abuse of discretion, noting that petitioner did not contend that he lacked the mental capacity to proceed with the trial.

In April 1971 petitioner filed a motion to vacate the judgment of conviction and sentence in the court where sentence had been imposed, pursuant to Missouri Supreme Court Rule 27.26. He alleged that his rights under Mo. Rev. Stat. § 552.020 (2) (1969) and his constitutional rights had been violated by the failure to order a psychiatric examination prior to trial and by conducting the trial to conclusion in his absence. Petitioner also asserted that he had been denied the effective assistance of counsel, a claim which is not before us.

In July 1971 a hearing was held on the motion; petitioner called two psychiatrists as witnesses. The psychiatrist who had examined petitioner prior to his trial testified that in his opinion there was reasonable cause to believe that a person who attempted to commit suicide in the midst of a trial might not be mentally competent to understand the proceedings against him. Another psychiatrist, whose duties included the examination of accused persons under Mo. Rev. Stat. c. 552, testified that in his opinion a man who was charged with raping his wife and attempted suicide during his trial was in need of a psychiatric evaluation to find out his mental condition, and that there should be an evaluation to determine whether the person was competent to assist in his own defense and whether he was “malingering or did it intentionally or if it was due to a true psychiatric disorder.” App. 156. The same psychiatrist stated that he had examined petitioner at City Hospital in 1965 and had found that he had psychiatric problems and was in need of care. Petitioner took the stand, repeating his previous testimony with respect to the shooting.

In June 1972 the sentencing judge denied petitioner’s Rule 27.26 motion, and the Missouri Court of Appeals affirmed. The Court of Appeals concluded that the provisions for psychiatric examinations and hearings under Mo. Rev. Stat. §552.020 (1969) comported with the requirements of Pate v. Robinson, 383 U. S. 375 (1966), and that the test of incompetence to stand trial was that stated in Dusky v. United States, 362 U. S. 402 (1960). It reasoned that it was necessary to examine the indicia of petitioner’s incompetence “at three different times— before the trial, during the trial after the suicide attempt, and at the time of the motion for new trial.” 498 S. W. 2d 838, 842.

As to the situation before trial, the court held that the psychiatric report attached to petitioner’s motion for a continuance did not raise a reasonable doubt of his fitness to proceed. Turning to the second time period, “during the trial after the suicide attempt,” the court held that Pate v. Robinson, supra, which involved a competence hearing rather than a competence examination followed by a hearing, did not require that the examination and hearing be held during the trial rather than immediately thereafter. With regard to the period after trial, and accepting petitioner’s contention that his was a “bona fide attempt at suicide,” the court was of the view that the legal significance of the attempt under Robinson should be evaluated without resort to the psychiatric testimony presented at the Rule 27.26 hearing, which was not before the trial judge. It held that petitioner’s suicide attempt did not create a reasonable doubt of his competence as a matter of law, that petitioner had failed to demonstrate the inadequacy of the procedures employed for protecting his rights, and that the finding of the trial court was not clearly erroneous.

Finally, the Missouri Court of Appeals rejected petitioner’s claim that he was deprived of due process of law by the conduct of a portion of his trial in his absence; it noted that the State Supreme Court had upheld a finding of voluntary absence on petitioner’s direct appeal and concluded that the psychiatrists’ testimony at the Rule 27.26 hearing did not meet the burden of proof placed on petitioner. “Again we cannot hold the trial court’s finding to be clearly erroneous.” 498 S. W. 2d, at 843. We granted certiorari, and we now reverse.

II

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. Thus, Blackstone wrote that one who became “mad” after the commission of an offense should not be arraigned for it “because he is not able to plead to it with that advice and caution that he ought.” Similarly, if he became “mad” after pleading, he should not be tried, “for how can he make his defense?” 4 W. Blackstone, Commentaries *24. See Youtsey v. United States, 97 F. 937, 940-946 (CA6 1899). Some have viewed the common-law prohibition “as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself.” Foote, A Comment on PreTrial Commitment of Criminal Defendants, 108 U. Pa. L. Rev. 832, 834 (1960). See Thomas v. Cunningham, 313 F. 2d 934, 938 (CA4 1963). For our purposes, it suffices to note that the prohibition is fundamental to an adversary system of justice. See generally Note, Incompetency to Stand Trial, 81 Harv. L. Rev. 455, 457-459 (1967). Accordingly, as to federal cases, we have approved a test of incompetence which seeks to ascertain whether a criminal defendant “ Tas sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.' ” Dusky v. United States, 362 U. S., at 402.

In Pate v. Robinson, 383 U. S. 375 (1966), we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Although in Robinson we noted that Illinois “jealously guard [ed] this right,” id., at 385, we held that the failure of the state courts to invoke the statutory procedures deprived Robinson of the inquiry into the issue of his competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill. Rev. Stat., c. 38, § 104-2 (1963), was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if followed, was constitutionally adequate. See, e. g., United States v. Knohl, 379 F. 2d 427, 434-435 (CA2), cert. denied, 389 U. S. 973 (1967); United States ex rel. Evans v. LaVallee, 446 F. 2d 782, 785-786 (CA2 1971), cert. denied, 404 U. S. 1020 (1972). Nor did the Court prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Rather, it noted that under the Illinois statute a hearing was required where the evidence raised a “ ‘bona fide doubt’ ” as to a defendant’s competence, and the Court concluded “that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue.” 383 U. S., at 385. See United States v. Marshall, 458 F. 2d 446, 450 (CA2 1972).

As was true of Illinois in Robinson, Missouri’s statutory scheme “jealously guards” a defendant’s right to a fair trial. Missouri Rev. Stat. § 552.020 (1) (1969) provides: “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” Section 552.020 (2), see n. 6, provides that a judge or magistrate shall, “upon his own motion or upon motion filed by the state or by or on behalf of the accused,” order a psychiatric examination whenever he “has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed.” Section 552.020 (3) prescribes the contents of a report of the psychiatric examination, and § 552.030 (6) requires the court to hold a hearing if the opinion relative to fitness to proceed which is required to be included in the report is contested. In addition, the trial court may conduct a hearing on its own motion. Such a procedure is, on its face, constitutionally adequate to protect a defendant’s right not to be tried while legally incompetent. Our task is to determine whether the proceedings in this case were consistent with petitioner’s right to a fair trial.

At the outset we are met by respondent's argument that the Court is bound by “limitations placed on proceedings under” Missouri Supreme Court Rule 27.26. Brief for Respondent 23. Specifically, respondent notes that under Rule 27.26 (f) petitioner had “the burden of establishing his grounds for relief by a preponderance of the evidence,” and that the appellate-review function of the Missouri Court of Appeals was limited by Rule 27.26 (j) “to a determination of whether the findings, conclusions and judgment of the trial court [were] clearly erroneous.” It urges that the Rule was “designed ... to provide a valuable post-conviction remedy and not to provide another direct appeal . . . ,” and expresses concern that “the state-federal relationship . . . remain in proper balance.” Brief for Respondent 22.

We share respondent's concern for this necessary balance, and we do not question the State's power, in post-conviction proceedings, to reallocate the respective burdens of the individual and the State and to delimit the scope of state appellate review. Cf. Hawk v. Olson, 326 U. S. 271, 279 (1945); Conner v. Wingo, 429 F. 2d 630, 637-639 (CA6 1970). At the same time we note that while proceedings under the Rule “ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal,” nevertheless “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” Mo. Sup. Ct. Rule 27.26 (b) (3).

In the present case there is no dispute as to the evidence possibly relevant to petitioner's mental condition that was before the trial court prior to trial and thereafter. Rather, the dispute concerns the inferences that were to be drawn from the undisputed evidence and whether, in light of what was then known, the failure to ' make further inquiry into petitioner's competence to stand trial, denied him a fair trial. In such circumstances we believe it is “incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.” Norris v. Alabama, 294 U. S. 587, 590 (1935). “When the corrective process is provided by the state but error, in relation to the federal question of constitutional violation, creeps into the record, we have the responsibility to review the state proceedings.” Hawk v. Olson, supra, at 276.

Ill

The sentencing judge and the Missouri Court of Appeals concluded that the psychiatric evaluation of petitioner attached to his pretrial motion for a continuance did not contain sufficient indicia of incompetence to stand trial to require further inquiry. Both courts mentioned aspects of the report suggesting competence, such as the impressions that petitioner did not have “any delusions, illusions, hallucinations . . . ,” was “well oriented in all spheres,” and “was able, without trouble, to answer questions testing judgement,” but neither court mentioned the contrary data. The report also showed that petitioner, although cooperative in the examination, “had difficulty in participating well,” “had a difficult time relating,” and that he “was markedly circumstantial and irrelevant in his speech.” In addition, neither court felt that petitioner's episodic irrational acts described in the report or the psychiatrist’s diagnoses of “[b] orderline mental deficiency” and “[c]hronic [a] nxiety reaction with depression” created a sufficient doubt of competence to require further inquiry.

It does not appear that the examining psychiatrist was asked to address himself to medical facts bearing specifically on the issue of petitioner’s competence to stand trial, as distinguished from his mental and emotional condition generally. Thus, it is not surprising that before this Court the dispute centers on the inferences that could or should properly have been drawn from the report. Even where the issue is in focus we have recognized “the uncertainty of diagnosis in this field and the tentativeness of professional judgment.” Greenwood v. United States, 350 U. S. 366, 375 (1956). Here the inquiry is rendered more difficult by the fact that a defendant’s mental condition may be relevant to more than one legal issue, each governed by distinct rules reflecting quite different policies. See Jackson v. Indiana, 406 U. S. 715, 739 (1972); Pate v. Robinson, 383 U. S., at 388-389 (Harlan, J., dissenting); Weihofen, The Definition of Mental Illness, 21 Ohio St. L. J. 1 (1960).

Like the report itself, the motion for a continuance did not clearly suggest that petitioner’s competence to stand trial was the question sought to be resolved. While we have expressed doubt that the right to further inquiry upon the question can be waived, see Pate v. Robinson, 383 U. S., at 384, it is nevertheless true that judges must depend to some extent on counsel to bring issues into focus. Petitioner’s somewhat inartfully drawn motion for a continuance probably fell short of appropriate assistance to the trial court in that regard. However, we are constrained to disagree with the sentencing judge that counsel’s pretrial contention that “the defendant is not a person of sound mind and should have a further psychiatric examination before the case should be forced to trial,” did not raise the issue of petitioner’s competence to stand trial. This statement also may have tended to blur the aspect of petitioner’s mental condition which would bear on his criminal responsibility and that which would bear on his competence to stand trial. However, at that stage, and with the obvious advantages of hindsight, it seems to us that it would have been, at the very least, the better practice to order an immediate examination under Mo. Rev. Code § 552.020 (2) (I960). It is unnecessary for us to decide whether such examination was constitutionally required on the basis of what was then known to the trial court since in our view the question was settled by later events.

IV

Turning to the situation at petitioner's trial, the state courts viewed the evidence as failing to show that during trial petitioner had acted in a manner that would cause the trial court to doubt his competence. The testimony of petitioner’s wife, some of which repeated and confirmed information contained in the psychiatric evaluation attached to petitioner’s motion for a continuance, was given little weight. Finally, the sentencing judge, relying on his finding on petitioner’s motion for a new trial and although stating “that it does not take a psychiatrist to know that such a man has a problem and indicates poor judgment,” App. 203, concluded that the “fact that Mr. Drope shot himself to avoid trial suggests very strongly an awareness of what was going on.” Id., at 208. The Missouri Court of Appeals, accepting arguendo petitioner's contention that his was “a bona fide attempt at suicide,” refused to conclude "that as a matter of law an attempt at suicide creates a reasonable doubt as to the movant’s competency to stand trial.” Id., at 222.

Notwithstanding the difficulty of making evaluations of the kind required in these circumstances, we conclude that the record reveals a failure to give proper weight to the information suggesting incompetence which came to light during trial. This is particularly so when viewed in the context of the events surrounding petitioner’s suicide attempt and against the background of the pretrial showing. Although a defendant’s demeanor during trial may be such as to obviate “the need for extensive reliance on psychiatric prediction concerning his capabilities,” Note, 81 Harv. L. Rev., at 469, we concluded in Pate v. Robinson, 383 U. S., at 385-386, that “this reasoning offers no justification for ignoring the uncontradicted testimony of ... [a] history of pronounced irrational behavior.” We do not mean to suggest that the indicia of such behavior in this case approximated those in Robinson, but we believe the Missouri courts failed to consider and give proper weight to the record evidence. Too little weight was given to the testimony of petitioner’s wife that on the Sunday prior to trial he tried to choke her to death. For a man whose fate depended in large measure on the indulgence of his wife, who had hesitated about pressing the prosecution, this hardly could be regarded as rational conduct. Moreover, in considering the indicia of petitioner’s incompetence separately, the state courts gave insufficient attention to the aggregate of those indicia in applying the objective standard of Mo. Rev. Stat. § 552.020 (2). We need not address the Court of Appeals’ conclusion that an attempt to commit suicide does not create a reasonable doubt of competence to stand trial as a matter of law. As was true of the psychiatric evaluation, petitioner’s attempt to commit suicide “did not stand alone.” Moore v. United States, 464 F. 2d 663, 666 (CA9 1972). We conclude that when considered together with the information available prior to trial and the testimony of petitioner’s wife at trial, the information concerning petitioner’s suicide attempt created a sufficient doubt of his competence to stand trial to require further inquiry on the question.

The import of our decision in Pate v. Robinson is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.

Here, the evidence of irrational behavior prior to trial was weaker than in Robinson, but there was no opinion evidence as to petitioner’s competence to stand trial. See n. 9, supra. Moreover, Robinson was present throughout his trial; petitioner was absent for a crucial portion of his trial. Petitioner’s absence bears on the analysis in two ways: first, it was due to an act which suggests a rather substantial degree of mental instability contemporaneous with the trial, see Pate v. Robinson, 383 U. S., at 389 (Harlan, J., dissenting); second, as a result of petitioner’s absence the trial judge and defense counsel were no longer able to observe him in the context of the trial and to gauge from his demeanor whether he was able to cooperate with his attorney and to understand the nature and object of the proceedings against him.

Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial. Whatever the relationship between mental illness and incompetence to stand trial, in this case the bearing of the former on the latter was sufficiently likely that, in light of the evidence of petitioner’s behavior including his suicide attempt, and there being no opportunity without his presence to evaluate that bearing in fact, the correct course was to suspend the trial until such an evaluation could be made. That this might have aborted the trial is a hard reality, but we cannot fail to note that such a result might have been avoided by prompt psychiatric examination before trial, when it was sought by petitioner.

Y

Our resolution of the first issue raised by petitioner makes it unnecessary to decide whether, as he contends, it was constitutionally impermissible to conduct the remainder of his trial on a capital offense in his enforced absence from a self-inflicted wound. See Diaz v. United States, 223 U. S. 442, 445 (1912). However, even assuming the right to be present was one that could be waived, what we have already said makes it clear that there was an insufficient inquiry to afford a basis for deciding the issue of waiver. Cf. Westbrook v. Arizona, 384 U. S. 150 (1966); United States v. Silva, 418 F. 2d 328 (CA2 1969).

The Missouri Court of Appeals concluded that, had further inquiry into petitioner's competence to stand trial been constitutionally mandated in this case, it would have been permissible to defer it until the trial had been completed. Such a procedure may have advantages, at least where the defendant is present at the trial and the appropriate inquiry is implemented with dispatch. See Note, 81 Harv. L. Rev., at 469; Hansford v. United States, 127 U. S. App. D. C. 359, 360, 384 F. 2d 311, 312 (1966) (rehearing en banc denied) (statement of Leventhal, J.); Jackson v. Indiana, 406 U. S., at 741. However, because of petitioner’s absence during a critical stage of his trial, neither the judge nor counsel was able to observe him, and the hearing on his motion for a new trial, held approximately three months after the trial, was not informed by an inquiry into either his competence to stand trial or his capacity effectively to waive his right to be present.

The question remains whether petitioner’s due process rights would be adequately protected by remanding the case now for a psychiatric examination aimed at establishing whether petitioner was in fact competent to stand trial in 1969. Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, see Pate v. Robinson, 383 U. S., at 386-387; Dusky v. United States, 362 U. S., at 403, we cannot conclude that such a procedure would be adequate here. Cf. Conner v. Wingo, 429 F. 2d, at 639-640. The State is free to retry petitioner, assuming, of course, that at the time of such trial he is competent to be tried.

The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

      The motion recites: “Comes now the Defendant, JAMES E. DROPE, and states to the court that he has had a psychiatric examination made by Dr. Joseph F. Shuman, M, D., a copy of which report is attached hereto.
      “Defendant moves the court to continue his case until September, 1969 in order that he might receive an Examination, Evaluation and psychiatric treatment, as suggested by Dr. Shuman, at the Malcomb Bliss Hospital in the City of St. Louis, Missouri.” App. 7.
      The report, in the form of a letter to petitioner’s attorney, states that the psychiatrist examined petitioner on February 20, 1969. In a section entitled “Past Medical History” it describes petitioner as “markedly agitated and upset,” noting that he “appeared to be cooperative in this examination, but he had difficulty in participating well.” The report continues: “The patient had a difficult time relating. He was markedly circumstantial and irrelevant in his speech. . . . There was no sign as to the presence of any delusions, illusions, hallucinations, obsessions, ideas of reference, compulsions or phobias at this time.
      “In a simple IQ exam Mr. Drope was able to achieve a score in the low normal range .... Mr. Drope was well oriented in all spheres. With much difficulty he was able to explain a few abstractions. ... He was able, without trouble, to answer questions testing judgement. He had much difficulty even doing the simple counting and calculation problems.” The report then recounts the details of a conversation between the psychiatrist and petitioner’s wife. The latter admitted that she had left petitioner on a number of occasions because of his sexual perversions and described the “strange behavior” of petitioner, including falling down flights of stairs, as an attempt to gain sympathy from her. In a section entitled “Impression,” the report states that petitioner had “always led a marginal existence,” that he had a “history of anti-social conduct,” but that there were no “strong signs of psychosis at this time.” It concludes that petitioner “certainly needs the aid of a psychiatrist,” and that he “'is a very neurotic individual who is also depressed and perhaps he is depressed for most of the time,” and it offers as diagnoses: “(1) Sociopathie personality disorder, sexual perversion. (2) Borderline mental deficiency. (3) Chronic Anxiety reaction with depression.” Id., at 11-12.

       Petitioner was tried as a second offender under Mo. Rev. Stat. §556.280 (1969), having been convicted in 1958 of second-degree burglary and “stealing.”

       As to the situation at trial, the Missouri Supreme Court stated: “We disagree with defendant’s contention that there is ‘no evidence upon the record’ that he voluntarily absented himself. The court made such a determination before proceeding with the trial, although the basis for that determination is not fully disclosed. However, when defendant is free on bond, and he does not appear at the appointed time, it is presumed that the absence is voluntary until established otherwise.” 462 S. W. 2d 677, 681 (1971).

       At the time of petitioner’s trial, rape was punishable by death under Mo. Rev. Stat. § 559.260 (1969), and respondent had not waived the death penalty.

       As petition for a writ of habeas corpus previously filed in the United States District Court for the Eastern District of Missouri had been dismissed without prejudice on April 1, 1971, for failure to exhaust available state remedies. See 28 U. S. C. §§2254 (b), (c).

       Subdivision 2 of § 552.020 provides in pertinent part: “Whenever any judge or magistrate has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private physicians to make a psychiatric examination of the accused or shall direct the superintendent of a facility of the division of mental diseases to have the accused so examined by one or more physi-dans whom the superintendent shall designate.” Subdivision 3 delineates the requirements for reports of psychiatric examinations, and subdivision 6 requires the court to hold a hearing if the opinion relative to fitness to proceed which is required to be included in the report is contested.

      “[T]he 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.' ” See also Mo. Rev. Stat. §552.020 (1) (1969).

       Under Missouri Supreme Court Rule 27.26 (f) (1969), the “prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence.” Appellate review is limited nnder Rule 27.26 (j) “to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.”

       In discussing the evidence adduced at Robinson's trial, the Court did, however, indicate that a history of irrational behavior is a relevant factor which, on the record before it, was sufficient to require further inquiry notwithstanding Robinson’s demeanor at trial and the stipulated opinion of a psychiatrist that Robinson knew the nature of the charges against him and could cooperate with counsel when the psychiatrist examined him two or three months before. See infra, at 180-181.

       “But ‘issue of fact’ is a coat of many colors. It does not llover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court’s adjudication. . . . Especially in cases arising under the Due Process Clause is it important to distinguish between issues of fact that are here foreclosed and issues which, though cast in the form of determinations of fact, are the very issues to review which this Court sits.” Watts v. Indiana, 338 U. S. 49, 51 (1949) (opinion of Frankfurter, J.). See also Culombe v. Connecticut, 367 U. S. 568, 605 (1961) (opinion of Frankfurter, J.).

       See n. 1, supra. The Court of Appeals determined that the other diagnosis offered, “[s]ociopathic personality disorder, sexual perversion,” was excluded as a “mental disease or defect” under Missouri law. See Mo. Rev. Stat. § 552.010 (1969),

       In a colloquy with the trial judge, petitioner’s counsel noted that the examination and evaluation “could be done during the summer months and be ready for trial or else the examination would eliminate trial by September.” App. 17. (Emphasis added.)

       The sentencing judge observed that “motions for psychiatric examinations have often been made merely for the purpose of delay,” and “estimated that almost seventy-five percent of those sent for psychiatric examinations are returned mentally competent.” App. 202. Although we do not, of course, suggest that courts must accept without question a lawyer’s representations concerning the competence of his client, see United States ex rel. Rizzi v. Follette, 367 F. 2d 559, 561 (CA2 1966), an expressed doubt in that regard by one with “the closest contact with the defendant,” Pate v. Robinson, 383 U. S. 375, 391 (1966) (Harlan, J., dissenting), is unquestionably a factor which should be considered. Moreover, resolution of the issue of competence to stand trial at an early date best serves both the interests of fairness, see Peyton v. Rowe, 391 U. S. 54, 62 (1968), and of sound judicial administration. See Panel on Recognizing and Determining Mental Competency to Stand Trial — Insanity as a Defense, in Institutes on Sentencing, 37 F. R. D. Ill, 155, 161 (1964). Realization of those facts may have prompted the practice, noted by the sentencing court, “of the Circuit Attorney at the time to consent in all cases to a psychiatric examination whether with or without merit and without looking into the matter further.” App. 206.

       See n. 1, supra. The sentencing court noted: “She did testify in answer to the question ‘And at that time didn’t you tell me that you felt your husband was sick and needed psychiatric care?’ The answer ‘Yes.’ There was also some evidence of disputes and trouble accompanied by some physical force between husband and wife but not to the extent to indicate inability to understand the proceedings. There was no recitation of facts upon which a layman could base the opinion that the defendant was insane except the testimony perhaps that he rolled down the steps but this occurred only two' or three times over a period of eight or nine or ten years.” App. 201. The Court of Appeals dealt with her testimony only insofar as it repeated information in the psychiatric evaluation. It concluded that her feelings that petitioner had mental problems “bore on his sexual perversions — not his competency,” and that the stairs episodes “demonstrate[d] pique more than anything.” 498 S. W. 2d, at 842.

       It appears that under Mo. Rev. Stat. § 546.260 (1969) petitioner’s wife could not be compelled to testify against him. See State v. Dunbar, 360 Mo. 788, 230 S. W. 2d 845 (1950). Similarly, neither court mentioned Mrs. Drope’s testimony concerning petitioner’s consultations at City Hospital. At the Rule 27.26 hearing, it will be recalled, a psychiatrist testified that he had examined petitioner at City Hospital in 1965 and had determined that he was in need of psychiatric care.

       We assume, as did the Missouri Court of Appeals, that petitioner’s was a “bona fide” suicide attempt, rather than, as respondent contends, malingering. In that regard, the hearsay information in the possession of the trial judge when he denied the motion for a mistrial suggested an intent on the part of petitioner to kill himself, and a self-inflicted wound near vital organs does not suggest malingering. Of course we also recognize that “the empirical relationship between mental illness and suicide” or suicide attempts is uncertain and that a suicide attempt need not always signal “an inability to perceive reality accurately, to reason logically and to make plans and carry them out in an organized fashion.” Greenberg, Involuntary Psychiatric Commitments to Prevent Suicide, 49 N. Y. U. L. Rev. 227, 234, 236 (1974). See also Pokorny, Myths about Suicide, in Suicidal Behaviors 64-65 (H. Resnik ed. 1968).

       In reaching this conclusion we have not relied on the testimony of the psychiatrists at the Rule 27.26 hearing, which, we agree with the Missouri Court of Appeals, is not relevant to the question before us.