source: Caselaw Access Project

author: Me. Justice Powell Mr. Justice Stevens,

license: Public Domain

text:
    DOYLE v. OHIO
    No. 75-5014.
    Argued February 23, 1976
    Decided June 17, 1976

    Powell, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN, Stewart, White, and Marshall, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun and Rehnquist, JJ., joined, post, p. 620.

      James R. Willis argued the cause for petitioners and filed briefs in both cases.

      Ronald L. Collins argued the cause pro hac vice and filed a brief for respondent in both cases.

      Together with No. 75-5015, Wood v. Ohio, also on certiorari to the same court.

        Solicitor General Bork filed a brief for the United States as amicus curiae.

   Me. Justice Powell

delivered the opinion of the Court.

The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. We conclude that use of the defendant’s post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.

I

Petitioners Doyle and Wood were arrested together and charged with selling 10 pounds of marihuana to a local narcotics bureau informant. They were convicted in the Common Pleas Court of Tuscarawas County, Ohio, in separate trials held about one week apart. The evidence at their trials was identical in all material respects.

The State’s witnesses sketched a picture of a routine marihuana transaction. William Bonnell, a well-known “street person” with a long criminal record, offered to assist the local narcotics investigation unit in setting up drug “pushers” in return for support in his efforts to receive lenient treatment in his latest legal problems. The narcotics agents agreed. A short time later, Bonnell advised the unit that he had arranged a “buy” of 10 pounds of marihuana and needed $1,750 to pay for it. Since the banks were closed and time was short, the agents were able to collect only $1,320. Bonnell took this money and left for the rendezvous, under surveillance by four narcotics agents in two cars. As planned, he met petitioners in a bar in Dover, Ohio. From there, he and petitioner Wood drove in Bonnell’s pickup truck to the nearby town of New Philadelphia, Ohio, while petitioner Doyle drove off to obtain the marihuana and then meet them at a prearranged location in New Philadelphia. The narcotics agents followed the Bonnell truck. When Doyle arrived at Bonnell’s waiting truck in New Philadelphia, the two vehicles proceeded to a parking lot where the transaction took place. Bonnell left in his truck, and Doyle and Wood departed in Doyle’s car. They quickly discovered that they had been paid $430 less than the agreed-upon price, and began circling the neighborhood looking for Bonnell. They were stopped within minutes by New Philadelphia police acting on radioed instructions from the narcotics agents. One of those agents, Kenneth Beamer, arrived on the scene promptly, arrested petitioners, and gave them Miranda warnings. A search of the car, authorized by warrant, uncovered the $1,320.

At both trials, defense counsel’s cross-examination of the participating narcotics agents was aimed primarily at establishing that, due to a limited view of the parking lot, none of them had seen the actual transaction but had seen only Bonnell standing next to Doyle’s car with a package under his arm, presumably after the transaction. Each petitioner took the stand at his trial and admitted practically everything about the State’s case except the most crucial point: who was selling marihuana to whom. According to petitioners, Bonnell had framed them. The arrangement had been for Bonnell to sell Doyle 10 pounds of marihuana. Doyle had left the Dover bar for the purpose of borrowing the necessary money, but while driving by himself had decided that he only wanted one or two pounds instead of the agreed-upon 10 pounds. When Bonnell reached Doyle's car in the New Philadelphia parking lot, with the marihuana under his arm, Doyle tried to explain his change of mind. Bonnell grew angry, threw the $1,320 into Doyle’s car, and took all 10 pounds of the marihuana back to his truck. The ensuing chase was the effort of Wood and Doyle to catch Bonnell to find out what the $1,320 was all about.

Petitioners’ explanation of the events presented some difficulty for the prosecution, as it was not entirely implausible and there was little if any direct evidence to contradict it. As part of a wide-ranging cross-examination for impeachment purposes, and in an effort to undercut the explanation, the prosecutor asked each petitioner at his respective trial why he had not told the frameup story to Agent Beamer when he arrested petitioners. In the first trial, that of petitioner Wood, the following colloquy occurred:

“Q. [By the prosecutor.] Mr. Beamer did arrive on the scene?
“A. [By Wood.] Yes, he did.
“Q. And I assume you told him all about what happened to you?
“A. No.
“Q. You didn’t tell Mr. Beamer?
“A. No.
“Q. You didn’t tell Mr. Beamer this guy put $1,300 in your car?
“A. No, sir.
“Q. And we can’t understand any reason why anyone would put money in your car and you were chasing him around town and trying to give it back?
“A. I didn’t understand that.
“Q. You mean you didn’t tell him that?
“A. Tell him what?
“Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene why didn’t you tell him?
“Q, But in any event you didn’t bother to tell Mr. Beamer anything about this?
“A. No, sir.”

Defense counsel’s timely objections to the above questions of the prosecutor were overruled. The cross-examination of petitioner Doyle at his trial contained a similar exchange, and again defense counsel’s timely objections were overruled.

Each petitioner appealed to the Court of Appeals, Fifth District, Tuscarawas County, alleging, inter alia, that the trial court erred in allowing the prosecutor to cross-examine the petitioner at his trial about his post-arrest silence. The Court of Appeals affirmed the convictions, stating as to the contentions about the post-arrest silence:

“This was not evidence offered by the state in its case in chief as confession by silence or as substantive evidence of guilt but rather cross examination of a witness as to why he had not told the same story earlier at his first opportunity.
“We find no error in this. It goes to credibility of the witness.”

The Supreme Court of Ohio denied further review. We granted certiorari to decide whether impeachment use of a defendant’s post-arrest silence violates any provision of the Constitution, a question left open last Term in United States v. Hale, 422 U. S. 171 (1975), and on which the Federal Courts of Appeals are in conflict. See id., at 173 n. 2.

II

The State pleads necessity as justification for the prosecutor’s action in these cases. It argues that the discrepancy between an exculpatory story at trial and silence at time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State’s case as it was developed at pretrial hearings. Noting that the prosecution usually has little else with which to counter such an exculpatory story, the State seeks only the right to cross-examine a defendant as to post-arrest silence for the limited purpose of impeachment. In support of its position the State emphasizes the importance of cross-examination in general, see Brown v. United States, 356 U. S. 148, 154-155 (1958), and relies upon those cases in which this Court has permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer’s failure to follow Miranda’s dictates. Harris v. New York, 401 U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975); see also Walder v. United States, 347 U. S. 62 (1954). Thus, although the State does not suggest petitioners’ silence could be used as evidence of guilt, it contends that the need to present to the jury all information relevant to the truth of petitioners’ exculpatory story fully justifies the cross-examination that is at issue.

Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U. S. 433, 443-444 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, at 177. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, at 182-183, put it very well:

“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.”

We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners’ convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion.

So ordered.

Mr. Justice Stevens,

with whom Mr. Justice Black-mun and Mr. Justice Rehnquist join, dissenting.

Petitioners assert that the prosecutor’s cross-examination about their failure to mention the purported “frame” until they testified at trial violated their constitutional right to due process and also their constitutional privilege against self-incrimination. I am not persuaded by the first argument; though there is merit in a portion of the second, I do not believe it warrants reversal of these state convictions.

The Court’s due process rationale has some of the characteristics of an estoppel theory. If (a) the defendant is advised that he may remain silent, and (b) he does remain silent, then we (c) presume that his decision was made in reliance on the advice, and (d) conclude that it is unfair in certain cases, though not others, to use his silence to impeach his trial testimony. The key to the Court’s analysis is apparently a concern that the Miranda warning, which is intended to increase the probability that a person's response to police questioning will be intelligent and voluntary, will actually be deceptive unless we require the State to honor an unstated promise not to use the accused’s silence against him.

In my judgment there is nothing deceptive or prejudicial. to the defendant in the Miranda warning. Nor do I believe that the fact that such advice was given to the defendant lessens the probative value of his silence, or makes the prosecutor’s cross-examination about his silence any more unfair than if he had received no such warning.

This is a case in which the defendants’ silence at the time of their arrest was graphically inconsistent with their trial testimony that they were the unwitting victims of a “frameup” in which the police did not participate. If defendants had been framed, their failure to mention that fact at the time of their arrest is almost inexplicable; for that reason, under accepted rules of evidence, their silence is tantamount to a prior inconsistent statement and admissible for purposes of impeachment.

Indeed, there is irony in the fact that the Miranda warning provides the only plausible explanation for their silence. If it were the true explanation, I should think that they would have responded to the questions on cross-examination about why they had remained silent by stating that they relied on their understanding of the advice given by the arresting officers. Instead, however, they gave quite a different jumble of responses. Those responses negate the Court’s presumption that their silence was induced by reliance on deceptive advice.

Since the record requires us to put to one side the Court’s presumption that the defendants’ silence was the product of reliance on the Miranda warning, the Court’s entire due process rationale collapses. For without reliance on the waiver, the case is no different than if no warning had been given, and nothing in the Court's opinion suggests that there would be any unfairness in using petitioners’ prior inconsistent silence for impeachment purposes in such a case.

Indeed, as a general proposition, if we assume the defendant’s silence would be admissible for impeachment purposes if no Miranda warning had been given, I should think that the warning would have a tendency to salvage the defendant’s credibility as a witness. If the defendant is a truthful witness, and if his silence is the consequence of his understanding of the Miranda warning, he may explain that fact when he is on the stand. Even if he is untruthful, the availability of that explanation puts him in a better position than if he had received no warning. In my judgment, the risk that a truthful defendant will be deceived by the Miranda warning and also will be unable to explain his honest misunderstanding is so much less than the risk that exclusion of the evidence will merely provide a shield for perjury that I cannot accept the Court’s due process rationale.

Accordingly, if we assume that the use of a defendant’s silence for impeachment purposes would be otherwise unobjectionable, I find no merit in the notion that he is denied due process of law because he received a Miranda warning.

II

Petitioners argue that the State violated their Fifth Amendment privilege against self-incrimination by asking the jury to draw an inference of guilt from their constitutionally protected silence. They challenge both the prosecutor’s cross-examination and his closing argument.

A

Petitioners claim that the cross-examination was improper because it referred to their silence at the time of their arrest, to their failure to testify at the preliminary hearing, and to their failure to reveal the “frame” prior to trial. Their claim applies to the testimony of each defendant at his own trial, and also to the testimony each gave as a witness at the trial of the other. Since I think it quite clear that a defendant may not object to the violation of another person’s privilege, I shall only discuss the argument that a defendant may not be cross-examined about his own prior inconsistent silence.

In support of their objections to the cross-examination about their silence at the time of arrest, petitioners primarily rely on the statement in Miranda v. Arizona, 384 U. S. 436, that the prosecution may not use at trial the fact that the defendant stood mute or claimed the privilege in the face of accusations during custodial interrogation. There are two reasons why that statement does not adequately support petitioners’ argument.

First, it is not accurate to say that the petitioners “stood mute or claimed the privilege in the face of accusations.” Neither petitioner claimed the privilege and petitioner Doyle did not even remain silent. The case is not one in which a description of the actual conversation between the defendants and the police would give rise to any inference of guilt if it were not so flagrantly inconsistent with their trial testimony. Rather than a claim of privilege, we simply have a failure to advise the police of a “frame” at a time when it most surely would have been mentioned if petitioners’ trial testimony were true. That failure gave rise to an inference of guilt only because it belied their trial testimony.

Second, the dictum in the footnote in Miranda relies primarily upon Griffin v. California, 380 U. S. 609, which held that the Fifth Amendment, as incorporated in the Fourteenth, prohibited the prosecution’s use of the defendant’s silence in its case in chief. But as long ago as Raffel v. United States, 271 U. S. 494, this Court recognized the distinction between the prosecution’s affirmative use of the defendant’s prior silence and the use of prior silence for impeachment purposes. Raff el expressly held that the defendant’s silence at a prior trial was admissible for purposes of impeachment despite the application in federal prosecutions of the prohibition that Griffin found in the Fifth Amendment. Raffel, supra, at 496-497.

Moreover, Mr. Chief Justice Warren, the author of the Court’s opinion in Miranda, joined the opinion in Walder v. United States, 347 U. S. 62, which squarely held that a valid constitutional objection to the admissibility of evidence as part of the Government’s case in chief did not bar the use of that evidence to impeach the defendant’s trial testimony. The availability of an objection to the affirmative use of improper evidence does not provide the defendant “with a shield against contradiction of his untruths.” Id., at 65. The need to ensure the integrity of the truth-determining function of the adversary trial process has provided the predicate for an unbroken line of decisions so holding.

Although I have no doubt concerning the propriety of the cross-examination about petitioners’ failure to mention the purported “frame” at the time of their arrest, a more difficult question is presented by their objection to the questioning about their failure to testify at the preliminary hearing and their failure generally to mention the “frame” before trial. Unlike the failure to make the kind of spontaneous comment that discovery of a "frame” would be expected to prompt, there is no significant inconsistency between petitioners’ trial testimony and their adherence to counsel’s advice not to take the stand at the preliminary hearing; moreover, the decision not to divulge their defense prior to trial is probably attributable to counsel rather than to petitioners. Nevertheless, unless and until this Court overrules Raffel v. United States, 271 U. S. 494, I think a state court is free to regard the defendant’s decision' to take the stand as a waiver of his objection to the use of his failure to testify at an earlier proceeding or his failure to offer his version of the events prior to trial.

B

In my judgment portions of the prosecutor’s argument to the jury overstepped permissible bounds. In each trial, he commented upon the defendant’s silence not only as inconsistent with his testimony that he had been “framed,” but also as inconsistent with the defendant’s innocence. Comment on the lack of credibility of the defendant is plainly proper; it is not proper, however, for the prosecutor to ask the jury to draw a direct inference of guilt from silence — to argue, in effect, that silence is inconsistent with innocence. But since the two inferences — perjury and guilt — are inextricably intertwined because they have a common source, it would be unrealistic to permit comment on the former but to find reversible error in the slightest reference to the latter. In the context of the entire argument and the entire trial, I am not persuaded that the rather sophisticated distinction between permissible comment on credibility and impermissible comment on an inference of guilt justifies a reversal of these state convictions.

Accordingly, although I have some doubt concerning the propriety of the cross-examination about the preliminary hearing and consider a portion of the closing argument improper, I would affirm these convictions.

         Miranda v. Arizona, 384 U. S. 436, 467-473 (1966).

       Defense counsel’s efforts were not totally successful. One of the four narcotics agents testified at both trials that he had seen the package passed through the window of Doyle’s car to Bonnell. In an effort to impeach that testimony, defense counsel played a tape of the preliminary hearing at which the same agent had testified only to seeing the package under Bonnell’s arm. The agent did not retract his trial testimony, and both he and the prosecutor explained the apparent inconsistency by noting that the examination at the preliminary hearing had not focused upon whether anyone had seen the package pass to Bonnell.

       See n. 2, supra.

       Trial transcript in Ohio v. Wood, No. 10657, Common Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 465-470.

       Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Ti\), 504M507:
      “Q. [By the prosecutor.] . . . You are innocent?
      “A. [By Doyle.] I am innocent. Yes Sir.
      “Q. That's why you told the police department and Kenneth Beamer when they arrived—

        “A. ... I didn’t tell them about my innocence. No.
      “Q. You said nothing at all about how you had been set up?
      "Q. Did Mr. Wood?
      “A. Not that I recall, Sir.
      “Q. As a matter of fact, if I recall your testimony correctly, you said instead of protesting your innocence, as you do today, you said in response to a question of Mr. Beamer, — 'I don’t know what you are talking about.’
      “A. I believe what I said, — ‘What’s this all about?’ If I remember, that’s the only thing I said.
      “A. I was questioning, you know, what it was about. That’s what I didn’t know. I knew that I was trying to buy, which was wrong, but I didn’t know what was going on. I didn’t know that Bill Bonnell was trying to frame me, or what-have-you.
      “Q. All right, — But you didn’t protest your innocence at that time?
      “A. Not until I knew what was going on.”
      In addition, the court in both trials permitted the prosecutor, over more objections, to argue petitioners’ post-arrest silence to the jury. Closing Argument of Prosecutor 13-14, supplementing Wood Tr.; Doyle Tr. 515, 526.

       Petitioners also claim constitutional error because each of them was cross-examined by the prosecutor as to why he had not told the exculpatory story at the preliminary hearing or any other time prior to the trials. In addition, error of constitutional dimension is asserted because each petitioner was cross-examined as to post-arrest, preliminary hearing, and general pretrial silence when he testified as a defense witness at the other petitioner’s trial. These averments of error present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest. In view of our disposition of this case we find it unnecessary to reach these additional issues.

       We recognize, of course, that unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge. See generally Fitzpatrick v. United States, 178 U. S. 304, 315 (1900).

       The dissent by Mr. Justice Stevens expresses the view that the giving of Miranda warnings does not lessen the “probative value of [a defendant’s] silence . . . .” Post, at 621. But in United

        States v. Hale, 422 U. S. 171, 177 (1975), we noted that silence at the time of arrest may be inherently ambiguous even apart from the effect of Miranda warnings, for in a given case there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation. In Hale we exercised our supervisory powers over federal courts. The instant cases, unlike Hale, come to us from a state court and thus provide no occasion for the exercise of our supervisory powers. Nor is it necessary, in view of our holding above, to express an opinion on the probative value for impeachment purposes of petitioners' silence. We note only that the Hale court considered silence at the time of arrest likely to be ambiguous and thus of dubious probative value.

       A somewhat analogous situation was presented in Johnson v. United States, 318 U. S. 189 (1943). A defendant who testified at his trial was permitted by the trial judge to invoke the Fifth Amendment privilege against self-incrimination in response to certain questions on cross-examination. This Court assumed that it would not have been error for the trial court to have denied the privilege in the circumstances, see id., at 196, in which case a failure to answer would have been a proper basis for adverse inferences and a proper subject for prosecutorial comment. But because the privilege had been granted, even if erroneously, “the requirements of fair trial” made it error for the trial court to permit comment upon the defendant’s silence. Ibid.

      “An accused having the assurance of the court that his claim of privilege would be granted might well be entrapped if his assertion of the privilege could then be used against him. His real choice might then be quite different from his apparent one. . . . Elementary fairness requires that an accused should not be misled on that score,” Id., at 197.

        Johnson was decided under this Court’s supervisory powers over the federal courts. But the necessity for elementary fairness is not unique to the federal criminal system. Cf. Raley v. Ohio, 360 U. S. 423, 437-440 (1959).

       The dissenting opinion relies on the fact that petitioners in this ease, when cross-examined about their silence, did not offer reliance on Miranda warnings as a justification. But the error we perceive lies in the cross-examination on this question, thereby implying an inconsistency that the jury might construe as evidence of guilt. After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.

       It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to ehafienge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F. 2d 1378, 1383 (CA5 1975).

       As the Court acknowledges, the “fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.” Ante, at 619 and this page, n. 11.

       At Wood’s trial, the arresting officer described the warning he gave petitioners:
      “I told Mr. Wood and Mr. Doyle of the Miranda warning rights— they had the right to remain silent, anything they said could and would be used against them in a court of law, and they had the right to an attorney and didn’t have to say anything without an attorney being present and if they couldn’t afford one, the court would appoint them one at the proper time.” Trial transcript in Ohio v. Wood, No. 10657, Common Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 126. At the Doyle trial, he testified that he “gave them their rights” and gave them a “ ‘Miranda Warning.’ ” Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Tr.), 269. Miranda v. Arizona, 384 U. S. 436, requires the following warning:
      “[The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id., at 479.

       3A J. Wigmore, Evidence § 1042 (Chadbourn rev. 1970).

       Petitioner Doyle gave the following testimony on direct and cross-examination at his trial:
      “Q. [By defense counsel.] And you were placed under arrest at that time?
      “A. [By Doyle.] Yes. I asked what for and he said, — ‘For the sale of marijuana.’ I told him, — I didn’t know what he was talking about.
      “Q. [By the prosecutor.] As a matter of fact, if I recall your testimony correctly, you said instead of protesting your innocence, as you do today, you said in response to a question of Mr. Beamer, — ‘I don’t know what you are talking about.’
      “A. [By Doyle.] I believe what I said, — ‘What’s this all about?’ If I remember, that’s the only thing I said.
      “Q. You testified on direct.
      “A. If I did, then I didn’t understand.
      “. . . I was questioning, you know, what it was about. That’s what I didn’t know. I knew that I was trying to buy, which was wrong, but I didn’t know what was going on. I didn’t know that Bill Bonnell was trying to frame me, or what-have-you.
      “Q. All right, — But you didn’t protest your innocence at that time?

        “A. Not until I knew what was going on.” Doyle Tr. 479, 506-507.
      At Wood’s trial, Doyle gave a somewhat different explanation of his silence at the time of arrest:
      “Q. [By the prosecutor.] Why didn’t [Wood] tell [the police officers] about Mr. Bonnell?
      “A. [By Doyle.] Because we didn’t know what was going on and wanted to find out.
      "Q. So he hid the money under the mat?
      “A. The police officers said they stopped us for a red fight. I wanted to get my hands on Bill Bonnell.
      “Q. It wasn’t because you were guilty, was it?
      “A. Because I wanted to get my hands on Bill Bonnell because I suspected he was trying . . .
      "Q. Why didn’t you tell the police that Bill Bonnell just set you up?
      “A. Because I would rather have my own hands on him.
      “Q. When Mr. Beamer arrived?
      “A. ... [W]hen Mr. Beamer got there I said to Mr. Beamer what the hell is all this about and he said you are under arrest for the suspicion of selling marijuana and I said you got to be crazy. I was pretty upset.
      “Q. So on the night of April 29 you felt that you were being framed like you are being framed today?
      “A. I was so confused that night, the night of the arrest.
      “Q. How about Mr. Wood?
      “A. Mr. Wood didn’t know what was going on.
      “Q. . . . Are you as mad and upset today as you were that night ?
      “A. I can’t answer that question.
      “Q. Did you feel the same way about what happened to you?
      “A. That night I felt like I couldn’t believe what was happening.
      “Q. You didn’t like being framed?

        “A. That is right. I didn’t like some one putting me in a spot like that.
      “Q. Didn’t it occur to you to try to protect yourself?
      “A. Yes, at this time I felt like I wasn’t talking to nobody but John James who was the attorney at that time.
      “Q. But you felt .. .
      “A. The man walked up and didn’t ask me anything.
      “Q. You didn’t talk to a soul about how rotten it was because you were framed?
      “A. I will answer the question, sir, the best I can. I didn’t know what to say. I was stunned about what was going on and I was asked questions and I answered the questions as simply as I could because I didn’t have nobody there to help me answer the questions.
      "Q. Wouldn't that have been a marvelous time to protest your innocence?

        “A. I don’t know if it would or not.
      “Q. Do you remember having a conversation with Kenneth Beamer?
      “A. Yes, sir.
      “Q. What was said?

        “A. Kenneth Beamer said I want to know where you stash— where your hide out is, where you are keeping the dope and I said I don’t know what you are talking about. I believe the question was asked in front of you.
      “Q. Where did this conversation take place?
      “A. Took place during the search.
      “Q. So any way you didn’t tell anyone how angry you were that night?

        “A. I was very angry.
      “Q. But you didn’t tell anyone?

        “A. That is right. If I started I don't know where I would have stopped. I was upset.” Wood Tr. 424-430.
      Petitioner Wood testified on cross-examination at his trial as follows:
      “Q. [By the prosecutor.] Jefferson Doyle said he was confused, angry and upset [at the time of the arrest]. Were you confused, angry and upset?
      “A. [By Wood.] Upset and confused.
      “Q. Why were you upset?
      “A. Because I didn’t know what was going on most of the time.
      “Q. Why would you be upset? Because you found $1300 in your back seat?
      “A. Mainly because the person that was in the car Jeff [Doyle] was upset confused and angry and ...
      “Q. What has that to do with you?
      “A. I am in the car. That is what it has to do with me.
      “Q. You are innocent?
      “A. Yes.
      “Q. Of anything?
      “A. I don't know about anything.
      “Q. This particular incident, you were placed under arrest, weren’t you?
      “A. Yes, innocent of this incident.
      “Q. Innocent of the entire transaction?
      “A. Yes, sir.
      “Q. Or even any knowledge of the entire transaction?
      “A. Up to a point, sir.
      “Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene why didn’t you tell him?
      “A. Mr. Cunningham, in the last eight months to a year there has been so many implications, etc. in the paper and law enforcement that are setting people up and busting them for narcotics and stuff.” Wood Tr. 467-469.

       See Massiah v. United States, 377 U. S. 201, 206-207; 8 J. Wigmore, Evidence §2270, pp. 416-417 (McNaughton rev. 1961); cf. Alderman v. United States, 394 U. S. 165, 174. Cross-examination and comment upon a witness’ prior silence does not raise any inference prejudicial to the defendant, and indeed, does not even raise any inference that the defendant remained silent.

       “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U. S. 609 (1965); Malloy v. Hogan, 378 U. S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U. S. 532, 562 (1897).” 384 U. S., at 468 n. 37.

         See n, 4, supra.

       As the Court recently recognized in a most carefully considered opinion, an adversary system can maintain neither the reality nor the appearance of efficacy without the assurance that its judgments rest upon a complete illumination of a case rather than upon “a partial or speculative presentation of the facts.” United States v. Nixon, 418 U. S. 683, 709. The necessity of insuring a complete presentation of all relevant evidence has led to the rule that a criminal defendant who voluntarily forgoes his privilege not to testify, and presents exculpatory or mitigating evidence, thereby subjects himself to relevant cross-examination without the right to reclaim Fifth Amendment protection on a selective basis. Fitzpatrick v. United States, 178 U. S. 304, 315.
      “If he taires the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’ ” Brown v. United States, 356 U. S. 148, 15A-155 (citation omitted).
      One need not impute perjury to an entire- class to acknowledge that a testifying defendant has more to gain and less to lose than an ordinary witness from fabrications upon the witness stand. Cf. Reagan v. United States, 157 U. S. 301, 304-311; Taylor v. United States, 390 F. 2d 278, 284-285 (CA8 1968) (Blackmun, J.). As the Court notes today: “Unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge.” Ante, at 617 n. 7. In recognition of this fact, this Court has allowed evidence to be used for impeachment purposes that would be inadmissible as evidence of guilt. In Walder v. United States, 347 U. S. 62, evidence of narcotics unlawfully seized in connection with an aborted earlier case against a defendant was held admissible for the limited purpose of impeaching the defendant’s testimony that he never had been associated with narcotics, although such evidence clearly was inadmissible for any purpose in the prosecution’s ease in chief. In Harris v. New York, 401 U. S. 222, the Court held admissible for the purpose of impeaching a defendant's testimony certain partially inconsistent post-arrest statements which, although voluntary, were unavailable for the prosecution’s case because they had been given by the defendant without benefit of Miranda warnings. And last Term, in a decision closely analogous to Harris, the Court held admissible for impeachment purposes post-arrest statements of a defendant made after he had received Miranda warnings and exercised his right to request a lawyer, but before he had been furnished with counsel as Miranda requires in such circumstances. Oregon v. Hass, 420 U. S. 714.
      In each of these cases involving impeachment cross-examination, the need to insure the integrity of the trial by the “traditional truth-testing devices of the adversary process,” Harris v. New York, supra, at 225, was deemed to outweigh the policies underlying the relevant exclusionary rules.

       Petitioner Doyle was cross-examined as follows at his trial:
      “Q. [By the prosecutor.] All right. Do you remember the Preliminary Hearing in this case?
      “A. [By Doyle.] Yes Sir. I remember it.
      “Q. And that was prior to your indictment for this offense, was it not?
      "A. Yes sir. I believe, — Yes Sir, it was before I was indicted.
      "Q. Arraignment. Is that what you mean?
      “A. Yes. The next day after the arrest.
      “Q. Yes, when evidence was presented and you had the opportunity to hear the testimony of the witnesses against you. Remember that?
      “A. Yes Sir.
      “Q. Mr. Bonnell testified; Captain Griffin testified; Deputy— Chief Deputy White testified?
      “A. Yes Sir.
      “Q, Kenneth Beamer testified?
      “A. Yes Sir.

        "Q. You were there, weren’t you?
      “A. Yes Sir.
      “Q. And your lawyer was there, — Mr. James?
      “A. Yes Sir.
      “Q. Tape recording was made of the transcript?
      “A. Yes Sir.
      “Q. Did you protest your innocence at that proceeding?
      “A. I didn’t — everything that was done with that was done with my attorney. My attorney did it.
      “Q. All right. The first time that you gave this version of the fact was in the trial of Richard Wood, — was it not?
      “A. Yes Sir. It was the first time I was asked.
      “Q. All the time, you being innocent?
      “A. Yes Sir.” Doyle Tr. 507-508.
      Petitioner Wood was subjected to similar cross-examination at his trial:
      “Q. [By the prosecutor.] As a matter of fact you never told anyone that you had been set up until today?
      “A. [By Wood.] Yes, I believe I did, sir.
      “Q. I assume you discussed it with your lawyer?
      “A. Yes, I discussed it with my lawyer.
      “Q. And you heard the testimony and witnesses against you?
      “A. Yes, sir.
      “Q. And were you awafe Mr. James was able to obtain a tape transcript of the proceedings?
      “A. Yes.
      “Q. And you no doubt listened to those?
      “A. Parts and portions of them — some of it.
      "Q. But you never communicated your innocenoe?
      “A. I believe I did one time to Mr. Beamer.
      “Q. When might that have been?
      “A. When in the jail house.
      “Q. So you protested your innocence?
      “A. In a little room. I believe he asked us how do you let people get away with people setting up friends like this. He said Bill Bonnell is not your friend and I said no, but I figured he was a good enough acquaintance he would do that.
      “Q. Where was that?
      “A. Little room there.
      “Q. Ever been there before?
      “A. Yes, sir.
      “Q. When?
      “Q. Did you see me there?
      “A. I didn't know who you were at the time. I believe you were in and out of there.
      “Q. You didn’t say anything to me, did you?
      “A. No, I didn’t know who you were then.” Wood Tr. 470-472.

       Under Ohio law, the preliminary hearing determines only whether the defendant should be held for trial. The prosecution need establish, at most, that a crime has been committed and that there is “probable and reasonable cause” to hold the defendant for trial; and the court need only find “substantial credible evidence” of the charge against the defendant. Ohio Rev. Code Ann. §§2937.12, 2937.13 (Supp. 1973). Indeed, if a defendant has been indicted, no hearing need be held. State v. Morris, 42 Ohio St. 2d 307, 326, 329 N. E. 2d 85, 97 (1975). Defense counsel thus will have no incentive to divulge the defendant’s case at the preliminary hearing if the prosecution has presented substantial evidence of guilt. Since that was the case here, no significant impeaching inference may be drawn from petitioners’ silence at that proceeding.
      Petitioners’ failure to refer to the “frame” at any time between arrest and trial is somewhat more probative; for if the “frame” story were true, one would have expected counsel to try to persuade the prosecution to dismiss the charges in advance of trial.

         Raffel was the last decision of this Court to address the constitutionality of admitting evidence of a defendant’s prior silence to impeach his testimony upon direct examination. Raffel had been charged with conspiracy to violate the National Prohibition Act. An agent testified at his first trial that he had admitted ownership of a drinking place; Raffel did not take the stand. The trial ended in a hung jury, and upon retrial, the agent testified as before. Raffel elected to testify and denied making the statement, but he was cross-examined on his failure to testify in the first trial. This Court held that the evidence was admissible because Raffel had completely waived the privilege against self-incrimination by deciding to testify. 271 U. S., at 499.
      Subsequent cases, decided in the exercise of this Court’s supervisory powers, have diminished the force of Raffel in the federal courts. United States v. Hale, 422 U. S. 171; Stewart v. United States, 366 U. S. 1; Grunewald v. United States, 353 U. S. 391. All three of these cases held that the defendant’s prior silence or prior claim of the privilege was inadmissible for purposes of impeachment; all three distinguished Raffel on the ground that the Court there assumed that the defendant’s prior silence was significantly inconsistent with his testimony on direct examination. Hale, supra, at 175-176; Stewart, supra, at 5-7; Grunewald, supra, at 418-424. Two of the three cases relied upon the need to protect the defendant’s exercise of the privilege against self-incrimination from unwarranted inferences of guilt, a rationale that is not easily reconciled with the reasoning in Raffel that the decision to testify constitutes a complete waiver of the protection afforded by the privilege. Compare Hale, supra, at 180 and n. 7, and Grunewald, supra, at 423-424, with Raffel, 271 U. S., at 499.

       At Doyle’s trial, the prosecutor made the following arguments to the jury:
      "Diffuse what the true facts are; obscure the facts and prosecute the prosecution.
      “A typical and classic defense, but keep in mind, when you are considering the testimony of the law enforcement officers involved, that not until, Ladies and Gentlemen, not until the trial, of this case and prior to this case, the trial of Richard Wood’s case, that anybody connected with the prosecution in this case had any idea what stories would be told by Jefferson Doyle and Richard Wood. Not the foggiest idea. Both of them told you on the witness stand that neither one of them said a word to the law enforcement officials on the scene—
      “(continuing) on the scene at the point of their arrest, at the Preliminary Hearing before Indictment in this case. Not a word that they were innocent; that this was their position; that somehow, they had been 'set-up.’
      “So, when you evaluate the testimony of the Law Enforcement Officials, consider—
      “(continuing) — what they had to deal with on the night in question and the months subsequent to that.
      “Then they decide that they have been ‘had’ somehow. They have been framed.
      “Now, remember, this fits with the facts as observed by the law enforcement officers except the basic, crucial facts. Somehow, they have been framed. So, if you can believe this, Ladies and Gentlemen, they take off, chase Bill Bonnell around to give his money back to him or ask him what he did to them, yet they don’t bother to tell the Law Enforcement Officers.
      “It is unbelievable. I think, when you go to the Jury Room, Ladies and Gentlemen, you are going to decide what really happened.
      “We have the Fifth Amendment. I agree with it. It is fundamental to our sense and system of fairness, but if you are innocent—
      “(continuing) — if you are innocent, Ladies and Gentlemen, if you have been framed, if you have been set-on, etc. etc. etc., as we heard in Court these last days, you don’t say, when the law enforcement officer says, — ‘You are under arrest,’ — you don’t say, — ‘I don’t know what you are talking about.’ You tell the truth. You tell them what happened and you go from there. You don’t say,— ‘I don't know what you are talking about,’— and demand to see your lawyer and refuse to permit a search of your vehicle, forcing the law enforcement agents to get a search warrant.
      “If you’re innocent, you just don’t do it.” Doyle Tr. 515-516, 519, 526.
      At Wood’s trial, he made similar arguments:
      “The defense in this case was very careful to make no statements at all until they had the benefit of hearing all the evidence against them and had time to ascertain what they would admit and what they would deny and how they could fit their version of the story with the state’s case. During none of this time did we ever hear any business about a set up or frame or anything else. All right.
      “Yes, it is the law of our land, and rightfully so, ladies and gentlemen, that nobody must be compelled to incriminate themselves. It is the 5th Amendment. No one can be forced to give testimony against themselves where criminal action charges are pending. It is a very fundamental right and I am glad we have it.
      “The idea was nobody can convict himself out of his own mouth and it grew out of the days when they used to whip and beat and extract statements from the defendants and get them to convict themselves out of their own mouth, and I am glad we have that right.
      “But ladies and gentlemen, there is one statement I am going to make. If you are innocent, if you are innocent, if you have been framed, if you have been set up as claimed in this case, when do you tell it? When do you tell the policemen that?
      “Think about it. After months — after various proceedings and for the first time? I am not going to say any more about that but I want you to think about it.” Closing Argument of the Prosecutor 12-14, supplementing Wood Tr.

       Petitioner Doyle also argues that he was erroneously cross-examined at his trial on his failure to consent to a search of the car he was driving at the time of the arrest. Petitioner Wood appears to raise the similar claim that testimony of other witnesses that he failed to consent to a search of the car was erroneously admitted at his trial. The parties have not argued these issues separately from the questions whether prior silence in various circumstances may be admitted to impeach a defendant or a defense witness. It is apparent, however, that these questions implicate Fourth Amendment issues that merit independent examination. Accordingly, like the Court, I do not address them.


author: Mr. Justice Stevens Mr. Justice White, Mr. Justice Rehnquist,

text:
    HENDERSON, CORRECTIONAL SUPERINTENDENT v. MORGAN
    No. 74-1529.
    Argued February 24, 1976
    Decided June 17, 1976

      Stevens, J., delivered the opinion of the Court, in which Brennan, StewaRt, White, Marshall, Blackmun, and Powell, JJ., joined. White, J., filed a concurring opinion, in which Stewart, Blackmun, and Powell, JJ., joined, post, p. 647. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 652.

      Joel Lewittes argued the cause for petitioner. On the brief were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Ralph L. McMurry, Assistant Attorney General.

      Joseph E. Lynch, by appointment of the Court, 423 U. S. 943, argued the cause and filed a brief for respondent.
   Mr. Justice Stevens

delivered the opinion of the Court.

The question presented is whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.

The case arises out of a collateral attack on a judgment entered by a state trial court in Fulton County, N. Y., in 1965. Respondent, having been indicted on a charge of first-degree murder, pleaded guilty to second-degree murder and was sentenced to an indeterminate term of imprisonment of 25 years to life. He did not appeal.

In 1970, respondent initiated proceedings in the New York courts seeking to have his conviction vacated on the ground that his plea of guilty was involuntary. The state courts denied relief on the basis of the written record. Having exhausted his state remedies, in 1973, respondent filed a petition for writ of habeas corpus in the United States District Court for the Northern District of New York. He alleged that his guilty plea was involuntary because he was not aware (1) of the sentence that might be imposed upon conviction of second-degree murder, or (2) that intent to cause death was an element of the offense. Based on the state-court record, the Federal District Court denied relief. The Court of Appeals reversed summarily and directed the District Court “to conduct an evidentiary hearing on the issues raised by petitioner, including whether, at the time of his entry of his guilty plea, he was aware that intent was an essential element of the crime and was advised of the scope of the punishment that might be imposed.”

Upon remand the District Judge heard the testimony of several witnesses including respondent, the two lawyers who had represented him in 1965, the prosecutor, and respondent’s mother. In addition, the transcript of the relevant state-court proceedings and certain psychological evaluations of respondent were made a part of the record.

At the conclusion of the hearing, the District Court made only two specific findings of fact. First, contrary to respondent’s testimony, the court expressly found that he was advised that a 25-year sentence would be imposed if he pleaded guilty. Second, the court found that respondent “was not advised by counsel or court, at any time, that an intent to cause the death or a design to effect the death of the victim was an essential element of Murder 2nd degree.” On the basis of the latter finding, the District Court held “as a matter of law” that the plea of guilty was involuntary and had to be set aside. This holding was affirmed, without opinion, by the Court of Appeals.

Before addressing the question whether the District Court correctly held the plea invalid as a matter of law, we review some of the facts developed at the evidentiary hearing.

I

On April 6, 1965, respondent killed Mrs. Ada Francisco in her home.

When he was in seventh grade, respondent was committed to the Rome State School for Mental Defectives where he was classified as “retarded.” He was released to become a farm laborer and ultimately went to work on Mrs. Francisco’s farm. Following an argument, she threatened to return him to state custody. He then decided to abscond. During the night he entered Mrs. Francisco’s bedroom with a knife, intending to collect his earned wages before leaving; she awoke, began to scream, and he stabbed her. He took a small amount of money, fled in her car, and became involved in an accident about 80 miles away. The knife was found in the glove compartment of. her car. He was promptly arrested and made a statement to the police. He was then 19 years old and substantially below average intelligence.

Respondent was indicted for first-degree murder and arraigned on April 15, 1965. Two concededly competent attorneys were appointed to represent him. The indictment, which charged that he “willfully” stabbed his victim, was read in open court. His lawyers requested, and were granted, access to his written statement and to earlier psychiatric reports. A new psychiatric examination was requested and ordered.

Respondent was found competent to stand trial. Defense counsel held a series of conferences with the prosecutors, with the respondent, and with members of his family. The lawyers “thought manslaughter first would satisfy the needs of justice.” They therefore endeavored to have the charge reduced to manslaughter, but the prosecution would agree to nothing less than second-degree murder and a minimum sentence of 25 years. The lawyers gave respondent advice about the different sentences which could be imposed for the different offenses, but, as the District Court found, did not explain the required element of intent.

On June 8, 1965, respondent appeared in court with his attorneys and entered a plea of guilty to murder in the second degree in full satisfaction of the first-degree murder charge made in the indictment. In direct colloquy with the trial judge respondent stated that his plea was based on the advice of his attorneys, that he understood he was accused of killing Mrs. Francisco in Fulton County, that he was waiving his right to a jury trial, and that he would be sent to prison. There was no discussion of the elements of the offense of second-degree murder, no indication that the nature of the offense had ever been discussed with respondent, and no reference of any kind to the requirement of intent to cause the death of the victim.

At the sentencing hearing a week later his lawyers made a statement explaining his version of the offense, particularly noting that respondent “meant no harm to that lady” when he entered her room with the knife. The prosecutor disputed defense counsel’s version of the matter, but did not discuss it in detail. After studying the probation officer’s report, the trial judge pronounced sentence.

At the evidentiary hearing in the Federal District Court, respondent testified that he would not have pleaded guilty if he had known that an intent to cause the death of his victim was an element of the offense of second-degree murder. The District Judge did not indicate whether or not he credited this testimony.

II

Petitioner contends that the District Court applied an unrealistically rigid rule of law. Instead of testing the voluntariness of a plea by determining whether a ritualistic litany of the formal legal elements of an offense was read to the defendant, petitioner argues that the court should examine the totality of the circumstances and determine whether the substance of the charge, as opposed to its technical elements, was conveyed to the accused. We do not disagree with the thrust of petitioner's argument, but we are persuaded that even under the test which he espouses, this judgment finding respondent guilty of second-degree murder was defective.

We assume, as petitioner argues, that the prosecutor had overwhelming evidence of guilt available. We also accept petitioner's characterization of the competence of respondent's counsel and of the wisdom of their advice to plead guilty to a charge of second-degree murder. Nevertheless, such a plea cannot support a judgment of guilt unless it was voluntary in a constitutional sense. And clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Smith v. O’Grady, 312 U. S. 329, 334.

The charge of second-degree murder was never formally made. Had it been made, it necessarily would have included a charge that respondent’s assault was “committed with a design to effect the death of the person killed.” That element of the offense might have been proved by the objective evidence even if respondent’s actual state of mind was consistent with innocence or manslaughter. But even if such a design to effect death would almost inevitably have been inferred from evidence that respondent repeatedly stabbed Mrs. Francisco, it is nevertheless also true that a jury would not have been required to draw that inference. The jury would have been entitled to accept defense counsel’s appraisal of the incident as involving only manslaughter in the first degree. Therefore, an admission by respondent that he killed Mrs. Francisco does not necessarily also admit that he was guilty of second-degree murder.

There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.

Petitioner argues that affirmance of the Court of Appeals will invite countless collateral attacks on judgments entered on pleas of guilty, since frequently the record will not contain a complete enumeration of the elements of the offense to which an accused person pleads guilty. We think petitioner’s fears are exaggerated.

Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent. Moreover, respondent’s unusually low mental capacity provides a reasonable explanation for counsel’s oversight; it also forecloses the conclusion that the error was harmless beyond a reasonable doubt, for it lends at least a modicum of credibility to defense counsel’s appraisal of the homicide as a manslaughter rather than a murder.

Since respondent did not receive adequate notice of the offense to which he pleaded guilty, his plea was involuntary and the judgment of conviction was entered without due process of law.

Affirmed.

Mr. Justice White,

with whom Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Powell join, concurring.

There are essentially two ways under our system of criminal justice in which the factual guilt of a defendant may be-established such that he may be deprived of his liberty consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The first is by a verdict of a jury which, or a decision of a judge who, concludes after trial that the elements of the crime have been proved beyond a reasonable doubt. The second is by the defendant’s own solemn admission “in open court that he is in fact guilty of the offense with which he is charged,” Tollett v. Henderson, 411 U. S. 258, 267 (1973) (emphasis added), i. e., by a plea of guilty. The Court has repeatedly emphasized that “a guilty plea for federal purposes is a judicial admission of guilt conclusively establishing a defendant’s factual guilt.” Lefkowitz v. Newsome, 420 U. S. 283, 299 (1975) (White, J., dissenting) (emphasis added). We said in Brady v. United States, 397 U. S. 742, 748 (1970), that “central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.” In McMann v. Richardson, 397 U. S. 759, 773 (1970), we said that the defendant who pleads guilty is “convicted on his counseled admission in open court that he committed the crime charged against him”; and that “'[a] conviction after a plea of guilty normally rests bn the defendant’s own admission in open court that he committed the acts with which he is charged.” Id., at 766. (Emphasis added.)

The problem in this case is that the defendant’s guilt has been established neither by a finding of guilt beyond a reasonable doubt after trial nor by the defendant’s own admission that he is in fact guilty. The defendant did not expressly admit that he intended the victim’s death (such intent being an element of the crime for which he stands convicted); and his plea of guilty cannot be construed as an implied admission that he intended her death because the District Court has found that he was not told and did not know that intent to kill was an element of the offense with which he was charged.

Accordingly, the best that can be said for the judgment of conviction entered against the defendant is that it rests on strong evidence- — -never presented to a trier of fact — or that it rests on the judgment of his lawyer that he would probably be convicted of second-degree murder if he went to trial. It should hardly need saying that a judgment of conviction cannot be entered against a defendant no matter how strong the evidence is against him, unless that evidence has been presented to a jury (or a judge, if a jury is waived) and unless the jury (or judge) finds from that evidence that the defendant’s guilt has been proved beyond a reasonable doubt. It cannot be “harmless error” wholly to deny a defendant a jury trial on one or all elements of the offense with which he is charged. Similarly, it is too late in the day to permit a guilty plea to be entered against a defendant solely on the consent of the defendant’s agent — his lawyer. Our cases make absolutely clear that the choice to plead guilty must be the defendant’s: it is he who must be informed of the consequences of his plea and what it is that he waives when he pleads, Boykin v. Alabama, 395 U. S. 238 (1969); and it is on his admission that he is in fact guilty that his conviction will rest.

In this case the defendant’s factual guilt of second-degree murder has never been established in any fashion permitted by the Due Process Clause of the Fourteenth Amendment.

The dissent concedes that the conviction in this case was entered in violation of the United States Constitution. The dissent argues, however, that to set this defendant's conviction aside is to apply a new constitutional rule retroactively. The argument was not made by the petitioner in this case and is, in any event, untenable. In order to escape application of a constitutional rule to a particular criminal case, on nonretroactivity grounds, the State must point to a judicial decision occurring after the operative facts of the case in question clearly establishing the rule. The constitutional rule relevant to this case is that the defendant’s guilt is not deemed established by entry of a guilty plea, unless he either admits that he committed the crime charged, or enters his plea knowing what the elements of the crime charged are. If this is a new rule, created since the defendant entered his plea, I am at a loss to know what case, other than this one, established it. McCarthy v. United States, 394 U. S. 459 (1969), did not do so. That case involved only a construction of Fed. Rule Crim. Proc. 11, and has no application to the States. Boykin v. Alabama, supra, did not do so. It does not mention the method of establishing the defendant’s factual guilt. The only case which arguably addresses the issue in this case is Brady v. United States, 397 U. S. 742, 749 n. 6, which observed in dictum: “[T]he importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him . . . was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U. S. 238 (1969).” However, new rules of constitutional law are not established in dicta in footnotes. Either a new constitutional rule is being established in this case— in which event we will have to address at some future time the question whether this rule is retroactive — or, as I believe to be true, this case rests on the long-accepted principle that a guilty plea must provide a trustworthy basis for believing that the defendant is in fact guilty. If so, then the principle will and should govern all similar cases presented to us in the future. In any event, the judgment of the court below should be affirmed, and I join the opinion of the Court.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, dissenting.

The Court’s opinion affirms a judgment which directs the release on federal habeas of a state prisoner who, on advice of counsel, pleaded guilty in the New York State courts 11 years ago to a charge of second-degree murder. The Court declares its agreement with petitioner’s contention that the test for reviewing the constitutional validity of a counseled plea of guilty-should be “the totality of the circumstances,” ante, at 644. But the Court’s holding can be justified only if the Constitution requires that “a ritualistic litany of the formal legal elements of an offense [be] read to the defendant,” ibid., a requirement which it purports to eschew. The Court accomplishes this result by imposing on state courts, as a constitutional requirement, a definition of “voluntariness” announced by this Court in McCarthy v. United States, 394 U. S. 459 (1969), in which the Court interpreted a provision of the Federal Rules of Criminal Procedure. Yet that case has been held to have only prospective application even as to the federal courts. Holliday v. United States, 394 U. S. 831 (1969).

McCarthy extended the definition of voluntariness to include an “understanding of the essential elements of the crime charged, including the requirement of specific intent . . . 394 U. S., at 471. But prior to McCarthy, and to this Court’s decision of a related issue in Boykin v. Alabama, 395 U. S. 238 (1969), the generally accepted standard for a valid guilty plea in federal courts was set forth in Machibroda v. United States, 368 U. S. 487, 493 (1962), which in turn relied on Kercheval v. United States, 274 U. S. 220, 223 (1927). Though these were federal cases, certainly no more stringent a standard could be applied as a matter of constitutional law on federal habeas review of state convictions. The Court said in Machibroda:

'Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.’ ” 368 U. S., at 493, quoting Kercheval, supra, at 223.

These cases thus set forth a three-pronged test: The plea of guilty must be made voluntarily, it must be made after proper advice, and it must be made with full understanding of the consequences. There can be no doubt that respondent entered his plea “with full understanding of the consequences” because the District Court expressly so found. Nor can there be any serious doubt that respondent’s plea was made “voluntarily” as that term is used in Machibroda and the previous eases upon which it relies.

There was no contention in the federal habeas court that respondent’s guilty plea was not “voluntary” in the normal sense of that word. There was no hint of physical or psychological coercion, and respondent was represented by not one but two admittedly capable defense attorneys. While McCarthy v. United States, supra, at 471, expands the notion of “voluntariness” to include the concept that a defendant must have an “understanding of the essential elements of the crime charged, including the requirement of specific intent ■ . . in order for a plea in the federal courts to be valid under Fed. Rule Grim. Proc. 11, that decision was held prospective only in Halliday, supra. Even had it not been, Rule 11 by its terms applies only to proceedings in federal courts.

A perusal of cases in the Courts of Appeals decided before McCarthy, supra, and Boykin, supra, indicates that, at least in the case where the defendant is counseled, there was no requirement that every element of the offense be explained to or admitted by the defendant or even in every case that the consequences of the plea be enunciated. E. g., United States v. Cariola, 323 F. 2d 180 (CA3 1963); McGrady v. Cunningham, 296 F. 2d 600 (CA4 1961), cert. denied, 369 U. S. 855 (1962); Kennedy v. United States, 259 F. 2d 883 (CA5 1958), cert. denied, 359 U. S. 994 (1959); United States v. Swaggerty, 218 F. 2d 875 (CA7), cert. denied, 349 U. S. 959 (1955); see discussion in Halliday, supra, at 833. Thus, unless the Court intends to establish a new and far more stringent standard for all guilty pleas entered before the 1969 decisions of this Court in Boykin and McCarthy, respondent’s plea was “voluntary” as that term was understood before the decisions in those cases.

But the Court refers to “voluntary in a constitutional sense” stating that the term includes the requirement of “ ‘real notice of the true nature of the . . .’ charge,” ante, at 645, citing the pre-Boykin case of Smith v. O’Grady, 312 U. S. 329 (1941). Smith involved an “uneducated” defendant “without counsel, bewildered by court processes strange and unfamiliar to him, and inveigled by false statements of state law enforcement officers into entering a plea of guilty.” Id., at 334. The Court further observed that Smith’s plea was involuntary because he had not received any “real notice of the true nature of the charge against him.” Ibid. That is, he was told he was pleading to “simple burglary” and would receive a 3-year sentence when in fact he was tricked into pleading to “burglary with explosives” and was sentenced to 20 years. Thus the “notice” required by Smith is accurate information as to the offense and sentence to which one is pleading, which respondent received.

Since it seems clear under the foregoing analysis that respondent’s plea was “voluntarily made,” and since it is undisputed that it was made with full understanding of its consequences, the only remaining issue is whether he was “properly advised,” as that term is used in Machibroda, supra. This inquiry, in turn, depends upon the sort of advice reasonably competent counsel would have been expected to give him, see Brady v. United States, 397 U. S. 742, 756-757 (1970), and McMann v. Richardson, 397 U. S. 759, 770 (1970). Thus the test to be applied is not whether respondent’s attorneys mechanically recited to him the elements of the crime with which he was charged as those elements would have been set forth in black letter law in a criminal law horn-book, but rather it is a test based on the practices of reasonably competent attorneys experienced in the day-today business of representing criminal defendants in a trial court.

The Court states that it “accept [s] petitioner’s characterization of the competence of respondent’s counsel and of the wisdom of their advice to plead guilty to a charge of second-degree murder.” Ante, at 644.

In McMann, supra, the Court held that the requirement that a guilty plea be intelligently made “is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing.” 397 U. S., at 770. In this case, counsel advised their client as to the penalty for second-degree murder but did not go into “detail” as to the differences between first- and second-degree murder, believing that their client would not be interested. App. 57a. Now, 11 years later, this Court concludes that counsel’s decision was an error of constitutional magnitude.

Respondent was originally indicted for the crime of first-degree murder, and that indictment charged that in April 1965, he had “willfully, feloniously and of malice aforethought, stabbed and cut Ada Francisco with a dangerous knife . . . and that thereafter . . . the said Ada Francisco died of said wounds and injuries, said killing being inexcusable and unjustifiable.” Id., at 85a. Respondent’s attorney at the habeas hearing testified that respondent had stabbed his victim “many times” {id., at 67a), which suggests that experienced counsel would not consider the “design to effect death” issue to be in serious dispute. The habeas judge, in deciding that there was a factual basis for the entry of the plea, took much the same approach when he observed:

“The Court: Well the intent, I think there is a factual basis from the evidence where it, that is the jury would have a right to infer on the mere fact, I think when he hit her first and then used the knife, that there were multiple knife wounds, that the jury could infer, and as a matter of fact, I think from those same facts the Judge would have to permit the jury to decide as a question of fact whether there was premeditation on first degree murder, so that this man was a long way short of being out of the woods.
“So I am satisfied that there was a factual basis for the entry of the plea.” Id., at 78a.

I do not see how this Court, or any court, could conclude on this state of the record that respondent was not “properly advised” at the time he entered his plea of guilty to the charge of second-degree murder.

His attorneys were motivated by the eminently reasonable tactical judgment on their part that he should plead guilty to second-degree murder in order to avoid the possibility of conviction for first-degree murder with its more serious attendant penalties. Since the Court concedes both the competence of respondent’s counsel and the wisdom of their advice, that should be the end of the matter.

There are intimations in the Court’s opinion that the vice which it finds in the guilty plea is not that respondent was not informed of all the elements of the offense, but that instead he did not admit to all of those elements. Ante, at 646. But it is quite clear under our decision in North Carolina v. Alford, 400 U. S. 25 (1970), that the latter fact, standing alone, is not sufficient to invalidate a guilty plea. In Alford the defendant not only was not asked to admit to a certain element of the offense, as here, but affirmatively denied having committed the crime at all. Yet we upheld the guilty plea because, as here, it was a tactically sound decision for the defendant to plead to second-degree murder in order to escape the greater penalties which might result from a first-degree murder conviction. In Alford we placed great weight on the fact that, as in this case, “the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.” Id., at 31.

Thus the fact, relied upon by the Court, ante, at 645-646, that a jury would not have been required to infer the requisite intent from the facts admitted at the guilty plea is not significant. Alford, at his guilty plea, presented a complete defense to the crime by stating that he had not shot anyone. 400 U. S., at 28 n. 2. Respondent admitted the stabbing but made no statement as to his intent. Even if he had denied the intent, this plea would be valid under Alford.

The “totality of the circumstances” in this case shows that respondent pleaded guilty to second-degree murder upon the advice of competent counsel. His plea was in no way the result of physical or psychological coercion or overreaching by the State, and he was fully advised as to the consequences of that plea. True, he was not expressly advised that the “design to effect death” was an element of the offense to which he was pleading, although the original first-degree-murder indictment charging “malice aforethought” had been read to him. Given the finding of the habeas judge that there was more than ample evidence from which the jury could have found that respondent had the requisite intent, I cannot subscribe to the Court’s invalidation of his pre-1969 guilty plea for such an extremely technical defect.

In adopting the rule it does, the Court opens the door to countless similarly situated prisoners to withdraw their guilty pleas many years after they were entered. Since it is unlikely that prosecutors will be able to reassemble witnesses and evidence at this late date to try these prisoners, the practical effect of the Court’s ruling will be to release these prisoners who at one time freely admitted their guilt.

       On August 7, 1970, he filed both a “Notice of Motion to Withdraw Guilty Plea” and a “Petition for Writ of Error Coram Nobis.”

       The written record included the transcript of his original arraignment on the first-degree-murder charge on April 15, 1965, transcript of proceedings relating to the impaneling of a jury on June 7, 1965, transcript of the proceedings on June 8, 1965, when he pleaded guilty to second-degree murder, the sentencing hearing on June 15, 1965, an affidavit by the prosecutor, and certain psychological evaluations of respondent.

       The order denying his petition for a writ of error coram nobis was entered by the Trial Division of the Supreme Court of New York on May 29, 1971. On March 7, 1972, the Appellate Division affirmed without opinion, People v. Morgan, 38 App. Div. 2d 1012, 330 N. Y. S. 2d 1018; on July 6, 1972, the New York Court of Appeals denied permission to appeal.

       Federal jurisdiction was invoked under 28 U. S. C. § 2241 et seq.

       Memorandum Decision and Order dated Oct. 29, 1974, pp. 4r-5, App. 116a-117a.

       “In connection with petitioner’s second claim however, I find that he was not advised by court or counsel prior to his plea of the elements required to be established for any degree of homicide nor was he aware of the same; particularly, I find that petitioner was not advised by counsel or court, at any time, that an intent to cause the death or a design to effect the death of the victim was an essential element of Murder 2nd degree. As stated by the Supreme Court, ‘a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.’ McCarthy v. United States, 394 U. S. 459, 466 (1969). Based upon the foregoing, I hold as a matter of law that petitioner’s plea of guilty was not intelligently or knowingly entered and was, therefore, involuntary. Accordingly, petitioner’s plea of guilty to Murder 2nd degree must be set aside as involuntary and unconstitutional.” The District Court ordered that respondent be discharged from custody “unless the State of New York takes such steps as are necessary to return [him] to Fulton County for rearraignment; said rearraignment is to be held within 60 days of the date hereof . . . .” App. 117a-118a.

       516 E. 2d 897 (CA2 1975).

       At the evidentiary hearing in the District Court respondent’s attorney testified:
      “The Court: I inferred that he struck her, not cut her, didn’t use the knife?
      “The Witness: Not at first. She didn’t stop screaming and then he used the knife many times. He didn’t tell me that, but the allegation was that he hit her forty-five times with the knife.” (Emphasis added.) App. 67a.
      Apart from that hearsay, there is no evidence in the record to indicate whether the respondent struck or stabbed Mrs. Francisco many times. The indictment charged that respondent “stabbed and cut Ada Francisco with a dangerous knife, thereby inflicting divers wounds and injuries . . . .” Id., at 85a.

       His functioning I. Q. was reported by examiners as in the range between 68 and 72.

        Id., at 52a.

       The attorney described the incident, in part, in these words.:
      “He awakened Mrs. Francisco for the purpose of obtaining the money which was rightfully his, and which he had a right to. Of course it was an unusual hour to do it, but he had returned home late, and he had been threatened with that other thing on the part of Mrs. Francisco of returning him to the Rome School. So I assume, putting all of those factors together, the one idea in his mind was to take his money and get away as far as he could to avoid being transferred back.
      “Now, Mrs. Francisco was awakened. Apparently he had stayed there in the house, and she had no fear of him because her bedroom was open. There was no door on it. No locks at all. So when he awakened her, instead of responding to him, she merely started to scream. Now, I assume if she had talked to him that night in a normal tone, this thing would never have happened. But the minute she screamed, of course with his uncontrollable and ungovernable temper, and the idea in mind of perhaps she may awaken the people who were living in the other apartment of the house— there was a man and his wife who were working there for Mrs. Francisco and living in the house — in order to stop the screaming and in the excitement and tension of it all, the assault occurred and as a result Mrs. Francisco met her death.” Record on Appeal 32-33.

       Of course, respondent’s testimony on this point was hypothetical. The lawyers were certainly familiar with the intent requirement and evidently were satisfied that the objective evidence available to the prosecutor was sufficiently strong that the requisite intent could be proved beyond a reasonable doubt; accordingly, had this precise issue been discussed with respondent, his lawyers no doubt would have persisted in their advice to plead guilty. It follows that even if respondent’s testimony at the hearing was given in complete good faith, there is no way one can be sure that he would have refused to enter the plea following advice expressly including a discussion of this precise question. Indeed, we assume that he probably would have pleaded guilty anyway. Such an assumption is, however, an insufficient predicate for a conviction of second-degree murder.

       A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving, see, e. g., Johnson v. Zerbst, 304 U. S. 458, 464-465, or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. Smith v. O’Grady, 312 U. S. 329.

       In 1965 murder in the second degree was defined as follows by former New York Penal Law § 1046: “Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation.”

       Although respondent was found competent to stand trial, that finding would not, of course, foreclose a defense of temporary insanity.

       The offense of manslaughter in the first degree was defined to include a killing “[i]n the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.” See § 1050.

       “The fact that the prisoner plunged this pointed knife into what he knew to be a vital part of the body must raise a presumption that he intended to take life. Its natural result would be to destroy life, and he must be presumed to have intended the natural consequence of his act just as if he had aimed at the heart of the deceased and fired a gun. It was not charged that the evidence was conclusive, but simply that it was presumptive, and it was left to the jury to determine the fact upon the evidence under the charge as given.” Thomas v. People, 67 N. Y. 218, 225 (1876). “The intention may be inferred from the act, but this, in principle, is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court.” Stokes v. People, 53 N. Y. 164, 179 (1873). “[The] jury has the right to find from the results produced an intention to effect it.” People v. Cooke, 292 N. Y. 185, 189, 54 N. E. 2d 357, 359 (1944). “[T]he jury was not bound to presume an intent to kill from the intentional stabbing.” Id., at 190, 54 N. E. 2d, at 360.

       There is no need in this ease to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required.

       There exists what may be viewed as a third method of establishing a defendant’s factual guilt. We have permitted judgment to be entered against a defendant on his intelligent plea of guilty accompanied by a claim of innocence. We said in North Carolina v. Alford, 400 U. S. 25, 37 (1970):
      “[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”
      We held that where “a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt” a plea may be accepted even if accompanied by protestations of innocence. Ibid. (Emphasis added.) However, in that case the defendant pleaded guilty to second-degree murder after acknowledging that his “counsel had informed him of the difference between second- and first-degree murder.” Id., at 28-29. Alford is based on the fact that the defendant could intelligently have concluded that, whether he believed himself to be innocent and whether he could bring himself to admit guilt or not, the State's case against him was so strong that he would have been convicted anyway. Since such a defendant has every incentive to conclude otherwise, such a decision made after consultation with counsel is viewed as a sufficiently reliable substitute for a jury verdict that a judgment may be entered against the defendant. Plainly, a defendant cannot “intelligently” reach that conclusion if he does not know the elements of the crime to which he is pleading and therefore does not know what the State has to prove; and his ignorant decision to plead guilty under such circumstances is not a reliable indication that he is in fact guilty.

       This case is unusual in that the offense to which the defendant pleaded was not charged in the indictment. The indictment charged first-degree murder. The defendant pleaded guilty to the included offense of second-degree murder, the elements of which were not set forth in any document which had been read to the defendant or to which he had access. See McCarthy v. United States, 394 U. S. 459, 467 n. 20 (1969). In those eases in which the indictment is read to the defendant by the court at arraignment or at the time of his plea, his plea of guilty may well be deemed a factual admission that he did what he is charged with doing so- that a judgment of conviction may validly be entered against him.

       Admittedly the Court does not require that this litany be performed on the record, but the requirement that it be performed at some point in the proceedings, whether by counsel or by the court, is clear.

       The Court disclaims such a holding. Ante, at 647 n. 18. However, by holding that intent was a “critical element” here which must be described to the defendant the Court has accomplished the same effect, for every crime requires an intent and it is no more “critical” an element in this case than in any other. Indeed, it would seem to be far less significant here because it could have been presumed by the jury without any specific proof.

       In Brady v. United States, 397 U. S. 742, 755 (1970), the Court, in dealing with a pre-McCarthy guilty plea held that the “standard as to the voluntariness of guilty pleas” is that “ ‘ “[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g., bribes).” ’ ” (Citation omitted.)