author: Justice Powell Justice Stevens, Justice Brennan, Justice Stewart, Justice White,

text:
    WOOD et al. v. GEORGIA
    No. 79-6027.
    Argued November 4, 1980
    Decided March 4, 1981

      Powell, J., delivered the opinion of the Court, in which BuhgeR, C. J., and Blackmun, Rehnquist, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 274. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 274. Stewart, J., filed an opinion concurring in part and dissenting in part, post, p. 275. White, J., filed a dissenting opinion, post, p. 275.

      Glenn Zell argued the cause and filed a brief for petitioners.

      John W. Dunsmore, Jr., Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert 8. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, and John C. Walden, Senior Assistant Attorney General.
   Justice Powell

delivered the opinion of the Court.

Petitioners in this case are three persons who were convicted of distributing obscene materials and sentenced to periods of probation on the condition that they make regular installment payments toward the satisfaction of substantial fines. Because they failed to make these payments, their probations were revoked by the Georgia court, and they are now claiming that these revocations discriminated against them on the basis of wealth in violation of the Equal Protection Clause of the Fourteenth Amendment. Since the record in this case suggests that petitioners may be in their present predicament because of the divided loyalties of their counsel, we have concluded that it is inappropriate to reach the merits of this difficult equal protection issue. Instead, we remand this case for further findings concerning a possible due process violation.

I

Petitioners Tante and Allen were working, respectively, as the projectionist and ticket taker at the Plaza Theatre in Atlanta when they were arrested and charged with two counts of distributing obscene materials in violation of Ga. Code § 26-2101 (1978). About four months later, petitioner Wood was arrested and charged with two violations of the same provision after he sold two magazines to a policeman while working at the Plaza Adult Bookstore. There is no evidence that any of these employees owned an interest in the businesses they served or had any managerial responsibilities.

Tante and Allen were tried together and found guilty on both counts by a jury. A separate jury convicted Wood on both counts. All three were then sentenced by the same judge. Tante and Allen each received a fine of $5,000 and two concurrent jail sentences of 12 months, but they were allowed immediate probation. Wood received two $5,000 fines and two consecutive jail sentences of 12 months; he also was placed on probation immediately.

After these convictions were affirmed on appeal, the trial court issued orders specifying the terms of probation. These required all three petitioners to make installment payments on their fines of $500 per month during the course of their periods of probation. After three months had elapsed, none of the petitioners had made any of the required payments, and the county probation officers therefore moved for revocation of their probations. At a hearing on January 26, 1979, petitioners admitted that they had failed to make the installment payments, but offered convincing evidence of their inability to make these payments out of their own earnings. They also stated that they had expected their employer to pay the fines for them. Faced with petitioners’ complete failure to satisfy a condition of their probations, the court decided to revoke these probations unless petitioners made up their arrearages within five days. Unable to do so, petitioners moved for a modification of the conditions of their proba-tions. This motion was denied, and the court ordered petitioners to serve the remaining portions of their jail sentences.

II

After this revocation decision was affirmed by the Georgia Court of Appeals, we granted a writ of certiorari to decide a question presented by the facts just summarized: whether it is constitutional under the Equal Protection Clause to imprison a probationer solely because of his inability to make installment payments on fines. 446 U. S. 951. On closer inspection, however, the record reveals other facts that make this an inappropriate case in which to decide the constitutional question. Where, as here, a possible due process violation is apparent on the particular facts of a case, we are empowered to consider the due process issue. Moreover, for prudential reasons, it is preferable for us to remand for consideration of this issue, rather than decide a novel constitutional question that may be avoided. Cf. Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) (broad constitutional questions should be avoided where a case may be decided on narrower, statutory grounds on remand).

Petitioners have been represented since the time of their arrests by a single lawyer. The testimony of each petitioner at the probation revocation hearing makes it clear that none of them ever paid — or was expected to pay — the lawyer for his services. They understood that this legal assistance was provided to them by their employer. In fact, the transcript of this hearing reveals that legal representation was only one aspect of the assistance that was promised to petitioners if they should face legal trouble as a result of their employment. They were told that their employer also would pay any fines and post any necessary bonds, and these promises were kept for the most part. In this case itself, as petitioners’ lawyer stated at oral argument, bonds were posted with funds he provided. In addition, when each of the petitioners was arrested a second time, he paid the resulting fines. All aspects of this arrangement were revealed to the court at the revocation hearing.

For some reason, however, the employer declined to provide money to pay the fines in the cases presently under review. Since it was this decision by the employer that placed petitioners in their present predicament, and since their counsel has acted as the agent of the employer and has been paid by the employer, the risk of conflict of interest in this situation is evident. The fact that the employer chose to refuse payment of these fines, even as it paid other fines and paid the sums necessary to keep petitioners free on bond in this case, suggests the possibility that it was seeking — in its own interest — a resolution of the equal protection claim raised here. If offenders cannot be jailed for failure to pay fines that are beyond their own means, then this operator of “adult” establishments may escape the burden of paying the fines imposed on its employees when they are arrested for conducting its business. To obtain such a ruling, however, it was necessary for petitioners to receive fines that were beyond their own means and then risk jail by failing to pay.

Although we cannot be sure that the employer and petitioners’ attorney were seeking to create a test case, there is a clear possibility of conflict of interest on these facts. Indications of this apparent conflict of interest may be found at various stages of the proceedings below. It was conceded at oral argument here that petitioners raised no protest about the size of the fines imposed at the time of sentencing. During the three months leading up to the probation revocation hearing they failed to pay even small amounts toward their fines to indicate their good faith. In fact, throughout this period, petitioners apparently remained under the impression that — as promised — the fines would be paid by the employer. Even at the revocation hearing itself, petitioners attempted to prove their inability to make the required payments but failed to make a motion for a modification of those requirements. That motion was not made until one day before petitioners were due to be incarcerated. A review of these facts demonstrates that, if petitioners’ counsel was serving the employer’s interest in setting a precedent, this conflict in goals may well have influenced the decision of the trial court to impose such large fines, as well as the decision to revoke petitioners’ probations rather than to modify the conditions.

Ill

Courts and commentators have recognized the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise. One risk is that the lawyer will.prevent his client from obtaining leniency by preventing the client from offering testimony against his former employer or from taking other actions contrary to the employer’s interest Another kind of risk is present where, as here, the party paying the fees may have had a long-range interest in establishing a legal precedent and could do so only if the interests of the defendants themselves were sacrificed. As suggested above, the factual setting of this case requires the Court to take note of the potential unfairness resulting from this particular third-party fee arrangement. Petitioners were mere employees, performing the most routine duties, yet they received heavy fines on the apparent assumption that their employer would pay them. They now face prison terms solely because of the employer’s failure to pay the fines, having been represented throughout by a lawyer hired by that employer. The potential for injustice in this situation is sufficiently serious to require us to consider whether petitioners have been deprived of federal rights under the Due Process Clause of the Fourteenth Amendment.

We have held that due process protections apply to parole and probation revocations. Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). In Scarpelli we adopted a standard for deciding when due process requires appointment of counsel for indigent offenders during revocation hearings. Recognizing that the “need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases,” 411 U. S., at 789, we left it to the state tribunals to identify, on a case-by-case basis, the situations in which fundamental fairness requires appointed counsel.

In the present case, petitioners appeared at the hearing with retained counsel, as was their right under Ga. Code § 27-2713 (1978). But, significantly, petitioners would have had a right to appointed counsel if they had made the showing of indigence on which they now rely. Scarpelli established a presumption in favor of appointment of counsel in cases where the probation or parole violation is a matter of record but “there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and . . . the reasons are complex or otherwise difficult to develop or present.” 411 U. S., at 790. This case, where there were assurances that the fines would be paid by an unnamed employer, falls into that category.

Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. E. g., Cuyler v. Sullivan, 446 U. S. 335 (1980); Holloway v. Arkansas, 435 U. S. 475, 481 (1978). Here, petitioners were represented by their employer’s lawyer, who may not have pursued their interests single-mindedly. It was his duty originally at sentencing and later at the revocation hearing, to seek to convince the court to be lenient. On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected at the revocation hearing, or at earlier stages of the proceedings below.

It is, however, difficult for this Court to determine whether an actual conflict of interest was present, especially without the benefit of briefing and argument on this issue. Nevertheless, the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further. The facts outlined above were all made known at that time. The court must have known that it had imposed disproportionately large fines — penalties that almost certainly were increased because of an assumption that the employer would pay the fines. The court did know that petitioners’ counsel had been provided by that employer and was pressing a constitutional attack rather than making the arguments for leniency that might well have resulted in substantial reductions in, or deferrals of, the fines. These facts demonstrate convincingly the duty of the court to recognize the possibility of a disqualifying conflict of interest. Any doubt as to whether the court should have been aware of the problem is dispelled by the fact that the State raised the conflict problem explicitly and requested that the court look into it.

For these reasons, we base our decision in this case on due process grounds. The judgment below is vacated and the case remanded with instructions that it be returned to the State Court of Fulton County. That court should hold a hearing to determine whether the conflict of interest that this record strongly suggests actually existed at the time of the probation revocation or earlier. If the court finds that an actual conflict of interest existed at that time, and that there was no valid waiver of the right to independent counsel, it must hold a new revocation hearing that is untainted by a legal representative serving conflicting interests.

Vacated and remanded.

Justice Stevens,

concurring.

Although I join the Court’s opinion, my view that the potential conflict of interest disclosed by the record requires that the judgment be vacated does not rest on the hypothesis that the petitioners’ employer may have contrived a test case. See ante, at 267-268, 269-270. It rests instead on the likelihood that the state trial court would have imposed a significantly different sentence if it had not been led to believe that the employer would pay the fines.

Independent counsel for these individuals surely would not have permitted the trial judge to impose fines that were manifestly beyond their ability to pay without obtaining an enforceable commitment from the employer. But a lawyer faithfully representing the interest of the employer surely would not make any such commitment gratuitously. The net result of the conflicting interests represented by one lawyer is a manifestly unfair prison sentence imposed on employees of the person who is probably the principal wrongdoer.

Justice Brennan,

with whom Justice Marshall joins, concurring in part and dissenting in part.

While I agree with the Court that “there is a clear possibility of conflict of interest” shown on this record, ante, at 267, and that the Court has the option to remand on this issue, I would nevertheless finally dispose of this case. That can be done, as Justice White concludes, by reversing the judgment of the Georgia Court of Appeals, for the reason that Tate v. Short, 401 U. S. 395 (1971), compels that conclusion. I would, however, reverse the conviction for distributing obscene materials in violation of Ga. Code § 26-2101 (1978) under the view I have frequently expressed, and to which I adhere, that such an obscenity statute is facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73, 113 (1973) (Brennan, J., dissenting); McKinney v. Alabama, 424 U. S. 669, 678 (1976) (separate opinion of Brennan, J.).

Justice Stewart,

concurring in part and dissenting in part.

In my view the Court is correct in remanding because of the “clear possibility of conflict of interest” shown on the record in this case. I would, however, go further and reverse the convictions themselves, which were for violations of an obscenity statute. I believe that that statute, Ga. Code § 26-2101 (1978), is facially unconstitutional.

Justice White,

dissenting.

The Court’s disposition of this case is twice flawed: first, there is no jurisdiction to vacate the judgment on the federal constitutional ground upon which the Court rests; second, the record does not sustain the factual inferences required to support the Court’s judgment.

I

The petition for certiorari presented a single federal question: Does the Equal Protection Clause of the Fourteenth Amendment permit a State to revoke an indigent’s probation because he has failed to make regular payments toward the satisfaction of a fine? This issue was properly presented to and ruled upon by the Georgia courts. No other federal constitutional issue was presented there or brought here. The Court, however, disposes of this case on another ground, but a ground that also involves a constitutional issue: the possibly divided loyalties of petitioners’ counsel may have deprived petitioners of due process and their constitutional right to counsel. Thus, we are to avoid one constitutional issue in favor of another, which was not raised by petitioners either here or below. I do not believe that this Court has jurisdiction even to reach this question, nor do I see why we should prefer one constitutional issue to another, even if we had the jurisdiction.

The Court, ante, at 273, n. 20, suggests that the conflict-of-interest issue was presented here by respondent, the State of Georgia. But the State merely argued that petitioners’ attorney was also the attorney for petitioners’ employer who had agreed to pay the fine and who was now seeking to avoid payment by arguing petitioners’ indigency. Neither here nor in the trial court has the State ever suggested that petitioners were deprived of due process or raised any other federal constitutional issue. The State has surely not confessed error or given any other indication that it is seeking anything but an affirmance of the decision below — hardly an appropriate disposition if the State is suggesting that petitioners were denied their constitutional right to counsel. Moreover, nowhere in the passage of the response cited by the Court are the terms “conflict of interest” used, nor is there even a clear suggestion made that counsel was acting other than in the interests of petitioners in arguing that an indigent’s probation cannot be revoked for failure to pay a fine.

However the State’s argument here is to be characterized, this case comes to us on writ of certiorari to a state court. Our jurisdiction, therefore, arises under 28 U. S. C. § 1257 (3) and is limited here to federal rights and privileges that have been “specially set up or claimed,” and upon which there has been a final decision by the highest state court in which a decision could be had. The right-to-counsel claim was never raised in the state court, nor did the state court ever render a decision on the issue: There is, thus, a jurisdictional bar to our reaching the issue. Moore v. Illinois, 408 U. S. 786, 799 (1972); Hill v. California, 401 U. S. 797, 806 (1971); Cardinale v. Louisiana, 394 U. S. 437 (1969), and cases cited there.

It is as clear as could be that no federal constitutioiial claim of any kind was made in the state courts with respect to a conflict of interest and the adequacy of petitioners’ counsel. At the revocation hearing, petitioners testified that they were without funds to pay the fines, and their counsel urged that to incarcerate them would violate the Equal Protection Clause of the Fourteenth Amendment. On cross-examination, petitioners indicated that they had been assured by their employer that the employer would pay employee fines if they were convicted in cases such as this. The State’s attorney then asserted several times that there was a conflict of interest because petitioners’ counsel also represented petitioners’ corporate employer and was being paid by that concern to represent petitioners. But far from suggesting that the alleged conflict was a ground of relief for petitioners, the State suggested that petitioners and their counsel had misled the court into thinking that the employer would pay the fines, and that the employer’s undertaking should be enforced by sending petitioners “out to the jail for a while,” rather than permit the employer to renege and free petitioners on equal protection grounds. This would convince the employer to pay because it would not want other employees to know that they would not be taken care of in the event trouble arose. In the course of these arguments, the State never mentioned the Federal Constitution.

Petitioners’ attorney in turn responded that although there had been an advance arrangement between petitioners and their employer that fines would be paid by the latter, the employer had not paid, and the only issue was whether petitioners should go to jail when they were without funds themselves to pay the fines. He urged that jailing them would violate the Equal Protection Clause. He also suggested that if the asserted conflict of interest raised an ethical problem in the mind of the State’s attorney, a complaint should be filed with the State Bar.

The judge, apparently rejecting the equal protection claim, revoked petitioners’ probation, although petitioners have remained free on bond pending appeal. The sole issue in the Georgia Court of Appeals was whether petitioners had been denied the equal protection of the laws. That claim was rejected, the judgment of revocation was affirmed, and the Georgia Supreme Court denied further review. The equal protection issue, as I have said, is the only federal constitutional issue that has been presented here.

The Court asserts that “it is appropriate to treat the due process issue as one 'raised’ below, and proceed to consider it here.” Ante, at 265, n. 5. However, the Court fails to cite any passage from the record in which the alleged conflict of interest was presented to the state courts as a problem of constitutional dimension. The Court relies on 28 U. S. C. § 2106, but that section does not purport to expand the statutory-limits on the Court’s jurisdiction; rather, it relates only to the disposition of the case once jurisdiction exists. What Justice Rehnquist wrote in Vachon v. New Hampshire, 414 U. S. 478, 482 (1974) (dissenting opinion), is equally applicar ble here:

“A litigant seeking to preserve a constitutional claim for review in this Court must not only make clear to the lower courts the nature of his claim, but he must also make it clear that the claim is constitutionally grounded. Bailey v. Anderson, 326 U. S. 203 (1945).”

Petitioners have done neither; nor has respondent done it for them.

The Court apparently believes that under Cuyler v. Sullivan, 446 U. S. 335 (1980), the possibility of a conflict of interest of constitutional dimensions should have prompted further inquiry by the trial judge. But Cuyler v. Sullivan did not purport to give this Court jurisdiction over a claim otherwise beyond its reach. Cuyler held only that if a trial court “reasonably should know that a particular conflict exists,” id., at 347, then a failure to initiate an inquiry may constitute a Sixth Amendment violation. If this is the case here, then petitioners remain free to seek collateral relief in the lower courts.

A majority of the Court, however, proceeds on the basis that it has jurisdiction to address the due process/adequacy-of-counsel issue. Accordingly, I proceed on that assumption.

II

As I see it, the Court’s disposition of the case rests upon critical factual assumptions that are not supported by the record. Certainly the mere fact that petitioners’ counsel was paid by their employer does not in itself constitute a conflict of interest of constitutional dimension. Indeed, one would expect that in the normal course of things the interests of petitioners and of their employer would have corresponded throughout the proceedings. It would have been just as much in the employer’s as in the employees’ interest to have had the employees adjudged innocent. Similarly, assuming that the employer had promised to pay whatever fines might be levied against the employees, it was in the employer’s interest, just as it was in their interest, to have these fines set at the lowest possible amount. The conflict of interests, therefore, only emerges by assuming that the employer, the owner of an adult bookstore and a movie theater, set out to construct a constitutional test case and the petitioners’ counsel represented the employer in this regard. Not even a decision to pursue a test case, however, would in itself create a conflict of interest. One must assume further that it was for the sake of this interest that the employer decided not to pay the fines and for the sake of this interest of the employer that petitioners’ attorney did not object to the size of the fines or move in timely fashion for a modification of the conditions of probation.

I recognize that the Court’s conclusion relies only upon the “possibility” of this scenario, but I find these assumptions implausible and would require a much stronger showing than this record reveals before I would speculate on the likelihood of such a motive of the employer and the knowing cooperation of counsel to this end, let alone dispose of the case on that basis. First, since the only submission of petitioners was that they should not go to jail for failure to pay their fines, even if the court sustained their position, their liability on the fine would remain — as would that of the employer if it had an enforceable obligation to pay. It is, therefore, difficult to find any interest that the employer might have in litigating a test case on this issue through the Georgia courts and to this Court. Second, the record suggests two much more plausible explanations of the employer’s failure to pay the fines, neither of which implies a conflict of interest: The employer may have reneged on its promise to pay fines because petitioners were no longer working for the employer, or it may have reneged because ownership of the establishments changed hands. The fact that the employer may have continued to meet some of the expenses, but did not pay the substantial fines, does not indicate to me that the employer manipulated the situation to create a test case; more likely, the employer reneged on his promise because, given the change in circumstances of both the employer and the petitioners, the expense was simply greater than that which the employer was willing to bear at this point.

If the employer was simply unwilling to pay the fines, then the arguments advanced by the attorney may very well have been the best and only arguments available to petitioners. Indeed, the employer having failed to pay, counsel would have been derelict not to press the equal protection claim on behalf of his indigent clients. Obviously, success on this ground would have advantaged petitioners; and I fail to see, as apparently the trial court failed to see, Tr. 15, 28, how petitioners will be constitutionally deprived by assertion of the equal protection claim. The fact that petitioners did move, although belatedly, for a modification of the conditions of parole further indicates that the employer was more interested in cutting his costs than creating a test case. On this record, therefore, I believe it necessary to reach the substantive question that we granted certiorari to resolve.

Ill

Although I think that there are circumstances in which a State may impose a suitable jail term in lieu of a fine when the defendant cannot or will not pay the fine, there are constitutional limits on those circumstances, and the State of Georgia has exceeded the limits in this case.

In Williams v. Illinois, 399 U. S. 235 (1970), Williams, convicted of petty theft, received the maximum sentence of one year’s imprisonment and a $500 fine (plus $5 in court costs). As permitted by Illinois statute, the judgment provided that if, when the one-year sentence expired, Williams did not immediately pay the fine and court costs, he was to remain in jail a length of time sufficient to satisfy the total debt, calculated at the rate of $5 per day. We held that “the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status.” Id., at 244. Therefore, the Illinois statute as applied to Williams, who was too poor to pay the fine, violated the Equal Protection Clause.

Tate v. Short, 401 U. S. 395 (1971), involved an indigent defendant incarcerated for nonpayment of fines imposed for violating traffic ordinances. Under Texas law, traffic offenses were punishable only by fines, not imprisonment. When Tate could not pay $425 in fines imposed for nine traffic convictions, he was jailed pursuant to the provisions of another Texas statute and a municipal ordinance that required him to remain in jail a sufficient time to satisfy the fines, again calculated at the rate of $5 per day. We reversed on the authority of Williams v. Illinois, saying: “Since Texas has legislated a 'fines only’ policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine.” 401 U. S., at 399. The Court, however, was careful to repeat what it had said in Williams: “ 'The state is not powerless to enforce judgments against those financially unable to pay a fine’ ” and is free to choose other means to effectuate this end. 401 U. S., at 399.

In Williams v. Illinois, supra, at 243, the Court emphasized that its holding ''does not deal with a judgment of confinement for nonpayment of a fine in the familiar pattern of alternative sentence of $30 or 30 days.” In neither Williams nor Tate did it appear that ''jail [was] a rational and necessary trade-off to punish the individual who possesses no accumulated assets . . . since the substitute sentence provision, phrased in terms of a judgment collection statute, [did] not impose a discretionary jail term as an alternative sentence, but rather equate [d] days in jail with a fixed sum.” Williams v. Illinois, supra, at 265 (Harlan, J., concurring in result). As both the Court and Justice Harlan implied, if the Court had confronted a legislative scheme that imposed alternative sentences, the analysis would have been different.

Indigency does not insulate those who have violated the criminal law from any punishment whatsoever. As I see it, if an indigent cannot pay a fine, even in installments, the Equal Protection Clause does not bar the State from specifying other punishment, even a jail term, in lieu of the fine. To comply with the Equal Protection Clause, however, the State must make clear that the specified jail term in such circumstances is essentially a substitute for the fine and serves the same purpose of enforcing the particular statute that the defendant violated. In both Williams and Tate the State violated this principle by speaking inconsistently: In each case, the legislature declared its interest in penalizing a particular offense to be satisfied by a specified jail term (in Tate, no jail term at all) and at the same time subjected the indigent offender to a greater term of punishment.

The incarceration of the petitioners in this case cannot be distinguished from that which we found to be unconstitutional in Williams and Tate. Here, the State imposed probated prison terms and fines, but made installment payment of the fines a condition of probation: Had the fines been paid in full and other conditions of probation satisfied, there would have been no time in jail at all. Thus, the ends of the State’s criminal justice system did not call for any loss of liberty except that incident to probation.

Under these circumstances, the State’s only interest in incarcerating these petitioners for not paying their fines was to impose a loss of liberty that would be as efficacious as the fines in satisfying the State’s interests in enforcing the criminal law involved. However, no calculation like that was made here. Upon nonpayment, probation was automatically revoked and petitioners were sentenced to their full prison terms. There was no attempt to provide, in addition to the jail terms for which they were given probation, a term of imprisonment that would be a proper substitute for the fines. In fact, even at the conclusion of their prison terms, petitioners will apparently be liable for the unpaid fines. This is little more than imprisonment for failure to pay a fine, without regard to the goals of the criminal justice system. As in Williams and Tate, the State is speaking inconsistently concerning the necessity of imprisonment to meet its penal objectives; imprisonment of an indigent under these circumstances is constitutionally impermissible.

This case falls well within the limits of what we meant to prohibit when we announced in Tate v. Short, supra, at 398, quoting Morris v. Schoonfield, 399 U. S. 508, 509 (1970), that the “ ‘Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent.’ ”

Accordingly, I would reverse the judgment.

        Allen v. State, 144 Ga. App. 233, 240 S. E. 2d 754 (1977), cert. denied, 439 U. S. 899 (1978); Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 (1977), cert. denied, 439 U. S. 899 (1978).

       According to their testimony, all of the petitioners had by that time left their jobs in the “adult” establishments. Allen testified that her only income was $250 per month from unemployment insurance. See Transcript of Revocation Hearing, State Court of Fulton County, Criminal Division (Jan. 26, 1979) (hereinafter Tr.), at 7. Tante testified that his income as a correction officer was $540 per month. Id., at 35. He had been unemployed for eight months before obtaining that job. Id., at 39-40. Wood testified that he was trying to support a family and earning $120 per week working at a truck and trailer rental yard. Id., at 53-54.

       The record suggests that the Plaza Theatre, which employed Tante and Allen, and the Plaza Adult Bookstore, which employed Wood, were under common ownership.

       150 Ga. App. 582, 258 S. E. 2d 171 (1979).

       Justice White’s dissenting opinion argues that this Court lacks jurisdiction to remand this ease on due process grounds because, in his view, the conflict-of-interest issue has not been properly presented. To be sure, it was not raised on appeal below or included as a question in the petition for certiorari. These facts merely emphasize, however, why it is appropriate for us to consider the issue. The party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel. And certainly the State’s Solicitor, whose duty it was to support the judgment below, could not be expected to do more than call the problem to the attention of the courts, as he did. Petitioners were low-level employees, and now appear to be indigent. See n. 2, supra. We cannot assume that they, on their own initiative, were capable of protecting their interests.
      As indicated, post, at 277r278, n. 1; see also n. 20, infra, it is abundantly clear that the possibility of a conflict of interest was pointed out to the trial court at the revocation hearing. The State’s Solicitor raised the issue repeatedly. The State’s Brief in Opposition 4, n. 2, again identified the apparent conflict. See n. 20, infra. Accordingly, counsel for petitioners cannot be heard to complain of any lack of notice.
      In this context, it is appropriate to treat the due process issue as one “raised” below, and proceed to consider it here. See Boynton v. Virginia, 364 U. S. 454, 457 (1960) (deciding a case on a statutory issue raised below but not raised in this Court). Even if one considers that the conflict-of-interest question was not technically raised below, there is ample support for a remand required in the interests of justice. See 28 U. S. C. §2106 (authorizing this Court to “require such further proceedings to be had as may be just under the circumstances”); R. Stem & E. Gressman, Supreme Court Practice § 6.27, p. 460 (5th ed. 1978) (in review of state cases, “the Court doubtless limits its power to notice plain error to those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings”). See also Vachon v. New Hampshire, 414 U. S. 478 (1974).

       See Tr. 26 (Allen); id., at 43 (Tante); id., at 63 (Wood).

        E. g., id., at 42-43 (Tante).

       As petitioners’ lawyer himself put it: “I want to bring this before the Solicitor and the Court that I believe Mrs. Allen told me and she told the Probation Officer that she — they were told, given information that their fine would be paid. The bond would be paid and a lawyer would be representing them.” Id., at 14. See also id., at 62-63 (Wood). During oral argument in this Court, the lawyer conceded that he had been paid by the employer during petitioners’ trials. Tr. of Oral Arg. 15-16. He indicated that these payments stopped when petitioners went on probation and left their jobs with this employer, but he has never dispelled the implication that he has an ongoing employment arrangement with the employer.

        Id., at 8. The fact that the employer provided appeal bonds for petitioners after the probation revocation hearing suggests that his involvement with the case did not end when petitioners quit work in these “adult” establishments.

       Tr. 12, 41, 56-57. These payments took place while the instant cases were still on direct appeal.

       Counsel suggested at oral argument that the reason for this decision not to pay the fines was a change of ownership. It might also be explained by the fact that petitioners were no longer working for the “adult” establishments. Neither of these facts suggests, however, that the employer had lost interest in the case, since appeal bonds were provided for petitioners. Indeed, the providing of these appeal bonds suggests that the decision not to pay the fines themselves was a conscious one. And the fact that petitioners had left their jobs may have allowed the employer to pursue his goals without any concern about losing petitioners’ services in the event of a probation revocation.

       The record does not make clear whether the employer was an individual or a corporation, or indeed even identify the employer.

       Petitioners’ counsel states that he did attempt to alert the court to the problem of petitioners’ inability to pay by letter, soon after their pro-bations began. But no motion was made.

       There is also a danger that petitioners’ lawyer was influenced in his strategic decisions by other improper considerations. Rather than relying solely on the equal protection claims, he could have sought leniency at the probation hearing by arguing that the stiff sentences imposed on petitioners should be modified in light of the employer’s unanticipated refusal to pay the fines. But this would have required him to dwell on the apparent bad faith of his own employer, and to emphasize the possibly improper arrangement by which he came to represent petitioners. Thus it is not correct, as Justice White argues, post, at 281, that the “conflict of interests . . . only emerges by assuming that the employer ... set out to construct a constitutional test case.” Even if the employer’s motives were unrelated to its interest in establishing a precedent, its refusal to pay the fines put the attorney in a position of conflicting obligations.

       As one court has stated:
      “A conflict of interest inheres in every such situation. ... It is inherently wrong to represent both the employer and the employee if the employee’s interest may, and the public interest will, be advanced by the employee’s disclosure of his employer’s criminal conduct. For the same reasons, it is also inherently wrong for an attorney who represents only the employee to accept a promise to pay from one whose criminal liability may turn on the employee’s testimony.” In re Abrams, 56 N. J. 271, 276, 266 A. 2d 275, 278 (1970).
      See also In re Investigation Before April 1975 Grand Jury, 174 U. S. App. D. C. 268, 274, n. 11, 531 F. 2d 600, 606, n. 11 (1976); Pirillo v. Takiff, 462 Pa. 511, 341 A. 2d 896 (1975), appeal dism’d and cert. denied, 423 U. S. 1083 (1976); ABA Model Code of Professional Responsibility DR 5-107 (A), (B) (1980); ABA Standards for Criminal Justice 4-3.5 (c) (2d ed. 1980); Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va. L. Rev. 939, 960-961 (1978).

       There are indications in the transcript of the revocation hearing that the State had been unable to learn the name of petitioners’ employer, and that petitioners were concealing its identity. At one point, the Solicitor stated: “Mrs. Allen, is it not true each time you were arrested that we sought to get your cooperation to find out who is operating these places?” Tr. 28. Later, during the Solicitor’s cross-examination of Tante, the following colloquy took place:
      “Q Mr. Tante, who did you call when you said you called and told them to get someone else out there?
      “A I called the secretary of the union first.
      “Q And what about the company? Did you call them?

        “A And the company, I gave notice to — whatever his name was. Mister — what was his name?
      “MR. ZELL [petitioners’ attorney] I’m sorry, I wasn’t listening.
      “A The manager of the theatre, Mister — I think it was you I told first. I said, T want to get out of the theatre as soon as possible. In fact, I’d like to leave now.’ And I said, 'As far as I’m concerned, I’m out, and that’s it.’
      “Q You called Mr. Zell to tell him to get someone else out there to operate the theatre?
      “A No, sir. I called my business secretary at the union, told them I wanted out; to find me another job. If they wanted to put a man in there send them out. And they informed me to get on out of there that they would not send another union man out there.
      “Q But you also talked to someone with the company, you said?
      “A At the time, I did not, sir. I told Mister — Mrs. Allen, I said—
      “MR. ZELL Hold it. Hold it, Mr. Tante. It’s now ten-thirty, Your Honor. We’re getting into areas that — the only question here is violation or failure to pay as directed.” Id., at 45-46.

       The ABA Model Code of Professional Responsibility EC 5-23 (1980) states:
      “A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be jar more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer’s individual client. . . . Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom.” (Emphasis added.)

       Justice White’s dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U. S. 335 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it “knows or reasonably should know that a particular conflict exists.” Id., at 347.

       Both counsel agreed that, in light of the size of fines imposed on petitioners — relatively minor and impecunious participants in the criminal enterprises — the judge must have assumed that the employer would pay. Tr. of Oral Arg. 13, 40.

       At one point during the discussion of Allen’s case, the Solicitor, Mr. Rhodes, put it this way:
      “MR. RHODES: What I’m trying to show is, Your Honor, that she in fact — that Mr. Zell [the attorney] was hired by someone else. She did not make the choice. That they sent Mr. Zell down here to represent her. And she may have acquiesced in it, but that she did not employ Mr. Zell to represent her.
      “THE COURT: All right. How is that relevant to this issue?
      “MR. RHODES: To what I say, there’s a conflict of interest in this case.

      “Mr. Zell is representing her employer, and there’s two different interests there.
      “They had promised this woman that they would pay her fine and they would take care of all these expenses. There’s a conflict.

      “Mr. Zell’s, as I said, his first duty is to the persons that pay him. And that’s what he’s doing. He’s trying to take care of them.” Tr. 26-27 (emphasis added).
      See also id., at 14-15.
      As noted in n. 5, supra, the State raised this problem here as an argument against a grant of certiorari. The State’s Brief in Opposition 4, n. 2, stated:
      “During the probation revocation hearing there were several discussions between the Court, the Petitioner’s [sic] lawyer and the Solicitor concerning the fact that the Petitioner’s [sic] lawyer also represents the Plaza Theater, the theater in which Petitioners Allen and Tante were employed. The argument of the Solicitor was that the employer had agreed to pay the fines, and now was attempting to get out of paying the fines by arguing that there was no agreement, and that Petitioners were now indigents . . . .”

       Because we are presented here only with the question of petitioners’ probation revocations, we do not order more sweeping relief, such as vacating petitioners’ sentences or reversing their convictions. Such actions do, however, remain within the discretion of the trial court upon appropriate motion.
      There also is the possibility that this relief may be available in habeas corpus proceedings, if petitioners can show an actual conflict of interest during the trials or at the time of sentencing.

       The following colloquy, similar to others, took place at one point in the revocation hearing:
      “MR. RHODES: Your Honor, I submit that actually what we have here is a conflict of interest on Mr. Zell’s part. He’s representing the company and he’s trying to get out of paying this money that these people expect that company to pay that money. Mr. Zell is here purporting to represent her while he legally represents a company that has promised to pay all these expenses and fines for these people. And I would ask the Court to look into that and make a determination of that, and if necessary, see that these people have Counsel to enforce that agreement between that company and these people.
      “THE COURT: State that again now.
      “MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs. Allen contends that that company promised to pay all this so that she wouldn’t have to go through all of this.
      “Now they have not done it.

        “And I submit that Mr. Zell represents that company. That he is, his first allegiance is to that company, and not to Mrs. Allen.
      “And that there’s a conflict of interest, and that this ought to be looked into by this Court.
      “THE COURT: You wish to respond?
      “MR. ZELL: I don’t think it makes any sense what he’s saying but I will if the Court wants me to. I don’t think I’m required to.
      “THE COURT: I don’t know whether there’s anything the Court could look into. What specifically do you want the Court to look into ?
      “MR. RHODES: Mr. Zell is here supposedly representing Mrs. Allen. He at the same time represents the people who promised to take care of these things and to pay these fines.
      “Now those people are not doing it. And they apparently have reneged on it at this point. I think if you sent these people out to the jail for a while I think they would pay it because they don't want the other employees to know that they are not taking care of these things when they come up.” Transcript of Revocation Hearing (Tr.) 14r-15. The transcript is an appendix to the response of respondent.
      Other discussions appear in id., at 25-28.

        Id., at 15.

       The State’s position in this regard is clear from its response to the petition for certiorari:
      “In fact, Respondent believes that the Petitioners have no intention whatsoever in paying these fines, as their testimony indicates that they are of the opinion that their employers should have paid these fines. The Petitioners are thus holding the enforcement of fines as a recognized sentencing tool a hostage because of their beliefs that others should pay their fines for them. By arguing at this time that they are indigent they are using this as a shield to hide behind their responsibility to pay a fine, which they earlier agreed to pay by virtue of their silence which led the sentencing court to conclude that they were able to pay these fines.” Brief in Opposition 10.
      Elsewhere, the State suggested “that they be put out there in jail and start serving . . . that’s the only way really I know, to enforce this sentence at this point.” Tr. 74.

         Id., at 16-20.

        Id., at 27: “I would suggest Mr. Rhodes report this to the State Bar of Georgia and be glad at a hearing to testify if there is any impropriety and submit to any questions before the State Bar.”

       This Court’s Rule 34.1 (a), the plain-error rule, does not purport to authorize the Court to vacate state-court judgments on the ground of a “possible” due process or other constitutional violation which the Court, sua sponte, has discovered in the record but which was neither raised nor decided in the state courts. Where an issue has been properly raised and decided in state litigation but not raised here, Rule 34.1 (a) would permit us to reach that issue though not presented by the parties. Cf. Boynton v. Virginia, 364 U. S. 454, 457 (1960).
      In Vachon v. New Hampshire, 414 U. S. 478 (1974), the Court relied on our “plain error” rule to reach an issue not presented in the jurisdictional statement. However, appellant there had unsuccessfully argued the issue — sufficiency of the evidence — below and the issue had been addressed by the State Supreme Court. The dissent in Vachon did not contend that appellant had failed to raise the issue below; rather, it argued that although raised, the issue had not been presented to the state courts as a “federal constitutional claim.” The majority, evidently, thought that it had.

       Although petitioners’ counsel admitted at oral argument that he had been paid by petitioners’ employer at the time of trial, he indicated that the payments from the employer ended at the time petitioners were put on probation. Tr. 13-16.

       Petitioners’ attorney also said: “I want the court to know, and Mr. Rhodes to know that I’ve attempted at least was asked, to get the fines paid. And of course, you can see the result of it.
      “I told the three defendants I would represent them to the best of my ability, and I’ve explained this to the defendants, and I would like to make an explanation to the court.” Id., at 68.
      Interesting also is the following exhange from the cross-examination of one of the petitioners:
      “Q Did you select Mr. Zell as your attorney?
      “A Yes, sir. I’ve known him a long time and I trust him. And he’s the only lawyer I’ve ever had to have in my life, and yes, sir, I selected him.” Id., at 42.
      As far as this record reveals, none of the petitioners to this date has complained about the legal representation.

       There is no indication in the record that the employer owned other adult establishments. If, as counsel suggested at oral argument, ownership has in fact changed hands, then it seems unlikely that the ex-employer would continue to be interested in creating and litigating a test case in a matter with which he is no longer concerned.

       I note that petitioners argue in their response that the trial court was fully aware of their financial situation. Response for Petitioners 2. This is amply supported by the record. The Court, therefore, creates an artificial issue when it argues that counsel’s conflicting loyalties may have prevented him from arguing for leniency in light of the employer’s failure to pay the fines. The point was made repeatedly that these petitioners were indigent and could not themselves pay. Petitioners’ attorney conceded that a defendant who has been fined and who himself could pay the fine could not hide behind the promise of another that the latter would pay. Tr. 69.

       The fact that this motion was made and rejected indicates that a remand to the trial court to reconsider this issue is not likely to lead to a different result. It also suggests that the inadequacy of counsel suggested by the Court amounts to nothing more than his late filing of this motion, not a failure to ask for leniency.

       Even this statement asserts more than the evidence of record supports : other than the assertions of the State’s attorney in a colloquy with the judge at the revocation hearing, there is no suggestion in this record that the employer directed this litigation in any way. The fact that counsel was paid for some period by the employer does not support an inference that counsel was representing the interests of the employer rather than those of petitioners. See ABA Model Code of Professional Responsibility, DR 5-107 (B) (1980).

       In imposing an alternative sentence the State focuses on the penalty appropriate for the particular offense and structures two punishments, each tailored to meet the State’s ends in responding to the offense committed. Such tailoring may consider the financial situation of the defendant, Williams v. New York, 337 U. S. 241, 246-250 (1949), but it does so only in the context of structuring a penalty appropriate to the offense committed.

       As the majority opinion makes clear, the fines were quite heavy, perhaps in anticipation of payment by the employer. There was no expectation that these defendants, if they performed well on probation, would serve any time in jail, let alone a long term.


source: Caselaw Access Project

author: Justice Stewart Justice Powell, Justice Stevens, Justice Rehnquist,

license: Public Domain

text:
    CARTER v. KENTUCKY
    No. 80-5060.
    Argued January 14, 1981
    Decided March 9, 1981

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BreNnan, White, Marshall, Blackmun, Powell, and SteveNs, JJ., joined. Powell, J., filed a concurring opinion, post, p. 305. SteveNs, J., filed a concurring opinion, in which BrennaN, J., joined, post, p. 307. RehNQUist, J., filed a dissenting opinion, post, p. 307.

      Kevin Michael McNally argued the cause and filed a brief for petitioner.

      Robert V. Bullock, Assistant Attorney General of Kentucky, argued the cause for respondent. With him on the brief were Steven L. Beshear, Attorney General, and Richard O. Wyatt, Assistant Attorney General.
   Justice Stewart

delivered the opinion of the Court.

In this case a Kentucky criminal trial judge refused a defendant’s request to give the following jury instruction: “The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way.” The Supreme Court of Kentucky found no error. We granted certiorari to consider the petitioner’s contention that a defendant, upon request, has a right to such an instruction under the Fifth and Fourteenth Amendments of the Constitution. 449 U. S. 819.

I

A

In the early morning of December 22, 1978, Officer Deborah Ellison of the Hopkinsville, Kentucky, Police Department, on routine patrol in downtown Hopkinsville, noticed something in the alley between Young’s Hardware Store and Edna’s Furniture Store. She backed her car up, flashed her spotlight down the alley, and saw two men stooped alongside one of the buildings. The men ran off. Officer Ellison drove her squad car down the alley and found a hole in the side of Young’s Hardware Store. She radioed Officer Leroy Davis, whom she knew to be in the area, informing him that two men had fled from the alley.

Soon after receiving Ellison’s call, Officer Davis saw two men run across a street near where he had been patrolling. The two ran in opposite directions, and Davis proceeded after one of them. Following a chase, during which he twice lost sight of the man he was pursuing, Davis was finally able to stop him. The man was later identified as the petitioner, Lonnie Joe Carter. During the course of the chase, Davis saw the petitioner drop two objects: a gym bag and a radio tuned to a police band. When apprehended, the petitioner was wearing gloves but no jacket. While Davis was pursuing the petitioner, Officer Ellison inspected the alley near the hole in the building wall. She found two jackets, along with some merchandise that had apparently been removed from the hardware store.

After arresting the petitioner, Davis brought him to Officer Ellison to see if she could identify him as one of the men she had seen in the alley. Ellison noted that he was of similar height and weight to one of the men in the alley, and that he wore similar clothing, but because it had been too dark to get a good view of the men’s faces, she could not make a more positive identification. The petitioner was then taken to police headquarters.

B

The petitioner was subsequently indicted for third-degree burglary of Young’s Hardware Store. The indictment also charged him with being a persistent felony offender, in violation of Ky. Rev. Stat. § 532.080 (Supp. 1980), on the basis of previous felony convictions. At the trial, the voir dire examination of prospective jurors was conducted solely by the judge. The prosecutor’s opening statement recounted the evidence expected to be introduced against the petitioner. The opening statement of defense counsel began as follows:

“Let me tell you a little bit about how this system works. If you listened to Mr. Ruff [the prosecutor] you are probably ready to put Lonnie Joe in the penitentiary. He read you a bill, a true bill that was issued by the Grand Jury. Now, the Grand Jury is a group of people that meet back here in a room and the defendant is not able or not allowed to present any of his testimony before this group of people. The only thing that the Grand Jury hears is the prosecution’s proof and I would say approximately what Mr. Ruff has said to you. I suppose that most of you would issue a true bill if Mr. Ruff told you what he has just told you and you didn’t have a chance to hear what the defendant had to say for himself.
“Now, that is just completely contrary to our system of law. A man, as the Judge has already told you, . . . is innocent until . . . proved guilty . . . .”

The prosecution rested after calling Officers Ellison, Davis, another officer, and the owner of Young’s Hardware Store. The trial judge then held a conference, outside of the hearing of the jury, to determine whether the petitioner would testify, and whether the prosecutor would be permitted to impeach the petitioner with his prior felony convictions. Defense counsel stated:

“Judge, I think possibly the only reservation Mr. Carter might have about testifying would be his impeachment by the use of these previous offenses that he is aware of and has told me about. I would like to explain to him in front of you what this all means.”

Counsel then explained to the petitioner that if he testified the Commonwealth could “use the fact that you have several offenses on your record . . . [to] impeach your . . . propensity to tell the truth . . . .” Counsel added that in his experience this was “a heavy thing; it is very serious, and I think juries take it very seriously . . . .” The judge indicated that under Kentucky law he had “discretionary control” over the use of prior felony convictions for impeachment, and cautioned the prosecutor that he might be inviting a reversal if he introduced more than three prior felony convictions, strongly suggesting that the prosecutor rely on the most recent convictions only. The judge then addressed the petitioner: •

“THE COURT: ... You can sit there and say nothing and it cannot be mentioned if you don’t testify but if you do these other convictions can be shown to indicate to the jury that maybe you are not telling the truth.
“THE COURT: . . . [Y]ou talk to Mr. Rogers [defense counsel] and then tell us what you want to do.
“THE COURT: Now, Lonnie, you have come back after a private conference with your lawyer, Mr. Rogers[,] and you have told me you have decided not to take the stand?
“LONNIE JOE CARTER: Yes, Sir.”

Upon returning to open court, the petitioner’s counsel advised the court that there would be no testimony introduced on behalf of the defense. He then requested that the following instruction be given to the jury:

“The [defendant] is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way.”

The trial court refused the request.

The prosecutor began his summation by stating that he intended to review the evidence “that we were privileged to hear,” and cautioned the jury to “[c]onsider only what you have heard up here as evidence in this case and not something that you might speculate happened or could have happened . . . .” After mentioning admissions that the petitioner had allegedly made at police headquarters, the prosecutor argued:

“Now that is not controverted whatsoever. It is not controverted that Lonnie Joe is the man that Miss Ellison saw here. It is not controverted that Lonnie Joe is the man that Davis caught up here (again pointing to blackboard sketch). It is not controverted that Lonnie Joe had that bag (pointing to bag on reporter’s desk) and that radio (pointing to radio) with him. It is not controverted that both of those jackets belong to Lonnie Joe. At least, that is what he told the police department. But, at any rate, that is all we have to go on . . . .”

The prosecutor continued that if there was a reasonable explanation why the petitioner ran when he saw the police, it was “not in the record.”

The jury found the petitioner guilty, recommending a sentence of two years. The recidivist phase of the trial followed. The prosecutor presented evidence of the previous felony convictions that had been listed in the indictment. The defense presented no evidence, and the jury found the petitioner guilty as a persistent offender, sentencing him to the maximum term of 20 years in prison.

Upon appeal, the Kentucky Supreme Court rejected the argument that the Fifth and Fourteenth Amendments to the United States Constitution require that a criminal trial judge give the jury an instruction such as was requested here. In concluding that the trial judge did not commit error by refusing to give the requested instruction, the court pointed to Ky. Rev. Stat. § 421.225 (Supp. 1980), which provides:

“In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his. failure to do so shall not be commented upon or create any presumption against him.”

Holding that the jury instruction requested by counsel would have required the trial judge to “comment upon” the defendant’s failure to testify, the court cited its previous decision in Green v. Commonwealth, 488 S. W. 2d 339, as controlling.

II

A

The constitutional question presented by this case is one the Court has specifically anticipated and reserved, first in Griffin v. California, 380 U. S. 609, 615, n. 6, and more recently in Lakeside v. Oregon, 435 U. S. 333, 337. But, as a question of federal statutory law, it was resolved by a unanimous Court over 40 years ago in Bruno v. United States, 308 U. S. 287. The petitioner in Bruno was a defendant in a federal criminal trial who had requested a jury instruction similar to the one requested by the petitioner in this case. The Court, addressing the question whether Bruno “had the indefeasible right” that his proffered instruction be given to the jury, decided that a federal statute, which prohibits the creation of any presumption from a defendant’s failure to testify, required that the “substance of the denied request should have been granted . . . Id., at 294.

The Griffin case came here shortly after the Court had held that the Fifth Amendment command that no person “shall be compelled in any criminal case to be a witness against himself” is applicable against the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. I. In Griffin, the Court considered the question whether it is a violation of the Fifth and Fourteenth Amendments to invite a jury in a state criminal trial to draw an unfavorable inference from a defendant’s failure to testify. The trial judge had there instructed the jury that “a defendant has a constitutional right not to testify,” and that the defendant’s exercise of that right “does not create a presumption of guilt nor by itself warrant an inference of guilt” nor “relieve the prosecution of any of its burden of proof.” But the instruction additionally permitted the jury to “take that failure into consideration as tending to indicate the truth of [the State’s] evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.” 380 U. S., at 610.

This Court set aside Griffin’s conviction because “the Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615. It condemned adverse comment on a defendant’s failure to testify as reminiscent of the “ ‘inquisitorial system of criminal justice/ ” id., at 614, quoting Murphy v. Waterfront Comm’n, 378 U. S. 52, 55, and concluded that such comment effected a court-imposed penalty upon the defendant that was unacceptable because “[i]t cuts down on the privilege by making its assertion costly.” 380 U. S., at 614.

The Court returned to a consideration of the Fifth Amendment and jury instructions in Lakeside v. Oregon, 435 U. S, 333, where the question was whether the giving of a “no-inference” instruction over defense objection violates the Constitution. Despite trial counsel’s complaint that his strategy was to avoid any mention of his client’s failure to testify, a no-inference instruction was given by the trial judge. The petitioner contended that when a trial judge in any way draws the jury’s attention to a defendant’s failure to testify, unless the defendant acquiesces, the court invades the defendant’s privilege against compulsory self-incrimination. This argument was rejected.

The Lakeside Court reasoned that the Fifth and Fourteenth Amendments bar only adverse comment on a defendant’s failure to testify, and that “a judge’s instruction that the jury must draw no adverse inferences of any kind from the defendant’s exercise of his privilege not to testify is 'comment’ of an entirely different order.” Id., at 339. The purpose of such an instruction, the Court stated, “is to remove from the jury’s deliberations any influence of unspoken adverse inferences,” and “cannot provide the pressure on a defendant found impermissible in Griffin.” Ibid.

The Court observed in Lakeside that the petitioner’s argument there rested on “two very doubtful assumptions:”

“First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own. Second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all. Federal constitutional law cannot rest on speculative assumptions so dubious as these.” Id., at 340 (footnote omitted).

Finally, the Court stressed that “[t]he very purpose” of a jury instruction is to direct the jurors’ attention to important legal concepts “that must not be misunderstood, such as reasonable doubt and burden of proof,” and emphasized that instruction “in the meaning of the privilege against compulsory self-incrimination is no different.” Ibid.

B

The inclusion of the privilege against compulsory self-incrimination in the Fifth Amendment

“reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; . . . our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government ... , in its contest with the individual to shoulder the entire load,’ . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty/ is often 'a protection to the innocent.’ ” Murphy v. Waterfront Comm’n, supra, at 55.

The principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a “no-adverse-inf erence” jury instruction when requested by a defendant to do so.

In Bruno, the Court declared that the failure to instruct as requested was not a mere “technical erro[r] . . . which do[es] not affect . . . substantial rights . . . It stated that the “right of an accused to insist on” the privilege to remain silent is “[o]f a very different order of importance . . .” from the “mere etiquette of trials and . . . the formalities and minutiae of procedure.” 308 U. S., at 293-294. Thus, while the Bruno Court relied on the authority of a federal statute, it is plain that its opinion was influenced by the absolute constitutional guarantee against compulsory self-incrimination.

The Griffin ease stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify. The penalty was exacted in Griffin by adverse comment on the defendant’s silence; the penalty may be just as severe when there is no adverse comment, but when the jury is left to roam at large with only its untutored instincts to guide it, to draw from the defendant’s silence broad inferences of guilt. Even without adverse comment, the members of a jury, unless instructed otherwise, may well draw adverse inferences from a defendant’s silence.

The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant’s objection. The salutary purpose of the instruction, “to remove from the jury’s deliberations any influence of unspoken adverse inferences,” was deemed so important that it there outweighed the defendant’s own preferred tactics.

We have repeatedly recognized that “instructing a jury in the basic constitutional principles that govern the administration of criminal justice,” Lakeside, 435 U. S., at 342, is often necessary. Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law. Such instructions are perhaps nowhere more important than in the context of the Fifth Amendment privilege against compulsory self-incrimination, since “[t]oo many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are . . . guilty of crime . . . .” Ullman v. United States, 350 U. S. 422, 426. And, as the Court has stated, “we have not yet attained that certitude about the human mind which would justify us in ... a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court . . . .” Bruno, 308 U. S., at 294.

A trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.

C

The only state interest advanced by Kentucky in refusing a request for such a jury instruction is protection of the defendant: “the requested ‘no inference’ instruction . . . would have been a direct ‘comment’ by the court and would have emphasized the fact that the accused had not testified in his own behalf.” Green v. Commonwealth, 488 S. W. 2d, at 341. This purported justification was specifically rejected in the Lakeside case, where the Court noted that “[i]t would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” 435 U. S., at 339.

Kentucky also argues that in the circumstances of this case the jurors knew they could not make adverse inferences from the petitioner’s election to remain silent because they were instructed to determine guilt “from the evidence alone,” and because failure to testify is not evidence. The Commonwealth’s argument is unpersuasive. Jurors are not lawyers; they do not know the technical meaning of “evidence.” They can be expected to notice a defendant’s failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant’s silence.

The other trial instructions and arguments of counsel that the petitioner’s jurors heard at the trial of this case were no substitute for the explicit instruction that the petitioner’s lawyer requested. Although the jury was instructed that “[t]he law presumes a defendant to be innocent,” it may be doubted that this instruction contributed in a significant way to the jurors’ proper understanding of the petitioner’s failure to testify. Without question, the Fifth Amendment privilege and the presumption of innocence are closely aligned. But these principles serve different functions, and we cannot say that the jury would not have derived “significant additional guidance,” Taylor v. Kentucky, 436 U. S. 478, 484, from the instruction requested. See United States v. Bain, 696 F. 2d 120 (CA5); United States v. English, 409 F. 2d 200, 201 (CA3). And most certainly, defense counsel’s own argument that the petitioner “doesn’t have to take the stand . . . [and] doesn’t have to do anything” cannot have had the purging effect that an instruction from the judge would have had. “[Arguments of counsel cannot substitute for instructions by the court.” Taylor v. Kentucky, supra, at 489.

Finally, Kentucky argues that because the evidence of petitioner’s guilt was “overwhelming and could not be explained,” any constitutional error committed by the state courts was harmless. Chapman v. California, 386 U. S. 18. While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, cf. Bruno, supra, at 293, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky. See Sandstrom v. Montana, 442 U. S. 510, 627.

III

The freedom of a defendant in a criminal trial to remain silent “unless he chooses to speak in the unfettered exercise of his own will” is guaranteed by the Fifth Amendment and made applicable to state criminal proceedings through the Fourteenth. Malloy v. Hogan, 378 U. S., at 8. And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege. Griffin v. California, 380 U. S. 609. Just as adverse comment on a defendant’s silence “cuts down on the privilege by making its assertion costly,” id., at 614, the failure to limit the jurors’ speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify.

For the reasons stated, the judgment is reversed, and the case is remanded to the Supreme Court of Kentucky for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Powell,

concurring.

Although joining the opinion of the Court, I write briefly to make clear that, for me, this result is required by precedent, not by what I think the Constitution should require.

The Fifth Amendment, applicable to the States through the Fourteenth, provides that no person “shall be compelled in any criminal case to be a witness against himself.” The question in Griffin v. California, 380 U. S. 609 (1965), was whether this proscription was violated if jurors were told that they could draw inferences from a defendant’s failure to testify. The Court held that neither the judge nor the prosecutor could suggest that jurors draw such inferences. A defendant who chooses not to testify hardly can claim that he was compelled to testify. The Court also held, nevertheless, that any “penalty imposed by courts for exercising [this] constitutional privilege” cannot be tolerated because “[i]t cuts down on the privilege by making its assertion costly.” Id., at 614.

Justice Stewart’s dissenting opinion in Griffin, in which Justice White joined, responded persuasively to this departure from the language and purpose of the Self-Incrimination Clause. Justice Stewart wrote:

“We must determine whether the petitioner has been ‘compelled ... to be a witness against himself.’ Compulsion is the focus of the inquiry. Certainly, if any compulsion be detected in the California procedure, it is of a dramatically different and less palpable nature than that involved in the procedures which historically gave rise to the Fifth Amendment guarantee. . . .
“I think that the Court in this case stretches the concept of compulsion beyond all reasonable bounds, and that whatever compulsion may exist derives from the defendant’s choice not to testify, not from any comment by court or counsel. . . . [T]he jury will, of course, realize th[e] quite evident fact [that the defendant has chosen not to testify], even though the choice goes unmentioned.” Id., at 620-621..

The one person who usually knows most about the critical facts is the accused. For reasons deeply rooted in the history we share with England, the Bill of Rights included the Self-Incrimination Clause, which enables a defendant in a criminal trial to elect to make no contribution to the fact-finding process. But nothing in the Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances. Jurors have been instructed that the defendant is presumed to be innocent and that this presumption can be overridden only by evidence beyond a reasonable doubt. California Chief Justice Traynor commented that judges and prosecutors should be able to explain that “a jury [may] draw unfavorable inferences from the defendant’s failure to explain or refute evidence when he could reasonably be expected to do so. Such comment would not be evidence and would do no more than make clear to the jury the extent of its freedom in drawing inferences.” Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 677 (1966); accord, Schaefer, Police Interrogation and the Privilege Against Self-Incrimination, 61 Nw. U. L. Rev. 506, 520 (1966).

I therefore would have joined Justices Stewart and White in dissent in Griffin. But Griffin is now the law, and based on that case the present petitioner was entitled to the jury instruction that he requested. I therefore join the opinion of the Court.

Justice Stevens,

with whom Justice Brennan joins, concurring.

While I join the Court’s opinion, I add this comment to emphasize that today’s holding is limited to cases in which the defendant has requested that the jury be instructed not to draw an inference of guilt from the defendant’s failure to testify. I remain convinced that the question whether such an instruction should be given in any specific case — like the question whether the defendant should testify on his own behalf — should be answered by the defendant and his lawyer, not by the State. See Lakeside v. Oregon, 435 U. S. 333, 343-348 (1978) (Stevens, J., dissenting).

Justice Rehnquist,

dissenting.

The Court has reached its conclusion in this case by a series of steps only the first of which is traceable to the United States Constitution. Yet since the result of the Court’s decision is to reverse the judgment of the Supreme Court of Kentucky, the decision must obviously rest upon the fact that the decision of that court is inconsistent with the United States Constitution.

As the Court points out, the constitutional question presented by this case is one the Court has specifically anticipated and reserved, first in Griffin v. California, 380 U. S. 609, 615, n. 6 (1965), and more recently in Lakeside v. Oregon, 435 U. S. 333 (1978).

But the Court, with a singular paucity of reasoning, points to the fact that in a case arising in the federal system, a defendant requesting a charge similar to that which petitioner requested here was held by this Court to be entitled to it. The differences, of course, are obvious: In the first place, the case of Bruno v. United States, 308 U. S. 287 (1939), was governed by the federal statute there cited:

“The accused could 'at his own request but not otherwise be a competent witness. And his failure to make such a request shall not create any presumption against him.’ Such was the command of the law-makers. The only way Congress could provide that abstention from testifying should not tell against an accused was by an implied direction to judges to exercise their traditional duty in guiding the jury by indicating the considerations relevant to the latter’s verdict on the facts. .... Con-cededly the charge requested by Bruno was correct. The Act of March 16, 1878, gave him the right to invoke it.” Id., at 292-293.

Here, of course, the Act of March 16, 1878, does not attempt to govern the procedures or instructions which shall be given in the trial courts of Kentucky. Therefore the Act of Congress which, in Bruno, was stated to entitle a defendant to a charge that no presumption should arise from his refusal to take the stand, is of no relevance whatever to the Court’s decision in this case.

If we begin with the relevant provisions of the Constitution, which is where an unsophisticated lawyer or layman would probably think we should begin, we find the provision in the Fifth Amendment stating that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . Until the mysterious process of transmogrification by which this Amendment was held to be “incorporated” and made applicable to the States by the Fourteenth Amendment in Malloy v. Hogan, 378 U. S. 1 (1964), the provision itself would not have regulated the conduct of criminal trials in Kentucky. But even if it did, no one here claims that the defendant was forced to take the stand against his will or to testify against himself inconsistently with the provisions of the Fifth Amendment. The claim is rather that in Griffin v. California, supra, the Court, building on the language of the Constitution itself and on Malloy, supra, held that a charge to the effect that any evidence or facts adduced against the defendant which he could be reasonably expected to deny or explain could be taken into consideration by the jury violated the constitutional privilege against compulsory self-incrimination. The author of the present opinion dissented from that holding, stating:

“The formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern. We are charged with no general supervisory power over such matters; our only legitimate function is to prevent violations of the Constitution’s commands.” 380 U. S., at 623.

But even Griffin, supra, did not go as far as the present opinion, for as that opinion makes clear it left open the question of whether a state-court defendant was entitled as a matter of right to a charge that his refusal to take the stand should not be taken into consideration against him by the jury. The Court now decides that he is entitled to such a charge, and, I believe, in doing so, wholly retreats from the statement in the Griffin dissent that “[t]he formulation of procedural rules to govern the administration of criminal justice in the various States is properly a matter of local concern.”

The Court's opinion states, ante, at 301, that “[t]he Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify.” Such Thomistic reasoning is now carried from the constitutional provision itself, to the Griffin case, to the present case, and where it will stop no one can know. The concept of “burdens” and “penalties” is such a vague one that the Court's decision allows a criminal defendant in a state proceeding virtually to take from the trial judge any control over the instructions to be given to the jury in the case being tried. I can find no more apt words with which to conclude this dissent than those stated by Justice Harlan, concurring in the Court’s opinion in Griffin:

“Although compelled to concur in this decision, I am free to express the hope that the Court will eventually return to constitutional paths which, until recently, it has followed throughout its history.” 380 U. S., at 617.

       The per curiam memorandum opinion of the Supreme Court of Kentucky, Carter v. Commonwealth, No. 79-SC-452-MR, May 13, 1980, is unreported. But the court’s affirmance order is reported in 598 S. W. 2d 763.

       Kentucky is one of at least five States that prohibit giving such an instruction to the jury. Others are Minnesota, see State v. Sandve, 279 Minn. 229, 232-234, 156 N. W. 2d 230, 233-234, but see State v. Grey, 256 N. W. 2d 74, 77-78 (the instruction may be necessary in some cases to prevent manifest injustice); Nevada, see Jackson v. State, 84 Nev. 203, 208, 438 P. 2d 795, 798, Nev. Rev. Stat. § 175.181 (1979); Oklahoma, see Brannin v. State, 375 P. 2d 276, 279-280 (Crim. App.), Hanf v. State, 560 P. 2d 207, 212 (Crim. App.); and Wyoming, see Kinney v. State, 36 Wyo. 466, 472, 256 P. 1040, 1042. A few States have a statutory requirement that such an instruction be given to the jury unless the defendant objects. See, e. g., Conn. Gen. Stat. § 54-84 (1958). The majority of the States, by judicial pronouncement, require that a defense request for such a jury instruction be honored. See, e. g., Woodward v. State, 234 Ga. 901, 218 S. E. 2d 629.

       After reading the indictment, and inquiring about possible sources of prejudice, the judge told the venire:
      “The fact that this man is under a charge or has been indicted has no weight against him as evidence. It is not evidence of his guilt and is not to be considered by you as evidence of his guilt. It is simply a part of the court process which starts, as I have said, the wheels turning to get the case started to be tried. It means nothing more than that. He sits there before you today presumed by the law to be as innocent as anyone else in this courtroom.. I want you to fully understand that. Sometimes it is not easy to do, but you are to put out of your mind the fact that he is accused of this crime to the point where you will consider him in any way guilty until and unless the Commonwealth meets its burden and by that I mean the Commonwealth must prove his guilt to your satisfaction beyond a reasonable doubt and if they fail to do that, you should find him not guilty. . .

       Defense counsel summarized his private conversation with his client for the record, observing that “the advice of counsel to Mr. Carter was that in plain terms he was between a rock and hard place . . . .” If the petitioner testified he would be impeached and “if he didn’t testify the jvry[j]- whether Mr. Ruff comment[ed] on it or not would probably use that against him.”

       These included the alleged admission that both jackets found in the alley belonged to him.

       Defense counsel began his closing argument as follows:
      “Ladies and Gentlemen of the jury, I am sure you all right now are wondering well what has happened? Why didn’t Mr. Carter take the stand and testify ? Let me tell you. The judge just read to you that the man is presumed innocent and that it is up to the prosecution to prove him guilty beyond a reasonable doubt. He doesn’t have to take the stand in his own behalf. He doesn’t have to do anything.”

       Bruno asked the trial judge to instruct the jury as follows:
      “The failure of any defendant to take the witness stand and testify in his own behalf, does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.” 308 U. S., at 292.

       Act of Mar. 16, 1878, ch. 37, 20 Stat. 30, now 18 U. S. C. § 3481, which states in pertinent part:
      “In a trial of all persons . . . [the defendant] shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him.”

       At common law, defendants in criminal trials could not be compelled to furnish evidence against themselves, but they were also not permitted to testify. In the context of the original enactment of the federal statute found dispositive in the Bruno case, this Court commented on the alteration of this common-law rule: “This rule, while affording great protection to the accused against unfounded accusation, in many cases deprived him from explaining [incriminating] circumstances .... To relieve him from this embarrassment the law was passed. . . . [He] is by the act in question permitted ... to testify ...” Wilson v. United States, 149 U. S. 60, 65-66. Following enactment of the federal statute, the States followed suit with similar laws. See Dills, The Permissibility of Comment on the Defendant’s Failure to Testify in His Own Behalf in Criminal Proceedings, 3 Wash. L. Rev. 161, 164-165 (1928); 8 J. Wigmore, Evidence §2272, p. 427 (J. McNaughton rev. 1961).
      The issue in Wilson, supra, was whether it was error for the prosecutor to comment adversely on the defendant’s failure to testify. The Court unanimously held that it was, observing that “[n]othing could have been more effective with the jury to induce them to disregard entirely the presumption of innocence to which by the law he was entitled . . . .” 149 U. S., at 66. As later in Bruno, however, the Court did not reach any Fifth Amendment issue.

       The Malloy case overruled Twining v. New Jersey, 211 U. S. 78, and Adamson v. California, 332 U. S. 46, both of which had “adhered to the position that the Federal Constitution does not require the States to accord the Fifth Amendment privilege against self-incrimination.” Tehan v. United States ex rel. Shott, 382 U. S. 406, 412. Malloy established that the same standards determine the validity of claims of Fifth Amendment privilege “whether ... in a state or federal court.” 378 U. S., at 11.

         The Court in the Griffin case expressly reserved decision “on whether an accused can require . . . that the jury be instructed that his silence must be disregarded.” 380 U. S., at 615, n. 6.

       In Tehan v. United States ex rel. Shott, supra, it was decided that Griffin was not to be given retroactive application.

       The Lakeside trial judge gave the following instruction to the jury:
      “Under the laws of this State a defendant has the option to take the witness stand in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.” 435 U. S., at 335.

       For the history and development of the privilege, which has its roots in English and American revulsion against the inquisitorial practices of the Star Chamber and High Commission, see L. Levy, Origins of the Fifth Amendment (1968); E. Cleary, McCormick on Evidence § 114 (2d ed. 1972); 8 J. Wigmore, Evidence § 2250 (J. McNaughton rev. 1961).

       The Court has recognized that there are many reasons unrelated to guilt or innocence for declining to testify:
      “It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offences charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand.” Wilson v. United States, 149 U. S., at 66.
      Other reasons include the fear of impeachment by prior convictions (the petitioner’s fear in the present case), or by other damaging information not necessarily relevant to the charge being tried, Griffin, 380 U. S., at 615, and reluctance to “incriminate others whom [defendants] either love or fear,” Lakeside, 435 U. S., at 344, n. 2 (dissenting opinion).

       In Griffin, the Court relied on the statutory opinion in Wilson, replacing the words “act” and “statute” with the words “Fifth Amendment.” 380 U. S., at 613. The same can be done here with respect to the Court’s opinion in Bruno: when “Congress” is replaced with “the Fifth Amendment,” “the spirit of the Self-Incrimination Clause is reflected.” Griffin, 380 U. S., at 613-614.

       Indeed, the dissenting opinion in Griffin suggested that more harm may flow from the lack of guidance to the jury on the meaning of the Fifth Amendment privilege than from reasonable comment upon the exercise of that privilege. With specific reference to decisions from Kentucky and one other State, the dissenters observed that “[w]ithout limiting instructions, the danger exists that the inferences drawn by the jury may be unfairly broad.” Id., at 623. The Court in Griffin indicated no disagreement with this view.

       It has been almost universally thought that juries notice a defendant’s failure to testify. “[T]he jury will, of course, realize this quite evident fact, even though the choice goes unmentioned. ... [It is] a fact inescapably impressed on the jury’s consciousness.” Griffin, supra, at 621, 622 (dissenting opinion). In Lakeside the Court cited an acknowledged authority’s statement that “‘[t]he layman’s natural first suggestion would probably be that the resort to privilege in each instance is a clear confession of crime.’ ” 435 U. S., at 340, n. 10, quoting 8 J. Wigmore, Evidence §2272, p. 426 (J. McNaughton rev. 1961).

       In Taylor v. Kentucky, 436 U. S. 478, the Court held that the Due Process Clause requires that instructions be given on the presumption of innocence and the lack of evidential significance of an indictment. The Court recognized that an instruction on the presumption of innocence has a “salutary effect upon lay jurors,” and that “the ordinary citizen well may draw significant additional guidance” from such an instruction. Id., at 484. The Court stressed the “purging” effect of the instruction and the need to protect “the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.” Id., at 486. The same can be said, of course, with respect to the privilege of remaining silent. Indeed, the claim is even more compelling here than in Taylor, where the dissenting opinion noted that “the omission [in Taylor’s trial] did not violate a specific constitutional guarantee, such as the privilege against compulsory self-incrimination.” Id., at 492 (Stevens, J.) (footnote omitted).

       “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U. S. 614, 626. For modern empirical support of this longstanding assumption, see Reed, Jury Simulation: The Impact of Judge’s Instructions and Attorney Tactics on Decisionmaking, 71 J. Crim. L. & C. 68 (1980); Bridgeman & Marlowe, 64 J. Applied Psychology 91 (1979); Cornish & Sealy, Juries and the Rules of Evidence, 1973 Crim. L. Rev. 208, 217-218, 222; Forston, Judge’s Instructions: A Quantitative Analysis of Jurors’ Listening Comprehension, 18 Today’s Speech No. 4, p. 34 (1970).

       The importance of a no-inference instruction is underscored by a recent national public opinion survey conducted for the National Center for State Courts, revealing that 37% of those interviewed believed that it is the responsibility of the accused to prove his innocence. 64 A. B. A. J. 653 (1978).

       See n. 20, supra.