author: Justice Blackmun Justice Marshall,

text:
    KENTUCKY v. STINCER
    No. 86-572.
    Argued April 22, 1987
    Decided June 19, 1987

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, O’ConnoR, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which BRennan and Stevens, JJ., joined, post, p. 748.

      Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for petitioner. With her on the briefs were David L. Armstrong, Attorney General, and John S. Gillig, Assistant Attorney General.

      Mark A. Posnansky, by appointment of the Court, 479 U. S. 1005, argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed for the State of Arkansas et al. by Steve Clark, Attorney General of Arkansas, and Rodney A. Smolla, joined by the Attorneys General for their respective jurisdictions as follows: Don Siegelman of Alabama, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Charles Troutman of Guam, Jim Jones of Idaho, Linley E. Pearson of Indiana, Neil F. Hartigan of Illinois, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman
        of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Hal Stratton of New Mexico, Lacy H. Thorn-burg of North Carolina, Nicholas Spaeth of North Dakota, Dave Frohn-mayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey Amestoy of Vermont, J’Ada Finch-Sheen of the Virgin Islands, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner and Harry B. Sondheim.

      Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union by George Kannar; and for the National Association of Criminal Defense Lawyers by Nancy Hollander.

        Donald N. Bersoff filed a brief for the American Psychological Association as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

The question presented in this case is whether the exclusion of a defendant from a hearing held to determine the competency of two child witnesses to testify violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment.

I

Respondent Sergio Stincer was indicted in the Circuit Court of Christian County, Ky., and charged with committing first-degree sodomy with T. G., an 8-year-old girl, N. G., a 7-year-old girl, and B. H., a 5-year-old boy, in violation of Ky. Rev. Stat. §510.070 (1985). After a jury was sworn, but before the presentation of evidence, the court conducted an in-chambers hearing to determine if the two young girls were competent to testify. Over his objection, respondent, but not his counsel (a public defender), was excluded from this hearing. Tr. 15.

The two children were examined separately and the judge, the prosecutor, and respondent’s counsel asked questions of each girl to determine if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie. Id., at 15-26. T. G., the 8-year-old, was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday school. She was also asked whether she knew what it meant to tell the truth, and whether she could keep a promise to God to tell the truth. Id., at 16-18. N. G., the 7-year-old girl, was asked similar questions. Id., at 20-25. The two children were not asked about the substance of the testimony they were to give at trial. The court ruled that the girls were competent to testify. Respondent’s counsel did not object to these rulings. Id., at 20, 25.

Before each of the girls began her substantive testimony in open court, the prosecutor repeated some of the basic questions regarding the girl’s background that had been asked at the competency hearing. Id., at 31-33 (direct examination of T. G.) (questions regarding age, where the witness attended school and Sunday school, and the like); id., at 66 (direct examination of N. G.) (questions regarding age and where the witness attended school). T. G. then testified, on direct examination, that respondent had placed a sock over her eyes, had given her chocolate pudding to eat, and then had “put his d-i-c-k” in her mouth. Id., at 34. N. G., on direct examination, testified to a similar incident. Id., at 69.

On cross-examination, respondent’s counsel asked each girl questions designed to determine if she could remember past events and if she knew the difference between the truth and a lie. Some of these questions were similar to those that had been asked at the competency hearing. See id., at 38-39, 44-47, 60-63 (cross-examination of T. G.); 71-72, 74-75, 78-83 (cross-examination of N. G.). After the testimony of the girls was concluded, counsel did not request that the trial court reconsider its ruling that the girls were competent to testify. The jury convicted respondent of first-degree sodomy for engaging in deviate sexual intercourse and fixed his sentence at 20 years’ imprisonment.

On appeal to the Supreme Court of Kentucky, respondent argued, among other things, that his exclusion from the competency hearing of the two girls denied him due process and violated his Sixth Amendment right to confront the witnesses against him. The Kentucky Supreme Court, by a divided vote, agreed that, under the Sixth Amendment of the Federal Constitution and under § 11 of the Bill of Rights of the Kentucky Constitution (the right “to meet the witnesses face to face”), respondent had an absolute right to be present at the competency hearing because the hearing “was a crucial phase of the trial.” 712 S. W. 2d 939, 940 (1986). The court explained that respondent’s trial “might not have taken place had the trial court determined that the children were not competent to testify.” Id., at 941. Two justices, however, dissented, concluding that respondent’s right to confront the witnesses against him was not violated because respondent had the opportunity to assist counsel fully in cross-examining the two witnesses at trial. Id., at 942-944.

We granted certiorari, 479 U. S. 1005 (1986), to determine whether respondent’s constitutional rights were violated by his exclusion from the competency hearing.

HH HH

A

The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” This right is secured for defendants in state as well as in federal criminal proceedings. Pointer v. Texas, 380 U. S. 400 (1965). The Court has emphasized that “a primary interest secured by [the Confrontation Clause] is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the factfinding process. Cross-examination is “the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U. S. 308, 316 (1974). Indeed, the Court has recognized that cross-examination is the “ ‘greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U. S. 149, 158 (1970), quoting 5 J. Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). The usefulness of cross-examination was emphasized by this Court in an early case explicating the Confrontation Clause:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U. S. 237, 242-243 (1895).

See also Kirby v. United States, 174 U. S. 47, 53 (1899).

The right to cross-examination, protected by the Confrontation Clause, thus is essentially a “functional” right designed to promote reliability in the truth-finding functions of a criminal trial. The cases that have arisen under the Confrontation Clause reflect the application of this functional right. These cases fall into two broad, albeit not exclusive, categories: “cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U. S. 15, 18 (1985) (per curiam).

In the first category of cases, the Confrontation Clause is violated when “hearsay evidence [is] admitted as substantive evidence against the defendant],” Tennessee v. Street, 471 U. S. 409, 413 (1985), with no opportunity to cross-examine the hearsay declarant at trial, or when an out-of-court statement of an unavailable witness does not bear adequate indications of trustworthiness. See Ohio v. Roberts, 448 U. S. 56, 65-66 (1980). For example, in Roberts, we held that an out-of-court statement by an unavailable witness was sufficiently reliable to be admitted at trial, consistent with the Confrontation Clause, because defense counsel had engaged in full cross-examination of the witness at the preliminary hearing where the statement was made. Id., at 70-73. In California v. Green, supra, the Court concluded that the Confrontation Clause was not violated by admitting a declar-ant’s inconsistent out-of-court statement “as long as the de-clarant is testifying as a witness and subject to full and effective cross-examination” at the trial itself. 399 U. S., at 158.

The second category involves cases in which the opportunity for cross-examination has been restricted by law or by a trial court ruling. In Davis v. Alaska, supra, defense counsel was restricted by state confidentiality provisions from questioning a witness about his juvenile criminal record, although such evidence might have affected the witness’ credibility. The Court held that the Confrontation Clause was violated because the defendant was denied the right “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” 415 U. S., at 318. Similarly, in Delaware v. Van Arsdall, 475 U. S. 673 (1986), defense counsel was precluded by the trial court from questioning a witness about the State’s dismissal of a pending public drunkenness charge against him. The Court concluded: “By thus cutting off all questioning about an event. . . that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony,” the trial court’s ruling violated the defendant’s rights under the Confrontation Clause. Id., at 679.

Although claims arising under the Confrontation Clause may not always fall neatly into one of these two categories, these cases reflect the Confrontation Clause’s functional purpose in ensuring a defendant an opportunity for cross-examination. See Lee v. Illinois, 476 U. S. 530 (1986). Of course, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U. S., at 20 (emphasis in original). This limitation is consistent with the concept that the right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial.

B

The Commonwealth argues that respondent’s exclusion from the competency hearing of the two children did not violate the Confrontation Clause because a competency hearing is not “a stage of trial where evidence or witnesses are being presented to the trier of fact.” Brief for Petitioner 22. Cf. Gannett Co. v. DePasquale, 443 U. S. 368, 394 (1979) (Burger, C. J., concurring). Distinguishing between a “trial” and a “pretrial proceeding” is not particularly helpful here, however, because a competency hearing may well be a “stage of trial.” In this case, for instance, the competency hearing was held after the jury was sworn, in the judge’s chambers, and in the presence of opposing counsel who asked questions of the witnesses. Moreover, although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retains a direct relationship with the trial because it determines whether a key witness will testify. Further, although the preliminary determination of a witness’ competency to testify is made at this hearing, the determination of competency is an ongoing one for the judge to make based on the witness’ actual testimony at trial.

Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination. No such interference occurred when respondent was excluded from the competency hearing of the two young girls in this case. After the trial court determined that the two children were competent to testify, they appeared and testified in open court. At that point, the two witnesses were subject to full and complete cross-examination, and were so examined. Tr. 38-58 (cross-examination of T. G.); id., at 71-84 (cross-examination of N. G.). Respondent was present throughout this cross-examination and was available to assist his counsel as necessary. There was no Kentucky rule of law, nor any ruling 'by the trial court, that restricted respondent’s ability to cross-examine the witnesses at trial. Any questions asked during the competency hearing, which respondent’s counsel attended and in which he participated, could have been repeated during direct examination and cross-examination of the “witnesses in respondent’s presence. See California v. Green, 399 U. S., at 159 (“[T]he inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial”).

Moreover, the type of questions that were asked at the competency hearing in this case were easy to repeat on cross-examination at trial. Under Kentucky law, when a child’s competency to testify is raised, the judge is required to resolve three basic issues: whether the child is capable of observing and recollecting facts, whether the child is capable of narrating those facts to a court or jury, and whether the child has a moral sense of the obligation to tell the truth. See Moore v. Commonwealth, 384 S. W. 2d 498, 500 (Ky. 1964) (“When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth”); Capps v. Commonwealth, 560 S. W. 2d 559, 560 (Ky. 1977); Hendricks v. Commonwealth, 550 S. W. 2d 551, 554 (Ky. 1977); see also Thomas v. Commonwealth, 300 Ky. 480, 481-482, 189 S. W. 2d 686, 686-687 (1945); Comment, An Overview of the Competency of Child Testimony, 13 No. Ky. L. Rev. 181, 184 (1986). Thus, questions at a competency hearing usually are limited to matters that are unrelated to the basic issues of the trial. Children often are asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie. See Comment, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. Miami L. Rev. 245, 263, and n. 78 (1985); Comment, Defendants’ Rights in Child Witness Competency Hearings: Establishing Constitutional Procedures for Sexual Abuse Cases, 69 Minn. L. Rev. 1377, 1381-1383, and nn. 9-11 (1985).

In Kentucky, as in certain other States, it is the responsibility of the judge, not the jury, to decide whether a witness is competent to testify based on the witness’ answers to such questions. Whitehead v. Stith, 268 Ky. 703, 709, 105 S. W. 2d 834, 837 (1937) (question of competency is one for court, not jury, and if court finds witness lacks qualification, “it commits a palpable abuse of its discretion” should it then permit witness to testify); Payne v. Commonwealth, 623 S. W. 2d 867, 878 (Ky. 1981); Capps v. Commonwealth, 560 S. W. 2d, at 560. See 2 Wigmore § 507, p. 714 (citing cases). In those States where the judge has the responsibility for determining competency, that responsibility usually continues throughout the trial. A motion by defense counsel that the court reconsider its earlier decision that a child is competent may be raised after the child testifies on direct examination, see, e. g., In re R. R., 79 N. J. 97, 106, 398 A. 2d 76, 80 (1979) (at close of State’s case, defense attorney moved that 4-year-old boy be declared incompetent on basis of actual testimony given by boy), or after direct and cross-examination of the witness. See, e. g., Reply Brief for Petitioner 12 (“If, during trial, there arises some basis for challenging the judge’s competency determination, the judge may be asked to reconsider,” referring to respondent’s motion to that effect, Tr. 126-127). Moreover, appellate courts reviewing a trial judge’s determination of competency also often will look at the full testimony at trial.

In this case both T. G. and N. G. were asked several background questions during the competency hearing, as well as several questions directed at what it meant to tell the truth. Some of the questions regarding the witnesses’ backgrounds were repeated by the prosecutor on direct examination, while others — particularly those regarding the witnesses’ ability to tell the difference between truth and falsehood — were repeated by respondent’s counsel on cross-examination. At the close of the children’s testimony, respondent’s counsel, had he thought it appropriate, was in a position to move that the court reconsider its competency rulings on the ground that the direct and cross-examination had elicited evidence that the young girls lacked the basic requisites for serving as competent witnesses. Thus, the critical tool of cross-examination was available to counsel as a means of establishing that the witnesses were not competent to testify, as well as a means of undermining the credibility of their testimony.

Because respondent had the opportunity for full and effective cross-examination of the two witnesses during trial, and because of the nature of the competency hearing at issue in this case, we conclude that respondent’s rights under the Confrontation Clause were not violated by his exclusion from the competency hearing of the two girls.

h-1 hH h — I

Respondent argues that his rights under the Due Process ■Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing. The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U. S. 97, 105-106 (1934). Although the Court has emphasized that this privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow,” id., at 106-107, due process clearly requires that a defendant be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence,” id., at 108. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.

We conclude that respondent’s due process rights were not violated by his exclusion from the competency hearing in this case. We emphasize, again, the particular nature of the competency hearing. No question regarding the substantive testimony that the two girls would have given during trial was asked at that hearing. All the questions, instead, were directed solely to each child’s ability to recollect and narrate facts, to her ability to distinguish between truth and falsehood, and to her sense of moral obligation to tell the truth. Thus, although a competency hearing in which a witness is asked to discuss upcoming substantive testimony might bear a substantial relationship to a defendant’s opportunity better to defend himself at trial, that kind of inquiry is not before us in this case.

Respondent has given no indication that his presence at the competency hearing in this case would have been useful in ensuring a more reliable determination as to whether the witnesses were competent to testify. He has presented no evidence that his relationship with the children, or his knowledge of facts regarding their background, could have assisted either his counsel or the judge in asking questions that would have resulted in a more assured determination of competency. On the record of this case, therefore, we cannot say that respondent’s rights under the Due Process Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing. As was said in United States v. Gagnon, 470 U. S. 522, 527 (1985) (per curiam), there is no indication that respondent “could have done [anything] had [he] been at the [hearing] nor would [he] have gained anything by attending.”

The judgment of the Supreme Court of Kentucky is reversed.

It is so ordered.

Justice Marshall,

with whom Justice Brennan and Justice Stevens join, dissenting.

The Court today defines respondent’s Sixth Amendment right to be confronted with the witnesses against him as guaranteeing nothing more than an opportunity to cross-examine these witnesses at some point during his trial. The Confrontation Clause protects much more. In this case, it secures at a minimum respondent’s right of presence to assist his lawyer at the in-chambers hearing to determine the competency of the key prosecution witnesses. Respondent’s claim under the Due Process Clause of the Fourteenth Amendment, though similar in this testimonial context to his claim under the Confrontation Clause, was not addressed by the court below and should not be decided here. Were this issue properly before the Court, however, I would again dissent. Due process requires that respondent be allowed to attend every critical stage of his trial.

I

The Sixth Amendment guarantees the criminal defendant “the right ... to be confronted with the witnesses against him.” The text plainly envisions that witnesses against the accused shall, as a rule, testify in his presence. I can only marvel at the manner in which the Court avoids this manifest import of the Confrontation Clause. Without explanation, the Court narrows its analysis to address exclusively what is accurately identified as simply a primary interest the Clause was intended to secure: the right of cross-examination. See ante, at 736 (citing Douglas v. Alabama, 380 U. S. 415, 418 (1965)). This use of analytical blinders is undoubtedly convenient. Since respondent ultimately did receive an opportunity for full cross-examination of the witnesses in his presence, the narrowly drawn standard enables the Court to conclude with relative ease that respondent’s confrontation rights were not violated, see ante, at 740 and 744, even though the in-chambers competency hearing admittedly was, in this case, a “crucial” phase of respondent’s trial from which he was physically excluded. Ante, at 744-745, n. 17.

Although cross-examination may be a primary means for ensuring the reliability of testimony from adverse witnesses, we have never held that standing alone it will suffice in every case. It is true that we have addressed in some detail the Confrontation Clause as it pertains to the admission of out-of-court statements, e. g., Ohio v. Roberts, 448 U. S. 56 (1980); California v. Green, 399 U. S. 149 (1970); and restrictions on the scope of cross-examination, e. g., Davis v. Alaska, 415 U. S. 308 (1974). But these cases have arisen in contexts in which the defendants’ right to be present during the testimony was never doubted, thus making the Court’s categorical analysis, see ante, at 737-738, largely beside the point. Not until today has this Court gone so far as to substitute a defendant’s subsequent opportunity for cross-examination for his right to confront adverse witnesses in a prior testimonial proceeding. Rather, the Court has taken care not to identify the right of cross-examination as the exclusive interest protected by the Confrontation Clause. That right is simply among those “included in” the defendant’s broad right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400, 404 (1965). Though “[c]on-frontation means more than being allowed to confront the witness physically,” Davis v. Alaska, supra, at 315, it must by implication encompass the right of physical presence at any testimonial proceeding. As this Court has previously recognized, “it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause,” California v. Green, supra, at 157, guaranteeing the accused an opportunity to compel the witness to meet him “face to face” before the trier of fact. Mattox v. United States, 156 U. S. 237, 242 (1895); see also Ohio v. Roberts, supra, at 63, and nn. 5, 6.

Physical presence of the defendant enhances the reliability of the factfinding process. Under Kentucky law, in a witness competency proceeding the trial judge must assess the witness’ ability to observe and recollect facts with accuracy and with committed truthfulness. See ante, at 741. This determination necessarily requires the judge to make independent factual findings against which can be measured the accuracy of the witness’ testimony at the competency proceeding, whether addressing facts such as the witness’ name, age, and relation to the defendant, or events concerning the alleged offense itself. These findings are critical to the trial judge’s assessment of the witness’ competency to testify, and they often concern matters about which the defendant, and not his counsel, possesses the knowledge needed to expose inaccuracies in the witness’ answers. Having the defendant present ensures that these inaccuracies are called to the judge’s attention immediately — before the witness takes the stand with the trial court’s imprimatur of competency and testifies in front of the jury as to the defendant’s commission of the alleged offense. It is both functionally inefficient and fundamentally unfair to attribute to the defendant’s attorney complete knowledge of the facts which the trial judge, in the defendant’s involuntary absence, deems relevant to the competency determination. That determination, which turns entirely on the trial court’s evaluation of the witness’ statements, cannot be made out of the physical presence of the defendant without violating the basic guarantee of the Confrontation Clause:

“[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases. The presumption of innocence of an accused attends him throughout the trial and has relation to every fact that must be established in order to prove his guilt beyond reasonable doubt.” Kirby v. United States, 174 U. S. 47, 55 (1899).

But more than the reliability of the competency determination is at stake in this case. As we recently observed in Lee v. Illinois, 476 U. S. 530 (1986), the constitutional guarantee of the right of confrontation serves certain “symbolic goals” as well:

“[T]he right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society’s interest in having the accused and accuser engage in open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown — and hence unchallengable — individuals.” Id., at 540.

This appearance of fairness is woefully lacking in the present case. The Commonwealth did not request that respondent be excluded from the competency hearing. The trial judge raised this issue sua sponte, and only the personal protestations of respondent, a recent Cuban immigrant whose fluency in the English language was limited, preserved the issue for appeal. Neither the prosecuting attorney nor the trial judge articulated any reason for excluding him. From this defendant’s perspective, the specter of the judge, prosecutor, and court-appointed attorney conferring privately with the key prosecution witnesses was understandably upsetting. From a constitutional perspective, the unrequested and unjustified exclusion constitutes an intolerable subversion of the symbolic functions of the Confrontation Clause.

Had respondent invoked his Sixth Amendment right of self-representation and appeared pro se, there would be little doubt that he would have been entitled to attend the competency hearing and cross-examine the child witnesses.

“The Sixth Amendment . . . grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’” Faretta v. California, 422 U. S. 806, 819 (1975).

A defendant who represents himself is “entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client’s cause.” In re Little, 404 U. S. 553, 555 (1972). Given these well-founded constitutional pronouncements, today’s decision may create for the criminal defendant a difficult dilemma: a choice between continuing to exercise his right to assistance of counsel, thereby being excluded from the competency hearing, and appearing pro se so that he may be in attendance at this critical stage of his trial. This Court has on occasion held that a forced choice between two fundamental constitutional guarantees is untenable, see Simmons v. United States, 390 U. S. 377, 394 (1968) (defendant’s testimony in support of motion to suppress evidence under the Fourth Amendment may not, under the Fifth Amendment, be admitted over objection at trial as evidence of defendant’s guilt). Today’s decision neglects the serious question whether this choice is constitutionally defensible.

II

Respondent’s right to be present at the competency hearing does not flow exclusively from the Sixth Amendment. The confrontation right attaches in this context because the competency proceeding was testimonial in nature. As the Court acknowledges, however, respondent also claims a right independently grounded in the Fourteenth Amendment’s Due Process Clause to attend any trial proceeding in which his presence “has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge,” Snyder v. Massachusetts, 291 U. S. 97, 105-106 (1934). Ante, at 745; see also Faretta, supra, at 819, n. 15. That the competency hearing in this case bore a reasonably substantial relation to respondent’s defense can hardly be doubted. As the Court correctly acknowledges, “although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retains a direct relationship with the trial because it determines whether a key witness will testify.” Ante, at 740.

Reviewing the transcript of the competency hearing, the Court concludes that respondent’s due process rights were not violated because no question regarding the substantive testimony of the witnesses was asked and respondent has given no indication that his presence would have assisted in achieving more reliable competency determinations. Ante, at 745-747. But the propriety of the decision to exclude respondent from this critical stage of his trial should not be evaluated in light of what transpired in his absence. To do so transforms the issue from whether a due process violation has occurred into whether the violation was harmless. Neither issue was addressed by the court below. More importantly, however, the Court, citing a single per curiam decision, United States v. Gagnon, 470 U. S. 522 (1985), unfairly shifts the burden of proving harm from this constitutional deprivation to the excluded criminal defendant, who was in no way responsible for the error and is least able to demonstrate what would have occurred had he been allowed to attend. The Fourteenth Amendment does not permit this presumption that the involuntary exclusion of a defendant from a critical stage of his trial is harmless.

I respectfully dissent.

       Immediately prior to the competency hearing of the two girls, the prosecutor moved that the charge regarding B. H., the 5-year-old boy, be dismissed because the prosecution did not believe B. H. was competent to testify. Respondent did not object and the court granted the prosecutor’s motion. Tr. 13-14.

       In response to these questions, T. G. stated that telling the truth meant “[d]on’t tell no stories.” Id., at 17.

       N. G. replied that she would “get a whopping” if she told a lie. Id., at 24.

       There is some confusion as to whether T. G. knew what a “d-i-c-k” was, although she spelled the word at trial. Id., at 55-58. It also appears that N. G. may have recanted her testimony somewhat on cross-examination. Id., at 77-78. These facts, however, relate to whether the evidence was sufficient to convict respondent of the crimes charged. The Kentucky Supreme Court concluded that the evidence was sufficient to withstand a motion for a directed verdict of acquittal. 712 S. W. 2d 939, 941 (1986). That ruling is not before us in this case.

       After the two girls testified, the prosecution stated that it also wished to present the testimony of E. T., a 4-year-old boy who allegedly had witnessed the events in question. The court examined E. T. in the courtroom, without the jury present and, apparently, without respondent present. Tr. 87. No objection from respondent regarding his exclusion from this hearing appears on the record. The court ruled that the boy was competent to testify, a ruling to which respondent’s counsel apparently objected. Id., at 109-110. After direct and cross-examination of E. T., defense counsel moved that the court reconsider its previous ruling that the boy was competent to testify. The court declined to rule that he was incompetent. Id., at 126-127.
      Respondent’s exclusion from E. T.’s competency hearing is not before us because the validity of respondent’s absence from that hearing was never raised before the Kentucky Supreme Court. See Brief for Appellant in No. 84-SC-496-I (Ky. Sup. Ct.), pp. 14-17. Thus, not surprisingly, the majority opinion of the Kentucky Supreme Court refers solely to the competency hearing of the two girls.

       Under Kentucky law, deviate sexual intercourse means “any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” Ky. Rev. Stat. § 510.010(1) (1985). First-degree sodomy with a child under 12 is a Class A felony and conviction carries a minimum sentence of 20 years’ imprisonment and a maximum sentence of life imprisonment. §§ 510.070(2) and 532.060.

       As an initial matter, respondent asks us to vacate our grant of certio-rari because, in his view, the decision of the Kentucky Supreme Court rests on ‘“separate, adequate, and independent grounds.’” Brief for Respondent 50, quoting Michigan v. Long, 463 U. S. 1032, 1041 (1983). We decline to do so. In Michigan v. Long, we explained that “when ... a state court decision fairly appears ... to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion,” we shall assume that the state court believed that federal law compelled its conclusion. Id., at 1040-1041. In this case, the Kentucky Supreme Court consistently referred to respondent’s rights under the Sixth Amendment to the Federal Constitution as supporting its ruling. The court gave no indication that respondent’s rights under § 11 of the Bill of Rights of the Kentucky Constitution were distinct from, or broader than, respondent’s rights under the Sixth Amendment.

       One noted commentator has pointed out that the main purpose of confrontation “is to secure for the opponent the opportunity of cross-examination” (emphasis omitted), 5 J. Wigmore, Evidence § 1395, p. 150 (Chadbourn rev. 1974) (Wigmore), with an additional advantage being that “the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying” (emphasis omitted). Id., at 153.

       The Court sometimes has referred to a defendant’s right of confrontation as a “trial right.” See Barber v. Page, 390 U. S. 719, 725 (1968); see also California v. Green, 399 U. S. 149, 157 (1970) (“right to ‘confront’ the witness at the time of trial”). In Pennsylvania v. Ritchie, 480 U. S. 39 (1987), a plurality of the Court interpreted the Clause to mean that the right of confrontation is designed simply “to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” Id,., at 52. Thus, the plurality in Ritchie concluded that the constitutional error in Davis v. Alaska, 415 U. S. 308 (1974), was not that state law made certain juvenile criminal records confidential, but rather that the defense attorney had been precluded from asking questions about that criminal record at trial. 480 U. S., at 54. The personal view of the author of this opinion as to the Confrontation Clause is somewhat broader than that of the Ritchie plurality. Although he believes that “[tjhere are cases, perhaps most of them, where simple questioning of a witness will satisfy the purposes of cross-examination,” id., at 62 (Black-mun, J., concurring), he also believes that there are cases in which a state rule that precludes a defendant from access to information before trial may hinder that defendant’s opportunity for effective cross-examination at trial, and thus that such a rule equally may violate the Confrontation Clause. Id., at 63-65.
      His differences with the plurality in Ritchie, however, are not implicated in this case. As is demonstrated below, respondent’s ability to engage in full cross-examination at trial was not affected by his exclusion from the competency hearing, nor was his opportunity to engage in effective cross-examination interfered with by his exclusion. Thus, under either the author’s view or that of the plurality in Ritchie, there was no Confrontation Clause violation in this ease.

       Indeed, a competency hearing may take place in the middle of a trial, as did the hearing of E. T. See n. 6, supra.

       Similar requirements for establishing competency to testify were set forth in Wheeler v. United States, 159 U. S. 523 (1895): “[T]here is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.” Id., at 524. See generally 2 Wigmore §§ 505-507.

       Some States explicitly allow children to testify without requiring a prior competency qualification, while others simply provide that all persons, including children, are deemed competent unless otherwise limited by statute. See B. Battman & J. Bulkley, National Legal Resource Center for Child Advocacy and Protection, Protecting Child Victim/Witnesses: Sample Laws and Materials 43-44 (1986) (listing statutes) (Protecting Child Victim/Witnesses); Bulkley, Evidentiary and Procedural Trends in State Legislation and Other Emerging Legal Issues in Child Sexual Abuse Cases, 89 Dick. L. Rev. 645, 645 (1985). Some commentators have urged that children be allowed to testify without undergoing a prior competency qualification. See Protecting Child Victim/Witnesses, at 38 (proposing sample competency statute according children same rebuttable presumption of competency granted other witnesses); 2 Wigmore § 509, p. 719 (“it must be concluded that the sensible way is to put the child upon the stand to give testimony for what it may seem to be worth”).
      A number of States, however, mandate by statute that a trial judge assess a child’s competency to testify on the basis of specified requirements. These usually include a determination that the child is capable of expression, is capable of understanding the duty to tell the truth, and is capable of receiving just impressions of the facts about which he or she is called to testify. See, e. g., Ariz. Rev. Stat. Ann. § 12-2202 (1982); Ga. Code Ann. §24-9-5 (1982); Idaho Code §9-202 (Supp. 1987); Ind. Code §34-1-14-5 (1986); Mich. Comp. Laws §600.2163 (1986); Minn. Stat. §595.02.Subd. 1(f) (Supp. 1987); N. Y. Crim. Proc. Law § 60.20 (McKinney 1981); Ohio Rev. Code Ann. §2317.01 (1981); see Protecting Child Victim/Witnesses, at 45 (listing statutes). The recent reforms in some States of presuming the competency of young children and allowing juries to assess credibility at trial is not called into question by this opinion. We are concerned solely with those States that retain competency qualification requirements.

       See, e. g., Litzkuhn v. Clark, 85 Ariz. 355, 360, 339 P. 2d 389, 392 (1959) (“[I]t is the duty of the trial judge who has permitted a child to be sworn as a witness, at any time to change his mind upon due occasion therefor, to remove the child from the stand and to instruct the jury to disregard his testimony”); Davis v. Weber, 93 Ariz. 312, 317, 380 P. 2d 608, 611 (1963) (“The right of a trial judge to change his mind [regarding a child’s competency] can hardly be denied”).

       California recently amended its statute governing the disqualification of incompetent witnesses to provide explicitly: “In any proceeding held outside the presence of a jury, a court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.” Cal. Evid. Code Ann. § 701(b) (West Supp. 1987).

       See, e. g., Payne v. Commonwealth, 623 S. W. 2d 867, 878 (Ky. 1981) (review of children’s testimony at trial reveals that trial court’s ruling of competency was appropriate); Hendricks v. Commonwealth, 550 S. W. 2d 551, 554 (Ky. 1977) (“Not only did the trial judge determine that the children were competent to testify, but the transcript of the testimony of these children clearly demonstrates their intellectual ability to observe, recollect and narrate the facts and to recognize their moral obligation to tell the truth”); see also In re R. R., 79 N. J. 97, 113, 398 A. 2d 76, 84 (1979) (“[I]n determining the propriety of the trial judge’s determination, an appellate court need not limit its view to the responses given by the witness during the voir dire examination; instead, it can consider the entire record— including the testimony in fact given by the witness under oath — in order to arrive at its decision”).

       Respondent’s counsel, in fact, did move for reconsideration of the court’s ruling on the competency of E. T. after that young boy had testified and had been subjected to cross-examination. See n. 5, supra.

       We note once again that the Kentucky Supreme Court held that respondent’s confrontation rights were violated because the competency hearing was a “crucial phase of the trial.” 712 S. W. 2d, at 940. It is true that the hearing was crucial in the sense that respondent may not have been convicted had the two girls been found incompetent to testify. Nevertheless, the question whether a particular proceeding is critical to the outcome of a trial is not the proper inquiry in determining whether the Confrontation Clause has been violated. The appropriate question is whether there has been any interference with the defendant’s opportunity for effective cross-examination. No such interference occurred in this case. Of course, the fact that a stage in the proceeding is critical to the outcome of a trial may be relevant to due process concerns. Even in that context, however, the question is not simply whether, “but for” the outcome of the proceeding, the defendant would have avoided conviction, but whether the defendant’s presence at the proceeding would have contributed to the defendant’s opportunity to defend himself against the charges. See infra, Part III.

       Although respondent perhaps could have been more artful in presenting his due process claim to the Kentucky Supreme Court as clearly founded on the Fourteenth Amendment, he did raise a due process claim to that court, see Brief for Appellant in No. 84-SC-496-I (Ky. Sup. Ct.), pp. 14-17, and the claim therefore is properly before us.

       During the competency hearing of E. T., the judge, the prosecutor, and respondent’s counsel asked the boy several questions regarding the substance of his testimony. Tr. 91-101. As noted above, however, see n. 6, supra, respondent’s exclusion from E. T.’s competency hearing is not before us.

       Counsel for the Commonwealth acknowledged that if a competency hearing “were to exceed its normal scope,” that would “begi[n] to bear a substantial relation to [a defendant’s] opportunity to defend.” Tr. of Oral Arg. 9; see also State v. Howard, 57 Ohio App. 2d 1, 4-5, 385 N. E. 2d 308, 312-313 (1978) (defendant’s presence bears reasonably substantial relation to defense when witnesses give testimony in in-camera hearing identifying defendant as assailant). Although, as noted above, most competency hearings do not focus on substantive testimony, it is not impossible that questions related to substantive testimony could be asked. See Comment, Defendants’ Rights in Child Witness Competency Hearings: Establishing Constitutional Procedures for Sexual Abuse Cases, 69 Minn. L. Rev. 1377, 1384 (1985) (emphasis on testing a child’s memory “suggests that a judge may inquire about the actual sexual assault”); see n. 19, supra. But see Moll v. State, 351 N. W. 2d 639, 643 (Minn. App. 1984) (“[T]he trial court has broad discretion as to the type of question to be put to the child during this preliminary examination, but should not elicit from the child the anticipated testimony concerning the alleged offense, recognizing the suggestibility of young children”).
      Where the competency hearing bears a substantial relationship to the defendant’s opportunity to defend, a court must then balance the defendant’s role in assisting in his defense against the risk of identifiable and substantial injury to the specific child witness. See Brief for American Psychological Association as Amicus Curiae 15-26 (noting that intuitive view that child victims of sexual abuse are particularly vulnerable in legal proceedings may not be correct for all children).

       Contrary to the dissent’s charge, see post, at 754, we do not address the question whether harmless-error analysis applies in the situation where a defendant is excluded from a critical stage of the proceedings in which his presence would contribute to the fairness of the proceeding. In this case, respondent simply has failed to establish that his presence at the competency hearing would have contributed to the fairness of the proceeding. He thus fails to establish, as an initial matter, the presence of a constitutional deprivation.

       Respondent also argues that his Sixth Amendment right to effective assistance of counsel was violated by his inability to consult with counsel during the competency hearing. Brief for Respondent 28-32. Respondent acknowledges that this argument was not raised below, id., at 28, n. 25, but he argues that, as the prevailing party, he may assert any ground in support of his judgment. See Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970). The Court has noted, however, that it is “the settled practice of this Court, in the exercise of its appellate jurisdiction, that it is only in exceptional cases, and then only in eases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below.” McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434 (1940); see also Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983) (Court will consider ground not presented to federal court below only “in exceptional cases”). Because the judgment here is that of a state court, and because we do not believe that respondent’s claim of deprival of the effective assistance of counsel qualifies as an exceptional case, we decline to review this claim.

       The relevant portion of the transcript of the in-chambers hearing reads in its entirety:
      “Mr. Rogers [the prosecutor]: We’re dealing here with seven and eight-year-old children and I think as a preliminary matter maybe the Court should inquire of them to determine whether or not you believe that they’re competent to testify. Of course, that would still be up to the jury to determine, I understand, but I think you do have to make a preliminary decision.
      “The Court: Okay. Let’s bring them in one at a time. I think we need to get Mr. Stincer back in the courtroom while we’re interviewing these children in chambers.
      “Mr. Embry [respondent’s attorney]: We don’t have any problem with that, Judge. Sergio, we’re going to talk to the children, not about the case really but just to see if they’re old enough to understand the difference between telling a lie and telling the truth, that sort of thing and I think they’ll have you set [sic] outside. I will tell you what happens in a little bit.
      “Mr. Stincer: (phonetic).
      “Mr. Embry: I guess what he’s saying is, Judge, he wishes to be here. Of course, I think you’d probably have the right to handle it.
      “The Court: I think they’re going to have to be interviewed with counsel present only. I think I can exclude everyone.
      “Mr. Embry: Right, Judge. I just—
      “The Court: I’ll let counsel be present.
      “Mr. Embry: To protect my client, I’ll ask that he be allowed to stay.
      “The Court: Fine. Overruled. Let’s bring one of them in.” App. 1-2.

       The reality and appearance of fairness are fully protected by the succinct holding of the Kentucky Supreme Court below:
      “A criminal defendant has the right to attend hearings to determine the competency of witnesses. The trial court’s determination of whether the prosecuting witnesses could testify was pivotal. Because the children’s testimony was sine qua non to the prosecution’s case, appellant’s trial might not have taken place had the trial court determined that the children were not competent to testify.
      “Although this court recognizes the problems and pressures encountered when dealing with child witnesses, when a defendant is placed on trial by the state for criminal conduct he is entitled to be present and to assist his counsel at hearings to determine the competency of witnesses against him.” 712 S. W. 2d 939, 941 (1986).


source: Caselaw Access Project

author: Justice Scalia Justice Marshall,

license: Public Domain

text:
    HEWITT et al. v. HELMS
    No. 85-1630.
    Argued March 4, 1987
    Decided June 19, 1987

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’ConnoR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 764.

      Thomas G. Saylor, Jr., First Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were LeRoy S. Zimmerman, Attorney General, Allen C. Warshaw, Executive Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Harriet S. Shapiro, and William Ranter.

      Robert H. Vesely argued the cause for respondent. With him on the brief was John M. Humphrey.

        Benna Ruth Solomon, Joyce Holmes Benjamin, and Peter J. Kalis filed a brief for the National Governors’ Association et al. as amici curiae urging reversal.

   Justice Scalia

delivered the opinion of the Court.

This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a “prevailing party” for purposes of an award of attorney’s fees.

Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer’s report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement.

While still incarcerated, Helms brought suit under 42 U. S. C. § 1983 against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole.

Nearly six months after Helms’ release, the District Court rendered summary judgment against him on his constitutional claims without passing on the defendants’ assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that “Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of ‘risk’ warranting administrative detention,” Helms v. Hewitt, 655 F. 2d 487, 500 (1981) (Helms I), and that he “suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant.” Id., at 502. The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense.

Before the proceedings on remand could take place, we granted certiorari to determine whether Helms’ administrative segregation violated the Due Process Clause. We concluded that the prison’s informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Hewitt v. Helms, 459 U. S. 460 (1983). Certiorari was not sought on, and we did not decide, the question whether Helms’ misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. Helms v. Hewitt, 712 F. 2d 48 (1983) (Helms II).

In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982), at the time of Helms’ misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures §V(F) (1984), App. 101a-102a (Directive 801). The District Court’s decision was affirmed without opinion. Helms v. Hewitt, 745 F. 2d 46 (1984) (Helms III).

Helms then sought attorney’s fees under 42 U. S. C. §1988, which provides in relevant part: “In any action or proceeding to enforce a provision of [§ 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The District Court denied the claim on the ground that Helms was not a “prevailing party”: the defendants’ official immunity precluded a damages award, Helms’ release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a “catalyst” for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms’ constitutional rights were violated was “a form of judicial relief which serves to affirm the plaintiff’s assertion that the defendants’ actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future.” 780 F. 2d 367, 370 (1986) (Helms IV). The court also directed the District Court to reconsider whether Helms’ suit was a “catalyst” for the amendment of Directive 801. We granted certiorari. 476 U. S. 1181 (1986).

In order to be eligible for attorney’s fees under § 1988, a litigant must be a “prevailing party.” Whatever the outer boundaries of that term may be, Helms does not fit within them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, 446 U. S. 754, 757 (1980). Helms obtained no relief. Because of the defendants’ official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment — for example, through a consent decree or settlement. See Maher v. Gagne, 448 U. S. 122, 129 (1980). The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-759.

The Court of Appeals treated its 1981 holding that Helms’ misconduct conviction was unconstitutional as “a form of judicial relief” — presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court “to determine the appropriateness and availability of the requested relief,” 655 F. 2d, at 503; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms’ nonmone-tary claims were moot as a result of his release from prison. Even if that is not correct, and Helms’ interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms’ counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief.

It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a change in conduct that redresses the plaintiff’s grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See Maher, supra, at 129. The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms’ disciplinary proceeding was unconstitutional is a “vindication of . . . rights,” Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a “case or controversy” rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff The “equivalency” doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has “prevailed” in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing from the defendants. The only “relief” he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had “prevailed,” for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: “The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms’ constitutional rights were violated.” That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a “prevailing party” depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues.

Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms’ counsel, armed with the holding that his client’s constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U. S. C. § 2201 (a court “may declare the rights and other legal relations of any interested party seeking such declaration”) (emphasis added); Public Affairs Associates, Inc. v. Rickover, 369 U. S. 111, 112 (1962); Eccles v. Peoples Bank of Lakewood, 333 U. S. 426, 431 (1948). If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively “settle the controversy between the parties,” 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2759, p. 648 (2d ed. 1983), because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions — or if they do, the court’s decision is not appealable in the same manner as its entry of a declaratory judgment.

We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a “prevailing party.” Any other result strains both the statutory language and common sense.

The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms’ lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in 1984 to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this “catalyst” theory could justify a fee award under § 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State’s amendment of its regulations, and can “prevail” by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a “prevailing party” in this lawsuit, even though he was not such when the final judgment was entered.

For the reasons stated, the judgment of the court of appeals is

Reversed.

Justice Marshall,

with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.

The Court makes a number of sweeping statements in its opinion, most of which are of no help in resolving the present case. In my view, the application of settled law to the facts of this case, tangled as they are, leads to conclusions other than those reached by the Court.

I

The Court’s account of the history of this litigation is complete, but a summary may be helpful. Respondent originally claimed in the District Court both procedural and substantive violations of due process in connection with his prison misconduct conviction, and raised in addition a pendent state claim. He sought declaratory and injunctive relief, damages, and the expungement of his prison disciplinary record. App. 19a-21a. Petitioners alleged immunity defenses, as well as contesting the merits of the federal and state claims. The District Court initially dismissed both the procedural and substantive due process causes of action. The Court of Appeals reversed as to both claims. Helms v. Hewitt, 655 F. 2d 487 (CA3 1981). We granted certiorari only as to procedural due process and reversed, reinstating the District Court’s grant of summary judgment for petitioners. Hewitt v. Helms, 459 U. S. 460 (1983). On remand from this Court, the Court of Appeals noted that its substantive due process holding concerning the use of anonymous informant evidence was unaffected by our decision, and remanded for entry of judgment in favor of respondent unless petitioners were immune. Helms v. Hewitt, 712 F. 2d 48, 49 (1983); see 655 F. 2d, at 502-503 (“[0]n remand, if the defendants do not establish official immunity . . . the district court should enter summary judgment for Helms”).

The District Court, on remand from the Court of Appeals, concluded that petitioners were immune from the payment of damages because the law concerning the use of anonymous informant evidence in prison disciplinary proceedings “was not so clear and well established” at the time of respondent’s disciplinary proceeding as to overcome petitioners’ qualified official immunity. App. 47a. Respondent appealed from this second order granting summary judgment for petitioners. During the pendency of this appeal the Commonwealth of Pennsylvania issued Administrative Directive 801, App. 85a-116a, which incorporated policies with respect to the use of anonymous informant evidence in prison misconduct proceedings consistent with the earlier holding of the Court of Appeals. Id., at 101a-102a. The Court of Appeals subsequently affirmed the District Court’s judgment in a summary order. Helms v. Hewitt, 745 F. 2d 46 (CA3 1984). Respondent then moved for fees in the District Court pursuant to 42 U. S. C. § 1988.

II

Some aspects of the procedural development of this case may be difficult to fathom, but at the very least the case does not present, as the Court declares, a fee application by “a party who litigates to judgment and loses on all of his claims.” Ante, at 757. Respondent’s complaint alleged two federal causes of action. We held that respondent had not stated a viable cause of action for violation of his right to procedural due process. The final word on the substantive due process claim, however, was spoken by the Court of Appeals, which directed the District Court to enter summary judgment for respondent on that claim unless the petitioners were immune.

The Court devotes much of its opinion to demonstrating on theoretical grounds that this statement by the Court of Appeals. was not a declaratory judgment. I think that effort unnecessary; it is plain from the language of the first opinion of the Court of Appeals that it was not entering judgment for respondent. Instead, consistent with the ordinary practice of appellate courts, it simply found respondent’s cause of action good as a matter of law, and remanded with instructions to enter judgment for respondent insofar as such a judgment was not incompatible with petitioners’ immunity, if any. 655 F. 2d, at 502-503. The District Court then found that petitioners were entitled to qualified immunity. This precluded any remedy in damages against petitioners, but by no means prevented the ordering of delaratory or injunctive relief or a grant of attorney’s fees. See Pulliam v. Allen, 466 U. S. 522, 543-544 (1984). Respondent’s complaint sought relief in the form of a declaratory judgment and an injunction expunging his prison disciplinary record. Under the Court of Appeals’ remand order, the District Court could, and probably should, have entered judgment granting the requested declaratory and injunctive relief. Instead, the District Court first took up the question of immunity, and upon finding qualified immunity precipitately issued an order closing the case. App. 48a. No order was entered disposing of respondent’s pending claims for equitable relief.

Respondent contends, and the Court of Appeals agreed, that the issuance of Administrative Directive 801 during the pendency of the subsequent appeal might be the sort of informal relief justifying a fee award, if the Commonwealth’s change of policy was “catalyzed” by respondent’s lawsuit. There is no dispute that informal relief may be sufficient to support a fee award under § 1988. See Maher v. Gagne, 448 U. S. 122, 129-130 (1980). The Court wisely leaves for another day any discussion of the general circumstances under which action “catalyzed” by a lawsuit may be characterized as informal relief for purposes of § 1988. Ante, at 763. But the Court errs in holding that Administrative Directive 801 cannot constitute relief, even under a “catalyst” theory, because respondent derived no benefit from it. The Directive does not, of course, provide an informal equivalent to respondent’s request for injunctive relief, because it did not effect an expungement of his disciplinary record. But the Directive may be, in substance, functionally equivalent to respondent’s requested declaratory relief. As the Court correctly states, in a declaratory judgment action “if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff . . . the plaintiff will have prevailed.” Ante, at 761. The Court observes that respondent is once again an inmate of the Commonwealth’s prisons. Ante, at 764. The behavior of the Commonwealth’s officials toward respondent is as effectively constrained by Directive 801 today as it would have been by a formal declaratory judgment.

In sum, respondent’s claim for fees is based upon the following premises: that the Court of Appeals held his civil rights cause of action good as a matter of law; that at the time of the District Court’s judgment on the issue of immunity, respondent had outstanding meritorious claims for equitable relief; that the judgment as to petitioners’ immunity did not foreclose the granting of equitable relief or an award of attorney’s fees; and that the issuance of Directive 801 during the pendency of litigation provided respondent, by the voluntary action of petitioners and those in privity with them, informal relief substantially equivalent to the relief sought in respondent’s prayer for a declaratory judgment. None of these propositions is subject to serious dispute, and none is rejected by the Court today. The question remains, of course, whether there is any causal connection between the litigation instituted by respondent and the Commonwealth’s promulgation of Directive 801. This is an issue of fact which can only be resolved in the District Court. Should the District Court find that the promulgation of Directive 801 was not “catalyzed” by this litigation, then the error of respondent’s counsel in failing to move in the District Court for formal entry of a declaratory judgment, to which respondent was clearly entitled under the Court of Appeals’ two remand orders, would probably foreclose any fee award. But any such conclusion must await further factfinding.

h-H h-H

The disposition of this chaotic case depends upon the procedural accidents of extended litigation conducted with less than exemplary precision by the parties and the District Court. While the Court sensibly declines to establish any broadly applicable doctrine upon a basis as unreliable as the present record, it nonetheless indulges in a theoretical exposition which varies substantially from the few ascertainable facts. If further review of this litigation was a prudent exercise of our certiorari jurisdiction, which I doubt, it should have occurred after the necessary facts had been found, and the general fog of confusion dispelled, by the District Court. I would affirm the judgment of the Court of Appeals insofar as it remanded to the District Court for factual findings on respondent’s “catalyst” theory.

       Petitioners have taken the position that these requests for declaratory and injunctive relief were somehow mooted by respondent’s release on parole in the early stages of this litigation. Brief for Petitioners 24. Indeed, petitioners represent to the Court that the District Court found that “[respondent’s] claim for injunctive relief had been rendered moot by his release from prison in 1980.” Id., at 10. This statement is flagrantly inaccurate. The District Court in fact held that “plaintiff did not seek any relief which became mooted during the controversy.” App. to Pet. for Cert 38a. Petitioners have offered no authority, nor can they, for the remarkable proposition that the request for expungement of respondent’s record became moot upon his parole. Nor, since the expungement would have depended upon the finding that respondent’s due process rights were violated, have they explained how the request for declaratory relief supposedly became moot.

       The record does not contain the briefs, if any, filed with the Court of Appeals on respondent’s appeal from the District Court’s order. Accordingly it is not clear whether respondent challenged only the District Court’s holding on immunity, or also its failure to award equitable relief. Nor is it clear, since the District Court’s order did not dispose of all respondent’s outstanding claims, whether respondent might not even now move in the District Court for the equitable relief requested in the complaint. The issuance of such equitable relief would, of course, support a fee award under 42 U. S. C. § 1988. The remand ordered by the Court of Appeals in the judgment presently before us would give the District Court an opportunity to rectify the substantial confusion engendered by its earlier proceedings.

       The Court characterizes respondent’s renewed incarceration as a “fortuity,” evidently implying that it has no relevance to this case. But the record does not disclose whether respondent was imprisoned after parole revocation proceedings, or instead as the result of a subsequent criminal conviction. If respondent’s parole was revoked, then it is his temporary release during the course of the litigation, rather than his reincarceration, which is a “fortuity” in determining respondent’s entitlement to attorney’s fees.


text:
    June 1, 1987
    No. 86-1652.
    Liquid Transporters, Inc. v. Revenue Cabinet of Kentucky.
   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 86-1666.
    Cross v. Ohio.
   Appeal from Ct. App. Ohio, Greene County, dismissed for want of substantial federal question.


text:
    No. 86-908.
    United Steelworkers of America, AFL-CIO-CLC v. Rawson, Individually and as Guardian ad Litem for Rawson, et al.
   Sup. Ct. Idaho. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Electrical Workers v. Hechler, 481 U. S. 851 (1987).


text:
    No. 86-5533.
    Chirino v. Jordan Marsh Co.
   C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Shaare Tefila Congregation v. Cobb, 481 U. S. 615 (1987), and Saint Francis College v. Al-Khazraji, 481 U. S. 604 (1987).


text:
    No. 86-1408.
    Haynie et al. v. Ross Gear Division of TRW, Inc., et al.
   C. A. 6th Cir. [Certiorari granted, 481 U. S. 1003.] On the basis of the representations made in the parties’ joint stipulation of dismissal and suggestion of mootness, the judgment of the United States Court of Appeals for the Sixth Circuit is vacated and the case is remanded to that court with a direction to dismiss. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

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


text:
    No. 86-6452.
    Patterson v. South Carolina.
   Sup. Ct. S. C. Certiorari dismissed for want of jurisdiction.


text:
    No.-.
    Granviel v. Texas.
   Motion to direct the Clerk to file the petition for writ of certiorari without an affidavit of indigency executed by the petitioner granted.


text:
    No. A-778 (86-1646).
    Texas v. Williams.
   Application to continue the stay of mandate of the Court of Criminal Appeals of Texas, presented to Justice White, and by him referred to the Court, is granted pending final disposition by this Court of the petition for writ of certiorari.


text:
    No. A-807.
    Levy v. United States.
   Application for release pending appeal, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-811.
    Millsap v. Federal National Mortgage Association et al.
   C. A. 7th Cir. Application for stay, addressed to Justice Brennan and referred to the Court, denied.


text:
    No. A-846.
    Mississippi Power & Light Co. v. Mississippi et al.
   Application for stay of judgment of the Supreme Court of Mississippi, presented to Justice White, and by him referred to the Court, granted pending the timely filing and disposition of the appeal by this Court. This order is further conditioned upon the posting of a good and sufficient bond, in manner and amount to be determined by the Supreme Court of Mississippi.


text:
    No. A-847 (86-1879).
    National Treasury Employees Union et al. v. Von Raab, Commissioner, United States Customs Service.
   C. A. 5th Cir. Application for stay, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan would grant the application.


text:
    No. D-608.
    In re Disbarment of Share.
    [For earlier order herein, see 480 U. S. 902.]
   Disbarment entered.


text:
    No. D-611.
    In re Disbarment of Brickle.
    [For earlier order herein, see 480 U. S. 902.]
   Disbarment entered.


text:
    No. D-623.
    In re Disbarment of Connell.
    [For earlier order herein, see 480 U. S. 944.]
   Disbarment entered.


text:
    No. D-625.
    In re Disbarment of Ernst.
   Thomas J. Ernst, of Clayton, Mo., having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on April 6, 1987 [481 U. S. 1002], is hereby discharged.


text:
    No. D-627.
    In re Disbarment of Gerns.
    [For earlier order herein, see 481 U. S. 1002.]
   Disbarment entered.


text:
    No. D-635.
    In re Disbarment of Fleischer.
   It is ordered that Edward Leo Fleischer, of Morganville, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-636.
    In re Disbarment of Brown.
   It is ordered that Arnold E. Brown, of Englewood, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-637.
    In re Disbarment of Hoagland.
   It is ordered that Robert D. Hoagland, of Charlotte, N. C., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-638.
    In re Disbarment of Haeberle.
   It is ordered that W. Gene Haeberle, of Camden, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-639.
    In re Disbarment of Goldberg.
   It is ordered that Gerald Mark Goldberg, of Rockaway, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-640.
    In re Disbarment of Oxfeld.
   It is ordered that Emil Oxfeld, of South Orange, N. J., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 85-2079.
    Laborers Health and Welfare Trust Fund for Northern California et al. v. Advanced Lightweight Concrete Co., Inc.
   C. A. 9th Cir. [Certiorari granted, 479 U. S. 1083.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 86-279.
    Basic Inc. et al. v. Levinson et al.
   C. A. 6th Cir. [Certiorari granted, 479 U. S. 1083.] Motion of the Solicitor General for leave to participate in oral argument as'ami-cus curiae and for divided argument denied.

The Chief Justice took no part in the consideration or decision of this motion.


text:
    No. 86-492.
    Boyle, Personal Representative of the Heirs and Estate of Boyle v. United Technologies Corp.
   C. A. 4th Cir. [Certiorari granted, 479 U. S. 1029.] Motion of Bell Helicopter Textron Inc. for leave to file a brief as amicus curiae granted.

Justice Powell took no part in the consideration or decision of this motion.


text:
    No. 86-890.
    Deakins et al. v. Monaghan et al.
   C. A. 3d Cir. [Certiorari granted, 479 U. S. 1063.] Motion of American Civil Liberties Union Foundation et al. for leave to file a brief as amici curiae granted.


text:
    No. 86-1108.
    Vermont v. Cox.
   Sup. Ct. Vt. [Certiorari granted, 479 U. S. 1083.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted.


text:
    No. 86-1593.
    Shell Oil Co. v. Department of Revenue of Florida.
   Appeal from Sup. Ct. Fla. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 86-637.
    Communications Workers of America et al. v. Beck et al.
   C. A. 4th Cir. Certiorari granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the applicability of San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959).


text:
    No. 86-6284.
    Satterwhite v. Texas.
   Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted limited to Question 1 presented by the petition.


text:
    No. 85-455.
    Polo Fashions, Inc. v. Stock Buyers International, Inc., et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-940.
    Pacific First Federal Savings Bank et al. v. Rembold et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1304.
    Caifano v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-1440.
    Monsour Medical Center v. Bowen, Secretary of Health and Human Services, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-1464.
    Corbett v. Tisch, Postmaster General of the United States, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1616.
    Plumbers & Steamfitters Union Local 598 et al. v. Washington Public Power Supply System.
   Ct. App. Wash. Certiorari denied.


text:
    No. 86-1618.
    Harrison School District No. 1 et al. v. Lewis.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-1622.
    United States v. Fuccillo.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-1630.
    Mirabole v. Florida Bar.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 86-1631.
    Margoles v. Johns et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-1634.
    Butcher v. City of Detroit.
   Ct. App. Mich. Certiorari denied.


text:
    No. 86-1635.
    Lyne v. Coxon et al.
   Sup. Ct. N. M. Cer-tiorari denied.


text:
    No. 86-1639.
    Vinson v. Ford Motor Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-1640.
    Pace Resources, Inc. v. Shrewsbury Township et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-1644.
    Yamhill Yamaha, Inc. v. United States District Court for the District of Oregon (Yamaha Motor Corp. et al., Real Parties in Interest).
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1648.
    West et al. v. Multibanco Comermex, S. A., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-1651.
    Shedrick v. Donnelly et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1653.
    Bourke v. Schuman.
   App. Dept., Super. Ct. Cal, Alameda County. Certiorari denied.


text:
    No. 86-1668.
    Haney v. Louisiana Training Institute.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-1671.
    Coker v. Gielow, Chairman, Railroad Retirement Board, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-1691.
    Rayburn v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-1716.
    Moore v. State Bank of Burden et al.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 86-1737.
    Flaugh v. Michigan.
   Ct. App. Mich. Certio-rari denied.


text:
    No. 86-6289.
    Minotti v. Lensink, Commissioner, Connecticut State Department of Mental Retardation.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-6425.
    Watson v. Hensiek.
   Ct. App. Mo., Eastern Dist. Certiorari denied.


text:
    No. 86-6453.
    Williams v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-6466.
    Beasley v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 86-6482.
    Martir v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-6669.
    Sweetman v. Township of Pennsauken, New Jersey.
   Super. Ct. N. J., App. Div. Certiorari denied.


text:
    No. 86-6676.
    Annonson v. Grover, State Superintendent of Public Instruction.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 86-6682.
    Standifer v. New York.
   App. Div., Sup. Ct. N. Y., 4th Jud. Dept. Certiorari denied.


text:
    No. 86-6689.
    Washington v. Scully, Superintendent, Green Haven Correctional Facility.
   C. A. 2d Cir. Cer-tiorari denied.


text:
    No. 86-6690.
    Phillips v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 86-6691.
    Rhoden v. Florida et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6693.
    Soto v. LeFevre, Superintendent, Clinton Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-6694.
    Morris v. Kemp, Warden.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6714.
    Monnin v. Consolidated Rail Corporation.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-6715.
    Owens v. Adams et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 86-6720.
    Lewis v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 86-6744.
    Gordon v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-6753.
    Attwell v. Metropolitan Atlanta Rapid Transit Authority et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6754.
    Lewis v. Lynaugh, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-6764.
    Thomas v. Edwards, Warden, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-6774.
    Raffoul v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 86-6779.
    Gomez v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 86-6785.
    Marquez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 86-6787.
    Rodrigues v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-6790.
    Loney v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-6801.
    Woodcock v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 86-6804.
    Brown-Bey v. United States Marshal.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-6817.
    Portal v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6818.
    Vaden v. Village of Maywood, Illinois, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 86-6819.
    Roque-Pino v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6820.
    Bailey v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 86-6822.
    Bascos v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 86-6824.
    Klein v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 86-6833.
    Rohrbach v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 86-6837.
    Watkins v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 86-6838.
    Rawwad v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 86-1519.
    Akzo N. V. et al. v. United States International Trade Commission et al.
   C. A. Fed. Cir. Motion of Kingdom of the Netherlands for leave to file a brief as amicus curiae granted. Certiorari denied.


author: Justice Brennan and Justice Marshall,

text:
    No. 86-6638.
    No. 86-6677.
    No. 86-6700.
    No. 86-6750.
    Harris v. Indiana. Gaskins v. South Carolina. Adkins v. Tennessee. Coleman v. Brown, Warden, et al.
   Sup. Ct. Ind.;

Ct. Common Pleas of Richland County, S. C.;

Sup. Ct. Tenn.; and

C. A. 10th Cir. Certiorari denied. Reported below: No. 86-6638, 499 N. E. 2d 723; No. 86-6700, 725 S. W. 2d 660; No. 86-6750, 802 F. 2d 1227.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 86-6706.
    Heislup et al. v. Town of Colonial Beach, Virginia, et al.
   C. A. 4th Cir. Certiorari denied.

The Chief Justice took no part in the consideration or decision of this petition.


text:
    No. 86-1155.
    No. 86-6312.
    International Primate Protection League et al. v. Institute for Behavioral Research, Inc., et al., Hymen v. Merit Systems Protection Board, Skurdal v. City of Billings, Montana, Lay v. Horan, Commonwealth Attorney, Marshall v. Bauer, In re Fixel,
   481 U. S. 1004;

481 U. S. 1019;

No. 86-6401.

No. 86-6417.

No. 86-6450.

No. 86-6607.

481 U. S. 1020;

481 U. S. 1020;

481 U. S. 1021; and

481 U. S. 1012. Petitions for rehearing denied.


text:
    June 5, 1987
    No. A-884.
    Berry v. Phelps, Secretary, Louisiana Department of Corrections, et al.
   Application for stay of execution of sentence of death, presented to Justice White, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay of execution in order to give the applicant time to file a petition for writ of certiorari and would grant the petition and vacate the death sentence in this case.


text:
    June 8, 1987
    No. 86-1559.
    Burrell et al. v. Allain, Governor of Mississippi, et al.
   Affirmed on appeal from D. C. S. D. Miss.


author: Justice White,

text:
    No. 86-1096.
    Griffith v. Illinois.
   Appeal from App. Ct. Ill., 5th Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.

Justice White,

dissenting.

I agree with the majority that this case is not a proper appeal but, for the reason stated in my dissent from denial of certiorari in Nyflot v. Minnesota Commissioner of Public Safety, 474 U. S. 1027 (1985), I would grant certiorari.


text:
    No. 86-1502.
    Spring Realty Co. et al. v. New York City Loft Board et al.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.


text:
    No. 86-6748.
    Riley v. City of Junction City, Kansas.
   Appeal from Sup. Ct. Kan. dismissed for want of properly presented federal question.


text:
    No. 86-6758.
    Hatton v. Minnesota.
   Appeal from Sup. Ct. Minn, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. A-619.
    Effinger v. Greene et al.
   C. A. 11th Cir. Motion to direct the Clerk to file the petition for writ of certiorari out of time denied.


text:
    No. D-604.
    In re Disbarment of Kornowski.
    [For earlier order herein, see 479 U. S. 1051.]
   Disbarment entered.


text:
    No. D-641.
    In re Disbarment of Wechsler.
   It is ordered that Benjamin B. Wechsler II, of Pittsburgh, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-642.
    In re Disbarment of Palomo.
   It is ordered that Raul Palomo, Jr., of Los Angeles, Cal., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 86-327.
    Mullins Coal Co., Inc. of Virginia, et al. v. Director, Office of Workers’ Compensation Programs, United States Department of Labor, et al.
   C. A. 4th Cir. [Certiorari granted, 479 U. S. 1029.] Motion of United Mine Workers of America for leave to participate in oral argument as amicus curiae, for additional time for oral argument, and for divided argument denied.


text:
    No. 86-492.
    Boyle, Personal Representative of the Heirs and Estate of Boyle v. United Technologies Corp.
   C. A. 4th Cir. [Certiorari granted, 479 U. S. 1029.] Motions of Chamber of Commerce of the United States, UNR Industries, Inc., Defense Research Institute, Inc., and Product Liability Advisory Council, Inc., et al. for leave to file briefs as amici curiae granted.

Justice Powell took no part in the consideration or decision of these motions.


text:
    No. 86-728.
    Honig, California Superintendent of Public Instruction v. Doe et al.
   C. A. 9th Cir. [Certiorari granted, 479 U. S. 1084.] Motion of respondents for leave to proceed further herein in forma pauperis granted.