source: Caselaw Access Project

author: Justice Rehnquist Justice Brennan,

license: Public Domain

text:
    SUMNER, WARDEN v. MATA
    No. 79-1601.
    Argued December 9, 1980
    Decided January 21, 1981

      Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Powell, JJ., joined. Blackmun, J., filed a statement concurring in the result, post, p. 552. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 552.

      Thomas A. Brady, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were George Deukmejkm, Attorney General, Robert H. Phili-

      bosian, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Gloria F. DeHart, Deraid E. Granberg and Jamie Jacobs-May, Deputy Attorneys General.

      Ezra Hendon, by appointment of the Court, post, p. 815, argued the cause for respondent. With him on the brief was Quin Denver.

   Justice Rehnquist

delivered the opinion of the Court.

A divided Court of Appeals for the Ninth Circuit held that respondent’s state-court murder conviction was constitutionally invalid. Its holding has two bases: (1) the pretrial photographic identification procedure employed by state police was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable in-court misidenti-fication of the [respondent]”; and (2) the admission of the in-court identification “constituted error of constitutional dimension.” 611 F. 2d 754, 755 (1979). The question before us is whether the Court of Appeals properly analyzed respondent’s challenge to his state-court murder conviction, given the limited nature of the review provided federal courts by 28 U. S. C. § 2254.

I

In 1973, respondent was convicted in the Superior Court of Kern County, Cal., of the first-degree murder of one of his fellow inmates at a California correctional institution. At trial, three witnesses testified that they had witnessed all or part of the attack on the inmate and identified respondent as participating in the murder. Respondent offered as an alibi three other witnesses who testified that respondent was in bed at the time the stabbing occurred. At no point did respondent object to his in-court identification by the State’s three eyewitnesses.

On direct appeal to the California Court of Appeal, respondent claimed for the first time that the pretrial photographic identification employed by the state police violated the due process of law guaranteed him by the Fourteenth Amendment of the United States Constitution. The California Court of Appeal analyzed his contention under the test earlier enunciated by this Court in Simmons v. United States, 390 U. S. 377 (1968). The court explained that each case must be considered on its own facts and a violation of due process will occur and a conviction will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The California court then rejected respondent’s contention, in this language:

“Reviewing the facts of the present case to determine if the particular photographic identification procedure used contained the proscribed suggestive characteristics, we first find that the photographs were available for cross-examination purposes at the trial. We further find that there is no showing of influence by the investigating officers [; ] that the witnesses had an adequate opportunity to view the crime; and that their descriptions are accurate. The circumstances thus indicate the inherent fairness of the procedure, and we find no error in the admission of the identification evidence.” App. to Pet. for Cert. C-4 — C-5.

Respondent did not seek direct review of the California Court of Appeal’s decision with the California Supreme Court. He did, however, later raise the pretrial identification issue in state habeas corpus proceedings. The California Superior Court, the California Court of Appeal, and the California Supreme Court all denied relief.

On December 9, 1977, respondent filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254 in the United States District Court for the Northern District of California and again raised the pretrial identification issue. On May 23, 1978, the District Court denied the petition and respondent appealed this order to the United States Court of Appeals for the Ninth Circuit.

The Court of Appeals for the Ninth Circuit reversed. The court, employing the same standard used by the California state courts, concluded “the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 611 F. 2d, at 759. This conclusion was based, inter alia, on the court’s finding that (1) the circumstances surrounding the witnesses’ observation of the crime were such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses. Id., at 758-759.

II

The findings made by the Court of Appeals for the Ninth Circuit are considerably at odds with the findings made by the California Court of Appeal. Both courts made their findings after reviewing- the state-court trial record and neither court has indicated that this record is not a completely adequate record upon which to base such findings.

If this were simply a run-of-the-mine case in which an appellate court had reached an opposite conclusion from a trial court in a unitary judicial system, there would be little reason for invocation of this Court’s discretionary jurisdiction to make a third set of findings. But unfortunately for the smooth functioning of our federal system, which consists of 50 state judicial systems and one national judicial system, this is not such a run-of-the-mine case. Instead, this case presents important questions regarding the role to be played by the federal courts in the exercise of the habeas corpus jurisdiction conferred upon them by 28 U. S. C. § 2254.

It has long been established, as to those constitutional issues which may properly be raised under § 2254, that even a single federal judge may overturn the judgment of the highest court of a State insofar as it deals with the application of the United States Constitution or laws to the facts in question. As might be imagined, this result was not easily arrived at under the Habeas Corpus Act of 1867, the predecessor to 28 U. S. C. § 2254. But the present doctrine, adumbrated in the Court’s opinion in Moore v. Dempsey, 261 U. S. 86 (1923), and culminating in this Court’s opinion in Fay v. Noia, 372 U. S. 391 (1963), is that the Act of 1867 allows such collateral attack.

The petitioner asserts that in reaching its decision the majority of the Court of Appeals for the Ninth Circuit failed to observe certain limitations on its authority specifically set forth in 28 U. S. C. §2254 (d). Section 2254 (d) provides:

“(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
“(1) that the merits of the factual dispute were not resolved in the State court hearing;
“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
“(3) that the material facts were not adequately developed at the State court hearing;
“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
“(7) that the applicant was otherwise denied due process of law in the State court proceeding;
“(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
“And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”

It is obvious from a literal reading of the above that § 2254 (d) is applicable to the present situation although it has been contended that this should not be the case where a state appellate court, as opposed to a trial court, makes the pertinent factual findings. We, however, refuse to read this limitation into § 2254 (d). Admittedly, the California Court of Appeal made the factual determinations at issue here and it did so after a review of the trial court record. Nevertheless, it clearly held a “hearing” within the meaning of § 2254 (d). Both respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court. After respondent presented his case to the state appellate court, that court concluded in a written opinion that “the facts of the present case” did not adequately support respondent’s claim. Since that court was requested to determine the issue by respondent, we do not think he may now be heard to assert that its proceeding was not a “hearing” within the meaning of § 2254 (d).

Section 2254 (d) applies to cases in which a state court of competent jurisdiction has made “a determination after a hearing on the merits of a factual issue.” It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a “hearing on the merits of a factual issue,” other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by “a written finding, written opinion, or other reliable and adequate written indicia.” Section 2254 (d) by its terms thus applies to factual determinations made by state courts, whether the court be a trial court or an appellate court. Cf. Swenson v. Stidham, 409 U. S. 224, 230 (1972). This interest in federalism recognized by Congress in enacting § 2254 (d) requires deference by federal courts to factual determinations of all state courts. This is true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level. See Souza v. Howard, 488 F. 2d 462 (CA1 1973). In fact, if the state appellate court here had declined to rule on the “identification” issue because it had not been properly raised in the trial court, the federal court would have been altogether barred from considering it absent a showing of “cause” and “prejudice.” Wainwright v. Sykes, 433 U. S. 72 (1977).

Given the applicability of § 2254 (d) to the present case, it is apparent that the Court of Appeals for the Ninth Circuit did not apply the “presumption of correctness” which is mandated by the statute to the factual determinations made by the California state courts. Indeed, the court did not even refer in its opinion to § 2254 (d). Last Term we denied certiorari in Lombard v. Taylor, 445 U. S. 946 (1980), in which a New York prosecutor sought certiorari from a judgment of the Court of Appeals for the Second Circuit. That court had held in a § 2254 action that the habeas petitioner had been the victim of knowing use of perjured testimony at his trial, and reversed the District Court’s refusal to grant the writ. In that case, however, the Federal Court of Appeals indicated in the course of its opinion full awareness of § 2254 (d), and after an examination of the same documentary evidence on which the state court relied, it expressly concluded that the state-court finding to the contrary was not entitled to deference by reason of § 2254 (d). Taylor v. Lombard, 606 F. 2d 371, 375 (1979). The approach of the Court of Appeals for the Ninth Circuit in the instant case was quite different. Its only reference to the previous state-court decision and collateral proceedings was to state in one sentence that “[t]he Petition followed the appellant’s conviction of murder in a California state court and his exhaustion of all available state court remedies.” 611 F. 2d, at 755. From this statement, its opinion went directly to a discussion of the “facts” and constitutional merits of the respondent’s claims.

Undoubtedly, a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit. This, however, was not the situation presented here. To the contrary, the Court of Appeals reached a conclusion which was in conflict with the conclusion reached by every other state and federal judge after reviewing the exact same record. Reading the court’s opinion in conjunction with § 2254 (d), it is clear that the court could not have even implicitly relied on paragraphs 1 through 7 of § 2254 (d) in reaching its decision. It is impossible to tell whether the majority of the court relied on paragraph 8 because its opinion gives no indication that § 2254 was even considered.

Obviously, if the Court of Appeals in this case or any other court of appeals had simply inserted a boilerplate paragraph in its opinion that it had considered the state record as a whole and concluded that the state appellate court’s factual determinations were not fairly supported by the record, this objection to the judgment of the Court of Appeals could not as easily be made. Just as obviously, this would be a frustration of the intent of Congress in enacting § 2254 (d). Reference can be made to Rule 52 of the Federal Rules of Civil Procedure which requires a United States district court following a bench trial to “find the facts specially and state separately its conclusions of law thereon . . . .” It is a matter of common knowledge that on some occasions a district judge will simply take findings of fact and conclusions of law prepared by the party whom the judge has indicated at the close of trial shall prevail and without alteration adopt them as his own. However, a requirement such as is imposed by Rule 52 undoubtedly makes a judge more aware that it is his own imprimatur that is placed on the findings of fact and conclusions of law, whoever may prepare them. When Congress provided in § 2254 (d) that a habeas court could not dispense with the “presumption of correctness” embodied therein unless it concluded that the factual determinations were not supported by the record, it contemplated at least some reasoned written references to § 2254 (d) and the state-court findings. State judges as well as federal judges swear allegiance to the Constitution of the United States, and there is no reason to think that because of their frequent differences of opinions as to how that document should be interpreted, all are not doing their mortal best to discharge their oath of office.

Federal habeas has been a source of friction between state and federal courts, and Congress obviously meant to alleviate some of that friction when it enacted subsection (d) in 1966 as an amendment to the original Federal Habeas Act of 1867. Accordingly, some content must be given to the provisions of the subsection if the will of Congress be not frustrated. Since the 1966 amendment, this Court has had few opportunities to address the various provisions of subsection (d), and never in a context similar to the one presented here. See, e. g., Cuyler v. Sullivan, 446 U. S. 335 (1980); LaVallee v. Delle Rose, 410 U. S. 690 (1973). A writ issued at the behest of a petitioner under 28 U. S. C § 2254 is in effect overturning either the factual or legal conclusions reached by the state-court system under the judgment of which the petitioner stands convicted, and friction is a likely result. The long line of our cases previously referred to accepted that friction as a necessary consequence of the Federal Habeas Act of 1867, 28 U. S. C. § 2254. But it is clear that in adopting the 1966 amendment, Congress in § 2254 (d) intended not only to minimize that inevitable friction but also to establish that the findings made by the state-court system “shall be presumed to be correct” unless one of seven conditions specifically set forth in § 2254 (d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state-court determination is not “fairly supported by the record,” “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” (Emphasis supplied.)

Although arising in a much different context, we think the recent language used in Addington v. Texas, 441 U. S. 418 (1979), has no little bearing on the issue here:

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Id., at 423.

When it enacted the 1966 amendment to 28 U. S. C. § 2254, Congress specified that in the absence of the previously enumerated factors one through eight, the burden shall rest on the habeas petitioner, whose case by that time had run the entire gamut of a state judicial system, to establish “by convincing evidence that the factual determination of the State court was erroneous.” 28 U. S. C. §2254 (d). Thus, Congress meant to insure that a state finding not be overturned merely on the basis of the usual “preponderance of the evidence” standard in such a situation. In order to ensure that this mandate of Congress is enforced, we now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was “not fairly supported by the record.” Such a statement tying the generalities of § 2254 (d) to the particular facts of the case at hand will not, we think, unduly burden federal habeas courts even though it will prevent the use of the “boilerplate” language to which we have previously adverted. Moreover, such a statement will have the obvious value of enabling courts of appeals and this Court to satisfy themselves that the congressional mandate has been complied with. No court reviewing the grant of an application for habeas corpus should be left to guess as to the habeas court’s reasons for granting relief notwithstanding the provisions of § 2254 (d). Cf. Greater Boston Television Corp. v. FCC, 143 U. S. App. D. C. 383, 444 F. 2d 841, 851 (1970)

Having said this, we are not to be understood as agreeing or disagreeing with the majority of the Court of Appeals on the merits of the issue of impermissibly suggestive identification procedures. Both the California courts and the federal courts relied on the basic Simmons case for their legal analysis. Applying the same test, the majority of the Court of Appeals for the Ninth Circuit reached a different determination than had all the other courts which considered the issue. Assuredly this is not the first nor the last time that such a result will occur. We do think, however, that Congress was intent on some sort of written explanation of the § 2254 (d) factors when such a result does occur. The judgment of the Court of Appeals for the Ninth Circuit is accordingly vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun concurs in the result. He would vacate the judgment of the Court of Appeals and merely remand the case to that court for reconsideration in light of 28 U. S. C. §2254 (d).

Justice Brennan,

with whom Justice Marshall and Justice Stevens join, dissenting.

The Court holds today that an order of a federal habeas court requiring release or retrial of a state prisoner because of constitutional violations at bis trial must be vacated if the court does not explain in its order why 28 U. S. C. § 2254 (d) does not bar re-examination of issues decided by the state courts — even if the State did not contest the order on the ground of § 2254 (d), and even if § 2254 (d) is plainly inapplicable under decisions of this Court. I dissent.

I

Respondent was convicted of first-degree murder of another prisoner, largely on the strength of identification testimony by three fellow inmates at a California penitentiary. Two of these witnesses had been shown photo identification arrays on three occasions, under circumstances that led the United States Court of Appeals for the Ninth Circuit to conclude that it was “obvious that there was a grave likelihood of irreparable misidentification.” 611 F. 2d 754, 758 (1979). Respondent did not object at trial to admission of this identification testimony. On appeal to the California Court of Appeal, respondent argued that the use of this identification evidence violated his due process rights as defined in Simmons v. United States, 390 U. S. 377 (1968). The court considered this claim on the merits, and rejected it.

Respondent did not seek review in the California Supreme Court. Instead, he raised the pretrial identification issue in state habeas corpus proceedings, where his petitions were denied without opinion. Finally, he filed a petition for habeas corpus under 28 U. S. C. § 2254 in the United States District Court for the Northern District of California, again raising the pretrial identification issue. In his return in opposition to respondent’s petition for habeas corpus, petitioner argued that the District Court was precluded from re-examining the issue by virtue of § 2254 (d), which accords a presumption of correctness to state-court factual findings, subject to certain exceptions not relevant here. The District Court denied the petition on its merits, without referring to § 2254 (d). Respondent appealed to the Court of Appeals for the Ninth Circuit, where petitioner abandoned his § 2254 (d) argument. That court reversed on the merits, finding that respondent’s due. process rights had been violated by the pretrial identification procedures. It did not refer to § 2254 (d). Petitioner then filed a motion for rehearing and suggestion for rehearing en banc, this time including a one-sentence argument that § 2254 (d) barred the federal court from reaching the pretrial identification issue. The Court of Appeals denied these motions without discussion.

II

I cannot join my Brethren in concluding that the Court of Appeals’ decision must be vacated for its failure to discuss an issue not timely raised by petitioner. This Court today holds that a federal habeas court may not grant a petition for a writ without stating on the record why it was not bound by § 2254 (d) to defer to the state-court judgment. Ante, at 551. It therefore vacates the judgment of the Court of Appeals in this case, even though petitioner failed to raise the § 2254 (d) argument in his briefs before that court. The Court admits that “a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit.” Ante, at 548. To that I would add that, except in exceptional circumstances, a court need not search the universe of legal argument and discuss every contention that might have been — but was not — made by the losing party. The burden on the dockets of the federal courts is severe enough already, without requiring the courts to raise, research, and explain an issue not deemed important enough by the parties to justify mention in their briefs.

Moreover, I cannot agree that today’s holding will “ensure that this mandate of Congress [§ 2254 (d)] is enforced,” ante, at 551; rather, it is more likely to be seen as an invitation to lower federal courts to “inser [t] a boilerplate paragraph” in their opinions acknowledging their awareness of § 2254 (d). See ante, at 549. The requirement is as useless as it is disruptive.

Ill

The Court’s disposition of the instant case is all the more perplexing because § 2254 (d) plainly constitutes no bar to the Court of Appeals’ holding that the pretrial identification procedure employed by the police violated respondent’s due process rights. Section 2254 (d) requires a federal habeas court to defer to “a determination after a hearing on the merits of a factual issue, made by a State court . . . .” 28 U. S. C. § 2254 (d) (emphasis supplied). The factual issues to which § 2254 (d) applies are “basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators. . . .’” Cuyler v. Sullivan, 446 U. S. 335, 342 (1980) (quoting Townsend v. Sain, 372 U. S. 293, 309, n. 6 (1963)). Section 2254 (d) does not bar a federal court from reviewing “a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” 446 U. S., at 342; see Brewer v. Williams, 430 U. S. 387, 403-404 (1977).

What factual determinations did the Court of Appeals for the Ninth Circuit disregard? The court did not conduct an evidentiary hearing on the pretrial identification procedures, but relied on the same state trial court record relied upon by the California Court of Appeal. My examination of the opinions of the two courts does not reveal a single disagreement over a “basic, primary, or historical fact.”

The treatment of the pretrial identification issue by the California court was brief and contained little in the way of formal factual findings. Its relevant findings were that “the witnesses had an adequate opportunity to view the crime”; that “there is no showing of influence by the investigating officers”; and that the witnesses’ “descriptions are accurate.” App. to Pet. for Cert. C-4 to C-5. The Court of Appeals for the Ninth Circuit explicitly agreed that the witnesses had “an opportunity ... to observe the perpetrators of the crime,” 611 F. 2d, at 758, but disagreed with the California court’s legal conclusion that the opportunity for observation was constitutionally adequate, because of the “diversion of the witnesses’ attention at the time the crime was committed.” Id., at 759. Similarly, the Court of Appeals’ description of the facts concerning the photographic lineup procedure differs in no significant detail from that offered by the California court. Compare id., at 756, with App. to Pet. for Cert. C-3 to C-4. The California court, however, concluded that “[t]he circumstances thus indicate the inherent fairness of the procedure,” id., at C-5, while the Court of Appeals reached the opposite legal conclusion. The Court of Appeals, like the California court, did not dispute the accuracy of the witnesses’ identifications, but only their degree of detail. 611 F. 2d, at 758. Finally the Court of Appeals considered whether using a photo array procedure rather than a lineup was necessary, a consideration not deemed relevant by the California court. Id., at 757.

Plainly, the disagreement between the courts is over the constitutional significance of the facts of the case, and not over the facts themselves. Whether a witness’ opportunity to view a crime is “adequate” for constitutional purposes, whether a particular course of conduct by state police raises a possibility of irreparable misidentification serious enough to violate constitutional standards, whether a witness’ description is sufficiently detailed to dispel doubt about the procedures imposed, and whether the necessity for a photographic identification procedure is constitutionally significant are examples of questions of law, or at least mixed questions of fact and law. The questions addressed by the Court of Appeals for the Ninth Circuit required the “ 'application of constitutional principles to the facts as found,’ ” Brewer v. Williams, supra, at 403 (quoting Brown v. Allen, 344 U. S. 443, 507 (1953) (opinion of Frankfurter, J.)), and thus fall outside the limitations of § 2254 (d).

Indeed, this Court has held, in a case similar on its facts to this one, that a dispute over allegedly suggestive pretrial identification procedures is “not so much over the elemental facts as over the constitutional significance to be attached to them.” Neil v. Biggers, 409 U. S. 188, 193, n. 3 (1972). Cf. Cuyler v. Sullivan, supra, at 342 (conclusion that lawyers undertook multiple representation not a “factual” determination within the meaning of § 2254 (d)); Brewer v. Williams, supra, at 395-397, 402-404 (conclusion that defendant waived his right to counsel not a “factual” determination within the meaning of § 2254 (d)).

In Biggers, the District Court and the Court of Appeals for the Sixth Circuit, applying the “totality of the circumstances” test of Simmons v. United States, 390 U. S. 377 (1968), both concluded that pretrial identification procedures had violated a state prisoner’s due process rights. This Court reversed, over a dissent claiming that the Court was violating its “long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous.” Neil v. Biggers, supra, at 202 (Brennan, J., joined by Douglas and Stewart, JJ., dissenting). The Court rejected the dissenters’ argument on the basis of its conclusion that application of the “totality of the circumstances” test to the undisputed primary facts in the trial court record did not constitute a factual finding. 409 U. S., at 193, n. 3. The instant case is indistinguishable. It is cruelly ironic that the Court would hold the constitutionality of pretrial identification procedures to be a question of law when the effect is to vacate a decision in favor of a prisoner whose incarceration had been held unconstitutional by lower courts, but would reject the same conclusion when the effect would be to vindicate such a prisoner’s constitutional rights.

On the merits, petitioner contends that the “Ninth Circuit’s application of an erroneous standard led it to an erroneous result and that application of the proper standard must lead to a conclusion that [respondent] was not denied due process by reason of the admission of identification evidence at his trial.” Brief for Petitioner 49 (emphasis supplied); see also id., at 14. Thus, petitioner’s very argument reveals that the difference between the Court of Appeals for the Ninth Circuit and the California Court of Appeal was over the applicable legal standard, and not over the particular facts of the case. And § 2254 (d) surely does not detract from the well-established duty of federal courts “to apply the applicable federal law to the state court fact findings independently.” Townsend v. Sain, 372 U. S., at 318. A federal court need not — indeed, must not — defer to the state court’s interpretation of federal law. Ibid.; see ante, at 543-544. In view of this, I cannot understand how the Court today can conclude that “[i]t is obvious from a literal reading of [§ 2254 (d)] that § 2254 (d) is applicable to the present situation ....” Ante, at 545. To me, it is just as obvious that § 2254 (d) is not applicable.

IV

The Court does not challenge the correctness of the Court of Appeals’ conclusion that the pretrial identification procedure employed by the state police in this case was “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 611 F. 2d, at 759. It is therefore not necessary to review the portions of the record and the precedents of this Court that support the conclusion of the Court of Appeals. Nevertheless, today’s decision denies respondent the relief to which that court found that he is entitled. Since petitioner did not raise the § 2254 (d) issue in the Court of Appeals, and since § 2254 (d) is plainly inapplicable to the mixed question of law and fact at issue in this case, I can see no justice in this result. I therefore respectfully dissent.

       This Court previously reserved the question in Cuyler v. Sullivan, 446 U. S. 335, 341, n. 5 (1980). The Courts of Appeals, without extensive analysis, have reached differing conclusions as to whether findings of fact made by a state appellate court can be considered “determination [s] after a hearing on the merits of a factual issue” within the meaning of 28 U. S. C. §2254 (d). Compare Drayton v. Hayes, 589 F. 2d 117, 122, n. 9 (CA2 1979); White v. Finkbeiner, 570 F. 2d 194, 201 (CA7 1978), appeal after remand, 611 F. 2d 186 (1979); Payne v. Cardwell, 436 F. 2d 577 (CA6 1971); Hill v. Nelson, 466 F. 2d 1346, 1348 (CA9 1972), with Souza v. Howard, 488 F. 2d 462 (CA1 1973); and United States ex rel. Harris v. Illinois, 457 F. 2d 191 (CA7 1972).

       The dissent contends that any argument premised on § 2254 (d) was “abandoned” because petitioner raised his § 2254 (d) argument before the District Court, but did not do so in his appellate brief. Post, at 554. Presumably this contention does not mean to imply that petitioner conceded error with regard to the state-court factual determinations, but instead that he “abandoned” his right to rely on § 2254 (d) as a reason for not rejecting these factual determinations. Whether or not the petitioner specifically directed the Court of Appeals’ attention to § 2254 (d) makes no difference as to the outcome of this case. The present codification of the federal habeas statute is the successor to “the first congressional grant of jurisdiction to the federal courts,” Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and the 1966 amendments embodied in § 2254 (d) were intended by Congress as limitations on the exercise of that jurisdiction. As we held in Louisville & Nashville B. Co. v. Mottley, 211 U. S. 149, 152 (1908), and have repeatedly since reaffirmed, “it is the duty of this [C]ourt to see to it that the jurisdiction of the [district court], which is defined and limited by statute, is not exceeded.” Having had the benefit of the full briefing and argument from the parties on the § 2254 (d) issue, we are simply following the well-established doctrine of the Mottley case in deciding the § 2254 (d) issue.

       In addition to minimizing the “friction” between the state and federal courts, the limited nature of the review provided by § 2254 also serves the interest that both society and the individual criminal defendant have “in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.” Sanders v.
        United States, 373 U. S. 1, 24-25 (1963) (Harlan, J., dissenting). See also Schneckloth v. Bustamonte, 412 U. S. 218, 262 (1973) (Powell, J., concurring).

       See ante, at 544-545.

       The Court admits that the decision in Taylor v. Lombard, 606 F. 2d 371 (CA2 1979), cert. denied, 445 U. S. 946 (1980), would be sustained under the rule announced today. Ante, at 547-548. The sole discussion of § 2254 (d) by the Court of Appeals for the Second Circuit in Taylor was its conclusory statement: “The County Court’s finding that there was no factual basis for the claim of perjury is not fairly supported by the record, and therefore is not entitled to deference. 28 U. S. C. § 2254 (d) (8).” 606 F. 2d, at 375. On the basis of this statement, we no more know whether the Court of Appeals for the Second Circuit correctly applied § 2254 (d) in Taylor than we know whether the Court of Appeals for the Ninth Circuit correctly applied it in the instant case. Admittedly, the Second Circuit opinion manifested “full awarenesss” of the existence of §2254 (d), see ante, at 548, but it nevertheless “left [us] to guess as to [its] reasons for granting relief notwithstanding the provisions of §2254 (d).” See ante, at 552. I would be content to presume that federal judges are fully aware of so prominent a statute as §2254 (d), and to leave them free to devote their energies to writing opinions concerning contested issues.

       In particular, petitioner argues that the Court of Appeals for the Ninth Circuit’s consideration of the necessity for using pretrial photo displays was in conflict with this Court’s precedents. Brief for Petitioner 31. The Court of Appeals has held that the necessity for the use of a photographic display is an important factor in judging the validity of pretrial identification procedures, though lack of necessity is not a per se ground for rejecting the identification. 611 F. 2d, at 757; see United States v. Calhoun, 542 F. 2d 1094, 1104 (CA9 1976), cert. denied, 429 U. S. 1064 (1977). The California Court of Appeal did not consider the necessity for the use of the photographic displays, and thus did not apply the same legal standard to the pretrial identification question. App. to Pet. for Cert. C-4 to C-5; see People v. Suttle, 90 Cal. App. 3d 572, 580-581, 153 Cal. Rptr. 409, 414-415 (1979).

       The Court does not suggest, nor could it, that this case falls within the exception to this general principle enunciated in Stone v. Powell, 428 U. S. 465 (1976).


author: Chief Justice Burger Justice Stewart, Justice White,

text:
    CHANDLER et al. v. FLORIDA
    No. 79-1260.
    Argued November 12, 1980
    Decided January 26, 1981

      BuRger, C. J., delivered the opinion of the Court, in which BrennaN, Marshall, BlackmuN, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion concurring in the result, post, p. 583. White, J., filed an opinion concurring in the judgment, post, p. 586. SteveNS, J., took no part in the decision of the case.

      Joel Hirschhorn argued the cause and filed briefs for appellants.

      Jim Smith, Attorney General of Florida, and Calvin L. Fox, Assistant Attorney General, argued the cause and filed a brief for appellee.

        Whitney North Seymour filed a brief for the American College of Trial Lawyers as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by J. Roger Wolleiv-berg, Timothy B. Dyk, Floyd Abrams, Patricia Pickrel, and Ralph E. Goldberg for CBS Inc.; by Parker D. Thomson and Sanford L. Bohrer for the Community Television Foundation of South Florida, Inc., et al.; by Talbot D’Alemberte and Donald M. Middlebrooks for Florida News Interests on Development and Operation of Florida Rule; and by J. Laurent Scharff, Joel M. Hamme, Jack N. Goodman, Mortimer Becker, Corydon B. Dunham, Erwin G. Krasnow, Carl B. Ramey, Arthur B. Sackler, and Ernest T. Sanchez for the Radio Television News Directors Association et al.
      Briefs of amici curiae were filed for the Attorney General of Alabama et al. by Bronson C. La Follette, Attorney General of Wisconsin, Kirbie Knutson, Assistant Attorney General, Charles A. Graddick, Attorney General of Alabama, Wilson L. Condon, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Thomas J. Miller, Attorney General of Iowa, Steven L. Beshear, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Mike Greely, Attorney General of Montana, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, William J. Brown, Attorney General of Ohio, Dennis J. Roberts II, Attorney General of Rhode Island, William M. Leech, Jr., Attorney General of Tennessee, M. Jerome Diamond, Attorney General of Vermont, and Chauncey H. Browning, Jr., Attorney General of West Virginia; for the Conference of Chief Justices by Griffin B. Bell, James D. Miller, and James D. Whisenand; and for the California State Public Defenders Association et al. by Herbert M. Barish and Wilbur F. Littlefield.

   Chief Justice Burger

delivered the opinion of the Court.

The question presented on this appeal is whether, consistent with constitutional guarantees, a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, notwithstanding the objection of the accused.

I

A

Background. Over the past 50 years, some criminal cases characterized as “sensational” have been subjected to extensive coverage by news media, sometimes seriously interfering with the conduct of the proceedings and creating a setting wholly inappropriate for the administration of justice. Judges, lawyers, and others soon became concerned, and in 1937, after study, the American Bar Association House of Delegates adopted Judicial Canon 35, declaring that all photographic and broadcast coverage of courtroom proceedings should be prohibited. In 1952, the House of Delegates amended Canon 35 to proscribe television coverage as well. 77 A. B. A. Rep. 610-611 (1952). The Canon’s proscription was reaffirmed in 1972 when the Code of Judicial Conduct replaced the Canons of Judicial Ethics and Canon 3A (7) superseded Canon 35. E. Thode, Reporter’s Notes to Code of Judicial Conduct 56-59 (1973). Cf. Fed. Rule Crim. Proc. 53. A majority of the states, including Florida, adopted the substance of the ABA provision and its amendments. In Florida, the rule was embodied in Canon 3A (7) of the Florida Code of Judicial Conduct.

In February 1978, the American Bar Association Committee on Fair Trial-Free Press proposed revised standards. These included a provision permitting courtroom coverage by the electronic media under conditions to be established by local rule and under the control of the trial judge, but only if such coverage was carried out unobtrusively and without affecting the conduct of the trial. The revision was endorsed by the ABA’s Standing Committee on Standards for Criminal Justice and by its Committee on Criminal Justice and the Media, but it was rejected by the House of Delegates on February 12, 1979. 65 A. B. A. J. 304 (1979).

In 1978, based upon its own study of the matter, the Conference of State Chief Justices, by a vote of 44 to 1, approved a resolution to allow the highest court of each state to promulgate standards and guidelines regulating radio, television, and other photographic coverage of court proceedings.

The Florida Program. In January 1975, while these developments were unfolding, the Post-Newsweek Stations of Florida petitioned the Supreme Court of Florida urging a change in Florida’s Canon 3A (7). In April 1975, the court invited presentations in the nature of a rulemaking proceeding, and, in January 1976, announced an experimental program for televising one civil and one criminal trial under specific guidelines. Petition of Post-Newsweek Stations, Florida, Inc., 327 So. 2d 1. These initial guidelines required the consent of all parties. It developed, however, that in practice such consent could not be obtained. The Florida Supreme Court then supplemented its order and established a new 1-year pilot program during which the electronic media were permitted to cover all judicial proceedings in Florida without reference to the consent of participants, subject to detailed standards with respect to technology and the conduct of operators. In re Petition of Post-Newsweek Stations, Florida, Inc., 347 So. 2d 402 (1977). The experiment began in July 1977 and continued through June 1978.

When the pilot program ended, the Florida Supreme Court received and reviewed briefs, reports, letters of comment, and studies. It conducted its own survey of attorneys, witnesses, jurors, and court personnel through the Office of the State Court Coordinator. A separate survey was taken of judges by the Florida Conference of Circuit Judges. The court also studied the experience of 6 States that had, by 1979, adopted rules relating to electronic coverage of trials, as well as that of the 10 other States that, like Florida, were experimenting with such coverage.

Following its review of this material, the Florida Supreme Court concluded “that on balance there [was] more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage.” In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 780 (1979). The Florida court was of the view that because of the significant effect of the courts on the day-to-day lives of the citizenry, it was essential that the people have confidence in the process. It felt that broadcast coverage of trials would contribute to wider public acceptance and understanding of decisions. Ibid. Consequently, after revising the 1977 guidelines to reflect its evaluation of the pilot program, the Florida Supreme Court promulgated a revised Canon 3A (7). Id., at 781. The Canon provides:

“Subject at all times to the authority of the presiding judge to (i) control the conduct of proceedings before the court, (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with standards of conduct and technology promulgated by the Supreme Court of Florida.” Ibid.

The implementing guidelines specify in detail the kind of electronic equipment to be used and the manner of its use. Id., at 778-779, 783-784. For example, no more than one television camera and only one camera technician are allowed. Existing recording systems used by court reporters are used by broadcasters for audio pickup. Where more than one broadcast news organization seeks to cover a trial, the media must pool coverage. No artificial lighting is allowed. The equipment is positioned in a fixed location, and it may not be moved during trial. Videotaping equipment must be remote from the courtroom. Film, videotape, and lenses may not be changed while the court is in session. No audio recording of conferences between lawyers, between parties and counsel, or at the bench is permitted. The judge has sole and plenary discretion to exclude coverage of certain witnesses, and the jury may not be filmed. The judge has discretionary power to forbid coverage whenever satisfied that coverage may have a deleterious effect on the paramount right of the defendant to a fair trial. The Florida Supreme Court has the right to revise these rules as experience dictates, or indeed to bar all broadcast coverage or photography in courtrooms.

B

In July 1977, appellants were charged with conspiracy to commit burglary, grand larceny; and possession of burglary tools. The counts covered breaking and entering a well-known Miami Beach restaurant.

The details of the alleged criminal conduct are not relevant to the issue before us, but several aspects of the case distinguish it from a routine burglary. At the time of their arrest, appellants were Miami Beach policemen. The State’s principal witness was John Sion, an amateur radio operator who, by sheer chance, had overheard and recorded conversations between the appellants over their police walkie-talkie radios during the burglary. Not surprisingly, these novel factors attracted the attention of the media.

By pretrial motion, counsel for the appellants sought to have experimental Canon 3A (7) declared unconstitutional on its face and as applied. The trial court denied relief but certified the issue to the Florida Supreme Court. However, the Supreme Court declined to rule on the question, on the ground that it was not directly relevant to the criminal charges against the appellants. State v. Granger, 352 So. 2d 175 (1977).

After several additional fruitless attempts by the appellants to prevent electronic coverage of the trial, the jury was selected. At voir dire, the appellants’ counsel asked each prospective juror whether he or she would be able to be “fair and impartial” despite the presence of a television camera during some, or all, of the trial. Each juror selected responded that such coverage would not affect his or her consideration in any way. A television camera recorded the voir dire.

A defense motion to sequester the jury because of the television coverage was denied by the trial judge. However, the court instructed the jury not to watch or read anything about the case in the media and suggested that jurors “avoid the local news and watch only the national news on television.” App. 13. Subsequently, defense counsel requested that the witnesses be instructed not to watch any television accounts of testimony presented at trial. The trial court declined to give such an instruction, for “no witness’ testimony was [being] reported or televised [on the evening news] in any way.” Id., at 14.

A television camera was in place for one entire afternoon, during which the State presented the testimony of Sion, its chief witness. No camera was present for the presentation of any part of the case for the defense. The camera returned to cover closing arguments. Only 2 minutes and 55 seconds of the trial below were broadcast — and those depicted only the prosecution’s side of the case.

The jury returned a guilty verdict on all counts. Appellants moved for a new trial, claiming that because of the television coverage, they had been denied a fair and impartial trial. No evidence of specific prejudice was tendered.

The Florida District Court of Appeal affirmed the convictions. It declined to discuss the facial validity of Canon 3A (7); it reasoned that the Florida Supreme Court, having decided to permit television coverage of criminal trials on an experimental basis, had implicitly determined that such coverage did not violate the Federal or State Constitutions. Nonetheless, the District Court of Appeal did agree to certify the question of the facial constitutionality of Canon 3A (7) to the Florida Supreme Court. The District Court of Appeal found no evidence in the trial record to indicate that the presence of a television camera had hampered appellants in presenting their case or had deprived them of an impartial jury.

The Florida Supreme Court denied review, holding that the appeal, which was limited to a challenge to Canon 3A (7), was moot by reason of its decision in In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764 (1979), rendered shortly after the decision of the District Court of Appeal.

II

At the outset, it is important to note that in promulgating the revised Canon 3A (7), the Florida Supreme Court pointedly rejected any state or federal constitutional right of access on the part of photographers or the broadcast media to televise or electronically record and thereafter disseminate court proceedings. It carefully framed its holding as follows:

“While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the [Post-Newsweek stations] that the first and sixth amendments to the United States Constitution mandate entry of the electronic media into judicial proceedings.” Id., at 774.

The Florida court relied on our holding in Nixon v. Warner Communications, Inc., 435 U. S. 589 (1978), where we said:

“In the first place, . . . there is no constitutional right to have [live witness] testimony recorded and broadcast. Second, while the guarantee of a public trial, in the words of Mr. Justice Black, is ‘a safeguard against any attempt to employ our courts as instruments of persecution/ it confers no special benefit on the press. Nor does the Sixth Amendment require that the trial — or any part of it — be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.” Id., at 610 (citations omitted).

The Florida Supreme Court predicated the revised Canon 3A (7) upon its supervisory authority over the Florida courts, and not upon any constitutional imperative. Hence, we have before us only the limited question of the Florida Supreme Court’s authority to promulgate the Canon for the trial of cases in Florida courts.

This Court has no supervisory jurisdiction over state courts, and, in reviewing a state-court judgment, we are confined to evaluating it in relation to the Federal Constitution.

Ill

Appellants rely chiefly on Estes v. Texas, 381 U. S. 532 (1965), and Chief Justice Warren’s separate concurring opinion in that case. They argue that the televising of criminal trials is inherently a denial of due process, and they read Estes as announcing a per se constitutional rule to that effect.

Chief Justice Warren’s concurring opinion, in which he was joined by Justices Douglas and Goldberg, indeed provides some support for the appellants’ position:

“While I join the Court’s opinion and agree that the televising of criminal trials is inherently a denial of due process, I desire to express additional views on why this is so. In doing this, I wish to emphasize that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom.” Id., at 552.

If appellants’ reading of Estes were correct, we would be obliged to apply that holding and reverse the judgment under review.

The six separate opinions in Estes must be examined carefully to evaluate the claim that it represents a per se constitutional rule forbidding all electronic coverage. Chief Justice Warren and Justices Douglas and Goldberg joined Justice Clark’s opinion announcing the judgment, thereby creating only a plurality. Justice Harlan provided the fifth vote necessary in support of the judgment. In a separate opinion, he pointedly limited his concurrence:

“I concur in the opinion of the Court, subject, however, to the reservations and only to the extent indicated in this opinion.” Id., at 587.

A careful analysis of Justice Harlan’s opinion is therefore fundamental to an understanding of the ultimate holding of Estes.

Justice Harlan began by observing that the question of the constitutional permissibility of televised trials was one fraught with unusual difficulty:

“Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however, would doubtless impinge upon one of the valued attributes of our federalism by preventing the states from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the courtroom so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment.” Ibid, (emphasis added).

He then proceeded to catalog what he perceived as the inherent dangers of televised trials.

“In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be appearing before a ‘hidden audience’ of unknown but large dimensions. There is certainly a strong possibility that the ‘cocky’ witness having a thirst for the limelight will become more ‘cocky’ under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense attorney, and even a conscientious judge will not stray, albeit unconsciously, from doing what ‘comes naturally’ into pluming themselves for a satisfactory television ‘performance’?” Id., at 591.

Justice Harlan faced squarely the reality that these possibilities carry “grave potentialities for distorting the integrity of the judicial process,” and that, although such distortions may produce no telltale signs, “their effects may be far more pervasive and deleterious than the physical disruptions which all would concede would vitiate a conviction.” Id., at 592. The “countervailing factors” alluded to by Justice Harlan were, as here, the educational and informational value to the public.

Justice Stewart, joined by Justices Black, Brennan, and White in dissent, concluded that no prejudice had been shown and that Estes’ Fourteenth Amendment rights had not been violated. While expressing reservations not unlike those of Justice Harlan and those of Chief Justice Warren, the dissent expressed unwillingness to “escalate this personal view into a per se constitutional rule.” Id., at 601. The four dissenters disagreed both with the per se rule embodied in the plurality opinion of Justice Clark and with the judgment of the Court that “the circumstances of [that] trial led to a denial of [Estes’] Fourteenth Amendment rights.” Ibid. (emphasis added).

Parsing the six opinions in Estes, one is left with a sense of doubt as to precisely how much of Justice Clark’s opinion was joined in, and supported by, Justice Harlan. In an area charged with constitutional nuances, perhaps more should not be expected. Nonetheless, it is fair to say that Justice Harlan viewed the holding as limited to the proposition that “what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment,” id., 587 (emphasis added), he went on:

“At the present juncture I can only conclude that televised trials, at least in cases like this one, possess such capabilities for interfering with the even course of the judicial process that they are constitutionally banned.” Id., at 596 (emphasis added).

Justice Harlan’s opinion, upon which analysis of the constitutional holding of Estes turns, must be read as defining the scope of that holding; we conclude that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964, and is, even now, in a state of continuing change.

Since we are satisfied that Estes did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process, we turn to consideration, as a matter of first impression, of the appellants’ suggestion that we now promulgate such a per se rule.

A

Any criminal case that generates a great deal of publicity presents some risks that the publicity may compromise the right of the defendant to a fair trial. Trial courts must be especially vigilant to guard against any impairment of the defendant’s right to a verdict based solely upon the evidence and the relevant law. Over the years, courts have developed a range of curative devices to prevent publicity about a trial from infecting jury deliberations. See, e. g., Nebraska Press Assn. v. Stuart, 427 U. S. 539, 563-565 (1976).

An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. A case attracts a high level of public attention because of its intrinsic interest to the public and the manner of reporting the event. The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against such prejudice is the defendant’s right to demonstrate that the media’s coverage of his case — be it printed or broadcast — compromised the ability of the particular jury that heard the case to adjudicate fairly. See Part IY-D, infra.

B

As we noted earlier, the concurring opinions in Estes expressed concern that the very presence of media cameras and recording devices at a trial inescapably gives rise to an adverse psychological impact on the participants in the trial. This kind of general psychological prejudice, allegedly present whenever there is broadcast coverage of a trial, is different from the more particularized problem of prejudicial impact discussed earlier. If it could be demonstrated that the mere presence of photographic and recording equipment and the knowledge that the event would be broadcast invariably and uniformly affected the conduct of participants so as to impair fundamental fairness, our task would be simple; prohibition of broadcast coverage of trials would be required.

In confronting the difficult and sensitive question of the potential psychological prejudice associated with broadcast coverage of trials, we have been aided by amici briefs submitted by various state officers involved in law enforcement, the Conference of Chief Justices, and the Attorneys General of 17 States in support of continuing experimentation such as that embarked upon by Florida, and by the American College of Trial Lawyers, and yarious members of the defense bar representing essentially the views expressed by the concurring Justices in Estes.

Not unimportant to the position asserted by Florida and other states is the change in television technology since 1962, when Estes was tried. It is urged, and some empirical data are presented, that many of the negative factors found in Estes — cumbersome equipment, cables, distracting lighting, numerous camera technicians — are less substantial factors today than they were at that time.

It is also significant that safeguards have been built into the experimental programs in state courts, and into the Florida program, to avoid some of the most egregious problems envisioned by the six opinions in the Estes case. Florida admonishes its courts to take special pains to protect certain witnesses — for example, children, victims of sex crimes, some informants, and even the very timid witness or party — from the glare of publicity and the tensions of being “on camera.” In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d, at 779.

The Florida guidelines place on trial judges positive obligations to be on guard to protect the fundamental right of the accused to a fair trial. The Florida Canon, being one of the few permitting broadcast coverage of criminal trials over the objection of the accused, raises problems not present in the rules of other states. Inherent in electronic coverage of a trial is the risk that the very awareness by the accused of the coverage and the contemplated broadcast may adversely affect the conduct of the participants and the fairness of the trial, yet leave no evidence of how the conduct or the trial’s fairness was affected. Given this danger, it is significant that Florida requires that objections of the accused to coverage be heard and considered on the record by the trial court. See, e. g., Green v. State, 377 So. 2d 193, 201 (Fla. App. 1979). In addition to providing a record for appellate review, a pretrial hearing enables a defendant to advance the basis of his objection to broadcast coverage and allows the trial court to define the steps necessary to minimize or eliminate the risks of prejudice to the accused. Experiments such as the one presented here may well increase the number of appeals by adding a new basis for claims to reverse, but this is a risk Florida has chosen to take after preliminary experimentation. Here, the record does not indicate that appellants requested an evidentiary hearing to show adverse impact or injury. Nor does the record reveal anything more than generalized allegations of prejudice.

Nonetheless, it is clear that the general issue of the psychological impact of broadcast coverage upon the participants in a trial, and particularly upon the defendant, is still a subject of sharp debate — as the amici briefs of the American College of Trial Lawyers and others of the trial bar in opposition to Florida’s experiment demonstrate. These amid state the view that the concerns expressed by the concurring opinions in Estes, see Part III, supra, have been borne out by actual experience. Comprehensive empirical data are still not available — at least on some aspects of the problem. For example, the amid brief of the Attorneys General concedes:

“The defendant’s interests in not being harassed and in being able to concentrate on the proceedings and confer effectively with his attorney are crucial aspects of a fair trial. There is not much data on defendant’s reactions to televised trials available now, but what there is indicates that it is possible to regulate the media so that their presence does not weigh heavily on the defendant. Particular attention should he paid to this area of concern as study of televised trials continues.” Brief for the Attorney General of Alabama et al. as Amici Curiae 40 (emphasis added).

The experimental status of electronic coverage of trials is also emphasized by the amicus brief of the Conference of Chief Justices:

“Examination and reexamination, by state courts, of the in-court presence of the electronic news media, vel non, is an exercise of authority reserved to the states under our federalism.” Brief for Conference of Chief Justices as Amicus Curiae 2.

Whatever may be the “mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process,” Estes v. Texas, 381 U. S., at 587, at present no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on that process. See n. 11, supra. The appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage — let alone that all broadcast trials would be so tainted. See Part IY-D, infra.

Where, as here, we cannot say that a denial of due process automatically results from activity authorized by'a state, the admonition of Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932), is relevant:

“To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest' of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. . . . But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.” (Footnote omitted.)

This concept of federalism, echoed by the states favoring Florida’s experiment, must guide our decision.

C

Amici members of the defense bar, see n. 10, supra, vigorously contend that displaying the accused on television is in itself a denial of due process. Brief for the California State Public Defenders Association et al. as Amici Curiae 5-10. This was a source of concern to Chief Justice Warren and Justice Harlan in Estes: that coverage of select cases “singles out certain defendants and subjects them to trials under prejudicial conditions not experienced by others.” 381 U. S., at 565 (Warren, C. J., concurring). Selection of which trials, or parts of trials, to broadcast will inevitably be made not by judges but by the media, and will be governed by such factors as the nature of the crime and the status and position of the accused — or of the victim; the effect may be to titillate rather than to educate and inform. The unanswered question is whether electronic coverage will bring public humiliation upon the accused with such randomness that it will evoke due process concerns by being “unusual in the same way that being struck by lighting” is “unusual.” Furman v. Georgia, 408 U. S. 238, 309 (1972) (Stewart, J., concurring). Societies and political systems, that, from time to time, have put on “Yankee Stadium” “show trials” tell more about the power of the state than about its concern for the decent administration of justice — with every citizen receiving the same kind of justice.

The concurring opinion of Chief Justice Warren joined by Justices Douglas and Goldberg in Estes can fairly be read as viewing the very broadcast of some trials as potentially a form of punishment in itself — a punishment before guilt. This concern is far from trivial. But, whether coverage of a few trials will, in practice, be the equivalent of a “Yankee Stadium” setting — which Justice Harlan likened to the public pillory long abandoned as a barbaric perversion of decent justice — must also await the continuing experimentation.

D

To say that the appellants have not demonstrated that broadcast coverage is inherently a denial of due process is not to say that the appellants were in fact accorded all of the protections of due process in their trial. As noted earlier, a defendant has the right on review to show that the media’s coverage of his case — printed or broadcast — compromised the ability of the jury to judge him fairly. Alternatively, a defendant might show that broadcast coverage of his particular case had an adverse impact on the trial participants sufficient to constitute a denial of due process. Neither showing was made in this case.

To demonstrate prejudice in a specific case a defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters. Murphy v. Florida, 421 U. S, 794, 800 (1975). No doubt the very presence of a camera in the courtroom made the jurors aware that the trial was thought to be of sufficient interest to the public to warrant coverage. Jurors, forbidden to watch all broadcasts, would have had no way of knowing that only fleeting seconds of the proceeding would be reproduced. But the appellants have not attempted to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them or that their trial was affected adversely by the impact on any of the participants of the presence of cameras and the prospect of broadcast.

Although not essential to our holding, we note that at voir dire, the jurors were asked if the presence of the camera would in any way compromise their ability to consider the case. Each answered that the camera would not prevent him or her from considering the case solely on the merits. App. 8-12. The trial court instructed the jurors not to watch television accounts of the trial, id., at 13-14, and the appellants do not contend that any juror violated this instruction. The appellants have offered no evidence that any participant in this case was affected by the presence of cameras. In short, there is no showing that the trial was compromised by television coverage, as was the case in Estes.

y

It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene. We must assume state courts will be alert to any factors that impair the fundamental rights of the accused.

The Florida program is inherently evolutional in nature; the initial project has provided guidance for the new canons which can be changed at will, and application of which is subject to control by the trial judge. The risk of prejudice to particular defendants is ever present and must be examined carefully as cases arise. Nothing of the “Roman circus” or “Yankee Stadium” atmosphere, as in Estes, prevailed here, however, nor have appellants attempted to show that the unsequestered jury was exposed to “sensational” coverage, in the sense of Estes or of Sheppard v. Maxwell, 384 U. S. 333 (1966). Absent a showing of prejudice of constitutional dimensions to these defendants, there is no reason for this Court either to endorse or to invalidate Florida’s experiment.

In this setting, because this Court has no supervisory authority over state courts, our review is confined to whether there is a constitutional violation. We hold that the Constitution does not prohibit a state from experimenting with the program authorized by revised Canon 3A (7).

Affirmed.

Justice Stevens took no part in the decision of this case.

Justice Stewart,

concurring in the result.

Although concurring in the judgment, I cannot join the opinion of the Court because I do not think the convictions in this case can be affirmed without overruling Estes v. Texas, 381 U. S. 532.

I believe now, as I believed in dissent then, that Estes announced a per se rule that the Fourteenth Amendment “prohibits all television cameras from a state courtroom whenever a criminal trial is in progress.” Id., at 614; see also id., at 615 (White, J., dissenting). Accordingly, rather than join what seems to me a wholly unsuccessful effort to distinguish that decision, I would now flatly overrule it.

While much was made in the various opinions in Estes of the technological improvements that might some day render television coverage of criminal trials less obtrusive, the restrictions on television in the Estes trial were not significantly different from those in the trial of these appellants. The opinion of the Court in Estes set out the limitations placed on cameras during that trial:

“A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.
“[L]ive telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury’s verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.” Id., at 537 (footnote omitted).

In his concurring opinion, Justice Harlan also remarked upon the physical setting:

“Some preliminary observations are in order: All would agree, I am sure, that at its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, kleig lights, interviews with the principal participants, commentary on their performances, ‘commercials’ at frequent intervals, special wearing apparel and makeup for the trial participants — certainly such things would not conduce to the sound administration of justice by any acceptable standard. But that is not the case before us. We must judge television as we find it in this trial — relatively unobtrusive, with the cameras contained in a booth at the back of the courtroom.” Id., at 588 (emphasis added).

The constitutional violation perceived by the Estes Court did not, therefore, stem from physical disruption that might one day disappear with technological advances in television equipment. The violation inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused. See id., at 542-550 (opinion of the Court). And Justice Harlan sounded a note in his concurring opinion that is the central theme of the appellants here: “Courtroom television introduces into the conduct of a criminal trial the element of professional 'showmanship/ an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena.” Id., at 591.

It can accurately be asserted that television technology has advanced in the past 15 years, and that Americans are now much more familiar with that medium of communication. It does not follow, however, that the “subtle capacities for serious mischief” are today diminished, or that the “imponderables of the trial arena” are now less elusive.

The Court necessarily relies on the concurring opinion of Justice Harlan in its attempt to distinguish this case from Estes. It begins by noting that Justice Harlan limited his opinion “to a notorious criminal trial such as \the one in Estes] . . . .” Ante, at 571 (emphasis of the Court). But the Court disregards Justice Harlan’s concession that such a limitation may not be meaningful. Justice Harlan admitted that “it may appear that no workable distinction can be drawn based on the type of case involved, or that the possibilities for prejudice [in a 'run-of-the-mill’ case], though less severe, are nonetheless of constitutional proportions.” 381 U. S., at 590. Finally, Justice Harlan stated unambiguously that he was “by no means prepared to say that the constitutional issue should ultimately turn upon the nature of the particular case involved.” Ibid. ,

The Court in Estes found the admittedly unobtrusive presence of television cameras in a criminal trial to be inherently prejudicial, and thus violative of due process of law. Today the Court reaches precisely the opposite conclusion. I have no great trouble in agreeing with the Court today, but I would acknowledge our square departure from precedent.

Justice White,

concurring in the judgment.

The Florida rule, which permits the televising of criminal trials under controlled conditions, is challenged here on its face and as applied. Appellants contend that the rule is facially invalid because the televising of any criminal trial over the objection of the defendant inherently results in a constitutionally unfair trial; they contend that the rule is unconstitutional as applied to them because their case attracted substantial publicity and, therefore, falls within the rule established in Estes v. Texas, 381 U. S. 532 (1965). The Florida court rejected both of these claims.

For the reasons stated by Justice Stewart in his concurrence today, I think Estes is fairly read as establishing a per se constitutional rule against televising any criminal trial if the defendant objects. So understood, Estes must be overruled to affirm the judgment below.

It is arguable, however, that Estes should be read more narrowly, in light of Justice Harlan’s concurring opinion, as forbidding the televising of only widely publicized and sensational criminal trials. Justice Harlan, the fifth vote in Estes, characterized Estes as such a case and concurred in the opinion of the Court only to the extent that it applied to a “criminal trial of great notoriety.” Id., at 587. He recognized that there had been no showing of specific prejudice to the defense, id., at 591, but argued that no such showing was required “in cases like this one.”

Whether the decision in Estes is read broadly or narrowly, I agree with Justice Stewart that it should be overruled. I was in dissent in that case, and I remain unwilling to assume or conclude without more proof than has been marshaled to date that televising criminal trials is inherently prejudicial even when carried out under properly controlled conditions. A defendant should, of course, have ample opportunity to convince a judge that televising his trial would be unfair to him, and the judge should have the authority to exclude cameras from all or part of the criminal trial. But absent some showing of prejudice to the defense, I remain convinced that a conviction obtained in a state court should not be overturned simply because a trial judge refused to exclude television cameras and all or part of the trial was televised to the public. The experience of those States which have, since Estes, permitted televised trials supports this position, and I believe that the accumulated experience of those States has further undermined the assumptions on which the majority rested its judgment in Estes.

Although the Court’s opinion today contends that it is consistent with Estes, I believe that it effectively eviscerates Estes. The Florida rule has no exception for the sensational or widely publicized case. Absent a showing of specific prejudice, any kind of case may be televised as long as the rule is otherwise complied with. In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 774 (Fla. 1979). Thus, even if the present case is precisely the kind of case referred to in Justice Harlan’s concurrence in Estes, the Florida rule overrides the defendant’s objections. The majority opinion does not find it necessary to deal with appellants’ contention that because their case attracted substantial publicity, specific prejudice need not be shown. By affirming the judgment below, which sustained the rule, the majority indicates that not even the narrower reading of Estes will any longer be authoritative.

Moreover, the Court now reads Estes as merely announcing that on the facts of that case there had been an unfair trial — i. e., it established no per se rule at all. Justice Clark’s plurality opinion, however, expressly recognized that no “iso-latable” or “actual” prejudice had been or need be shown, 381 U. S., at 542-543, and Justice Harlan expressly rejected the necessity of showing “specific” prejudice in cases “like this one.” Id., at 593. It is thus with telling effect that the Court now rules that “[ajbsent a showing of prejudice of constitutional dimensions to these defendants,” there is no reason to overturn the Florida rule, to reverse the judgment of the Florida Supreme Court, or to set aside the conviction of the appellants. Ante, at 582.

By reducing Estes to an admonition to proceed with some caution, the majority does not underestimate or minimize the risks of televising criminal trials over a defendant’s objections. I agree that those risks are real and should not be permitted to develop into the reality of an unfair trial. Nor does the decision today, as I understand it, suggest that any State is any less free than it was to avoid this hazard by not permitting a trial to be televised over the objection of the defendant or by forbidding cameras in its courtrooms in any criminal case.

Accordingly, I concur in the judgment.

       62 A. B. A. Rep. 1134-1135 (1937). As adopted on September 30, 1937, Judicial Canon 35 read:
      “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.”

       As originally adopted in Florida, Canon 3A (7) provided:
      “A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
      “(a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
      “(b) the broadcasting, televising, recording, or photographing of investi-tive, ceremonial, or naturalization proceedings;
      “(c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions;
      “(i) the means of recording will not distract participants or impair the dignity of the proceedings;
      “(ii) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
      “(iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
      “(iv) the reproduction will be exhibited only for instructional purposes in educational institutions.”

       Proposed Standard 8-3.6 (a) of the ABA Project on Standards for Criminal Justice, Fair Trial and Free Press (Tent. Draft 1978).

       Resolution I, Television, Radio, Photographic Coverage of Judicial Proceedings, adopted at the Thirtieth Annual Meeting of the Conference of Chief Justices, Burlington, Vt., Aug. 2,1978.

       Alabama, Colorado, Georgia, New Hampshire, Texas, and Washington.

       The number of states permitting electronic coverage of judicial proceedings has grown larger since 1979. As of October 1980, 19 States permitted coverage of trial and appellate courts, 3 permitted coverage of trial courts only, 6 permitted appellate court coverage only, and the court systems of 12 other States were studying the issue. Brief for the Radio Television News Directors Association et al. as Amici Curiae. On November 10, 1980, the Maryland Court of Appeals authorized an 18-month experiment with broadcast coverage of both trial and appellate court proceedings. 49 U. S. L. W. 2335 (1980).

         At one point during Sion’s testimony, the judge interrupted the examination and admonished a cameraman to discontinue a movement that the judge apparently found distracting. App. 15. Otherwise, the prescribed procedures appear to have been followed, and no other untoward events occurred.

       Our subsequent cases have so read Estes. In Sheppard v. Maxwell, 384 U. S. 333, 352 (1966), the Court noted Estes as an instance where the “totality of circumstances” led to a denial of due process. In Murphy v. Florida, 421 U. S. 794, 798 (1975), we described it as “a state-court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.” And, in Nebraska Press Assn. v. Stuart, 427 U. S. 539, 552 (1976), we depicted Estes as a trial lacking in due process where “the volume of trial publicity, the judge’s failure to control the proceedings, and the telecast of a hearing and of the trial itself” prevented a sober search for the truth.
      In his opinion concurring in the result in the instant case, Justice Stewart restates his dissenting view in Estes that the Estes Court announced a per se rule banning all broadcast coverage of trials as a denial of due process. This view overlooks the critical importance of Justice Harlan’s opinion in relation to the ultimate holding of Estes. It is true that Justice Harlan’s opinion “sounded a note” that is central to the proposition that broadcast coverage inherently violates the Due Process Clause. Post, at 585. But the presence of that “note” in no sense alters Justice Harlan’s explicit reservations in his concurrence. Not all of the dissenting Justices in Estes read the Court as announcing a per se
        rule; Justice BreNNAN, for example, was explicit in emphasizing “that only four of the five Justices [in the majority] rest[ed] on the proposition that televised criminal trials are constitutionally infirm, whatever the circumstances.” 381 U. S., at 617. Today, Justice Stewart concedes, post, at 585-586, and n. 3, that Justice Harlan purported to limit his conclusion to a subclass of cases. And, as he concluded his opinion, Justice Harlan took pains to emphasize his view that “the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.” 381 U. S., at 595 (emphasis added). That statement makes clear that there was not a Court holding of a per se rule in Estes. As noted in text, Justice Harlan pointedly limited his conclusion to cases like the one then before the Court, those “utterly corrupted” by press coverage. There is no need to “overrule” a “holding” never made by the Court.

       Brief for the Attorneys General of Alabama, Alaska, Arizona, Iowa, Kentucky, Louisiana, Maryland, Montana, Nevada, New Mexico, New York, Ohio, Rhode Island, Tennessee, Vermont, West Virginia, and Wisconsin as Amici Curiae.

         Brief for the California State Public Defenders Association, the California Attorneys for Criminal Justice, the Office of the California State Public Defender, the Los Angeles County Public Defenders Association; the Los Angeles Criminal Courts Bar Association, and the Office of the Los Angeles County Public Defender as Amici Curiae.

       Considerable attention is devoted by the parties to experiments and surveys dealing with the impact of electronic coverage on the participants in a trial other than the defendant himself. The Florida pilot program itself was a type of study, and its results were collected in a postprogram survey of participants. While the data thus far assembled are cause for some optimism about the ability of states to minimize the problems that potentially inhere in electronic coverage of trials, even the Florida Supreme Court conceded the data were “limited,” In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 781 (1979), and “non-scientific,” id., at 768. Still, it is noteworthy that the data now available do not support the proposition that, in every case and in all circumstances, electronic coverage creates a significant adverse effect upon the participants in trials — at least not one uniquely associated with electronic coverage as opposed to more traditional forms of coverage. Further research may change the picture. At the moment, however, there is no unimpeachable empirical support for the thesis that the presence of the electronic media, ipso facto, interferes with trial proceedings.

       Other courts that have been asked to examine the impact of television coverage on the participants in particular trials have concluded that such coverage did not have an adverse impact on the trial participants sufficient to constitute a denial of due process. See, e. g., Bradley v. Texas, 470 F. 2d 785 (CA5 1972); Bell v. Patterson, 279 F. Supp. 760 (Colo.), aff’d, 402 F. 2d 394 (CA10 1968), cert. denied, 403 U. S. 955 (1971); Gonzales v. People, 165 Colo. 322, 438 P. 2d 686 (1968). On the other hand, even the amici supporting Florida’s position concede that further experimentation is necessary to evaluate the potential psychological prejudice associated with broadcast coverage of trials. Further developments and more data are required before this issue can be finally resolved.

       Certain aspects of the Estes trial made that case an even easier one than this one in which to find no substantial threat to a fair trial. For example, the jurors in Estes were sequestered day and night, from the first day of the trial until it ended. The jurors in the present case were not sequestered at all. Aside from a court-monitored opportunity for the jurors to watch election returns, the Estes jurors were not permitted to watch television at any time during the trial. In contrast, the jurors in the present case were left free to watch the evening news programs — and to look for a glimpse of themselves while watching replays of the prosecution’s most critical evidence.

       The Court today concedes that Justice Clark’s opinion for the Court in Estes announced a per se rule; that the concurring opinion of Chief Justice Warren, joined by Justices Douglas and Goldberg, pointed to “the inherent prejudice of televised criminal trials”; and that the dissenting Justices objected to the announcement of a per se rule, ante, at 570, 572.

       The Court also seems to disregard its own description of the trial of the appellants, a description that suggests that the trial was a “notorious” one, at least in the local community. The Court’s description notes that “several aspects of the case distinguish it from a routine burglary . . . [and] [n]ot surprisingly, these novel factors attracted the attention of the media.” Ante, at 567. Indeed, the Court’s account confirms the wisdom of Justice Harlan’s concession that a per se rule limited only to cases with high public interest may not be workable.

       The fact is, of course, that a run-of-the-mill trial — of a civil suit to quiet title, or upon a “routine burglary” charge for example — would hardly attract the cameras of public television. By the same token, the very televising of a trial serves to make that trial a “notorious” or “heavily publicized” one.

      In their motion in the Florida Circuit Court to declare Florida’s rule unconstitutional, appellants claimed that their case had “received a substantial amount of publicity” and then argued that “[a]s . . . in Estes v. Texas, 381 U. S. 532 (1965), the presence of television cameras . . . will substantially harm and impair the Defendant’s right to a fair and impartial trial . . . .” App. 4. In their brief on the merits, appellants described their case as “not ‘notorious’ [but] at least ‘more than routine’ ” and asked the Court to extend the Estes rule to it. Brief for Appellants 10.