CRS Annotated Constitution

Fourteenth Amendment -- Table of ContentsPrev | Next

Fair Trial.—The provisions of the Bill of Rights now applicable to the States contain basic guarantees of a fair trial—right to counsel, right to speedy and public trial, right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the like. But this does not exhaust the requirements of fairness. “Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”46 Conversely, “as applied to a criminal trial, denial of due[p.1754]process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it . . . [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”47

Bias or prejudice either inherent in the structure of the trial system or as imposed by external events will deny one’s right to a fair trial. Thus, in Tumey v. Ohio48 it was held to violate due process to vest trial of offenders in a judge who received, in addition to his salary, the costs imposed on a convicted defendant, and who was also mayor of the municipality which received part of the money collected in fines. The influence of contemptuous misbehavior in court upon the impartiality of the presiding judge who may cite for contempt and sentence contemnors has divided the Court.49 Due process is also violated by the participation of a biased or otherwise partial juror, but there is no presumption that jurors who are potentially compromised are in fact prejudiced; ordinarily the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias.50 Exposure to pretrial publicity does not necessarily bias jurors. Thus, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant’s right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict.51 It is not a denial of due process for the prosecution to[p.1755]call the jury’s attention to the defendant’s prior criminal record when the object is to enable the jury, which has the sentencing function as well as the guilt–determination function, once it has determined guilt or innocence and if the former, to increase the sentence which would otherwise be given under a recidivist statute.52

Mob domination of a trial so as to rob the jury of its judgment on the evidence presented, is, of course, a classic due process violation.53 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.54 A state rule permitting the televising of certain trials was struck down on the grounds that the harmful potential effect on the jurors was substantial, that the testimony presented at trial may be distorted by the multifaceted influence of television upon the conduct of witnesses, that the judge’s ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and that the defendant is likely to be harassed by his television exposure.55 Subsequently, however, in part because of improvements in technology which caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not altogether preclude the televising of state criminal trials.56

It is permissible for the State to require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, but due process requires reciprocal discovery in such circumstances, necessitating that the State give defendant pretrial notice of its rebuttal evidence on the alibi issue.57 Because of the possible impairment of the presumption of innocence in the minds of the jurors, due process is violated when the accused is compelled to stand trial before a jury while[p.1756]dressed in identifiable prison clothes.58 Ordinary evidentiary rules of criminal trials may in some instances deny a defendant due process. Thus, the combination in a trial of two rules (1) that denied defendant the right to cross–examine his own witness, whom he had called because the prosecution would not, in order to elicit evidence exculpatory to defendant and (2) that denied defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, under all the circumstances, denied defendant his constitutional right to present his own defense in a meaningful way.59 Basic to due process is the right to testify in one’s own defense; this right may not be restricted, the Court has held, by a state’s per se rule excluding all hypnotically refreshed testimony.60 Even though the burden on defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction, under some circumstances it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence.61 It does not deny a de[p.1757]fendant due process to subject him initially to trial before a nonlawyer police court judge when there is a later trial de novo available under the State’s court system.62


46 Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934) . See also Buchalter v. New York, 319 U.S. 427, 429 (1943) .
47 Lisenba v. California, 314 U.S. 219, 236 (1941) .
48 273 U.S. 510 (1927) . See also Ward v. Village of Monroeville, 409 U.S. 57 (1972) . But see Dugan v. Ohio, 277 U.S. 61 (1928) . Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse).
49 E.g., Fisher v. Pace, 336 U.S. 155 (1949) ; Ungar v. Sarafite, 376 U.S. 575 (1964) ; Holt v. Virginia, 381 U.S. 131 (1965) ; Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ; Johnson v. Mississippi, 403 U.S. 212 (1971) ; Taylor v. Hayes, 418 U.S. 488 (1974) . See generally Illinois v. Allen, 397 U.S. 337 (1970) . In the context of alleged contempt before a judge acting as a one–man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955) .
50 Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury).
51 Mu’Min v. Virginia, 500 U.S. 415 (1991) . For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra p. 1415.
52 Spencer v. Texas, 385 U.S. 554 (1967) .
53 Frank v. Mangum, 237 U.S. 309 (1915) ; Moore v. Dempsey, 261 U.S. 86 (1923) .
54 Sheppard v. Maxwell, 384 U.S. 333 (1966) ; Rideau v. Louisiana, 373 U.S. 723 (1963) ; Irvin v. Dowd, 366 U.S. 717 (1961) ; But see Stroble v. California, 343 U.S. 181 (1952) ; Murphy v. Florida, 421 U.S. 794 (1975) .
55 Estes v. Texas, 381 U.S. 532 (1965) .
56 Chandler v. Florida, 449 U.S. 560 (1981) . The decision was unanimous but Justices Stewart and White concurred on the basis that Estes had established a per se constitutional rule which had to be overruled, id. at 583, 586, contrary to the Court’s position. Id. at 570–74.
57 Wardius v. Oregon, 412 U.S. 470 (1973) .
58 Estelle v. Williams, 425 U.S. 501 (1976) . The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation).
59 Chambers v. Mississippi, 410 U.S. 284 (1973) . See also Davis v. Alaska, 415 U.S. 786 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession).

Supplement: [P. 1756, add to n.59:]

But see Montana v. Egelhoff, 518 U.S. 37 (1996) (State may bar defendant from introducing evidence of intoxication to prove lack of mens rea).

60 Rock v. Arkansas, 483 U.S. 44 (1987) .
61 Taylor v. Kentucky, 436 U.S. 478 (1978) . However, an instruction on the presumption of innocence need not be given in every case, Kentucky v. Whorton, 441 U.S. 786 (1979) , the Court reiterating that the totality of the circumstances must be looked to in order to determine if failure to so instruct denied due process. The circumstances emphasized in Taylor included the skeletal instruction on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting the jury to consider the defendant’s prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s death that “law presumes that a person intends the ordinary consequences of his voluntary acts” denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event State would not have carried its burden of proving guilt). And see Cupp v. Naughten, 414 U.S. 141 (1973) ; Henderson v. Kibbe, 431 U.S. 145, 154–55 (1973) . For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state’s burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967) ). Similarly, improper arguments by a prosecutor do not necessarily constitute “plain error,” and a reviewing court may consider in the context of the entire record of the trial the trial court’s failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985) .
62 North v. Russell, 427 U.S. 328 (1976) .
Fourteenth Amendment -- Table of ContentsPrev | Next