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the Court evaluated what the per se rule and the less strict rule contributed to excluding unreliable eyewitness testimony from jury consideration, to deterrence of suggestive procedures, and to the administration of justice. Due process does not require that the in-court hearing to determine whether to exclude a witness’ identification as arrived at improperly be out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981). 1017 Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943). 1018 Lisenba v. California, 314 U.S. 219, 236 (1941). the admissibility of a subsequent in-court identification or of testimony about an out-of-court identification is whether there is ‘‘a very substantial likelihood of misidentification,’’ and that question must be determined ‘‘on the totality of the circumstances.’’ 1014 ‘‘Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.’’ 1015 But, balancing the factors that it thought furnished the guidance for decision, the Court declined to lay down a per se rule of exclusion of an identification because it was obtained under conditions of unnecessary suggestiveness alone, feeling that the fairness standard of due process does not require an evidentiary rule of such severity. 1016 Fair Trial.—As noted, 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.’’ 1017 Conversely, ‘‘as applied to a criminal trial, denial of due 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.’’ 1018 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00183 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1854 AMENDMENT 14—RIGHTS GUARANTEED 1019 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). 1020 Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ( . . . it is generally wise where the marks of unseemly conduct have left persons stings [for a judge] to ask a fellow judge to take his place); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where ‘‘marked personal feelings were present on both sides,’’ a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (‘‘[w]e cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority’’). 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). 1021 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. 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). But, 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. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal record, if the jury has been given a sentencing function to increase the sentence which would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra. 1022 Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923). For instance, 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. Ohio 1019 it was held to violate due process for a judge to receive, in addition to his salary, the costs imposed on a convicted defendant, the judge in this case also being a mayor of the municipality which received part of the money collected in fines. Or, in other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors. 1020 Due process is also violated by the participation of a biased or otherwise partial juror, although there is no presumption that all jurors with a potential bias are in fact prejudiced. 1021 Public hostility toward a defendant which intimidates a jury is, or course, a classic due process violation. 1022 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00184 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1855 1023 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). 1024 Initially, 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. Estes v. Texas, 381 U.S. 532 (1965). 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. 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. 1025 For instance, the presumption of innocence has been central to a number of Supreme Court cases. Thus, 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, even though the burden on the defendant is heavy to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. 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), (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 skeletal instructions 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). should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it. 1023 For instance, the impact of televising trials on a jury has been a source of some concern. 1024 The fairness of a particular rule of procedure may also be the basis for due process claims, but such decisions need to be made based on the totality of the circumstance surrounding such procedures. 1025 For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00185 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1856 AMENDMENT 14—RIGHTS GUARANTEED 1026 Rock v. Arkansas, 483 U.S. 44 (1987). 1027 Wardius v. Oregon, 412 U.S. 470 (1973). 1028 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). 1029 The defendant called the witness because the prosecution would not. 1030 Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 308 (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). 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). 1031 North v. Russell, 427 U.S. 328 (1976). all hypnotically refreshed testimony. 1026 Or, while a State may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process requires reciprocal discovery in such circumstances, necessitating that the State give defendant pretrial notice of its rebuttal evidence on the alibi issue. 1027 Due process is also violated when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors. 1028 The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based on the particular circumstance of a case, two rules that (1) denied defendant the right to cross-examine his own witness in order to elicit evidence exculpatory to defendant 1029 and (2) 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, denied defendant his constitutional right to present his own defense in a meaningful way. 1030 Similarly, a questionable procedure may be saved by its combination with another. Thus, it does not deny a defendant due process to subject him initially to trial before a non-lawyer police court judge when there is a later trial de novo available under the State’s court system. 1031 Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause ‘‘cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . VerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00186 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1857 1032 Mooney v. Holahan, 294 U.S. 103, 112 (1935). 1033 The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied 305 U.S. 598 (1938). 1034 Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941). 1035 Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated). 1036 386 U.S. 1 (1967). 1037 It should be noted that the obligations discussed below regarding a prosecutor’s obligation to provide information to a defendant do not appear to apply where the defendant has agreed to plead guilty, even though such information might have affected a defendant’s decision as to whether to accept a plea bargain. United States v. Ruiz, 122 S. Ct. 2450 (2002). 1038 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.’’ 1032 The above quoted language was dictum in the case in which it was set forth, 1033 but the principle enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict 1034 and has upset convictions found to have been so procured. 1035 Extending the principle, the Court in Miller v. Pate 1036 overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts. This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial. 1037 In Brady v. Maryland, 1038 the Court held ‘‘that the VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00187 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1858 AMENDMENT 14—RIGHTS GUARANTEED the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500. 1039 While the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The defendant’s appeal of this latter decisions was rejected, as the issue, as seen by the Court, was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged. 1040 Moore v. Illinois 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). Joining Justice Blackmun’s opinion were Justices Brennan, White, Rehnquist, and Chief Justice Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell. Id. at 800. See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no Due Process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967). 1041 427 U.S. 97 (1976). 1042 427 U.S. at 103-04. This situation is the Mooney v. Holohan type of case. 1043 427 U.S. at 104-06. This the Brady situation. suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’’ In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder. 1039 ‘‘The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.’’ 1040 In United States v. Agurs, 1041 the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. 1042 Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial. 1043 Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for ‘‘all Brady material’’ VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00188 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1859 1044 427 U.S. at 106-14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples which have been utilized in a breath-analysis test; the Agurs materiality standard is met only by evidence which ‘‘possess[es] an exculpatory value . . . apparent before [it] was destroyed, and also [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’’ California v. Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police). 1045 473 U.S. 667 (1985). 1046 473 U.S. at 682. 1047 See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel). 1048 473 U.S. at 676-77. 1049 Strickler v. Greene, 527 U.S. 263 (1999). or for ‘‘anything exculpatory,’’ a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt. 1044 This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley 1045 . In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. 1046 This materiality standard, found in contexts outside of Brady inquiries, 1047 is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses. 1048 Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result. 1049 Proof, Burden of Proof, and Presumptions.—In 1970, the Court held in In re Winship that the due process clauses of the Fifth and Fourteenth Amendments ‘‘[protect] the accused against VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00189 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1860 AMENDMENT 14—RIGHTS GUARANTEED 1050 In re Winship, 397 U.S. 358, 364 (1970). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). 1051 397 U.S. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that inasmuch as there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard. 1052 Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v. Randall, 357 U.S. 513, 525–26 (1958). 1053 In addition to Winship, see also Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). On the interrelated concepts of the b

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