a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court.

IN RE GAULT

387 U.S. 1; 18 L. Ed. 2d 527; 87 S.Ct. 1428 (1967)

Mr. Justice Fortas delivered the opinion of the Court.

. . . On Monday, June 8, 1965, at about 10 a.m., Gerald Francis Gault and a friend, Ronald Lewis, were taken into custody by the Sheriff of Gila County. Gerald was then still subject to a six months' probation order which had been entered on February 25, 1964, as a result of his having been in the company of another boy who had stolen a wallet from a lady's purse. The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, Mrs. Cook, about a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly, offensive, adolescent, sex variety.

At the time Gerald was picked up, his mother and father were both at work. No notice that Gerald was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. Gerald was taken to the Children's Detention Home. When his mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to look for him at the trailer home of the Lewis family. He apparently learned then that Gerald was in custody: He so informed his mother. The two of them went to the Detention Home. The deputy probation officer, Flagg, who was also superintendent of the Detention Home, told Mrs. Gault "why Jerry was there" and said that a hearing would be held in Juvenile Court at 3 o'clock the following day, June 9.

Officer Flagg filed a petition with the court on the hearing day, June 9, 1964. It was not served on the Gaults. Indeed, none of them saw this petition until the habeas corpus hearing on August 17, 1964. The petition was entirely formal. It made no reference to any factual basis for the judicial action which it initiated. It recited only that "said minor is under the age of eighteen years and is in need of the protection of this Honorable court; [and that] said minor is a delinquent minor;" It prayed for a hearing and an order regarding "the care and custody of said minor." Officer Flagg executed a formal affidavit in support of the petition.

On June 9, Gerald, his mother, his older brother, and Probation Officers Flagg and Henderson appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. Our information about the proceedings and the subsequent hearing on June 15, derives entirely from the testimony of the Juvenile Court Judge, Mr. and Mrs. Gault and Officer Flagg at the habeas corpus proceeding conducted two months later. From this, it appears that at the June 9 hearing Gerald was questioned by the judge about the telephone call. There was conflict as to what he said. His mother recalled that Gerald said he only dialed Mrs. Cook's number and handed the telephone to his friend, Ronald. Officer Flagg recalled that Gerald had admitted making the lewd remarks. Judge McGhee testified that Gerald "admitted making one of these [lewd] statements." At the conclusion of the hearing, the judge said he would "think about it." Gerald was taken back to the Detention Home. He was not sent to his own home with his parents. On June 11 or 12, after having been detained since June 8, Gerald was released and driven home. There is no explanation in the record as to why he was kept in the Detention Home or why he was released. At 5 p.m. on the day of Gerald's release, Mrs. Gault received a note signed by Officer Flagg. It was on plain paper, not letterhead. Its entire text was as follows:

Mrs. Gault:

Judge McGhee has set Monday, June 15, 1964 at 11:00 a.m. as the date and time for further Hearings on Gerald's delinquency.

/s/Flagg

At the appointed time on Monday, June 15, Gerald, his father and mother, Ronald Lewis and his father, and Officer Flagg and Henderson were present before Judge McGhee. Witnesses at the habeas corpus proceeding differed in their recollections of Gerald's testimony at the June 15 hearing. Mr. and Mrs. Gault recalled that Gerald again testified that he had only dialed the number and that the other boy had made the remarks. Officer Flagg agreed that at this hearing Gerald did not admit making the lewd remarks. But Judge McGhee recalled that "there was some admission again of some of the lewd statements. He -- he didn't admit any of the more serious lewd statements." Again, the complainant, Mrs. Cook, was not present. Mrs. Gault asked that Mrs. Cook be present "so she could see which boy that done the talking, the dirty talking over the phone." The Juvenile Judge said "she didn't have to be present at that hearing." The judge did not speak to Mrs. Cook or communicate with her at any time. Probation Officer Flagg had talked to her once--over the telephone on June 9.

At this June 15 hearing a "referral report" made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as "Lewd Phone Calls." At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School "for the period of his minority [that is, until 21] unless sooner discharged by due process of law." . . .

No appeal is permitted by Arizona law in juvenile cases. On August 3, 1964, a petition for a writ of habeas corpus was filed with the Supreme Court of Arizona and referred by it to the Superior Court for hearing.

At the habeas corpus hearing on August 17, Judge McGhee was vigorously cross-examined as to the basis for his actions. He testified that he had taken into account the fact that Gerald was on probation. He was asked "under what section of . . . the code you found the boy delinquent."

His answer is set forth in the margin. In substance, he concluded that Gerald came within ARS 8-201-6(a), which specifies that a "delinquent child" includes one "who has violated a law of the state or an ordinance or regulation of a political subdivision thereof." The law which Gerald was found to have violated . . . provides that a person who "in the presence of hearing of any woman or child . . . uses vulgar, abusive or obscene language, is guilty of a misdemeanor. . ." The penalty specified in the Criminal Code, which would apply to an adult, is $5 to $50, or imprisonment for not more than two months. The judge also testified that he acted under ARS 8-201-6(d) which includes in the definition of a "delinquent child" one who, as the judge phrased it, is "habitually involved in immoral matters."

Asked about this basis for his conclusion that Gerald was "habitually involved in immoral matters," the judge testified, somewhat vaguely, that two years earlier, on July 2, 1962, a "referral" was made concerning Gerald, "where the boy had stolen a baseball glove from another boy and lied to the Police Department about it." The judge said there was "no hearing," and "no accusation" relating to this incident, "because of lack of material foundation." But it seems to have remained in his mind as a relevant factor. The judge also testified that Gerald had admitted making other nuisance phone calls in the past which, as the judge recalled the boy's testimony, were "silly calls, or funny calls, or something like that."

The Superior Court dismissed the writ, and appellants sought review in the Arizona Supreme Court. . . .

The Supreme Court handed down an elaborate and wide-ranging opinion affirming dismissal of the writ and stated the court's conclusions as to the issues raised by appellants and other aspects of the juvenile process. In their jurisdictional statement and brief in this Court, appellants do not urge upon us all of the points passed upon by the Supreme Court of Arizona. They urge that we hold the Juvenile Code of Arizona invalid on its face or as applied in this case because, contrary to the Due Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court has virtually unlimited discretion, and in which the following basic rights are denied:

1. Notice of the charges;

2. Right to counsel;

3. Right to confrontation and cross-examination;

4. Privilege against self-incrimination;

5. Right to a transcript of the proceedings;

and

6. Right to appellate review.

. . . From the inception of the juvenile court system, wide differences have been tolerated--

indeed even insisted upon--between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury. It is frequent practice that rules governing the arrest and interrogation of adults by the police are not observed in the case of juveniles.

The history and theory underlying this development are well-known, but a recapitulation is necessary for purposes of this opinion. The juvenile court movement began in this country at the end of the last century. From the Juvenile Court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico. The constitutionality of Juvenile Court laws has been sustained in over 40 jurisdictions against a variety of attacks.

The early reformers were appalled by adult procedures and penalties and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was "guilty" or "innocent," but "What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." The child--especially good, as they saw it--was to be made "to feel that he is the object of [the state's] care and solicitude," not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they observed in both substantive and procedural criminal law were therefore to be discarded. The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated" and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive.

These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the state was proceeding as parens patriae. The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historic credentials are of dubious relevance. The phrase was taken from chancery practice, where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child. But there is no trace of the doctrine in the history of criminal jurisprudence. At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders. In these old days, the state was not deemed to have authority to accord them fewer procedural rights than adults.

The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." He can be made to attorn to his parents, to go to school, etc. If his parents default in effective performing their custodial functions--that is, if the child is "delinquent"--the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.

Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is--to say the least--debatable. And in practice, . . . the results have not been entirely satisfactory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: "The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts. . . ." The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. The Chairman of the Pennsylvania Council of Juvenile Court Judges has recently observed: "Unfortunately, loose procedures, high-handed methods and crowded court calendars, either singly or in combination, all too often, have resulted in depriving some juveniles of fundamental rights that have resulted in a denial of due process. . . .

It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of denial of the substance of normal due process. As we shall discuss, the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process. But it is important, we think that the claimed benefits of the juvenile process should be candidly appraised. Neither sentiment or folklore should cause us to shut our eyes, for example, to such startling findings as that reported in an exceptionally reliable study of repeaters or recidivism conducted by the Stanford Research Institute for the President's Commission on Crime in the District of Columbia. This Commission's Report states:

In fiscal 1966 approximately 66 percent of the 16- and 17-year-old juveniles referred to the court by the Youth Aid Division had been before the court previously; 1965, 56 percent of those in the Receiving Home were repeaters. The SRI study revealed that 61 percent of the sample Juvenile Court referrals in 1965 had been previously referred at least once and that 42 percent had been referred at least twice before. * * *

Certainly, these figures and the high crime rates among juveniles to which we have referred, could not lead us to conclude that the absence of constitutional protections reduces crime, or that the juvenile system, functioning free of constitutional inhibitions as it has largely done, is effective to reduce crime or rehabilitate offenders. We do not mean by this to denigrate the juvenile court process or to suggest that there are not aspects of the juvenile system relating to offenders which are valuable. But the features of the juvenile system which its proponents have asserted are of unique benefit will not be impaired by constitutional domestication. For example, the commendable principles relating to the processing and treatment of juveniles separately from adults are in no way involved or affected by the procedural issues under discussion. Further, we are told that one of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a "criminal." The juvenile offender is now classed as a "delinquent." There is, of course, no reason why this should not continue. It is disconcerting, however, that this term has come to involve only slightly less stigma than the term "criminal" applied to adults. It is also emphasized that in practically all jurisdictions, statutes provide that an adjudication of the child as a delinquent shall not operate as a civil disability or disqualify him for civil service appointment. There is no reason why the application of due process requirements should interfere with such provisions. . . .

Further, it is urged that the juvenile benefits from informal proceedings in the court. The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help "to save him from a downward career." Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this gentle conception. They suggest that the appearance as well as the actuality of fairness, impartiality and orderliness--in short, the essentials of due process--may be a more impressive and more therapeutic attitude so far as the juvenile is concerned. . . .

Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence--and of limited practical meaning--that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemestic the title, a "receiving home" or an "industrial school" for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes "a building with whitewashed walls, regimented routine and institutional hours. . . ." Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and "delinquents" confined with him for anything from waywardness to rape and homicide.

In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it--was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected? Under traditional notions, one would assume that in a case like that of Gerald Gault, where the juvenile appears to have a home, a working mother and father, and an older brother, the Juvenile Judge would have made a careful inquiry and judgment as to the possibility that the boy could be disciplined and dealt with at home, despite his previous transgressions. Indeed, so far as appears in the record before us . . . the points to which the judge directed his attention were little different from those that would be involved in determining any charge of violation of a penal statute. The essential difference between Gerald's case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case. The summary procedure as well as the long commitment was possible because Gerald was 15 years of age instead of over 18. . . .

Appellants allege that the Arizona Juvenile Code is unconstitutional or alternatively that the proceedings before the Juvenile Court were constitutionally defective because of failure to provide adequate notice of the hearings. . . .

. . . Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must "set forth the alleged misconduct with particularity." It is obvious that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The "initial hearing" in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. . . .

Appellants charge that the Juvenile Court proceedings were fatally defective because the court did not advise Gerald or his parents of their right to counsel, and proceeded with the hearing, the adjudication of delinquency and the order of commitment in the absence of counsel for the child and his parents or an express waiver of the right thereto. . . . A proceeding where the issue is whether the child will be found to be "delinquent" and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child "requires the guiding hand of counsel at every step in the proceedings against him."

. . .

We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. . . .

Appellants urge that the writ of habeas corpus should have been granted because of the denial of the rights of confrontation and cross-examination in the Juvenile Court hearings, and because the privilege against self-incrimination was not observed. . . .

The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth. The roots of the privilege are, however, far deeper. They tap the basic stream of religious and political principle because the privilege reflects the limits of the individual's attornment to the state and--in a philosophical sense--insists upon the equality of the individual and the state. In other words, the privilege has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.

It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. . . .

Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are "civil" and not "criminal," and therefore the privilege should not apply. It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person "shall be compelled in any criminal case to be a witness against himself." However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.

It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the grounds that these cannot lead to "criminal" involvement. In the first place, juvenile proceedings to determine "delinquency," which may lead to commitment to a state institution, must be regarded as "criminal" for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the "civil" label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is no even assurance that the juvenile will be kept in separate institutions, apart from adult "criminals." In those States juveniles may be placed in or transferred to adult penal institutions after having been found "delinquent" by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called "criminal" or "civil" And our Constitution guarantees that no person shall be "compelled" to be a witness against himself when he is threatened with deprivation of his liberty--a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom. . . .

We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique--but not in principle--depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. . . .

Absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were not essential for a finding of "delinquency. . . ."

. . . We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.

Appellants urge that the Arizona statute is unconstitutional under the Due Process Clause because, as construed by its Supreme Court, "there is no right of appeal from a juvenile court order. . . ." The court held that there is no right to a transcript because there is no right to appeal and because the proceedings are confidential and any record must be destroyed after a prescribed period of time. Whether a transcript or other recording is made, it held, is a matter for the discretion of the juvenile court. . . .

As the present case illustrates, the consequences of failure to provide an appeal, to record the proceedings, or to make findings or state the grounds for the juvenile court's conclusion may be to throw a burden upon the machinery for habeas corpus, to saddle the reviewing process with the burden of attempting to reconstruct a record, and to impose upon the Juvenile Judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him.

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

It is so ordered.



Mr. Justice Black, concurring. . . .



Mr. Justice White, concurring. . . .



Mr. Justice Harlan, concurring in part and dissenting in part. . . .



Mr. Justice Stewart, dissenting.

The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials. I believe the Court's decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy.

Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act.

In the last 70 years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in our society. The result has been the creation in this century of a system of juvenile and family courts in each of the 50 States. There can be no denying that in many areas the performance of these agencies has fallen disappointingly short of the hopes and dreams of the courageous pioneers who first conceived them. For a variety of reasons, the reality has sometimes not even approached the ideal, and much remains to be accomplished in the administration of public juvenile and family agencies--in personnel, in planning, in financing, perhaps in the formulation of wholly new approaches.

I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court's opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution. . . .

SCOTUS: GUIDE FOR PROSPECTIVE INDIGENT PETITIONERS FOR WRITS OF CERTIORARI

October 2005
OFFICE OF THE CLERK SUPREME COURT OF THE UNITED STATES WASHINGTON, D. C. 20543
GUIDE FOR PROSPECTIVE INDIGENT PETITIONERS FOR WRITS OF CERTIORARI

I. Introduction

These instructions and forms are designed to assist petitioners who are proceeding in forma pauperis and without the assistance of counsel. A copy of the Rules of the Supreme Court, which establish the procedures that must be followed, is also enclosed. Be sure to read the following Rules carefully:
Rules 10-14 (Petitioning for certiorari)
Rule 29 (Filingand service on opposing party or counsel)
Rule 30 (Computation and extension of time)
Rules 33.2 and 34 (Preparing pleadings on 81⁄2 x 11 inch paper)
Rule 39 (Proceedings in forma pauperis)
II. Nature of Supreme Court Review

It is important to note that review in this Court by means of a writ of certiorari is not a matter of right, but of judicial discretion. The primary concern of the Supreme Court is not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved. The Court grants and hears argument in only about 1% of the cases that are filed each Term. The vast majority of petitions are simply denied by the Court without comment or explanation. The denial of a petition for a writ of certiorari signifies only that the Court has chosen not to accept the case for review and does not express the Court’s view of the merits of the case.
Every petitioner for a writof certiorari is advised to read carefully the Considerations Governing Review on Certiorari set forth in Rule 10. Important considerations for accepting a case for review include the existence of a conflict between the decision of which review is sought and a decision of another appellate court on the same issue. An important function of the Supreme Court is to resolve disagreements among lower courts about specific legal questions. Another consideration is the importance to the public of the issue.

III. The Time for Filing

You must file your petition for a writof certiorari within 90 days from the date of the entry of the final judgment in the United States court of appeals or highest state appellate court or 90 days from the denial of a timely filed petition for rehearing. The issuance of a mandate or remittitur after judgment has been entered has no bearing on the computation of time and does not extend the time for filing. See Rules 13.1 and
13.3. Filing in the Supreme Court means the actual receipt of documents by the Clerk; or their deposit in the United States mail, with first-class postage prepaid, on or before the final date allowed for filing; or their delivery to a third-party commercial carrier, on or before the final date allowed for filing, for delivery to the Clerk within 3 calendar days. See Rule 29.2.

IV. What To File

Unless you are an inmate confined in an institution and not represented by counsel, file:
—An original and ten copies of a motion for leave to proceed in forma pauperis and an original and 10 copies of an affidavit or declarati on in support thereof. See Rule 39.
—An original and 10 copies of a petition for a writ of certiorari with an appendix consisting of a copy of the judgment or decree you are asking this Court to review including any order on rehearing, and copies of any opinions or orders by any courts or administrative agencies that have previously considered your case. See Rule 14.1(i).
—One affidavit or declarati on showing that all opposing parties or their counsel have been served with a copy of the papers filed in this Court. See Rule 29.

If you are an inmate confined in an institution and not represented by counsel, you need file only the original of the motion for leave to proceed in forma pauperis, affidavit or declarati on in supportof the motion for leave to proceed in forma pauperis, the petition
for a writ of certiorari, and proof of service.

The attached forms may be used for the original motion, affidavit or declaration, and petition, and should be stapled together in that order. The proof of service should be included as a detached sheet, and the form provided may be used.

V. Page Limitation

The petition for a writ of certiorari may not exceed 40 pages excluding the pages that precede Page 1 of the form. The documents required to be contained in the appendix to the petition do not count toward the page limit. See Rule 33.2(b).

VI. Method of Filing

All documents to be filed in this Court must be addressed to the Clerk, Supreme Court of the United States, Washington, D. C. 20543 and must be served on opposing parties or their counsel in accordance with Rule 29.

INSTRUCTIONS FOR COMPLETING FORMS

I. Motion for Leave to Proceed In Forma Pauperis -Rule 39

A. On the form provided for the motion for leave to proceed in forma pauperis, leave the case number blank. The number will be assigned by the Clerk when the case is docketed.

B. On the line in the case caption for “petitioner ”, type your name. As a pro se petitioner, you may represent only yourself. On the line for “respondent”, type the name of the opposing party in the lower court. If there are multiple respondents, enter the first respondent, as the name appeared on the lower court decision, followed by “et al.” to indicate that there are other respondents. The additional parties must be listed in the LIST OF PARTIES section of the petition.

C. If the lower courts in your case granted you leave to proceed in forma pauperis,
check the appropriate space and indicate the court or courts that allowed you to proceed in forma pauperis. If none of the lower courts granted you leave to proceed in forma pauperis, check the block that so indicates.

D. Sign the motion on the signature line.

II. Affidavit or Declaration in Support of Motion for Leave to Proceed In Forma Pauperis

On the form provided, answer fully each of the questions. If the answer to a question is “0,” “none,” or “not applicable (N/A),” enter that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper, identified with your name and the question number. Unless each question is fully answered, the Clerk will not accept the petition. The form must either be notarized or be in the form of a declaration. See 28 U. S. C. §1746.

III. Cover Page -Rule 34

When you complete the form for the cover page:

A. Leave case number blank. The number will be assigned by the Clerk when the case is docketed.

B. Complete the case caption as you did on the motion for leave to proceed in forma pauperis.

C. List the court from which the action is brought on the line following the words “on petition for a writ of certiorari to.” If your case is from a state court, enter the name of the court that last addressed the merits of the case. For example, if the highest state court denied discretionary review, and the state court of appeals affirmed the decision of the trial court, the state court of appeals should be listed. If your case is federal, the United States court of appeals that decided your case will always be listed here.

D. Enter your name, address, and telephone number in the appropriate spaces.

IV. Question(s) Presented

On the page provided, enter the question or questions that you wish the Court to review. The questions must be concise. Questions presented in cases accepted for review are usually no longer than two or three sentences. The purpose of the question presented is to assist the Court in selecting cases. State the issue you wish the Court to decide clearly and without unnecessary detail.

V. List of Parties

On the page provided, check either the box indicating that the names of all parties appear in the caption of the case on the cover page or the box indicating that there are additional parties. If there are additional parties, list them. Rule 12.6 states that all parties to the proceeding whose judgment is sought to be reviewed shall be deemed parties in this Court, and that all parties other than petitioner shall be respondents. The court whose judgment you seek to have this Court review is not a party.

VI. Table of Contents

On the page provided, list the page numbers on which the required portions of the petition appear. Number the pages consecutively, beginning with the “Opinions Below” page as page 1.

VII. Index of Appendices

List the description of each document that is included in the appendix beside the appropriate appendix letter. Mark the bottom of the first page of each appendix with the appropriate designation, e.g., “Appendix A.” See Rule 14.1 pertaining to the items to be included in the appendix.

A. Federal Courts

If you are asking the Court to review a decision of a federal court, the decision of the United States court of appeals should be designated Appendix A. Appendix A should be followed by the decision of the United States District Court and the findings and recommendations of the United States magistrate judge, if there were any. If the United States court of appeals denied a timely filed petition for rehearing, a copy of that order should be appended next. If you are seeking review of a decision in a habeas corpus case, and the decision of either the United States District Court or the United States Court of Appeals makes reference to a state court decision in which you were a party, a copy of the state court decision must be included in the appendix.

B. State Courts

If you are asking the Court to review a decision of a state court, the decision of which review is sought should be designated Appendix A. Appendix A should be followed by the decision of the lower court or agency that was reviewed in the decision designated Appendix A. If the highest court of the state in which a
decision could be had denied discretionary review, a copy of that order should follow. If an order denying a timely filed petition for rehearing starts the running
of the time for filing a petition for a writ of certiorari pursuant to Rule 13.3, a copy of the order should be appended next.

As an example, if the state trial court ruled against you, the intermediate court of appeals affirmed the decision of the trial court, the state supreme court denied discretionary review and then denied a timely petition for rehearing, the appendices
should appear in the following order:

Appendix A Decision of State Court of Appeals

Appendix B Decision of State Trial Court

Appendix C Decision of State Supreme Court Denying Review

Appendix D Order of State Supreme Court Denying Rehearing

VIII. Table of Authorities

On the page provided, list the cases, statutes, treatises, and articles that you reference in your petition, and the page number of your petition where each authority appears.

IX. Opinions Below

In the space provided, indicate whether the opinions of the lower courts in your case have been published, and if so, the citation for the opinion below. For example, opinions of the United States courts of appeals are published in the Federal Reporter. If the opinion in your case appears at page 100 of volume 30 of the Federal Reporter, Third Series, indicate that the opinion is reported at 30 F. 3d 100. If the opinion has been designated for publication but has not yet been published, check the appropriate space. Also indicate where in the appendix each decision, reported or unreported, appears.

X. Jurisdiction

The purpose of the jurisdiction section of the petition is to establish the statutory source for the Court’s jurisdiction and the dates that determine whether the petition is timely filed. The form sets out the pertinent statutes for federal and state cases. You need provide only the dates of the lower court decisions that establish the timeliness of the petition for a writ of certiorari. If an extension of time within which to file the petition for a writ of certiorari was granted, you must provide the requested information pertainingto the extension. If you seek to have the Courtreview a decision of a state court, you must provide the date the highest state court decided your case, either by ruling on the merits or denying discretionary review.

XI. Constitutional and Statutory Provisions Involved

Set out verbatim the constituti onal provisions, treaties, statutes, ordinances and regulations involved in the case. If the provisions involved are lengthy, provide their citation and indicate where in the Appendix to the petition the text of the provisions appears.

XII. Statement of the Case

Provide a concise statement of the case containing the facts material to the consideration of the question(s) presented; you should summarize the relevant facts of the case and the proceedings that took place in the lower courts. You may need to attach additional pages, but the statement should be concise and limited to the relevant facts of the case.

XIII. Reasons for Granting the Petition

The purpose of this section of the petition is to explain to the Court why it should grant certiorari. It is important to read Rule 10 and address what compelling reasons exist for the exercise of the Court’s discretionary jurisdiction. Try to show not only why the decision of the lower court may be erroneous, but the national importance of having the Supreme Court decide the question involved. It is important to show whether the decision of the court that decided your case is in conflictwith the decisions of another appellate court; the importance of the case not only to you but to others similarly situated; and the ways the decision of the lower court in your case was erroneous.

You will need to attach additional pages, but the reasons should be as concise as possible, consistent with the purpose of this section of the petition.

XIV. Conclusion

Enter your name and the date that you submit the petition.

XV. Proof of Service

You must serve a copy of your petition on counsel for respondent(s) as required by Rule 29. If you serve the petition by first-class mail or by third-party commercial carrier, you may use the enclosed proof of service form. If the United States or any department, office, agency, officer, or employee thereof is a party, you must serve the Solicitor General of the United States, Room 5614, Department of Justice, 950 Pennsylvania
Ave., N.W., Washington, D. C. 20530–0001. The lower courts that ruled on your case are not parties and need not be served with a copy of the petition. The proof of service may be in the form ofa declarati on pursuant to 28 U. S. C. §1746.

No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER (Your Name)
VS.
— RESPONDENT(S)
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari without prepayment of costs and to proceed in forma pauperis.

[ ] Petitioner has previously been granted leave to proceed in forma pauperis in the following court(s):

[ ] Petitioner has not previously been granted leave to proceed in forma pauperis in any other court.

Petitioner ’s affidavit or declaration in support of this motion is attached hereto.

(Signature)

AFFIDAVIT OR DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, , am the petitioner in the above-entitled case. In support of my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay the costs of this case or to give security therefor; and I believe I am entitled to redress.
1.
For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise.
Income source
Average monthly amount during
Amount expected
the past 12 months
next month
You
Spouse
You
Spouse
Employment
$
$
$
$
Self-employment
$
$
$
$
Income from real property
$
$
$
$
(such as rental income)
Interest and dividends
$
$
$
$
Gifts
$
$
$
$
Alimony
$
$
$
$
Child Support
$
$
$
$
Retirement (such as social
$
$
$
$
security, pensions,
annuities, insurance)
Disability (such as social
$
$
$
$
security, insurance payments)
Unemployment payments
$
$
$
$
Public-assistance
$
$
$
$
(such as welfare)
Other (specify):
$
$
$
$
Total monthly income:
$
$
$
$
2.
List your employment history for the past two years, most recent first. (Gross monthly pay is before taxes or other deductions.)
Employer
Address
Dates of
Gross monthly pay
Employment
$
$
$
3. List your spouse’s employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)
Employer Address Dates of Gross monthly pay
Employment $ $ $
4. How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution.
Financial institution Type of account Amount you have Amount your spouse has
$$ $$ $$
5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.
� Home � Other real estate Value Value
� Motor Vehicle #1 � Motor Vehicle #2 Year, make & model Year, make & model Value Value
� Other assets Description Value
6. State every person,
business,
or
organization owing you
or
your
spouse
money, and the
amount owed.
Person owing you or
Amount owed to you
Amount owed to your spouse
your spouse money
$
$
$
$
$
$
7. State the persons who rely on you or your spouse for support.
Name Relationship Age
8. Estimate the average monthly expenses of you and your family. Show separately the amounts
paid by your spouse.
Adjust any payments that
are
made weekly, biweekly, quarterly, or
annually to show the monthly rate.
You
Your spouse
Rent or home-mortgage payment
(include lot rented for mobile home)
$
$
Are real estate taxes included?
� Yes
� No
Is property insurance included? � Yes
� No
Utilities (electricity, heating fuel,
water, sewer, and telephone)
$
$
Home maintenance (repairs and upkeep)
$
$
Food
$
$
Clothing
$
$
Laundry and dry-cleaning
$
$
Medical and dental expenses
$
$
You Your spouse
Transportation (not including motor vehicle payments) $ $
Recreation, entertainment, newspapers, magazines, etc. $ $
Insurance (not deducted from wages or included in mortgage payments)
Homeowner ’s or renter ’s
$
$
Life
$
$
Health
$
$
Motor Vehicle
$
$
Other:
$
$
Taxes (not deducted from wages or included in mortgage payments)
(specify):
Installment payments Motor Vehicle Credit card(s) Department store(s) Other:
$
$
$
$
$
$
$
$
$
$
Alimony, maintenance, and support paid to others
$
$
Regular expenses for operation of business, profession,
or farm (attach detailed statement)
$
$
Other (specify):
$
$
Total monthly expen ses:
$
$
9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months?
� Yes � No If yes, describe on an attached sheet.
10.
Have you paid – or will you be paying – an attorney any money for services in connection with this case, including the completion of this form? � Yes � No
If yes, how much?
If yes, state the attorney’s name, address, and telephone number:
11.
Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form?
� Yes � No
If yes, how much?
If yes, state the person’s name, address, and telephone number:
12. Provide any other information that will help explain why you cannot pay the costs of this case.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: , 20
(Signature)
No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER
(Your Name)
vs.
— RESPONDENT(S) ON PETITION FOR A WRIT OF CERTIORARI TO
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
(Your Name)
(Address)
(City, State, Zip Code)
(Phone Number)
QUESTION(S) PRESENTED
LIST OF PARTIES
[ ]All parties appear in the caption of the case on the cover page.
[ ]All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subjectofthis petition is as follows:
TABLE OF CONTENTS
OPINIONS BELOW ........................................................................................................ 1
JURISDICTION...................................................................................................................
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................
STATEMENT OF THE CASE ............................................................................................
REASONS FOR GRANTING THE WRIT ..........................................................................
CONCLUSION ....................................................................................................................
INDEX TO APPENDICES
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
TABLE OF AUTHORITIES CITED
CASES PAGE NUMBER
STATUTES AND RULES
OTHER
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writof certiorari issue to review the judgment below.
OPINIONS BELOW
[ ]For cases from federa l courts:
The opinion of the United States court of appeals appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
The opinion of the United States district court appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
[ ]For cases from state courts:
The opinion of the highest state court to review the merits appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
The opinion of the court appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
1.
JURISDICTION
[ ]For cases from federa l courts:
The date on which the United States Court of Appeals decided my case was .
[ ]No petition for rehearing was timely filed in my case.
[ ]A timely petition for rehearing was denied by the United States Courtof Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix .
[ ]An extension of time to file the petition for a writof certiorari was granted to and including (date) on (date) in Application No. A .
The jurisdiction of this Court is invoked under 28 U. S. C. §1254(1).
[ ]For cases from state courts:
The date on which the highest state court decided my case was . A copy of that decision appears at Appendix .
[ ]A timely petition for rehearing was thereaf ter denied on the following date: , and a copy of the order denying rehearing appears at Appendix .
[ ]An extension of time to file the petition for a writof certiorari was granted to and including (date) on (date) in Application No. A .
The jurisdiction of this Court is invoked under 28 U. S. C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE PETITION
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Date:
No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER
(Your Name)
VS.
— RESPONDENT(S)
PROOF OF SERVICE
I, , do swear or declare that on this date,
, 20 , as required by Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercia l carrier for delivery within 3calendar days.
The names and addresses of those served are as follows:
I declare under penalty of perjury that the foregoing is true and correct. Executed on , 20
(Signature)

The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was rep......

Strickland v. Washington
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Strickland v. Washington
Supreme Court of the United States
Argued January 10, 1984
Decided May 14, 1984
Full case name: Strickland, Superintendent, Florida State Prison, v. Washington
Citations: 466 U.S. 668; 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984)

Prior history: Writ of habeas corpus denied by the United States District Court for the Southern District of Florida; reversed by the Eleventh Circuit, 693 F.2d 1243 (11th Cir. 1982); cert. granted, 462 U.S. 1105 (1983)

Holding
To obtain relief due to ineffective assistance of counsel, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different.
Court membership
Chief Justice: Warren E. Burger
Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist, John Paul Stevens, Sandra Day O'Connor
Case opinions
Majority by: O'Connor
Joined by: Burger, White, Blackmun, Powell, Rehnquist, Stevens
Concurrence/dissent by: Brennan
Dissent by: Marshall
Laws applied
Sixth Amendment

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel. Under this test, a criminal defendant may not obtain relief unless he can show that counsel's performance fell below an objective standard of reasonableness, and that counsel's performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding—the trial, the sentencing hearing, the appeal—would have been different.
Contents
[hide]

* 1 Facts
* 2 Majority opinion
* 3 Dissenting opinion
* 4 See also
* 5 External links

[edit] Facts

In 1976, Washington committed three brutal stabbing murders, kidnapping, attempted murder, and theft. His two accomplices were arrested, and then Washington surrendered and gave a lengthy statement to the police confessing to the kidnapping and one of the murders. Washington was indicted in Florida for those crimes, and an experienced criminal defense attorney was appointed to represent him.

Washington did not follow his lawyer's advice, and later confessed to the other two murders. Eventually, also against the advice of counsel, Washington pleaded guilty to all of the crimes, with the result that he was eligible for the death penalty. This meant that there would be a sentencing hearing before a judge, who would hear evidence in support of and in opposition to a death sentence.

Counsel began gathering information about Washington's background. Counsel spoke with Washington's wife and mother, but did not personally meet with either of them. Counsel found no other character witnesses for Washington. He also did not request a psychiatric examination, because his conversations with Washington did not suggest to him that Washington might have psychological problems. At this point, counsel abandoned his investigation of Washington's background -- a decision that "reflected trial counsel's sense of hopelessness about overcoming the evidentiary effect of [Washington's] confessions to the gruesome crimes." In part, this was also a strategic decision on counsel's part, since the testimony of the hearing at which Washington had pleaded guilty would provide ample evidence about the crimes themselves, and counsel did not want to give the State a chance to cross-examine Washington on the stand about the details of the crimes at the sentencing hearing.

Counsel's strategy for the sentencing hearing was based on the trial judge's remarks. He urged Washington to express remorse for his crimes. Counsel also pointed to Washington's lack of prior criminal history and emotional stress at the time of the crimes. Counsel offered these facts to support his argument for a life sentence. But the trial judge found much in the way of aggravation, including the brutality of the crimes, and only one mitigating factor, Washington's lack of prior criminal history. The trial judge sentenced Washington to death for each of the three murders. The Florida Supreme Court affirmed the convictions and death sentences on direct appeal.

Washington then sought collateral relief in the Florida state courts. He argued that counsel was inadequate in preparing for the sentencing hearing. He argued counsel should have asked for more time to prepare for the hearing, requested a psychiatric report, uncovered and presented more character witnesses, sought a pre-sentence investigation report, presented more meaningful arguments to the sentencing judge, and investigated and cross-examined the medical examiner's reports. The Florida courts rejected these arguments, reasoning that the "aggravating circumstances [were] completely overwhelming," and so nothing counsel could have done would have avoided the death sentences.

Washington then petitioned for a writ of habeas corpus in federal court, raising the same claims for ineffective assistance of counsel. The federal district court held a hearing, but ultimately agreed with the facts as found by the Florida state courts. It ruled that whatever errors counsel may have made in investigating Washington's case for a life sentence, there was no significant likelihood that the trial court would have imposed a life sentence. The federal court of appeals, sitting en banc, reversed, crafting its own test for ineffective assistance of counsel under which the defendant had to show "actual and substantial disadvantage" to his case before obtaining relief. The court of appeals remanded the case to the district court for consideration under this standard, but before the district court could do so, the State asked the U.S. Supreme Court to hear the case. The Court agreed to do so.

[edit] Majority opinion

The Sixth Amendment right to counsel "exists, and is needed, in order to protect the fundamental right to a fair trial." A fair trial is one in which "evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Criminal defendants require counsel's skill and knowledge in order to be able to successfully rebuff the State's attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that "a person who happens to be a lawyer is present at trial alongside the accused... is not enough to satisfy the constitutional command." Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel's performance was "deficient," such that counsel's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

In order to show that counsel's performance was "deficient," the defendant must show that it fell below an "objective standard of reasonableness." The legal profession is capable of maintaining standards that justify the law's presumption that counsel ordinary serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant's case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a "checklist" for counsel, for "no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Counsel must have "wide latitude" to make "reasonable tactical decisions," lest the requirements for constitutionally effective assistance distract counsel from "the overriding mission of vigorous advocacy of the defendant's cause." Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel's decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and "dampen the ardor and impair the independence of defense counsel."

Counsel does, however, have a duty to make "reasonable investigations, or to make a reasonable decision that makes particular investigations unnecessary." After all, strategic decisions made in light of a reasonable investigation and compared to plausible options are virtually unchallengeable. By contrast, strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments justify the curtailment of counsel's investigation. These judgments may be informed by statements the defendant himself makes to counsel and the effects of previous strategic choices.

But not all errors on counsel's part justify setting aside the judgment; rather, they must prejudice the defendant's ability to receive a fair trial. In certain circumstances, such as when the defendant has had no counsel at all or when counsel has labored under a conflict of interest, the Court will presume prejudice. But ordinarily, the defendant must show that counsel's deficient performance had an adverse effect on the defense. Since the goal is to ensure that the defendant had a fair trial, the defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. When the defendant challenges his conviction, this means he must show that counsel's errors prevented the jury from forming a reasonable doubt as to his guilt. When he challenges a death sentence, as Washington is doing, he must show a reasonable probability that the sentencer would have balanced the aggravation and mitigation evidence differently. These assessments must be made, of course, with respect to the totality of the evidence presented at the hearing, so that when the prosecution's case is weak, the defendant will more easily show prejudice.

Applying this test to Washington's case, the Court concluded that counsel did not perform deficiently and that Washington suffered no prejudice. Counsel's decision to focus on remorse and emotional distress was a reasonable strategic decision in light of the trial judge's stated views on remorse, the heinousness of Washington's crimes, and Washington's own statements to counsel. In view of these considerations, the Court could not conclude that additional mitigating evidence would have given rise to a reasonable probability that the trial judge would have sentenced Washington to life in prison rather than death.

Justice Brennan concurred in the result because he believed that the Court's new test for ineffective assistance, particularly the prejudice prong, would not impede the presentation of mitigating evidence on behalf of capital defendants. "Counsel's general duty to investigate... takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death; claims of ineffective assistance in the performance of that duty should therefore be considered with commensurate care." However, because Justice Brennan believed that the death penalty is in all circumstances cruel and unusual punishment, he would have vacated Washington's death sentence and remanded for further proceedings.

[edit] Dissenting opinion

Justice Marshall dissented from the majority's holding. He objected that the Court's newly crafted test was unlikely to "improve the adjudication of Sixth Amendment claims." In his view, the performance standard was "so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts." What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one? After all, Marshall pointed out, "a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case." Marshall also disputed that counsel's performance must be given especially wide latitude, since "much of the work involved in preparing for trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards."

Marshall also disputed that it should be made the defendant's burden to show prejudice from an allegedly incompetent attorney's performance. Nor should prejudice be measured solely with respect to the fairness of the outcome of the trial; the fairness of the procedure matters just as much. "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree."

Marshall worried that the Court's admonition to future judges, presented with ineffective assistance claims should defer to counsel's strategic judgments, placed too heavy a burden on defendants making such claims.

Finally, Marshall took issue with the Court's conclusion that the same standard for ineffectiveness should apply in a capital sentencing proceeding that applies at an ordinary trial. The capital sentencing process is intended to be especially reliable, and "reliability in the imposition of the death sentence can be approximated only if the sentencer is fully informed of all possible relevant information about the individual defendant whose fate it must determine." The defendant's attorney is responsible for doing this. For this reason, and in light of the "severity and irrevocability of the sanction at stake," the standard for effective assistance in capital sentencing proceedings must be especially stringent. Accordingly, Marshall believed that a person on death row seeking relief from his death sentence on grounds of ineffective assistance should not have to show a reasonable probability that he would not have received a death sentence if counsel had presented more mitigating evidence. Because it was clear that Washington's attorney had failed to investigate and then present large amounts of information to the sentencing judge, Marshall concluded that Washington's lawyer was ineffective.

[edit] See also

* List of United States Supreme Court cases, volume 466
* Wiggins v. Smith

[edit] External links

* Text of the opinion, findlaw.com
* Link to audio of oral argument, OYEZ project

Retrieved from "http://en.wikipedia.org/wiki/Strickland_v._Washington"

Categories: 1984 in law | United States Supreme Court cases | United States Sixth Amendment case law | United States rights of the accused case law
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