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Opinion of the Court.

291 U.S.

against the charge. Thus, the privilege to confront one's accusers and cross-examine them face to face is assured to a defendant by the Sixth Amendment in prosecutions in the federal courts (Gaines v. Washington, supra, at p. 85), and in prosecutions in the state courts is assured very often by the constitutions of the states. For present purposes we assume that the privilege is reinforced by the Fourteenth Amendment, though this has not been squarely held. Cf. Schwab v. Berggren, 143 U.S. 442, 448, 450; West v. Louisiana, 194 U.S. 258; Diaz v. United States, 223 U. S. 442, 455; Blackmer v. United States, supra. Hopt v. Utah, 110 U.S. 574, has been distinguished and limited. Frank v. Mangum, supra, pp. 340, 341. Cf. Patton v. United States, 281 U.S. 276. Again, defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself. See Lewis v. United States, 146 U.S. 370, a prosecution in the federal courts. In such circumstances also we make a like assumption as to the scope of the privilege created by the federal constitution. Diaz v. United States, supra. No doubt the privilege may be lost by consent or at times even by misconduct. Diaz v. United States, supra. Cf. Sir James Fitzjames Stephen, Digest of the Law of Criminal Procedure, Art. 302. Our concern is with its extension when unmodified by waiver, either actual or imputed.

In all the cases thus assumed the presence of the defendant satisfies the test that was put forward a moment ago as basic and decisive. It bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend. Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a

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shadow. What has been said, if not decided, is distinctly to the contrary. Howard v. Kentucky, 200 U.S. 164, 175; Valdez v. United States, 244 U.S. 432, 445. Cf. Frank v. Mangum, supra, and particularly the dissenting opinion at p. 346.

The underlying principle gains point and precision from the distinction everywhere drawn between proceedings at the trial and those before and after. Many motions before trial are heard in the defendant's absence, and many motions after trial or in the prosecution of appeals. Cf. Schwab v. Berggren, supra, and Lewis v. United States, supra. Confusion of thought will result if we fail to mark the distinction between requirements in respect of presence that have their source in the common law, and requirements that have their source, either expressly or by implication, in the federal constitution. Confusion will result again if the privilege of presence be identified with the privilege of confrontation, which is limited to the stages of the trial when there are witnesses to be questioned. “It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.” Dowdell v. United States, 221 U.S. 325, 330. See also Wigmore, Evidence, vol. 3, SS 1395, 1397, collating the decisions. Nor has the privilege of confrontation at any time been without recognized exceptions, as for instance dying declarations or documentary evidence. Dowdell v. United States, supra. Cf. Robertson v. Baldwin, 165 U.S. 275, 282; Motes v. United States, 178 U.S. 458, 472, 473. The exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule. Commonwealth v. Slavski,

. 245 Mass. 405, 415; 140 N.E. 465; cf. West v. Louisiana, supra. So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due

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process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.

We are thus brought to an inquiry as to the relation between the defendant's presence at a view and the fundamental justice assured to him by the Constitution of the United States.

At the outset we consider a bare inspection and nothing more, a view where nothing is said by any one to direct the attention of the jury to one feature or another. The Fourteenth Amendment does not assure to a defendant the privilege to be present at such a time. There is nothing he could do if he were there, and almost nothing he could gain. The only shred of advantage would be to make certain that the jury had been brought to the right place and had viewed the right scene. If he felt any doubt about this, he could examine the bailiffs at the trial and learn what they had looked at. The risk that they would lie is no greater than the risk that attaches to testimony about anything. Constitutional law like other mortal contrivances has to take some chances.Blinn v. Nelson, 222 U.S. 1, 7. Here the chance is so remote that it dwindles to the vanishing point. If the bailiffs were to bear false witness as to the place they had shown, the lie would be known to the jury. There is no immutable principle of justice that secures protection to a defendant against so shadowy a risk. The argument is made that conceivably the place might have been changed and in a way that would be material. In that event the fact could be brought out by appropriate inquiry. There could be inquiry of witnesses in court and of counsel out of court. Description would disclose the conditions at the view, and the defendant or his witnesses could prove what the conditions were before. He could do nothing more though he had been there with the jury. Indeed the record makes it clear that upon request he would have been allowed to go there afterwards in company with his

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counsel. Opportunity was ample to learn whatever there

. was need to know.

If the risk of injustice to the prisoner is shadowy at its greatest, it ceases to be even a shadow when he admits that the jurors were brought to the right place and shown what it was right to see. That in substance is what happened here. On the trial, photographs and diagrams of the scene of the homicide were put in evidence by the Commonwealth and placed before the jury. There was no suggestion by the defendant or his counsel that these photographs and diagrams did not truly represent the place that had been seen upon the view. There was no suggestion of any change except the one that was conceded. The defendant took the stand and admitted that he was at the gasoline station at the time of the crime. He tried to reduce the grade of his wrongdoing by testifying that the shot had been fired by his codefendant Donnellon and that larceny, not robbery, was the aim of the conspiracy. * In the course of his testimony, he described his own and Donnellon's movements with the aid of the diagram in evidence. At the end of the trial he made a brief statement to the jury, supplementing the argument that had been made by his counsel. “I am sorry," he said, “ that I had any part in the crime. I am sorry for the grief I have caused. But I did not fire the fatal shot. That is all.” Nowhere is there a suggestion of any doubt as to the place. Like concessions are implicit in the summing up of counsel. His argument reminds the jurors of what they had seen upon

*

* Under the law of Massachusetts, homicide is murder in the first degree when committed“ with deliberately premeditated malice aforethought " or in the commission or attempted commission of a crime that would be punishable, if there were no homicide, with imprisonment for life. Robbery by one armed with a dangerous weapon is a crime so punishable, but not larceny or attempted larceny. Mass. General Laws, c. 265, $$ 1 and 17.

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the view, and of the dimensions of the building, which are shown also on the diagram. The place is undisputed. .

If it be true that there is no denial of due process as the result of a bare inspection in the absence of a defendant, the question remains whether such a denial results where counsel are permitted, without any statement of the evidence, to point out particular features of the scene and to request the jury to observe them. The courts of Massachusetts hold that statements, thus restricted, are proper incidents of a view. “The essential

“ features may be pointed out by the counsel. No witnesses are heard ... There can be no comment or discussion." Commonwealth v. Dascalakis, 246 Mass. 12, 29; 140 N.E. 470, 477; "One or two attorneys representing both the Commonwealth and the defendant go on the view, it being permissible to them, in the presence of each other and of the officers of the court, merely to point out to the jury 'marks, matters or things' but not otherwise to speak to the jury." Ibid. The rule in Massachusetts is that these acts are permissible though the defendant is not present (ibid.), and though he is kept away under protest. See Commonwealth v. Belenski, 276 Mass. 35; 176 N.E. 501, which was followed in the case at bar. Commonwealth v. Snyder, supra. We are to determine whether the Fourteenth Amendment prescribes anything to the contrary.

Obviously the difference between a view at which every one is silent and a view accompanied by a request to note this feature or another is one of degree, and nothing more. The mere bringing of a jury to a particular place, whether a building or a room or a wall with a bullet hole, is in effect a statement that this is the place which was the scene of the offense, and a request to examine it. When the tacit directions are made explicit, the defendant is not wronged unless the supplement of words so transforms the quality of the procedure that injustice will be done if the defendant is kept away. Statements to the jury

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