ROBERTS, J., dissenting.

there recently decided, has the privilege al nature of the right it preserves been ied. As the cases show," the right of every step in the trial, whether it be of oral testimony, the submission of a sentation of physical exhibits, the arguhe charge of the court, or the rendition

ssfully be contended that as the Sixth 10 application to trials in state courts, h does not draw to itself and embody state constitutions (Patterson v. Colo), the due process secured by the Fourit does not embrace a right secured by

In Powell v. Alabama, supra, the arconclusion would be difficult that the specifically preserved by the Sixth also within the intendment of the due he Fourteenth, was answered thus: 10, Burlington & Quincy R. Co. v. Chi, 241, this court held that a judgment ven though authorized by statute, by Derty was taken for public use without

was in violation of the due process of he Fourteenth Amendment, notwithFifth Amendment explicitly declares rty shall not be taken for public use Densation. This holding was followed er, 172 U.S. 269, 277; Smyth v. Ames, : and San Diego Land Co. v. National , 754.

court has considered that freedom of press are rights protected by the due the Fourteenth Amendment, although dment, Congress is prohibited in spe

I in notes 16 and 23.

ROBERTS, J., dissenting.

291 U.S.

the witnesses against him, and have the assistance of counsel for his defense. But the purpose that all trials, in state as well as national tribunals, should not lack the same quality of fairness, is evidenced by the embodiment of a guarantee of similar import in the constitution of every state in the Union.19 Out of excess of caution the fundamental law of many of the States specifically safeguards the right of the accused, "to appear and defend in person." 20 But mere differences in phraseology have not obscured the fact that all these instruments were intended to secure the same great privilege-a fair hearing. Accordingly, the courts have uniformly and invariably held that the Sixth Amendment, as respects federal trials, and the analogous declarations of right of the state constitutions touching trials in state courts, secure to the accused the privilege of presence at every stage of his trial. This court has so declared. In commenting upon the section of the Philippine Civil Government Act which extends to the accused in all criminal prosecutions "the right to be heard by himself and counsel," this was said: "An identical or similar provision is found in the constitutions of the several States, and its substantial equiv

19 In two States (California and Nevada) the constitutions omit reference to the right of the accused to confront the witness against him; but the omission is supplied by statute: Cal. Stats. 1911, Ch. 187, p. 364, Penal Code, § 686; Nevada Compiled Laws, 1929, Vol. 5, § 10654.

20

Arizona, Const. of 1910, Art. II, § 24; California, Const. of 1879, Art. I, § 13; Colorado, Const. of 1876, Art. II, § 16; Idaho, Const. of 1889, Art. I, § 13; Illinois, Const. of 1870, Art. 2, § 9; Kansas, Const. of 1859, Bill of Rights, § 10; Missouri, Const. of 1875, Art. II, § 22; Montana, Const. of 1889, Art. III, § 16; Nebraska, Const. of 1875, Art. I, § 11; Nevada, Const. of 1864, Art. I, § 8; New Mexico, Const. of 1911, Art. II, § 14 (as amended); New York, Const. of 1894, Art. I, § 6; North Dakota, Const. of 1889, Art. I, § 13; Ohio, Const. of 1851, (as amended Sept. 3, 1912), Art. I, § 10; South Dakota, Const. of 1889, Art. VI, § 7; Utah, Const. of 1895, Art. I, § 12; Washington, Const. of 1889, Art. I, § 22; Wyoming, Const. of 1889, Art. I, § 10.

97

ROBERTS, J., dissenting.

alent is embodied in the Sixth Amendment to the Constitution of the United States. . . . In cases of felony our courts, with substantial accord, have regarded it [the right so granted] as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself.” 21

And, as if to make assurance doubly sure, the legislatures of many of the States have adopted statutes redundant to the constitutional mandate explicitly declaring the right of the accused to be present at his trial.22

In the light of the universal acceptance of this fundamental rule of fairness that the prisoner may be present throughout his trial, it is not a matter of assumption but a certainty that the Fourteenth Amendment guarantees the observance of the rule.

It has been urged that the prisoner's privilege of presence is for no other purpose than to safeguard his opportunity to cross-examine the adverse witnesses. But the privilege goes deeper than the mere opportunity to crossexamine, and secures his right to be present at every stage of the trial. The cases cited in the margin,23 while by no

"Diaz v. United States, supra, p. 454.

"La. Code Crim. Proc. (Dart 1932), Art. 365. Ann. Laws of Mass., Vol. 9, Ch. 278, § 6; Comp. Laws Michigan, 1929, Vol. 3, Ch. 287, § 17129; Revised Codes of Montana, 1921, Vol. 4, Part II, Ch. 1, § 11611; Nevada Comp. Laws, 1929, Vol. 5, § 10654, § 10921; New York Code of Crim. Pro., Cahill, § 8, par. 2; No. Dak. Comp. Laws, 1913, Vol. 2, § 10393; Code of Laws of South Carolina, 1932, § 996; Vermont General Laws 1917, § 2496; Virginia Code of 1930, § 4894; Pierce's Washington Code, § 1086-324; Wisconsin Statutes 1931, § 357.07; Wyoming Revised Statutes, 1931, § 33-903.

"Slocovitch v. State, 46 Ala. 227; Whittaker v. State, 173 Ark. 1172; 294 S.W. 397; Lowman v. State, 80 Fla. 18; 85 So. 166; Chance v. State, 156 Ga. 428; 119 S.E. 303; People v. Beck, 305 Ill. 593; 137 N.E. 454; Batchelor v. State, 189 Ind. 69; 125 N.E. 773; State v. Reidel, 26 Iowa 430; Riddle v. Commonwealth, 216 Ky. 220; 287 S.W. 704; State v. Hutchinson, 163 La. 146; 111 So. 656; Duffy v.

ROBERTS, J., dissenting.

291 U.S.

means exhausting the authorities, sufficiently illustrate and amply sustain the proposition that the right is fundamental and assures him who stands in jeopardy that he may in person, see, hear and know all that is placed before the tribunal having power by its finding to deprive him of liberty or life. It would be tedious and unnecessary to quote the language used in vindication of the privilege. The books are full of discussions of the subject.

The accused cannot cross-examine his own witnesses. Will it be suggested that, for this reason, he may be excluded from the court room while they give their evidence? He cannot cross-examine documents or physical exhibits. But documents, plans, maps, photographs, the clothing worn by the victim and by the perpetrator of the alleged crime, the weapon used, and other material objects may be more potent than word of mouth, to carry conviction to the jury's mind; and, so of the physical appearance of the scene of the crime. No reason is apparent why, if the accused may be excluded from a view, he may not also be excluded from the court room while such documentary and physical evidence is proffered to and examined by the jury. The opportunity for cross-examination of witnesses is only one of many reasons for the defendant's presence throughout the trial. In no State save in the Commonwealth of Massachusetts, and in no State, 151 Md. 456; 135 Atl. 189; Commonwealth v. Cody, 165 Mass. 133; 42 N.E. 575; State v. Dingman, 177 Minn. 283; 225 N.W. 82; Foster v. State, 70 Miss. 755; 12 So. 822; State v. Hoffman, 78 Mo. 256; State v. Jackson, 88 Mont. 420; 293 Pac. 309; Miller v. State, 29 Neb. 437; 45 N.W. 451; State v. Duvel, 103 N.J.L. 715; 137 Atl. 718; People v. Perkins, 1 Wend. 91; State v. Dixon, 185 N.C. 727; 117 S.E. 170; State v. Schasker, 60 N.D. 462; 235 N.W. 345; Cole v. State, 35 Okla. Cr. Rep. 50; 248 Pac. 347; State v. Chandler, 128 Ore. 204; 274 Pac. 303; Gray v. State, 158 Tenn. 370; 13 S.W. (2d) 793; Schafer v. State, 118 Tex. Cr. Rep. 500; 40 S.W. (2d) 147; State v. Mannion, 19 Utah 505; 57 Pac. 542; Palmer v. Commonwealth, 143 Va. 592; 130 S.E. 398; State v. Shutzler, 82 Wash. 365; 144 Pac. 284; State v. Howerton, 100 W.Va. 501; 130 S.E. 655.

97

ROBERTS, J., dissenting.

cases save in those there recently decided, has the privilege or the fundamental nature of the right it preserves been questioned or denied. As the cases show," the right of presence exists at every step in the trial, whether it be during the giving of oral testimony, the submission of a document, the presentation of physical exhibits, the argument of counsel, the charge of the court, or the rendition of the verdict.

It cannot successfully be contended that as the Sixth Amendment has no application to trials in state courts, and the Fourteenth does not draw to itself and embody the provisions of state constitutions (Patterson v. Colorado, 205 U.S. 454), the due process secured by the Fourteenth Amendment does not embrace a right secured by those instruments. In Powell v. Alabama, supra, the argument that the conclusion would be difficult that the right to counsel specifically preserved by the Sixth Amendment was also within the intendment of the due process clause of the Fourteenth, was answered thus:

"In . . . Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U.S. 226, 241, this court held that a judgment of a state court, even though authorized by statute, by which private property was taken for public use without just compensation, was in violation of the due process of law required by the Fourteenth Amendment, notwithstanding that the Fifth Amendment explicitly declares that private property shall not be taken for public use without just compensation. This holding was followed in Norwood v. Baker, 172 U.S. 269, 277; Smyth v. Ames, 169 U.S. 466, 524; and San Diego Land Co. v. National City, 174 U.S. 739, 754.

Likewise, this court has considered that freedom of speech and of the press are rights protected by the due process clause of the Fourteenth Amendment, although in the First Amendment, Congress is prohibited in spe

"See the cases cited in notes 16 and 23.