Fair Trial

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The requirement of a fair trial in criminal proceedings has its constitutional source in the due process clause of the Fifth and fourteenth amendments, which declares that no person shall be deprived of "life, liberty, or property, without due process of law." Other provisions of the bill of rights deal explicitly with particular aspects of a criminal trial. Historically, the coverage of those provisions has tended to expand, narrowing the application of the more general provision. The "incorporation" of provisions of the Fifth and sixth amendments into the due process clause of the Fourteenth Amendment is especially noteworthy in this respect, having had the effect of eliminating the need for fair-trial analysis of issues in state cases covered by those provisions. While important elements of a fair trial are thus treated individually, the requirements can be summarized generally as a hearing before a competent, impartial tribunal, at which the prosecutor does not present the government's case inaccurately or unfairly and the defendant has an opportunity to present his case fully and effectively.

Ordinarily, any judge of a court having jurisdiction is presumed to be competent to hear a criminal case. However, a judge is presumed not to be impartial if he has a substantial personal interest in a verdict against the defendant. The requirement of a fair trial prohibits a judge from sitting in that circumstance. In Tumey v. Ohio (1927) the Supreme Court held invalid a local practice assigning the mayor of a village as judge in criminal cases, because the compensation for his judicial services and other income for the village accrued only if the defendant were convicted and a fine imposed. In In re Murchison (1955) the Court overturned convictions for criminal contempt following a trial before the same judge who was the defendants' accuser and the principal witness against them.

The Sixth Amendment gives a criminal defendant the right to be tried by an "impartial jury." That provision, which applies to federal and state trials, entitles the defendant to a jury selected from a representative cross-section of the community, without inclusions or exclusions because of sex, nationality, race, or other impermissible classifications. (See jury discrimination.) The jury finally chosen need not have any particular composition or be representative of the community as a whole.

The defendant must have a reasonable opportunity to uncover bias or prejudice of an individual juror. This is afforded by voir dire, the examination of prospective jurors. The trial judge or the prosecutor and defense counsel question the members of the jury panel to reveal any basis for disqualification in the particular case. The trial judge has broad discretion to direct the conduct and scope of the examination, provided it is adequate to ensure the jurors' impartiality. Counsel for either side may challenge a juror "for cause" if there is a basis for disqualification and then exercise a limited number of "peremptory" challenges without explanation. In an effort to secure an impartial jury, the prosecutor may, under the doctrine of swain v. alabama (1965), exercise peremptory challenges on the basis of group factors such as race or nationality.

However fair the formal means for ensuring an impartial tribunal, a trial conducted in an atmosphere of mob violence or insistent public pressure for conviction does not meet the constitutional standard. (See moore v. dempsey.)

The Sixth Amendment gives a criminal defendant the right to be informed of the accusation. This right, which is essential to a fair trial, requires that the statement of the offense charged identify the criminal conduct and the circumstances of the alleged crime precisely enough for the defendant to prepare his defense.

Although the constitutional guarantee of a fair trial does not ordinarily entitle the defendant to pretrial disclosure of the evidence against him, all jurisdictions allow limited pretrial discovery of evidence and some allow rather full discovery subject only to special exceptions. Whenever evidence against the accused is disclosed, the defendant is entitled to enough time to prepare to meet it; if evidence is not disclosed before trial, the defendant may be entitled to a continuance. Furthermore, as the Court held in Wardius v. Oregon (1973), the defendant cannot be obliged to disclose evidence before trial unless the prosecution has a reciprocal obligation; fundamental fairness requires that discovery be "a two-way street."

Most of the evidentiary requirements of a fair trial are now subsumed under the confrontation and compulsory process clauses of the Sixth Amendment, which, as incorporated into the Fourteenth, are applied to state criminal trials. A defendant has the rights "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." As part of his right to hear and challenge the evidence against him, the defendant has a right to be present at the trial. (He may lose this right by absenting himself voluntarily or interfering with the orderly conduct of the trial.) Like other constitutional rights, the right to be present cannot be unnecessarily burdened; accordingly, since Estelle v. Williams (1976) a defendant cannot be required to appear at trial in prison clothing. Where jurors have obtained information from a person who did not appear as a witness, some courts have treated the event as a violation of the right to confront witnesses.

The confrontation clause also limits the use of out-of-court statements of persons who are not present in court. With few exceptions, an available witness must testify in person, so that he can be cross-examined by the defense. If a witness is not available, his out-of-court statement can be used as evidence only if there are indications of reliability sufficient to satisfy the purpose of confrontation at trial. (See hearsay rules.)

The right to compulsory process assures the defendant that he will be able to present evidence favorable to his case. On occasion, the Supreme Court has held that the application of a state procedural requirement or the trial judge's conduct of the trial denied the defendant an opportunity to present critical evidence and has reversed the conviction, relying on the compulsory process clause or directly on the due process clause.

The Sixth Amendment gives a defendant the right "to have the assistance of counsel for his defense," which requires that counsel be appointed for an indigent defendant in any case in which a sentence of imprisonment is imposed. Before this provision was made applicable to the states by incorporation into the Fourteenth Amendment, an indigent state defendant had a right to appointed counsel only if counsel were necessary to a fair trial. The appointment of counsel was required for defendants who were unable to defend themselves effectively because of their ignorance, or illiteracy, or youth, or because the circumstances of the case made professional skills essential; capital cases were invariably deemed to require the appointment of counsel. Since the decisions in gideon v. wainwright (1963) and argersinger v. hamlin (1972), the right to counsel applies alike in federal and state cases. It is possible although unlikely that in a minor case in which the Sixth Amendment's provision was inapplicable, the defense would be so difficult and complex that counsel would be required for a fair trial.

The requirements of a fair trial embodied in the due process clause continue to govern the conduct of the prosecution, which is not the subject of another, particular provision of the Bill of Rights. Although the prosecution is responsible for the presentation of the case against the defendant, its concern must be, as the Court said in berger v. new york (1967), "not that it shall win a case, but that justice shall be done.… It is as much [the prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

The prosecutor's obligation of fairness requires him to avoid conduct calculated or likely to mislead the jury. The knowing use of false evidence, including testimony of a witness, is ground for reversal of a conviction. If the prosecutor knows that a witness has testified falsely about a material fact, he must take steps to correct the falsehood. The obligation not to use false evidence extends to the government as a whole; even if the prosecutor at trial is unaware that evidence is false, a blameworthy failure of the police or others in the prosecutor's office or elsewhere in the government to avoid or remedy the falsehood is a denial of a fair trial.

The prosecutor has a parallel obligation to disclose evidence favorable to the defendant if, as the Court said in United States v. Agurs (1976), the "evidence is obviously of such substantial value that elementary fairness requires it." The constitutional obligation of fairness does not require the prosecution to disclose all evidence that might possibly be helpful to the defense. The test following a conviction is whether the undisclosed evidence "creates a reasonable doubt that did not otherwise exist." The duty to disclose evidence in response to a specific request by the defense is greater; if the evidence is material at all the prosecutor must either honor the request or inform the court of his refusal.

Aside from his obligation to present the evidence fully, the prosecutor must avoid arguments or conduct before the jury that might mislead it or prejudice it against the defendant. In his opening and closing arguments as well as his questioning of witnesses, the prosecutor is expected not to depart from the evidence or to lead the jury away from a dispassionate judgment based on the evidence. Isolated improper remarks of a prosecutor usually are not deemed to have denied a fair trial, especially if they do not appear to have been a deliberate violation and the trial judge has taken corrective action such as instructing the jury to disregard the remarks. In order to determine whether the standard of fair trial has been met, the prosecutor's conduct is examined in the context of the whole trial.

In a number of situations, the demands of a fair trial are opposed by conflicting demands based on the first amendment's protection of freedom of the press. Pretrial publicity of a case may make it more difficult or impossible to impanel an impartial jury. A fair trial does not require that jurors have been entirely ignorant of the facts of a case but only that, having in mind the news coverage and atmosphere of the community, they be able to decide according to the evidence. The Supreme Court has occasionally reversed a conviction because members of the jury were presumed to have, or acknowledged that they had, strong preconceptions of the defendant's guilt because of extensive coverage of the case in local news media.

A similar problem has sometimes arisen during trial. In Sheppard v. Maxwell (1966) the Supreme Court concluded that prejudicial pretrial publicity in the news media as well as the "carnival atmosphere" created by the media in and around the courtroom during trial had denied the defendant a fair trial. In estes v. texas (1965) the Court concluded that television coverage of portions of a sensational trial that had also been the subject of massive pretrial publicity was impermissible. There is, however, no absolute constitutional prohibition against radio, television, or photographic coverage of a trial, which may, as the Court held in chandler v. florida (1981), be allowed if it is conducted in a manner consistent with a fair trial.

The Supreme Court held, in richmond newspapers, inc. v. virginia (1980), that the First Amendment protects the right of the public to attend criminal trials. (In contrast, the right to a public trial in the Sixth Amendment is a right of the defendant alone.) Therefore, all other measures for ensuring a fair trial, such as sequestration of witnesses or jurors, must be considered before the public can be excluded, whether or not the defendant asks for exclusion. The Court has indicated strongly that a trial court should exercise its authority in whatever manner will afford a fair trial without closing it to the public.

Unlike some of the more particular provisions of the Bill of Rights that have to do with criminal process, the requirement of a fair trial retains the flexibility of a general standard and is not susceptible to precise definition by a set of rules. While important aspects of a fair trial are covered by other constitutional provisions, some remain within the ambit of the general standard. Jurisprudentially, the principal difference is that, unlike some particular constitutional rules, the general standard does not invalidate a conviction for a single instance of prejudicial error or unfairness. Rather it is set in the context of the whole trial, and a conviction will be reversed only if the trial as a whole was unfair. The standard of a fair trial also serves as a reminder of the government's relationship with an individual even when it seeks to convict him of a crime and as the repository of changing or enlarged conceptions of what fairness in the criminal process requires.

Lloyd L. Weinreb


American Bar Association 1968 Standards Relating to Fair Trial and Free Press. New York: Institute of Judicial Administration.

Fellman, David 1976 The Defendant's Rights Today. Madison: University of Wisconsin Press.

Kamisar, Yale; La Fave, Wayne R.; and Israel, Jerold H. (1965) 1986 Modern Criminal Procedure. St. Paul, Minn.: West Publishing Co.

Levy, Leonard W. 1974 Against the Law. New York: Harper & Row.

Weinreb, Lloyd L. (1969) 1987 Criminal Process. Mineola, N.Y.: Foundation Press.

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Fair Trial

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