BRITT v. NORTH CAROLINA
No. 70-5041.
Argued October 14, 1971
Decided December 13, 1971
Robert G. Bowers argued the cause and filed a brief for petitioner.
Christine Y. Denson, Assistant Attorney General of North Carolina, argued the cause for respondent. With her on the brief was Robert Morgan, Attorney General.
Mr. Justice Marshall
delivered the opinion of the Court.
Petitioner’s three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim, petitioner filed a motion alleging that he was indigent, and asking for a free transcript of the first trial. The trial court denied his motion, and the North Carolina Court of Appeals affirmed, stating that the record of the case did not reveal a sufficient need for the transcript. 8 N. C. App. 262, 174 S. E. 2d 69 (1970). The North Carolina Supreme Court denied certiorari. We granted certiorari to determine whether the rule of Griffin v. Illinois, 351 U. S. 12 (1956), applies in this context. 401 U. S. 973 (1971). We conclude that it does, but that in the narrow circumstances of this case, no violation of that rule has been shown, and therefore we affirm.
Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.
In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. Mr. Justice Douglas suggests that the North Carolina courts refused to order a transcript in this case both because petitioner failed to make a particularized showing of need, and because there were adequate alternative devices available to him.
We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
But the court below did not use the language of “particularized need.” It rested thé decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript. The second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. In these circumstances, the court suggested that petitioner’s memory and that of his counsel should have furnished an adequate substitute for a transcript. In addition, the court pointed to the fact that petitioner could have called the court reporter to read to the jury the testimony given at the mistrial, in the event that inconsistent testimony was offered at the second trial.
We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as “too little and too late” in United States ex rel. Wilson v. McMann, 408 F. 2d 896, 897 (CA2 1969). At oral argument in this case, however, it emerged that petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant, or to the defendant in Wilson. The trials of this case took place in a small town where, according to petitioner’s counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial. It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.
A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript. Accordingly, we cannot conclude that the court below was in error in rejecting his claim.
For these reasons the judgment is Affirmed.
Mr. Justice Blackmun concurs in the result, but he would dismiss the petition for certiorari as having been improvidently granted.
Williams v. Oklahoma City, 395 U. S. 458 (1969); Gardner v. California, 393 U. S. 367 (1969); Roberts v. LaVallee, 389 U. S. 40 (1967); Long v. District Court of Iowa, 385 U. S. 192 (1966); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958); Griffin v. Illinois, 351 U. S. 12 (1956).
See Draper v. Washington, supra, at 495-496, and other cases cited n. 1, supra.
In Griffin, the Court was able to rely on a concession of need by the State, 351 U. S., at 13-14, 16. In subsequent cases the Court has taken judicial notice of the importance of a transcript in a variety of circumstances, see Eskridge, supra, at 215; Gardner, supra, at 369-370. Most recently in Long and Roberts the Court simply found it unnecessary to discuss the question, notwithstanding the fact that in Roberts Mr. Justice Harlan argued in dissent that petitioner had suggested no use to which the transcript could have been put, 389 U. S., at 43.
While trial notes might well provide an adequate substitute for a transcript, the failure to make such notes does not bar an indigent prisoner from claiming the right to a free transcript, Eskridge, supra, at 215. As for requiring a prisoner to rely on his memory, this Court rejected that as an alternative to a transcript in Gardner, supra, at 369-370, and Williams, supra, at 459. Indeed, in Long we refused to consider any alternatives suggested by the State, on the ground that in that case a transcript was in fact available and could easily have been furnished. 385 U. S., at 194 — 195. Whether a transcript is similarly available in this case does not appear from the record.
Tr. of Oral Arg. 12. Cf. Avery v. Alabama, 308 U. S. 444, 450-452 (1940) (Black, J.).
Cf. Wade v. Wilson, 396 U. S. 282 (1970), in which no such concession was made. In that case it simply appeared from the record that petitioner might have been able to borrow a transcript from the prosecutor, in light of the fact that he had done so in an earlier proceeding. We remanded the case to permit exploration of that possibility.
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