Draper v. Washington, 372 U.S. 487 (1963)

Author: Justice Goldberg

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Draper v. Washington, 372 U.S. 487 (1963)

MR. JUSTICE GOLDBERG delivered the opinion of the Court.

Certiorari was granted in this case, 370 U.S. 935, in order that the Court might consider whether the State of Washington’s rules governing the provision of transcripts to indigent criminal defendants for purposes of appeal were applied in this case so as to deprive petitioners of rights guaranteed them by the Fourteenth Amendment.

This Court has dealt recently with the constitutional rights of indigents to free transcripts on appeal in Griffin v. Illinois, 351 U.S. 12, and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214. The principle of Griffin is that "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts," 351 U.S. at 19, a holding restated in Eskridge to be

that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials,

357 U.S. at 216. In Eskridge, the question was the validity of Washington’s longstanding procedure whereby an indigent defendant would receive a stenographic transcript at public expense only if, in the opinion of the trial judge, "justice will thereby be promoted." Id. at 215. This Court held per curiam that, given Washington’s guarantee of the right to appeal to the accused in all criminal prosecutions, Wash.Const. Art. I, § 22 and Amend. 10,

[t]he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript,

id. at 216, and remanded the cause for further proceedings not inconsistent with the opinion. In response, in Woods v. Rhay, 54 Wash.2d 36, 338 P.2d 332 (1959), a case which was remanded by this Court for reconsideration in light of Eskridge two weeks after that case was decided, 357 U.S. 575, the Supreme Court of Washington formulated a new set of rules to govern trial judges in passing upon indigents’ requests for free stenographic transcripts:

1. An indigent defendant in his motion for a free statement of facts must set forth:

a. The fact of his indigency

b. The errors which he claims were committed, and, if it is claimed that the evidence is insufficient to justify the verdict, he shall specify with particularity in what respect he believes the evidence is lacking. (The allegations of error need not be expressed in any technical form, but must clearly indicate what is intended).

2. If the state is of the opinion that the errors alleged can properly be presented on appeal without a transcript of all the testimony,

a. it may make a showing of what portion of the transcript will be adequate, or

b. if it believes that a narrative statement will be adequate, it must show that such a statement is or will be available to the defendant.

3. The trial court in disposing of an indigent’s motion for a statement of facts at county expense shall enter findings of fact upon the following matters:

a. The defendant’s indigency

b. Which of the errors, if any, are frivolous and the reasons why they are frivolous

c. Whether a narrative form of statement of facts will be adequate to present the claimed errors for review and will be available to the defendant, and, if not

d. What portion of the stenographic transcript will be necessary to effectuate the indigent’s appeal.

4. The trial court’s disposition of the motion shall be by definitive order.

54 Wash.2d at 44-45, 338 P.2d at 337.

It is the application of these rules which is asserted by petitioners in the present case to be inconsistent with their constitutional rights as declared in the Griffin and Eskridge cases. Petitioners, who are concededly indigent, were each convicted of two counts of robbery by a jury and sentenced to two consecutive 20-year terms after a three-day trial ending on September 14, 1960, during which they were represented by court-appointed counsel. Their motions for new trials were denied. On October 20, acting pro se, they filed timely notices of appeal from the judgments of conviction, and then filed identical motions requesting the trial judge to order preparation of a free transcript of the record and statement of facts.{1} Drawn inartistically, these requests asserted petitioners’ indigency and then set forth 12 allegations of error in the trial, relating to admission of testimony and exhibits, perjured and self-contradictory testimony, prejudice of the trial judge in the conduct of the trial, failure to enforce the rule as to exclusion of witnesses, and failure of the evidence to establish the elements of the crime charged. Each concluded that, "[u]nless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal."

Petitioners’ motions were heard on November 28 by the judge who had presided at the jury trial. Petitioners were present at the hearing, having been brought from the State Penitentiary where they were and still are incarcerated. Although they no longer wished the aid of counsel, the judge, in accordance with a statement in Woods v. Rhay,{2} directed trial counsel to speak in petitioners’ behalf. Counsel attempted, as best he could from his recollection of a trial which had occurred two and one-half months earlier, to elaborate upon the specifications of error in petitioners’ motions. The objections to exhibits, he stated, related to a gun introduced against petitioner Draper, and a jacket, claimed to have been found with money in it, introduced as belonging to petitioner Lorentzen. Counsel explained at length that he regarded the foundation laid for introducing these items to have been extremely weak, and that receipt of the evidence on such a slim foundation was prejudicial. He suggested that petitioner Draper had been identified only by an alleged accomplice, Jennings, whose testimony was also contradictory and perjurious. Counsel also argued that the prosecution had failed to prove both the existence of the corporation which the indictment described as owning one of the robbed motels, and the possessory right of its agent to the money taken. "In my opinion," he said, "those two omissions are very important, if not fatal, in this case." Further, counsel referred to petitioners’ contention that two witnesses were improperly allowed to sit in the courtroom prior to testifying, and said that he had no personal knowledge of the facts supporting the contention, but that, since defendants had invoked the "exclusion of witnesses" rule at trial, there was perhaps something to the contention. Finally, counsel argued that petitioners’ contention that the evidence was insufficient to sustain the conviction was, under Woods v. Rhay and analogous decisions of this Court governing the rights of federal prisoners, enough in itself to entitle them to a transcript.

Since petitioners had not desired counsel’s assistance, petitioner Draper was allowed to argue when counsel finished. He stated in a layman’s way what he believed were the trial errors, but, when interrogated by the trial judge for supporting details, he asserted his inability to give any without a transcript.

The prosecutor opposed the motion both by affidavit and by argument at the hearing. His affidavit summarized in several paragraphs his contrary interpretation of the evidence, which, according to him, plainly established the defendants’ guilt. In his argument, he undertook to refute each of petitioners’ assignments of error. He contended, therefore, that petitioners’ motions for free transcripts and statements of facts should be denied, because "there is nothing here to support any substantial claim of error whatsoever."

The trial judge, upon conclusion of the prosecutor’s argument, reviewed petitioners’ assignments of error and indicated orally that he would deny their motions. On December 12, he entered an order, coupled with formal findings of fact and conclusions of law, in which he concluded

[t]hat the assignments of error as set out by each defendant are patently frivolous; that the guilt of each defendant as to each count of Robbery was established by overwhelming evidence, and that, accordingly, the furnishing of a statement of facts would result in a waste of public funds.

His findings summarized in six paragraphs the facts which he thought had been proven at the three-day trial. This summary constituted only the trial judge’s conclusions about the operative facts, without any description whatsoever of the evidence upon which those conclusions were based. After stating these factual conclusions, the judge specifically rejected each of petitioners’ 12 assignments of error with a summary statement -- almost wholly conclusory -- concerning each.

Petitioners sought review by certiorari of the trial court’s order in the Supreme Court of Washington. Department One of that court quashed the writ, holding that the trial court had properly applied the principles of Woods v. Rhay and had correctly found the appeal to be frivolous. 58 Wash.2d 830, 365 P.2d 31. By the very nature of the procedure, the Supreme Court’s ruling was made without benefit of reference to any portion of a stenographic transcript of the jury trial. Solely on the basis of the stenographic record of the hearing on the motion, the Supreme Court stated that "[i]t would serve no useful purpose to set forth [the] evidence in detail," 58 Wash.2d at 832, 365 P.2d at 33, and instead purported to summarize the operative facts briefly, based entirely and uncritically on the trial judge’s conclusions as to what had occurred. These conclusory statements, arrived at without any examination of the underlying evidence, were then (inevitably, given the nature of the trial judge’s conclusions) characterized as sufficient to show that all of the elements of the crime of robbery were established by the evidence.{3} The court concluded by briefly dealing with and rejecting petitioners’ specific assignments of error, just as the trial judge had done.

Petitioners contend that the present Washington procedure for indigent appeals has not cured the constitutional defects disapproved in Eskridge. They argue that a standard which conditions effective appeal on a trial judge’s finding, even though it be one of nonfrivolity instead of promotion of justice, denies them adequate appellate review. Under the present standard, just as under the disapproved one, they must convince the trial judge that their contentions of error have merit before they can obtain the free transcript necessary to prosecute their appeal. Failing to convince the trial judge, they continue, they are denied adequate appellate review because the Supreme Court then passes upon their assignments of error without consideration of the record of the trial proceedings, whereas defendants with money to buy a transcript are allowed a direct appeal to the Supreme Court, which affords them full review of their contentions. The State argues that this difference in procedure is justifiable because it safeguards against frivolous appeals by indigents while guaranteeing them appellate review in cases where such review is even of potential utility.{4}

In considering whether petitioners here received an adequate appellate review, we reaffirm the principle, declared by the Court in Griffin, that a State need not purchase a stenographer’s transcript in every case where a defendant cannot buy it. 351 U.S. at 20. Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge’s minutes taken during trial or on the court reporter’s untranscribed notes, or a bystander’s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant, and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted.{5} In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. In all cases, the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds-the State must provide the indigent defendant with means of presenting his contention to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.

Petitioners’ contentions in the present case were such that they could not be adequately considered by the State Supreme Court on the limited record before it. The arguments about improper foundation for introduction of the gun and coat, for example, could not be determined on their merits -- as they would have been on a nonindigent’s appeal -- without recourse, at a minimum, to the portions of the record of the trial proceedings relating to this point.{6} Again, the asserted failure of proof with respect to identification of the defendants and the allegations of perjury and inconsistent testimony were similarly impossible to pass upon without direct study of the relevant portions of the trial record. Finally, the alleged failure of the evidence to sustain the conviction could not be determined on the inadequate information before the Washington Supreme Court.

The materials before the State Supreme Court in this case did not constitute a "record of sufficient completeness," see Coppedge v. United States, 369 U.S. 438, 446, and p. 498 infra, for adequate consideration of the errors assigned. No relevant portions of the stenographic transcript were before it. The only available description of what occurred at the trial was the summary findings of the trial court and the counter-affidavit filed by the prosecutor. The former was not in any sense like a full narrative statement based upon the detailed minutes of a judge kept during trial. It was, so far as we know, premised upon recollections as of a time nearly three months after trial and, far from being a narrative or summary of the actual testimony at the trial, was merely a set of conclusions. The prosecutor’s affidavit can by no stretch of the imagination be analogized to a bystander’s bill of exceptions. The fact recitals in it were in most summary form, were prepared by an advocate seeking denial of a motion for free transcript, and were contested by petitioners and their counsel at the hearing on that motion.

By allowing the trial court to prevent petitioners from having stenographic support or its equivalent for presentation of each of their separate contentions to the appellate tribunal, the State of Washington has denied them the rights assured them by this Court’s decisions in Griffin and Eskridge. The rules set out in Woods v. Rhay contemplate a procedure which could have been followed here to afford the petitioners what the Constitution requires. Thus, in accordance with those rules, the State could have endeavored to show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners’ contentions. The trial judge would have complied with both the constitutional mandate and the rules in limiting the grant accordingly on the basis of such a showing by the State. What was impermissible was the total denial to petitioners of any means of getting adequate review on the merits in the State Supreme Court, when no such clog on the process of getting contentions before the State Supreme Court attends the appeals of defendants with money.

The Washington rules as applied here come to this: an indigent defendant wishing to appeal and needing a transcript to do so may only obtain it if the judge who has presided at his trial and has already overruled his motion for a new trial as well as his objections to evidence and to conduct of the trial finds that these contentions, upon which he has already ruled, are not frivolous. The predictable finding of frivolity is subject to review without any direct scrutiny of the relevant aspects of what actually occurred at the trial, but rather with examination only of what the parties argued at the hearing on the transcript motion and what the judge recalled and thereafter summarily found as to what went on at the trial.

This Court, in Coppedge v. United States, 369 U.S. 438, 446, dealt with similar vices in the federal courts by requiring that when a defendant denied leave to appeal in forma pauperis by the District Court applies to the Court of Appeals for leave to appeal, that court, when the substance of the applicant’s claims cannot be adequately ascertained from the face of his application (as in the present case), must provide a

record of sufficient completeness to enable him to attempt to make a showing that the District Court’s certificate of lack of "good faith" is in error and that leave to proceed . . . in forma pauperis should be allowed.

Here, similarly, the Washington Supreme Court could not deny petitioners’ request for review of the denial of the transcript motion without first granting them a "record of sufficient completeness" to permit proper consideration of their claims. Such a grant would have ensured petitioners a right to review of their convictions as adequate and effective as that which Washington guarantees to nonindigents. Moreover, since nothing we say today militates against a State’s formulation and application of operatively nondiscriminatory rules to both indigents and nonindigents in order to guard against frivolous appeals, the affording of a "record of sufficient completeness" to indigents would ensure that, if the appeals of both indigents and nonindigents are to be tested for frivolity, they will be tested on the same basis by the reviewing court. Compare Ellis v. United States, 356 U.S. 674; Coppedge v. United States, supra, 369 U.S. at 447-448.

In Eskridge, this Court held that

[t]he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript.

357 U.S. at 216. We hold today that the conclusion of the trial judge that an indigent’s appeal is frivolous is a similarly inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.

The judgment of the Washington Supreme Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

1. Washington practice refers to copies of the various documents filed with the clerk of the trial court as the "transcript of the record," Rule 44 of the Rules on Appeal, and to the court reporter’s transcription of trial proceedings as the "statement of facts," Rule 35 of the Rules on Appeal. In accordance with common usage, the latter will often be referred to herein as the "transcript" and the "stenographic transcript."


Where court-appointed counsel has represented the defendant at the trial, his services should be made available to the defendant for the purpose of presenting the motion.

54 Wash.2d at 44, n. 3, 338 P.2d at 337, n. 2.

3. The State Supreme Court twice declared that the defendants had not challenged the trial court’s recollection of the evidence, apparently implying that defendants had abandoned any claims resting on insufficiency of or inconsistencies in the evidence. However, the record, including the briefs filed in the State Supreme Court, does not support this conclusion. Petitioners’ pro se brief in the State Supreme Court, such as it was, was based on the broad proposition that, under Griffin and Eskridge, they were entitled to a transcript in order to appeal, a pointless contention if, by so stating the argument, they meant to waive the right to have the State Supreme Court consider some or possibly all of the underlying allegations of error. Their vigorous arguments at the hearing on the transcript motion were meaningless if they were willing to accept the prosecution’s version of the facts. It should be noted, however, that the State Supreme Court did, notwithstanding its comments, consider petitioners’ assignments of error.

4. The State also argues that, in practical effect, there is no difference at all between the rights it affords indigents and nonindigents, because a moneyed defendant, motivated by a "sense of thrift," will choose not to appeal in exactly the same circumstances that an indigent will be denied a transcript. We reject this contention as untenable. It defies common sense to think that a moneyed defendant faced with long-term imprisonment and advised by counsel that he has substantial grounds for appeal, as petitioners were here, will choose not to appeal merely to save the cost of a transcript. The State’s procedure for indigents, therefore, cannot be justified as an attempt to equalize the incidence of appeal as between indigents and nonindigents.

5. For example, the State Supreme Court here held that, under Washington law, proof of the existence of the corporation robbed is unnecessary to a conviction for robbery, thus obviating the need for a record of the testimony relevant to this point.

6. The Washington courts stated that the asserted lack of foundation went to the weight of the evidence, and not to its admissibility. This conclusion, however, in contrast to the holding that the existence of the robbed corporation was irrelevant as a matter of law, necessarily depended upon an examination -- never made -- of the appropriate portions of the record to test whether the evidence claimed to establish the foundation was in fact sufficient to meet the threshold standard of admissibility.


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Chicago: Goldberg, "Goldberg, J., Lead Opinion," Draper v. Washington, 372 U.S. 487 (1963) in 372 U.S. 487 372 U.S. 489–372 U.S. 500. Original Sources, accessed August 8, 2022, http://www.originalsources.com/Document.aspx?DocID=5ATLHNFUUUM4DHI.

MLA: Goldberg. "Goldberg, J., Lead Opinion." Draper v. Washington, 372 U.S. 487 (1963), in 372 U.S. 487, pp. 372 U.S. 489–372 U.S. 500. Original Sources. 8 Aug. 2022. http://www.originalsources.com/Document.aspx?DocID=5ATLHNFUUUM4DHI.

Harvard: Goldberg, 'Goldberg, J., Lead Opinion' in Draper v. Washington, 372 U.S. 487 (1963). cited in 1963, 372 U.S. 487, pp.372 U.S. 489–372 U.S. 500. Original Sources, retrieved 8 August 2022, from http://www.originalsources.com/Document.aspx?DocID=5ATLHNFUUUM4DHI.