Mr. Justice Cardozo
delivered the opinion of the Court.
On April 9, 1931, James M. Kiley was shot to death at a gasoline station at Somerville, Massachusetts. Three men, Garrick, Donnellon and the petitioner Snyder, joined in the murder and in the attempted robbery that led to it. Garrick confessed to his part in the crime and became a witness for the state. Donnellon and Snyder were tried together and sentenced to be put to death. The jury found upon abundant evidence that the guilt of each had. been established béyond a reasonable doubt. At the trial and on appeal Snyder made the claim that through the refusal of the trial judge to permit him to be present at a view there had been a denial of due process of law under the Fourteenth Amendment of the Constitution of the United States. The Supreme Judicial Court of Massachusetts affirmed the conviction. 282 Mass. 401; 185. N.E. 376. A writ of certiorari brings the case here.
At the opening of the trial there was a motion by the Commonwealth that the jury be directed to view the scene of the crime. This motion was granted. In granting it the court acted under a Massachusetts statute which provides " The court may order a view by a jury impanelled to try a criminal case." General Laws of Massachusetts, c. 234, § 35. The court appointed counsel for Donnellon and for Snyder to represent their respective clients at the place to be viewed. Counsel for Donnellon moved that he be permitted to go thére with his client after the view, but did not ask that his client be present with the jury. The court stated that such an order would probably be made. Counsel for Snyder moved that his client be permitted to view the scene with the .jury, invoking the protection of the federal constitution. This motion was denied. The jurors were then placed in charge of bailiffs duly sworn. Accompanied by these bailiffs and also by the judge, the court stenographer, the District Attorney and the counsel for the defendants, they went forth to make their view.
The first stopping place was at the filling station,' 13 Somerville Avenue. Entering the station, the District Attorney pointed out to the jurors' the particular parts, of the building that he wished, them to observe. He asked them to note the window at the rear, its position with reference to the entrance, the position of other windows to the right, the size of the room, the angle made by a partition, and the location of other objects. Counsel for Snyder called attention to the view from within the building looking out, and to the condition of the floor. Leaving the station by the front door, the jury viewed the building from the other side of the street. The District Attorney asked that note be made of the driveway to the right and left of the station, the three pumps in front, and also the width of the street. Counsel for Snyder called attention to the nature of the travel, the setback of the station from the roadway, and in particular .the possibility of observing from without what was taking place within. After the visit to the station the jurors were taken a short distance away where they were asked to make note of the lay-out of the streets. They then went back to the. station, the District Attorney saying that he had omitted to direct their attention to the lights. The lights were then observed, the dimensions of a fence .in front of them, and also, once more, the gasoline pumps. The District Attorney stated that the middle pump was not there at the time of the homicide. Counsel for the petitioner answered that he had no knowledge on the subject but would accept his adversary's statement; Thereupon the judge, who had guided the proceeding, stated the agree7 ment to the jurors assembled on the walk. " It is agreed," he said, " that at the time of the offense, that is, on April 9, 193Í, there were but two pumps in front of the gasoline station, the one on the extreme right that is painted green, and the one on the extreme left that is painted black. Those two were there. The one in the middle, with the blue striping on it, was not there."
'After the completion of the view, the group returned to the court house and the trial went on. In charging the jury the judge said, " Now what have you before you on which to form your judgment and to render your finding and your verdict? The view, the testimony given by the witnesses and the exhibits comprise the. evidence that is before you." The question in this,.court is whether a view in the absence of a defendant who has made demand that hé be present is a. denial of due process under the Fourteenth Amendment.
The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Twining v. New Jersey, 211 U.S. 78, 106, 111, 112; Rogers v. Peck, 199 U.S. 425, 434; Maxwell v. Dow, 176 U.S. 581, 604; Hurtado v. California, 110 U.S. 516; Frank v. Mangum, 237 U.S. 309, 326; Powell v. Alabama, 287 U.S. 45, 67. Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.- Consistently. with that amendment, trial by jury may be abolished. Walker v. Sauvinet, 92 U.S. 90; Maxwell v. Dow, supra; N. Y. Central R. Co. v. White, 243 U.S. 188, 208; Wagner Electric Co. v. Lyndon, 262 U.S. 226, 232. Indictments by a grand jury may give way to informations by-a public officer. Hurtado v. California, supra; Gaines v. Washington, 277 U.S. 81, 86. The privilege against, self-incrimination may be withdrawn and the accused put upon the gland as a witness for the state. Twining v. New Jersey, supra. What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it. Twining v. New Jersey, supra; Powell v. Alabama, supra, pp. 68, 71; Holmes v. Conway, 241 U.S. 624. Cf. Blackmer v. United States, 284 U.S. 421, 440.
We assume in aid Of the petitioner that in a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend 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 of 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 Fitz james 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 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, § 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 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 assúre 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 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 bé 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 W(gs 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 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. exainine ,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 pointing out the specific objects to be noted have been a traditional accompaniment of a view for about two centuries, if not longer. The Fourteenth Amendment has not displaced the procedure of the ages. Corn Exchange Bank v. Coler, 280 U.S. 218; Ownbey v. Morgan, 256 U.S. 94; Twining v. New Jersey, supra, at pp. 100, 101.
As early as 1747 there is the record of a precedent that exhibits the remedy in action. The practice then was to place the jury in the charge of " showers," who were sworn to lead them to the view. The defendant in a civil action complained that the plaintiff's shower had misbehaved himself in his comments to the jury. " The court discharged the rule, being of opinion the showers may show marks, boundaries, etc., to enlighten the viewers, and may say to them, ' These are the places which on the- trial we shall adapt our evidence to.' " Goodtitle v. Clark, Barnes, 457. At that time views were not taken in criminal cases without the consent of both the parties, the Crown as well as the defendant, except, it seems, upon indictments for maintaining a nuisance. Rex v. Redman, 1756, 1 Kenyon 384; s. c. Sayer's Rep. 303; Commonwealth v. Handren, 261 Mass. 294, 297; 158 N.E. 894; but see Anonymous, 1815, 2 Chitty 422. Cf. 1 Burr. Rep. 252. In 1825, however, a statute applicable to England and Wales supplied the defect of power, if defect there formerly had been. 6 George IV, c. 50, s. 23. Thereafter, in any case, " either civil or criminal," a view might be ordered in the discretion of the court. The form of oath administered to the showers appears in the reports. Thus, in Regina v. Whalley, 1847, 2 Cox Crim. Rep. 231, the oath administered was this:' "You swear you will attend this jury and well and truly point out to them the place'in which the offense for which the prisoner T. W. stands charged is alleged to have been committed; you shall not speak to them touching the supposed offence whereof the said T. W. is so charged, only so far as relates to describ ing the place aforesaid." See also Queen v. Martin, L.R., 1 Crown Cases Reserved 378; Tidd's Practice, vol. 2, pp. 797, 798; Gude's Crown Practice, London, 1828, vol. 2, pp. 655, 656; cf. Wigmore, Evidence, vol. 3, § 1802, 1803, and cases cited. So'also in our own country, the power to order a view in criminal cases has been made certain by statutes enacted in nearly all the states (see the statutes collated in Wigmore on Evidence, vol. 2, § 1163), though there are instances in which the power has been treated'as inherent. State v. Perry, 121 N.C. 533; 27 S.E. 997; Commonwealth v. Knapp, 9 Pick. 496, 515. The statutes, when enacted, conform very generally to the practice in the English courts, provision being made for the presence of the judge, or, in his discretion, for the appointment of showers sworn in the ancient form. Cf. .the statutes and decisions in Wigmore, Evidence, vol. 3, § 1802, 1803, and vol. 2, § 1163; and see Brooklyn v. Patchen, 8 Wend. 47, 65; State v. Perry, supra, at p. 536.
When the scene is explained by showers who are not the counsel for the parties, a defendant gains nothing by being present at a view any more than he gains where there is only a bare inspection without an explanatory word. He has no privilege in such circumstances, and cértainly no constitutional privilege, to speak to the showers and give suggestions of advice. " We do not see what good the presence of the prisoner would, do, as he could neither ask nor answer questions, nor in any way interfere with the acts, observations or conclusions of the jury." People v. Bonney, 19 Cal. 426, 446. It fhey fail to point out anything material, he. may prove 'the fact upon the trial and ask for another view. He' had the same privilege here, for there was a stenographic transcript of all that was said and done. Never, at any stage of the proceeding, has there been a suggestion by the de-. fendant or his counsel that there was need of something more.
The situation is not changed to his prejudice because the showers in this instance were the counsel for the parties. The choice of counsel for that purpose'has its roots in ancient practice. Tidd's Practice, vol, 2, pp. 797, 798; Wigmore, Evidence, vol. 3, § 1803: cf. 1 Burr. 252. Far from being harmful, it supplies an additional assurance that nothing helpful to either side will be overlooked upon the view. True, indeed,'it is that when counsel are the showers, the defendant may be able, if he is present, to give suggestion or advice, or so at least we may assume. Constitutional immunities and privileges do not depend upon these accidents. The Fourteenth Amendment does not say that showers are at liberty in the absence of the defendant to point Out the things to be viewed if the showers are not counsel, but are not at liberty to do so if they happen to be counsel. The least a defendant must do, if he would annul the practice upon a view which the Commonwealth has approved by the judgment of its courts, is to show that .in the particular case in which the practice is exposed to challenge, there is a reasonable possibility that injustice has been done. Cf. Rutherford v. Commonwealth, 78 Ky. 639; Howard v. Kentucky, supra. No one can read what was said at this view in the light of the uncontroverted facts established at the trial, and have even a passing thought that the presence of Snyder would have been an aid to his defense.
There is an approach to the subject from the viewpoint of history that clarifies the prospect. We may assume that the knowledge derived from an inspection of the scene may be characterized as evidence. Even if this be so, a view is not a " trial " nor any part of a trial in the sense in which a trial was understood at common law. This is seen from two circumstances. In the first place the judge is not required to be present at a view, though he may go there if he will. In the second place, the practice for many years was to have a committee of the jurors, the usual number being six, attend at the view to represent the whole body. See thp rules laid down by Lord Mansfield in 1 Burr. Rep. 252: also the provisions of the Act of 6 George IV, c. 50, § 23, 24 [1825], by which the practice was made uniform in criminal and civil cases: and compare Wigmore, Evidence, vol. 2, § 1165, and the cases cited. We have no thought to suggest that a view by a part of a jury is permissible today. That question is not before us. There is significance, none the less, in the fact,that it was permissible in England, the home of the principle that a .defendant charged with felony has the privilege of confronting his accusers and of being present at his trial. Certain it is that in the land where these maxims had their genesis and from which they were carried to our shores, the proceeding known as a trial was thought of as something very different from the proceeding known as a view. To transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history.
A fertile source 'of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in fortn, though it has been wrought under the pressure pf particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at "all, to the reasons that brought the rule into existence. A defendant in- a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel (Powell v. Alabama, supra), and cross-examine his accusers. Dowdell v. United States, supra; Commonwealth v. Slavski, supra. Cf. Felts v. Murphy, 201 U.S. 123. Let the words " evidence " and " trial " be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical or formal and at which a scene and not a witness is to deliver up its message. In such circumstances the solution of the problem.is not to be found in dictionary definitions of evidence or trials. It is not to be found in judgments of the courts that at other times or in other circumstances the presence of a defendant is a postulate of justice. There can be no sound solution without an answer to the question whether in the particular conditions exhibited by the record the enforced absence of the defendant is so flagrantly unjust that the Constitution of the United States steps in to forbid it. What we are subjecting to revision is not the action' of a legislature excluding' a defendant from a view at all times or in all conditions. What is here for revision is the action of the judicial department of a state excluding the defendant in a particular set of circumstances, and the justice or injustice of that exclusion must be determined in the light of the whole record. Cf. Howard v. Kentucky, supra; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 234, 235. Discretion has not been abdicated. To the contrary, the record makes it clear' that discretion has been exercised. Much is made of a supposed analogy between a view and a photograph, but the analogy, whatever its superficial force, is partial and misleading. The photograph to' be admissible should be verified by the oath of the photographer, who must be subject to cross-examination as to the manner of its taking. It is common knowledge that a camera can be so placed, and lights and shadows so adjusted, as to give a distorted picture of reality. Nor is there need for us to hold that conditions can never arise in which justice will be outraged if there is a view in the defendant's absence. Enough for present purposes .that they have not arisen here. "A statute may be invalid as applied to one state of facts and yet valid as applied to another." Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 289; DuPont v. Commissioner, 289 U.S. 685, 688. If this is true of the action of the legislative department of the state laying down a general rule, it is even more plainly true of the action of judicial or administrative officers dealing only with the instance. Cf. Nectow v. Cambridge, 277 U.S. 183. We view the facts in their totality.
True, indeed, it is that constitutional privileges or immunities may be conferred so explicitly as to leave no room for an inquiry whether prejudice to a defendant has been wrought through their denial.- In saying this we put aside cases within the rule of de minimis. If the defendant in a federal court were to-be denied the opportunity to be confronted with the " witnesses against him," -'the denial of the privilege would not be overlooked as immaterial because the evidence thus procured was persuasive of the defendant's guilt. In the same way, privileges, even though not explicit; may be so obviously fundamental as to bring us to the same result. A defendant who has been denied an opportunity to be heard in his defense has lost something indispensable, however convincing the ex parte showing. But here, in the case at hand, the' privilege, if it exists, is not explicitly conferred, nor has the defendant been denied an opportunity to answer and defend. The Fourteenth Amendment has not said in so many words that he must be present every second or minute or even every hour of the trial. If words so inflexible áre to be taken as implied, it is only because they are put there by a court, and not because they are there already, in advance of the decision. Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results: "The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modem improvement and with provision against every possible hardship that may befall." Ownbey v. Morgan, supra, p. 110. What is fair in one set of circumstances may be an act of tyranny in others. This court has not yet held that even upon a trial in court the absence of a defendant for a few moments while formal documents are marked in evidence will vitiate a judgment. Cf. Commonwealth v. Kelly, 292 Pa. 418; 141 Atl. 246. But we do not need to dwell upon the measure of the privilege at such a time or in such conditions. Whatever it may be, not even an intimation will be found in our decisions that there is a denial of due process if the accused be excluded from a view, though present at every stage of the proceedings in the court. It is one thing to say that the prevailing practice is to permit the accused to accompany the' jury, if he expresses such a wish. It is another thing to say that the practice may not be changed without a denial of his privileges, under the Constitution of the United States. To hold this in the light of the historic concept of a view as something separate from ,a trial in court and in the light of the shadowy relation between the defendant's presence at such a time and his ability to defend, is to travel far away from the doctrine of Hurtado v. California and Twining v. New Jersey.
One episode at the view must, have a word of criticism. The statement by the judge that one of the three pumps was not there at the homicide goes beyond the bounds of explanation appropriate for showers. No objection on this score was made by the defendant, though he had or could have had the minutes of the proceeding. The blunder did not harm him, for there is no hint in all the evidence that the presence or absence of the pump had any bearing on the verdict. The situation is much the same as in cases where there has been misconduct by the jury. The verdict is not upset for such a cause, if there was no substantial harm. People v. Johnson, 110 N.Y. 134, 144; 17 N.E. 684; People v. Dunbar Contracting Co., 215 N.Y. 416, 426; 109 N.E. 554; United States v. Davis, 103 Fed. 457, 467. But there is another answer more convincing, if these are insufficient. After returning from the view, the District'Attorney offered in evidence a diagram of the station, and said to the jury, " It is agreed that this third pump was not there at the time of the offense." To this, defendant and his counsel gave assent by acquiescence. In effect the agreement was thus renewed and confirmed as if then made for the first time. The defendant was not hurt because it had been made once before.
Whether a defendant must be present at a view has been considered in the state courts with varying conclusions. Nearly, always the argument has been directed to the local constitutions, generally to a provision that the accused must be confronted with the witnesses against him, sometimes a specific mandate that he be present at the trial. Never; so far as our search of the books informs us, has the privilege been established in opposition to the local practice as an essential condition of due process under the federal constitution. Some courts have put their decision on the ground that a view is part. of the trial. State v. McGinnis, 12 Idaho 336; 85 Pac. 1089; Freeman v. Commonwealth, 226 Ky. 850; 10 S.W. (2d) 827; Noell v. Commonwealth, 135 Va. 600, 619; 115 S.E. 679; Benton v. State, 30 Ark. 328, 350. Others have held that it is not. People v. Thorn, 156 N.Y. 286; 50 N.E. 947; State v. Rogers, 145 Minn. 303; 177 N.W. 358; Washington v. State, 86 Fla. 533; 96 So. 605; State v. Mortensen, 26 Utah 312; 73 Pac. 562, 633; cf. State v. Congdon, 14 R.I. 458, 463; State v. Hilsinger, 167 Wash. 427, 437, 438; 9 P. (2d) 357. A trial, they remind us, is appointed to be held in a courthouse or a place designated by statute with a judge or magistrate presiding. People v. Thorn, at p. 297. A view may be had anywhere. Some courts, placing the emphasis on the privilege of confrontation, have thought that a view is equivalent to an examination of a witness, and that the privilege of attendance may not even be waived. Noell v. Commonwealth, supra; State v. McCausland, 82 W.Va. 525; 96 S.E. 938; Benton v. State, supra; Foster v. State, 70 Miss. 755; 12 So. 822; State v. Stratton, 103 Kan. 226; 173 Pac. 300. Other courts have held, and plainly with the better reason, that physical objects are not witnesses, even though they have the quality of evidence, and that the defendant is at liberty to waive the privilege to view them, if such a privilege exists. People v. Thorn, supra; Elias v. Territory, 9 Ariz. 1; 76 Pac. 605; Blythe v. State, 47 Ohio 234; 24 N.E. 268; State v. Hartley, 22 Nev. 342; 40 Pac. 372; State v. Buzzell, 59 N.H. 65. Cf. Patton v. United States, supra. Still others, though conceding the possibility of waiver, uphold the privilege to be present if due demand is made. People v. Bush, 68 Cal. 623; 10 Pac. 169; People v. Auerbach, 176 Mich. 23; 141 N.W. 869; Carroll v. State, 5 Neb. 31; State v. Hilsinger, supra; Sasse v. State, 68 Wis. 530; 32 N.W. 849; Chance v. State, 156 Ga. 428; 119 S.E. 303; People v. Palmer, 43 Hun 397. Massachusetts takes the position that waiver is'unnecessary and that the defendant may be excluded in the discretion of the judge. Commonwealth v. Belenski, supra; Commonwealth v. Snyder, supra. So also does Minnesota. State v. Rogers, supra. In none of the cases where the privilege was upheld did the defendant make the claim that there had been an infringement of his rights under the Fourteenth Amendment.
The decisions in the federal courts are, none of them, controlling. Howard v. Kentucky, supra, sustained a judgment of conviction against -the claim of a denial of due process where the court in the absence of the defendant had1 discharged a jUror for misconduct, and substituted another. There was evidence, however, • leading to an inference of waiver by the defendant and his counsel. Diaz v. United, States, 223 U.S. 442, had to do with the privilege of confrontation, and drew an inference of waiver where the defendant had wilfully absented himself after the trial-.had been begun. Cf. Sir James Fitzjames Stephen, Digest of the Law of Criminal Procedure, Art. 302; Smellie's Case, 14 Crim. App. Reports 128. Frank v. Mangum, supra, found a waiver of the privilege of presence at the rendition of the verdict. None of these cases was concerned with the procedure at a view. Valdez v. United States, supra, considered a provision of the Philippine Code which confers the privilege of confrontation, and held that consisténtly therewith-the scene óf the crime might be viewed by the judge with the consent of the defendant^ counsel, though without' the knowledge of the client. The'court added that " apart from any question of waiver " it would be pressing the privilege of confrontation too far to apply it in such circumstances, and moreover that- iu the circumstances of the case, the absence of the defendant was plainly immaterial, it •" being difficult to divine how the inspection . . . added to or took .from the case as presented." .
We find it of no m'oment that the judge in this case described the view as evidence. The Supreme Judicial Court of Massachusetts has said of a view that " its chief purpose is to enable the jury to understand better the testimony which has or may be introduced." Commonwealth v. Dascalakis, supra. Even so, its inevitable effect is that of evidence, no matter what label the judge may choose to give it. Commonwealth v. Handren, supra. Such is the holding of many well considered cases. Wig-more,-vol. 2, §1168, pp. .705 et seg., vol. 3, § 1802, 1803, collating the decisions. To say that the defendant, may be'excluded from the scene if the court tells the jury that the view has no other function than to give them understanding of the evidence, but that there is an impairment of the constitutional privileges of a defendant thus excluded if the court tells the jury that the view is part of the evidence, — to make the securities of the constitution depend upon such quiddities is to cheapen and degrade them.
The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true..
The constitution and statutes and judicial decisions of the Commonwealth of Massachusetts are the authentic forms through which the sense of justice of the People of that Commonwealth expresses itself in law. We are not. to supersede them on the ground that they deny the essentials of a trial because opinions may differ as to their policy or fairness. Not all the precepts of conduct precious to the hearts of many of us are immutable principles of justice, acknowledged semper ubique et ab omnibus (Otis v. Parker, 187 U.S. 606, 609), wherever the good life is á subject of concern. There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth. Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.
The judgment is
Affirmed.
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.
What was said in Hopt v. Utah, supra, and Schwab v. Berggren, supra, on the subject of the presence of a defendant.was dictum, and no more. See this opinion, ante, p. 106. We may say the same of Lewis v. United States, supra, with the added observation that.it deals with the rule at common law and not with constitutional restraints. ' '
There'are decisions in the state courts that a conviction will stand even- though ridings have been made by the trial court in the absence of the defendant if it appears that they could not by.any possibility have resulted to his hurt. Whittaker v. State, 173 Ark. 1172; 294 S.W. 397; Lowman v. State, 80 Fla. 18; 85 So. 166. The Supreme Court of Pennsylvania held in Commonwealth v. Kelly, supra, that the burden was on the defendant to show a probability of injury.
Cases relating to the procedure at a view are not to be confused with cáses where the defendant was absent during the examination of witnesses or the .gtiaige of the judge. Examples of such cases are Slocovitch v. State, 46 Ala. 227; People v. Beck, 305 Ill. 593; 137 N.E. 454; State v. Hutchinson, 163 La. 146; 111 So. 656; Duffy v. State, 151 Md. 456; 135 Atl. 189; State v. Jackson, 88 Mont. 420; 293 Pac. 309; State v. Dixon, 185 N.C. 727; 117 S.E. 170; State v. Schasker, 60 N.D. 462; 235 N.W. 345; State v. Chandler, 128 Ore. 204; 274 Pac. 303. In most, if not all, there was an express statutory or constitutional requirement of presence at the trial, a requirement so clear as to leave little room for construction. One court has gone so far as tó require the presence of the defendant upon a motion for a new trial (State v. Hoffman, 78 Mo. 256), in opposition to the judgments of this court in Schwab v. Berggren arid Lewis v. United States, supra.
As to the rule where the crime is of the grade of a misdemeanor only, see United States v. Santos, 27 Fed. Cas. 954; United States v. Shelton, 6 F. (2d) 897; Gray v. State, 158 Tenn. 370; 13 S.W. (2d) 793. Cf. Hopt v. Utah, supra, at p. 576.