379 U.S. 443 (1965)
Aaron Henry was convicted in Mississippi state court of disturbing the peace after an 18-year-old hitchhiker testified that Henry made indecent proposals and had offensive contact with her during a car ride.1 The trial judge instructed the jury that it could not convict on the complainant's uncorroborated testimony alone.2 To supply corroboration, the State introduced testimony from a police officer who described the interior of Henry's car, specifically that the right-hand ashtray contained numerous red Dentyne chewing-gum wrappers and that the cigarette lighter did not function.3
The officer obtained this information after Henry's arrest by returning to Henry's home, securing the wife's consent, and using keys she provided to open and inspect the car.4 The hitchhiker had also testified to the last four digits of Henry's license plate and that the first three digits were obscured, facts visible from outside the vehicle.5 The officer's testimony about the ashtray and lighter was the only evidence that could have been observed only from inside the car.6
At trial, defense counsel did not object when the officer testified about the car search.7 After the State rested, counsel moved for a directed verdict, asserting among other grounds that the officer's testimony resulted from an unlawful search and seizure.8 The motion was denied.9 The defense then called a mechanic who testified that he had repaired the cigarette lighter.10 Counsel renewed the directed-verdict motion at the close of all evidence; it was again denied.11
The Mississippi Supreme Court initially reversed the conviction, holding that the wife's consent did not waive Henry's rights and that the officer's testimony was the critical corroboration.12 After the State filed a Suggestion of Error noting that Henry had been represented by competent local counsel in addition to out-of-state lawyers, the court withdrew its first opinion and issued a second opinion affirming the conviction.13 The second opinion held that the failure to make a contemporaneous objection bound the client and that subsequent cross-examination and introduction of evidence about the car's interior cured any error.14
The United States Supreme Court granted certiorari.15 The record contains an affidavit from the State asserting that one of Henry's lawyers began to rise as if to object when the officer testified but was pulled back down by co-counsel.16 The State also offered in its Suggestion of Error to withdraw the procedural argument if any of Henry's three trial lawyers would swear they were unaware of the contemporaneous-objection requirement.17
Whether a state procedural rule requiring contemporaneous objection to the introduction of evidence bars Supreme Court review of a federal constitutional claim when the objection is first raised in a motion for directed verdict?18
A state procedural default bars Supreme Court review of a federal claim only when the state's insistence on compliance with the rule serves a legitimate state interest; otherwise the procedural ground is inadequate.19
No. The Mississippi contemporaneous-objection rule serves the legitimate interest of allowing the trial judge to exclude tainted evidence immediately and avoid reversal.20 Henry's motion for directed verdict at the close of the State's case, which expressly challenged the officer's testimony as the product of an unlawful search, substantially served that interest because the judge could then have stricken the testimony or issued a cautionary instruction.21 The established facts show the motion was made after the State rested but before the defense case, the judge denied it without addressing the search issue, and the defense later called a mechanic to rebut the lighter testimony.
The contemporaneous-objection rule does not necessarily constitute an adequate state ground barring review of the federal claim.22
Whether a defendant's failure to object at the time illegally obtained evidence is introduced constitutes a knowing and deliberate waiver of the federal claim?23
A defendant forfeits a federal claim by deliberately bypassing state procedures when, after consultation with competent counsel or otherwise, he understandingly and knowingly forewent the privilege of vindicating the claim for strategic, tactical, or other reasons.24
No. The record contains only suggestions of possible strategic bypass, such as the State's affidavit that one lawyer started to rise but was pulled down by co-counsel.25 The State's offer in its Suggestion of Error to drop the procedural argument if counsel would swear ignorance of the rule provides another indication.26 These indications are insufficient to establish a knowing and deliberate waiver without further evidence.27 The established facts show counsel moved for directed verdict on the search ground after the State rested and renewed the motion at the close of all evidence, but no contemporaneous objection was made.
The present record does not establish that Henry knowingly and deliberately waived his federal claim.28
Related opinions on this issue
Justice Black would decide the federal question immediately rather than remand for a hearing on waiver.29 He agreed with the Mississippi Supreme Court that the failure to object was one of the honest mistakes which any lawyer might make.30 The record is completely barren of evidence to support a finding of a conscious and intentional waiver of petitioner's due process right.31
Justice Black objected to remanding for a hearing that would allow the State to supplement the trial record to save its conviction in a summary hearing before a court without a jury.32 He viewed this as an unjust piecemeal prosecution technique previously used in other cases.33
Joined by Justices Clark And Stewart
Justice Harlan dissented on the ground that the contemporaneous-objection rule remains an adequate state ground of decision.34 He maintained that the motion for directed verdict could not realistically have prompted the trial judge to take corrective action on the search issue.35 The practical difficulties with the Court's suggested approach demonstrate a substantial state interest in adherence to the contemporaneous-objection rule.36
Justice Harlan warned that the remand portends a severe dilution if not complete abolition of the concept of adequacy pertaining to state procedural grounds.37 He believed the decision effectively invites extension of the Fay v. Noia doctrine to direct review and disrespects established state procedures.38
Whether the Mississippi Supreme Court's affirmance of the conviction on the basis of the procedural default precludes consideration of the federal search-and-seizure claim?39
A state court's affirmance on an independent and adequate procedural ground precludes Supreme Court review of the federal claim unless the procedural ground is inadequate or the defendant did not knowingly waive the claim.40
No. Because the motion for directed verdict may have substantially served the state's interest underlying the contemporaneous-objection rule, the procedural default may be inadequate to bar review.41 Even if the ground were adequate, the record does not establish a knowing waiver, so the Mississippi Supreme Court's affirmance does not preclude consideration of the federal claim.
The Mississippi Supreme Court's affirmance on procedural grounds does not preclude Supreme Court consideration of the federal search-and-seizure claim.42
Whether the case should be remanded for an evidentiary hearing to determine if counsel deliberately bypassed the state contemporaneous-objection rule as part of trial strategy?43
When the record suggests but does not conclusively establish a deliberate bypass of state procedures, the proper course is to vacate the judgment and remand for an evidentiary hearing on waiver. This must occur before deciding the adequacy of the state ground or the merits of the federal claim.44
Yes. The record suggests possible strategic reasons for delaying the objection, including the defense plan to discredit the officer and hitchhiker by later proving the lighter worked.45 Yet the facts are insufficient to decide waiver on the present record.46 Remanding allows the Mississippi courts to make the initial waiver determination.47 This may obviate federal habeas proceedings and promote harmonious federal-state relations while preserving the opportunity for full consideration of the federal claim if no waiver is found.48
The judgment is vacated and the case is remanded for a hearing on whether counsel deliberately bypassed the contemporaneous-objection rule.49