Arsenault v. Massachusetts, 393 U.S. 5 (1968). · Go Syfert
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Arsenault v. Massachusetts, 393 U.S. 5 (1968). Cases Citing This Book View Copy Cite
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The constitutional right to counsel at critical stages of criminal proceedings is retroactive because the denial of this right almost invariably denies a fair trial.

After being arrested for homicide and robbery, a defendant pleaded guilty to several counts at a probable-cause hearing without the assistance of counsel. At trial, the prosecution used the defendant's unassisted guilty plea to refresh the prosecutor's memory during cross-examination. The defendant challenged the admission of the plea, arguing that a prior decision regarding the right to counsel at preliminary hearings applied. The court determines whether the constitutional right to counsel at critical stages of criminal proceedings is retroactive. Because the denial of the right to counsel almost invariably denies a fair trial, the court holds that the relevant constitutional protections apply retroactively to the defendant's conviction.

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cited 3× by 3 distinct cases, last quoted 1999 · 3 courts · …denial of the right must almost invariably deny a fair trial. ✓
652 citation events (63 in the last 25 years) across 69 distinct courts.
Strongest positive: Phillip Smith, II v. Josh Stein (ca4, 2020-12-03)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
cited Cited as authority (rule) Phillip Smith, II v. Josh Stein
4th Cir. · 2020 · confidence medium
Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968); McConnell v. Rhay, 393 U.S. 2 , 3–4 (1968); Berry v. City of Cincinnati, 414 U.S. 29 , 29–30 (1973).
discussed Cited as authority (rule) STATE OF NEW JERSEY VS. G.E.P. STATE OF NEW JERSEY VS. R.P. STATE OF NEW JERSEY VS. C.P. STATE OF NEW JERSEY VS. C.K. (11-02-0138, MORRIS COUNTY, 07-11-1924, BERGEN COUNTY, 13-08-0761, GLOUCESTER COUNTY, AND 15-09-2680, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Full retroactivity has been afforded in situations that strike "at the heart of the truth-seeking function," such as: the requirement that the State may not escape its burden of proof beyond a reasonable doubt by using presumptions to shift burdens of proof to the defense, Hankerson v. North Carolina, 432 U.S. 233 (1977); the requirement that, in juvenile proceedings, the State prove beyond a reasonable doubt all elements of an offense that would constitute a crime if committed by an adult, Ivan V. v. City of New York, 407 U.S. 203 (1972); the right to counsel at preliminary hearings in which …
discussed Cited as authority (rule) Alford v. State
Ga. · 2010 · confidence medium
See, e.g., Kitchens v. Smith, 401 U. S. 847 (91 SC 1089, 28 LE2d 519) (1971) (felony convictions); Arsenault v. Massachusetts, 393 U. S. 5, 6 (89 SC 35, 21 LE2d 5) (1968) (the right to counsel in plea hearings is retroactive, “since the ‘denial of the right must almost invariably deny a fair trial’); see also McConnell, 393 U. S. at 3 (“The right to counsel ... relates to ‘the very integrity of the fact-finding process’ ”).
cited Cited as authority (rule) Simmons v. Kapture
6th Cir. · 2008 · confidence medium
The right to counsel at plea hearings, recognized in White v. Maryland, 373 U.S. 59 (1963), was held to be retroactively applicable in Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968).
examined Cited as authority (rule) Ronnie Maurice Howard v. United States (3×) also: Cited "see"
11th Cir. · 2004 · confidence medium
“The right to counsel at the trial ... on appeal, and at the other ‘critical’ stages of the criminal proceedings have all been made retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’ ” Arsenault, 393 U.S. at 6 , 89 S.Ct. at 36 (citations omitted).
discussed Cited as authority (rule) In Re Walker (2×)
Cal. · 1974 · confidence medium
On the morning of December 21, petitioner was questioned by Wynn for an hour during which he made the incriminating statements that were thereafter repeated and transcribed by Bechtel. [8] Arsenault v. Massachusetts, 393 U.S. 5, 6 [ 21 L.Ed.2d 5, 7 , 89 S.Ct. 35 ], cited by petitioner, is not contrary to the above conclusion.
cited Cited as authority (rule) Commonwealth v. Thomas
Pa. · 1970 · confidence medium
Ed. 2d 1199 .” Arsenault v. Massachusetts, 393 U.S. 5, 6 , 89 S. Ct. 35, 36 (1968), holding retroactive White v. Maryland, 373 U.S. 59 , 83 S. Ct. 1050 (1963).
cited Cited as authority (rule) Commonwealth ex rel. Johnson v. Rundle
Pa. · 1970 · confidence medium
Ed. 2d 1199 .” Arsenault v. Massachusetts, 393 U.S. 5, 6 , 89 S. Ct. 35, 36 (1968) (holding White v. Maryland, supra, retroactive).
discussed Cited as authority (rule) United States v. Kelly
E.D.N.Y · 1970 · confidence medium
See also McNerlin v. Denno, 378 U.S. 575 , 84 S.Ct. 1933 , 12 L.Ed.2d 1041 (1964); Linkletter, supra, 85 S.Ct. 1743 n.20; Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), [invalidating the conviction of one defendant based on a confession of a codefendant] was applied retroactively by the Supreme Court in Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 (1968); Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967), [right to counsel at sentencing] was applied retroactively by the Supreme Court in McConnell v. Rhay, 393 U.S. 2 , 89 S.…
discussed Cited as authority (rule) Roy M. v. People
N.Y. App. Div. · 1970 · confidence medium
In the most recent pronouncement on the retroactivity of the right to counsel, the Supreme Court stated that “ the right to counsel at * * * [critical stages of criminal proceedings] have all been made retroactive, since the 1 denial of the right must almost invariably deny a fair trial ’ ” (Arsenault v. Massachusetts, 393 U. S. 5, 6 [bracketed matter supplied], holding White v. Maryland, 373 U. S. 59 , retroactive).
discussed Cited as authority (rule) Holbert v. Gladden
Or. · 1969 · confidence medium
See Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199, 1204 (1967); McConnell v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 (1968); and Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5, 7 (1968).
discussed Cited as authority (rule) United States ex rel. Musil v. Pate
N.D. Ill. · 1969 · confidence medium
Later at their respective trials, each was questioned about his prior statements, in Musil’s case for purposes of “impeachment” and in Arsenault’s case for “refreshing his memory.” 393 U.S. at 5, 89 S.Ct. 35 , 21 L.Ed.2d 5 .
examined Cited "see" United States v. Hopkins (3×)
10th Cir. · 2019 · signal: see · confidence high
See Arsenault v. Massachusetts , 393 U.S. 5 , 6, 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968) ; Stovall v. Denno , 388 U.S. 293 , 297, 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). 17 On direct appeal, this court also did not anticipate Luis 's conclusion that Caplin & Drysdale and Monsanto would not apply to the Hopkinses' escrowed funds.
cited Cited "see" Government of the Virgin Islands v. Pamphile
D.V.I. · 1985 · signal: see · confidence high
See Arsenault v. Massachusetts, 393 U.S. 5 (1968); White v. Maryland, 373 U.S. 59 (1963).
examined Cited "see" State v. Dicks (6×)
Tenn. · 1981 · signal: see · confidence high
See Arsenault v. Commonwealth, 353 Mass. 575 [ 233 N.W.2d 730 ], rev’d 393 U.S. 5 [ 89 S.Ct. 35 , 21 L.Ed.2d 5 ] (1968).
examined Cited "see" United States v. Schreck (3×)
cma · 1981 · signal: see · confidence high
See United States v. Palenius, supra. See also Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968); Anders v. Califor nia, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 1377 (1967).
discussed Cited "see" District Attorney for the Suffolk District v. Watson (2×)
Mass. · 1980 · signal: see · confidence high
See Arsenault v. Commonwealth, 353 Mass. 575 , rev'd 393 U.S. 5 (1968).
examined Cited "see" Bartlett v. United States (3×)
M.D. Fla. · 1979 · signal: see · confidence high
See Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968); Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932).
cited Cited "see" Commonwealth v. Bolduc
Mass. · 1978 · signal: see · confidence high
See Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968).
discussed Cited "see" Commonwealth v. Broaddus (2×)
Pa. · 1974 · signal: see · confidence high
See Commonwealth v. Chambers, 432 Pa. 253 , 247 A.2d 464 (1968). [4] White was held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5 , 89 S. Ct. 35 (1968), thus White must be considered in determining if the 1958 "bring-up" order proceeding here involved constituted a critical stage. [5] This Court accepted the rationale of United States ex rel.
discussed Cited "see" Mackey v. United States (2×)
7th Cir. · 1969 · signal: see · confidence high
See, for example, Arsenault v. Massachusetts, 3S3 U.S. 5, 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968) (denial of counsel at preliminary hearing); McConnell v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 (1968) (denial of counsel at hearing on revocation of probation).
examined Cited "see" Fred T. MacKey v. United States (3×)
7th Cir. · 1969 · signal: see · confidence high
See, for example, Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968) (denial of counsel at preliminary hearing); McConnell v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 (1968) (denial of counsel at hearing on revocation of probation).
examined Cited "see" Richardson v. State Ex Rel. Milton (3×)
Fla. Dist. Ct. App. · 1969 · signal: see · confidence high
See Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968); McConnell v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 (1968).
examined Cited "see" Commonwealth Ex Rel. Firmstone v. Myers (4×)
Pa. · 1968 · signal: see · confidence high
See Arsenault v. Massachusetts, 393 U.S. 5 , 89 S. Ct. 35 (1968) (Per Curiam). [*] Italics, ours.
examined Cited "see, e.g." State v. Carpentieri (4×)
N.J. · 1980 · signal: see, e.g. · confidence low
See, e.g., Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35, 21 , L.Ed. 2d 5 (1968) (retroactive effect given to the right to counsel); Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed. 2d 1100 (1968) (retroactive effect given to the rule in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed. 2d 476 (1968), which held that admission of co-defendant's extrajudicial confession implicating defendant at a joint trial violated defendant's right of confrontation); Reck v. Pate, 367 U.S. 433 , 81 S.Ct. 1541 , 6 L.Ed. 2d 948 (1961) (current standards of voluntariness applied…
discussed Cited "see, e.g." Commonwealth v. Beam (2×)
Pa. Super. Ct. · 1974 · signal: see, e.g. · confidence low
See, e.g., Arsenault v. Massachusetts, 393 U.S. 5 (1968); McConnell v. Rhay, 393 U.S. 2 (1968); Berger v. California, 393 U.S. 314 (1969); Roberts v. Russell, 392 U.S. 293 (1968).
examined Cited "see, e.g." United States Ex Rel. Burton Graham, Relator-Appellant v. Vincent R. Mancusi, Warden, Attica State Prison, and the State of New York (3×)
2d Cir. · 1972 · signal: compare · confidence low
Compare Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968). 12 .
discussed Cited "see, e.g." Rutherford v. State (2×)
Alaska · 1971 · signal: see, e.g. · confidence low
See, e.g., Arsenault v. Mass., 393 U.S. 5 , 89 S.Ct. 35 , 21 B.Ed. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Md., 373 U.S. 59 , 83 S.Ct. 1050 , 10 L.Ed.2d 193 (1963)); McConnell v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967)); Berger v. Calif., 393 U.S. 314 , 89 S.Ct. 540 , 21 L.
discussed Cited "see, e.g." Williams v. United States (2×)
SCOTUS · 1971 · signal: see, e.g. · confidence low
See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U…
examined Cited "see, e.g." Jacob Vance, Jr. v. State of North Carolina (3×)
4th Cir. · 1970 · signal: compare · confidence low
Compare Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967) with Arsenault v. Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (1968) and Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970).
examined Cited "see, e.g." James v. Rini v. Nicholas Deb. Katzenbach, Attorney General of the United States (3×)
7th Cir. · 1968 · signal: see also · confidence low
See also' Arsenault v. Commonwealth of Massachusetts, 393 U.S. 5 , 89 S.Ct. 35 , 21 L.Ed.2d 5 (Per Curiam, October 14, 1968).
Retrieving the full opinion text from the archive…
Arsenault
v.
Massachusetts
187 M.
Supreme Court of the United States.
Oct 14, 1968.
393 U.S. 5
1968 U.S. LEXIS 568
F. Lee Bailey for petitioner., Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, and Richard L. Levine, Deputy Assistant Attorney General, for respondent.
Per Curiam.
Cited by 234 opinions  |  Published
Per Curiam.

In February 1955 petitioner was arrested in connection with a recent homicide and attempted robbery. The next morning at a probable-cause hearing, but unassisted by counsel, he pleaded guilty to counts of murder and assault with intent to rob. Six days later at his arraignment, and again unaided by counsel, he pleaded not guilty to an indictment charging him with first-degree murder. After being assigned counsel for trial he took the stand in his own defense and again pleaded not guilty to the indictment, asserting instead that he lacked the premeditation necessary for first-degree murder. On cross-examination, the district attorney questioned him about his prior statements at the preliminary hearing and introduced his plea of guilty for the purpose of refreshing[*6] his memory. The jury then returned a verdict of guilty and imposed a sentence of death, since commuted to life imprisonment. On direct review by the Massachusetts Supreme Judicial Court, he assigned as error the admission at trial of his prior plea. The court rejected his claim by affirming the conviction.

In 1966 petitioner sought post-conviction relief from the Massachusetts Supreme Judicial Court on the ground that our supervening decision in White v. Maryland, 373 U. S. 59, rendered his conviction void. While recognizing a “close similarity” between his case and White, that court nonetheless reaffirmed the judgment below on the ground that White was not retroactive. Petitioner comes here by petition for a writ- of certiorari. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.

In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U. S. 52, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and we hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case.

The right to counsel at the trial (Gideon v. Wainwright, 372 U. S. 335); on appeal (Douglas v. California, 372 U. S. 353); and at the other “critical” stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the “denial of the right must almost invariably deny a fair trial.” * See Stovall v. Denno, 388 U. S. 293, 297.

Reversed.

*

For the distinction drawn between the right-to-counsel cases and those arising under the Fourth and Fifth Amendments, see also Tehan v. Shott, 382 U. S. 406, 416.