365 U.S. 570 (1961)
Georgia adopted the common law of England in 1784, which included the rule disqualifying criminal defendants from testifying under oath in their own behalf.1 In 1866 the Georgia Legislature abolished incompetency for most witnesses but expressly retained the disqualification for persons charged with any indictable offense or offense punishable on summary conviction, now codified as Georgia Code § 38-416.2 Two years later the state enacted a statute allowing the prisoner in all criminal trials to make to the court and jury such statement in the case as he may deem proper in his defense. The statement is not under oath and has only such force as the jury may give it. The prisoner shall not be compelled to answer any questions on cross-examination. This provision is now codified as Georgia Code § 38-415.3
A jury in the Superior Court, Douglas County, Georgia, convicted the appellant of murder and sentenced him to death.4 After the State rested its case at trial, the appellant's counsel called him to the stand. The trial judge sustained the State's objection to any attempt by counsel to question him.5
The appellant argued that denying counsel the right to ask the defendant questions on the stand violated the Sixth and Fourteenth Amendments. He contended that the denial deprived the defendant of the benefit of counsel at the most important period of the trial.6 The trial judge ruled that under § 38-415 counsel had no right to question the defendant on direct examination and could only instruct the client as to his rights.7 The Supreme Court of Georgia affirmed the conviction. It held that counsel for the accused cannot as a matter of right ask the accused questions or make suggestions to him when he is making his statement to the court and jury.8
The appellant appealed to the United States Supreme Court under 28 U.S.C. § 1257(2). The Supreme Court noted probable jurisdiction.9 The appellant raises no question as to the constitutional validity of § 38-416.10
Whether the Georgia courts' application of § 38-415 denied the appellant the guiding hand of counsel at every step in the proceedings against him within the requirements of due process imposed upon the States by the Fourteenth Amendment?11
The Fourteenth Amendment requires that a defendant in a criminal prosecution have the guiding hand of counsel at every step in the proceedings against him.12 This protection extends to the right of counsel to question the defendant to elicit his statement when state law renders the defendant incompetent to testify under oath.13
Yes. The Georgia courts' application of § 38-415 in the context of § 38-416 denied the appellant this right.14 After the State rested its case in the Superior Court of Douglas County, the appellant's counsel called him to the stand. The trial judge sustained the objection and ruled that counsel had no right to question him on direct examination.15 The Supreme Court of Georgia affirmed, holding that counsel cannot as a matter of right ask the accused questions when making his statement.16
Because the appellant could not give sworn testimony under § 38-416, he was left to deliver an unsworn statement under § 38-415.17 Without the assistance of counsel to organize and present it coherently, the procedure failed to afford the guiding hand of counsel at this critical stage.18
The application by the Georgia courts of § 38-415 denied the appellant the guiding hand of counsel at every step in the proceedings against him. This violated the requirements of due process imposed upon the States by the Fourteenth Amendment.19
Related opinions on this issue
Joined by Justice Clark
Justice Frankfurter, joined by Justice Clark, filed a concurring opinion.20 He argued that the two Georgia statutes are inextricably intertwined.21 It would be impossible to consider the constitutional validity of § 38-415 without impliedly incorporating the Georgia law which renders the defendant incompetent to present testimony in his own behalf under oath.22
Frankfurter contended that it would be mere formalism to treat the statutes separately for purposes of review.23 He maintained that the Court should address the constitutionality of the incompetency provision itself rather than limiting its decision to the statement statute alone.24
Joined by Justice Frankfurter
Justice Clark, joined by Justice Frankfurter, filed a separate concurring opinion.25 He contended that the problem under § 38-415 is so historically and conceptually intertwined with the incompetency rule that the two must stand or fall together as a single unitary concept.26 Clark stated that § 38-416 does not meet the requirements of due process and must fall as an unsatisfactory remnant of an age gone by.27
He concluded that criminal defendants should have the right to choose between silence and testifying in their own behalf under oath until the legislature grants competency.28