dissenting.
The opinion of the Court obscures the only sensible argument for the result the majority reaches. I am not persuaded by that argument, and find the majority opinion clearly defective. I believe that Rule 12(b)(2), properly interpreted in the light of the purposes it serves and the purposes served by making available collateral relief from criminal convictions, does not bar a prisoner from claiming that the grand jury that indicted him was unconstitutionally composed, if he shows that his failure to make that claim before trial was not “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). But first there is some underbrush to be cleared away.
Davis challenged the “key man” system of selection of grand jurors used in the Northern District of Mississippi in 1968, when he was indicted, because it was *246implemented to exclude qualified Negroes from the grand jury.1 Cf. Glasser v. United States, 315 U. S. 60, 85-87 (1942); Dow v. Carnegie-Illinois Steel Corp., 224 F. 2d 414 (CA3 1955). The Court notes that the use of the “key man” system was approved by this Court in Scales v. United States, 367 U. S. 203 (1961).2 This observation is both irrelevant and misleading. It is irrelevant because the Court’s holding today bars prisoners from raising meritorious claims not raised before trial.3 A prisoner like Davis could not contend after today’s decision, for example, that federal jury commissioners had simply refused to place the names of Negroes in the jury box used in 1968. That, of course, would have been unconstitutional. See Alexander v. Louisiana, *247405 U. S. 625, 628-629 (1972); Hill v. Texas, 316 U. S. 400 (1942).4 The Court’s observation is misleading because in Scales the Court said only that “no impropriety in the method of choosing grand jurors has been shown,” as to a grand jury convened in the Middle District of North Carolina in 1955, 367 U. S., at 206 n. 2, 259. I doubt that the Court meant to suggest that the use of a “key man” system was immune from constitutional attack. Indeed, Carter v. Jury Comm’n, 396 U. S. 320 (1970), and the cases there cited, show that systems essentially the same as a “key man” system may be administered in an unconstitutional manner.5
To the extent that our prior decisions speak to the issue in this case, the Court’s decision today seems in*248consistent with them. The Court purports to distinguish Kaufman v. United States, 394 U. S. 217 (1969), for example, on the ground that we were there “not dealing with the sort of express waiver provision contained in Rule 12 (b)(2).” I had not thought that words were quite so magical as that distinction makes them. It is true, of course, that Rule 12 (b)(2) provides that “[defenses and objections based on defects in the institution of the prosecution . . . may be raised only by motion before trial. . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.” Kaufman involved a claim that the prisoner was convicted on the basis of evidence obtained in an unconstitutional search. And Rule 41 (e) of the Federal Rules of Criminal Procedure provides that a motion to suppress the use of the evidence obtained in an unlawful search “shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.”
In Kaufman, we indicated that the failure to make a timely motion to suppress would permit the § 2255 court to deny relief where that failure was a deliberate bypass of the orderly procedures set out in the Rules of Criminal Procedure. 394 U. S., at 227 n. 8. Relief under § 2255 would be barred only if there had been an intentional relinquishment of a known right.6 Rule 41 (e) does not *249use the apparently crucial word “waiver.” But its structure is basically the same as that of Rule 12 (b) (2): the motions shall be made at a certain time, and failure to make them may be excused for cause. Nothing in the opinion of the Court suggests why the use of the word “waiver” makes such a difference, so that Kaufman permits consideration of claims not made in the time set by Rule 41 (e) in a § 2255 proceeding, while claims not made in the time set by Rule 12 (b) (2) may not be considered. There is a clear line of cases in the courts of appeals holding that failure to make a timely motion to suppress evidence bars an attempt to raise the Fourth Amendment issue on appeal. See, e. g., United States v. Ellis, 461 F. 2d 962 (CA2 1972); United States v. Volkell, 251 F. 2d 333 (CA2 1958), and cases cited therein. Certainly the use of the word “waiver” in Rule 12 (b) (2) does not make any clearer the notice to attorneys that the failure to make a timely claim about the composition of the grand jury will bar later attempts to raise that claim.
In light of the similarity between Kaufman and this case, the only way that I can understand the Court’s action is to assume that the Court believes there are strong reasons of policy justifying “an airtight system of forfeitures,” Fay v. Noia, 372 U. S. 391, 432 (1963), with respect to a claim that the grand jury was unconstitutionally composed, reasons that are not applicable to a claim that evidence unconstitutionally seized was used at trial. All that I can find in the opinion of the Court, however, is one sentence referring to such policy considerations: “Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an *250otherwise valid conviction at a time when reprosecution might well be difficult.” 7
That, I submit, is once again both irrelevant and misleading. It is misleading because it relies on a mechanical invocation of the difficulties of reprosecution in a setting where those difficulties are patently quite small. When evidence used at trial is ordered suppressed and a retrial required, the prosecution must reconstruct its case with a new focus; it may have to gather new evidence, or find new witnesses, or it may have to elicit new testimony from witnesses who testified before. In such a setting, there may well be difficulties in reprosecution. But when a new trial is required so that an indictment may be returned by a properly constituted grand jury, those difficulties simply do not arise. Nothing in the previous trial must be redone; indeed, the prosecution could present its entire case through the testimony given at the previous trial, if it showed that its witnesses were now unavailable and thus that the alleged difficulties in re-prosecution were real. Cf. Mattox v. United States, 156 U. S. 237 (1895). All that the prosecution might lose is the enhancement of credibility, if any, that the actual presence of the witnesses could lend their testimony.
The Court’s reference to “[sjtrong tactical considerations” is irrelevant because a prisoner would properly be held to have intentionally relinquished his right to raise the constitutional claim if he failed to raise it for tactical reasons. The only issue in this case is whether one who claims that he did not intentionally relinquish a known right is to be afforded the opportunity to prove that claim, as a step toward establishing that his rights were in fact infringed. Saying that Davis, who makes just such a claim, cannot be allowed to prove it because some *251other prisoners might have made a tactical choice not to raise the underlying issue, is just not responsive to his argument.8
The Solicitor General has urged on us policy considerations that at least bear on the decision whether the Government’s interest in enforcing an airtight system of forfeitures with respect to claims going to the composition of the grand jury is greater than its interest in enforcing a similar system with respect to claims going to the admission of illegally seized evidence. He argues that the crucial difference lies in the ease with which the prosecution can reconstruct its case on a proper basis. It is relatively easy, he says, to remedy the return of an indictment by an unconstitutionally composed grand jury. All that must be done is to convene a properly composed grand jury. But if the result of a finding of error is to wash out not just the indictment but also an entire trial, that error is very costly to legitimate interests in economy. Thus, failure to raise a claim relating to the composition of the grand jury prior to trial may entail large costs. In contrast, the Solicitor General suggests, failure to raise a claim before trial relating to the use of the fruits of an unconstitutional search is not quite so costly. Whenever the finding that the search was unlawful is made, the prosecution will have to reconstruct its case rather substantially. New witnesses may have to be found, and more emphasis must be placed upon the testimony of witnesses that is not tainted by the search. There is, on this view, a very important reason for- enforcing an airtight system of foreclosures *252where the claim is that an easily remedied error has been made — it is simply much more costly to require retrials in those cases.
That argument undoubtedly has some force. But it also goes too far, for it is inconsistent with the power given to reverse a conviction on the basis of plain error to which no objection had been made. Fed. Rule Crim. Proc. 52 (b). An improper argument by a prosecutor in his closing argument may be plain error, for example. Doty v. United States, 416 F. 2d 887, 890-891 (CA10 1968), and cases cited. Yet timely objection might have cut off the improper argument at a point when an admonition to the jury to disregard it would adequately protect the defendant’s rights. A system that permits reversal on the ground of plain error to which no objection had been made but prohibits reversal on the ground that timely objection to the composition of the grand jury had not been made by a defendant who did not intentionally relinquish his right to object, and that justifies the latter rule in terms of governmental interests in economy, seems to me perverse.
The Solicitor General’s argument is unpersuasive, ultimately, not alone for the reasons just given, but also because the legitimate governmental interests that support a strict system of forfeitures with respect to claims about the composition of the grand jury are, in my view, outweighed by other important public interests.9 First, and most important in this case, we must assure that no one is excluded from participation in important demo*253cratic institutions like the grand jury because of race. Second, convicted offenders will be more amenable to rehabilitation when they know that all their claims of unfairness have been considered, unless they deliberately refrained from raising them at an earlier point. Finally, providing the opportunity to raise such claims at any point in the process, so long as the offender did not willingly conceal them for strategic reasons, helps guarantee that the process of criminal justice is fair, and does so without benefiting someone who was delinquent in his attempts to preserve the fairness of the process.
“For over 90 years, it has been established that a criminal conviction of a Negro cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which Negroes were excluded by reason of their race. Strauder v. West Virginia, 100 U. S. 303 (1880); Neal v. Delaware, 103 U. S. 370 (1881).” Alexander v. Louisiana, 405 U. S. 625, 628 (1972). “People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.” Carter v. Jury Comm’n, 396 U. S., at 329. When it fulfills its proper function, the grand jury is a central institution of our democracy, restraining the discretion of prosecutors to institute criminal proceedings. Cf. United States v. Dionisio, 410 U. S. 1, 17 (1973) ; Wood v. Georgia, 370 U. S. 375, 390 (1962). Although there may be other ways to vindicate the right of every qualified citizen to participate in the grand jury without discrimination based on race, Carter v. Jury Comm’n, supra, this Court has consistently allowed criminal defendants to assert the rights of excluded groups without requiring that they show prejudice in the particular case. Ballard v. United States, 329 U. S. 187, 195 (1946). This is contrary to the general rule that no one has standing to assert the rights of others, Moose Lodge No. 107 v. *254Irvis, 407 U. S. 163, 166-167 (1972). It is justified by the importance of assuring every opportunity to raise claims of unconstitutional discrimination in the selection of grand juries. That principle alone, in my view, would warrant a very restrictive view of attempts to foreclose the opportunity to raise such claims.
But there is more. Offenders who have been indicted by unconstitutionally composed grand juries undeniably are aggrieved. There is a paramount public interest that the process of criminal justice be fair. As we said in Kaufman v. United States, 394 U. S., at 226, “The provision of federal collateral remedies rests . . . upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief.” The function of collateral relief “has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release.” Fay v. Noia, 372 U. S., at 401-402 (emphasis added). The traditional scope of collateral relief requires, again, that prisoners be afforded the broadest possible opportunity to present claims that their detention is the result of an unconstitutional procedure.10
I do not deny that there is an interest in enforcing compliance with reasonable procedural requirements by a system of forfeitures, so that claims will be raised at a time when they may easily be determined and necessary *255corrective action taken. But I do not believe that the system of forfeitures must be so comprehensive and rigid that a person may not raise a claim of discrimination in the selection of the grand jury even though he made no deliberate, informed choice to forgo the claim. Such a system too grievously affects other important interests.
With these principles in mind, the resolution of this case is not difficult. Rule 12 (b) (2) provides that “the court for cause shown may grant relief from the waiver.” I would hold that, when a prisoner shows that his failure to raise a claim of discrimination in the selection of the grand jury was not an intentional relinquishment of a known right, he has shown cause for relief from the waiver.11 The prior cases, which Rule 12 (b) (2) is said to have continued, did not examine in any detail the circumstances in which failure to object was held to constitute a waiver. See, e. g., United States v. Gale, 109 U. S. 65 (1883); In re Wilson, 140 U. S. 575 (1891). Cf. Kohl v. Lehlback, 160 U. S. 293 (1895). It is clear that in none of those cases did the prisoner show that his failure to object was not an intentional relinquishment of a known right.12
*256Shotwell Mfg. Co. v. United States, 371 U. S. 341 (1963), does not reflect a contrary interpretation of Rule 12(b)(2). There a corporation and two of its officers were indicted for attempted income tax evasion. Four years after trial, they attacked the composition of the grand and petit juries. They contended that there was newly discovered evidence that the Clerk of the District Court had failed to use a method of selecting grand jurors designed to secure a cross section of the community. Thus, they did not contend that they had not known of their right to be indicted by a representative grand jury. Clearly, to establish that that right had been infringed, they had to find evidence relating to the method of selection. The District Court found that such evidence was “notorious and available to petitioners in the exercise of due diligence before the trial.” Id., at 363. I have little difficulty in saying that, where one must present evidence in order to support a constitutional claim, the failure to exercise due diligence in searching for that evidence is a deliberate relinquishment of that claim.
The interpretation I would give to “good cause” is supported, finally, by this Court’s insistence that acquiescence in the loss of constitutional rights is not lightly to be assumed. See Johnson v. Zerbst, 304 U. S. 458, 464 (1938); Aetna Insurance Co. v. Kennedy, 301 U. S. 389, 393 (1937), and cases cited therein at n. 2. It is well established that a procedural rule that unreasonably *257precludes the vindication of constitutional rights itself raises serious constitutional questions. See, e. g., Reece v. Georgia, 350 U. S. 85 (1955); Davis v. Wechsler, 263 U. S. 22 (1923); Williams v. Georgia, 349 U. S. 375, 399 (1955) (Clark, J., dissenting). In Johnson v. Z&rbst, supra, this Court adopted a definition of waiver that can be applied to serve all valid interests in barring untimely assertions of constitutional rights while not precluding claims by defendants who have not abused the procedural system. No convincing reasons have been advanced to adopt a more restrictive definition of waiver in this case. If Davis did not intentionally relinquish a known right, I do not see any valid interest in keeping him from asserting that right in this § 2255 action.
Davis alleged in his motion for collateral relief that “he had not waived nor abandoned this right to contest the Grand Jury array.” App. 8. This is enough, in a motion submitted by a prisoner unaided by counsel, to constitute an allegation that he had not intentionally relinquished a known right. Cf. Haines v. Kerner, 404 U. S. 519 (1972). It is a factual allegation not refuted by the record in the case, 28 U. S. C. § 2255, and Davis should have an opportunity to prove this allegation. I would therefore reverse the judgment below.
Davis alleged, in part:
“(b) that the jury commissioner and Clerk of Court for the Northern District of Mississippi for the past 20 years implementing the ‘Keyman’ and ‘Selectors/ system cause nought to token in their selection of prospective qualifying negro jurymen because of their race and color in violation of Section 1863.
“(c) that the Northern District Court has by its affirmative action taken for the past 20 years has acquiesced to systematically, purposefully, unlawfully and unconstitutionally excluded the prospective qualified resident negroes from the Grand Jury box in violation of Section 1864.
“(d) that the petitioner being a member of the negro race has been prejudiced by the aforesaid violation caused by the violators in carrying out their duties, and has denied petitioner his constitutional right, guaranteed to him by the Sixth Amendment, the right to a fair cross-section of the community.” App. 7.
Under a “key man” system, jury commissioners ask persons who are thought to have wide contacts in the community to supply the names of prospective jurors.
Similarly, the Jury Selection and Service Act of 1968, 28 U. S. C. §§ 1861-1869, can be administered in an unconstitutional manner. Its adoption might have some bearing on our decision to review a holding that the “key man” system used in Mississippi in 1968 was constitutional, but the new Act is plainly irrelevant to the question presented by this case.
Those cases involved discrimination unconstitutional because of the Equal Protection Clause of the Fourteenth Amendment. But the Due Process and Grand Jury Clauses of the Fifth Amendment make unconstitutional the same discrimination in the federal system. Bolling v. Sharpe, 347 U. S. 497, 499 (1954).
The Court also notes that its conclusion is “buttressed by the Court’s observation in Parker v. North Carolina, 397 U. S. 790, 798 (1970) . . . that ‘[wjhether the question of racial exclusion in the selection of the grand jury is open in a federal habeas corpus action we need not decide.’ ” I am at a loss to understand how that observation buttresses the Court’s holding today. In Parker we were reviewing a state court’s decision to deny collateral relief under state law. The state court had refused to consider Parker’s claim that the grand jury was unconstitutionally composed because he had failed to raise the claim before trial. That was either an adequate state ground, in a procedural sense, or a construction of the state collateral-relief statute. No matter how considered, though, the Court clearly had no jurisdiction to consider the constitutional claim. It would have been odd indeed had we decided that Parker’s claim could or could not be raised in a federal habeas corpus action. The observation on which the majority relies can only mean that the question had not then been decided by this Court. I fail to understand how the fact that a question had not been resolved supports any particular resolution of a similar question. In the sense of “buttressed” used by the majority, Parker also buttresses my position.
Kaufman had raised the search issue at trial, but his counsel on appeal did not pursue it. 394 U. S., at 220 n. 3. Ordinarily, the failure to pursue a claim in the Court of Appeals bars further review. It does so in the nature of things with respect to consideration by the Court of Appeals. And as to review in this Court, see Lawn v. United States, 355 U. S. 339, 362 n. 16 (1958).
That a rule makes a waiver “express,” rather than a series of holdings doing the same, should affect analysis only if the fact that *249the waiver is “express” makes some difference in terms of policy. The Court offers no reasons why the “express” waiver bears on any relevant policies of §2255.
The sentence preceding that one in the opinion of the Court simply says that some incentive to raise the claim is necessary. It does not say why the system of foreclosures must be airtight.
The difficulties in. proving that a tactical choice was made not to raise the grand jury claim are, so far as I can tell, no different from proving that a tactical choice was made not to make a motion to suppress or to object to a prosecutor’s comments on a defendant’s failure to testify, both decisions to which this Court has applied the traditional test of waiver. Kaufman v. United States, 394 U. S. 217 (1969); Camp v. Arkansas, 404 U. S. 69 (1971).
Since nothing distinguishes this ease from others involving, for example, claims of illegal searches, Kaufman v. United States, supra, in terms of the governmental interest in finality in criminal litigation, I do not discuss that interest here. The Government must be able to assert interests peculiar to grand jury claims in order to show that those interests outweigh countervailing public interests served by leaving those claims open to later determination.
Indeed, this Court has suggested that any narrowing of those opportunities would itself be an unconstitutional suspension of the writ of habeas corpus, Art. I, §9, cl. 2. Fay v. Noia, 372 U. S. 391, 406 (1963); Sanders v. United States, 373 U. S. 1, 11-12 (1963).
I do not understand the Court’s contention that this is a “liberal requirement.” It is true of course that waiver will not be presumed from a silent record. Cf. Carnley v. Cochran, 369 U. S. 506, 516 (1962). But in a case like this, the record is not silent; it shows that the defendant did not object to the composition of the grand jury. (I do not quarrel with the Court’s reliance on the finding made below that, despite Davis’ allegations, no pretrial objection was made.) Thus, the burden is on him to show that he did not know of his right to object to the composition of the grand jury, or that, knowing of his rights, he nonetheless did not exercise them because, for example, he feared that to do so would generate hostility that would adversely affect his chances of acquittal.
In a related setting, this Court has interpreted language that might be thought to preclude later claims in a manner similar to that I would adopt here. Sanders v. United States, supra, involved the question whether failure to raise a claim in a pre*256vious petition for collateral relief precluded consideration of that claim in a later petition. There was a statutory provision that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” 28 U. S. C. § 2255. The term “similar relief” was interpreted to mean relief based upon the same claim that was presented before, or upon a claim that had intentionally been relinquished, 373 U. S., at 15-18.