with whom The Chief Justice and Mr. Justice Blackmun join, dissenting.
I
The Court has made of this a very curious case. What began as a constitutional challenge to a statute which gives trial courts discretion as to whether “parties” may deliver summations, has been transformed into an ex- . ploration of the right to counsel — although no one doubts that appellant was competently represented throughout the proceedings which resulted in his conviction. Today’s opinion, in deriving from the right to counsel further rights relating to the conduct of a trial, expands the earlier holdings in Ferguson v. Georgia, 365 U. S. 570 (1961), and Brooks v. Tennessee, 406 U. S. 605 (1972). In each of these three instances one must presume, in view of the Court’s analytical approach, that regardless of the intrinsic importance of the rights involved, they are enforced only because the accused has a prior right to the assistance of a third party in the preparation and presentation of his defense.
I think that in each instance a statement from Mr. Justice Frankfurter’s separate opinion in Ferguson is apropos: “This is not a right-to-counsel case.” 365 U. S., at 599. In the present case, the crucial fact is not that counsel wishes to present a summation of the evidence, but that the defendant — whether through counsel or otherwise — wishes to make such a summation. Of course *866I do not suggest that the rights enforced in these cases are without basis, at least in particular cases, in the Due Process Clause of the Fourteenth Amendment. Cf. id., at 598-601 (opinion of Frankfurter, J.); Brooks v. Tennessee, supra, at 618 (Rehnquist, J., dissenting). But I do suggest that the Court’s analytical framework, and its resulting prophylactic rule, are wrongly employed to decide this case.
I would have thought that in Faretta v. California, ante, p. 806, the Court had recanted its approach in Ferguson and Brooks. In Faretta the Court concluded that it is the Sixth Amendment, and not the Right-to-Counsel Clause of that Amendment, which “constitutionalizes the right in an adversary criminal trial to make a defense as we know it.” Ante, at 818. Yet in the present case we are informed that it is the Right-to-Counsel Clause which constitutionalizes the right to present a defense “in accord with the traditions of the adversary factfinding process.” Ante, at 857. Not being content merely to contradict Faretta by holding that entitlement to the traditions of our judicial system depends upon the right to retain counsel, the Court also states that, “of course, the same right to make a closing argument” is available to those who choose not to exercise their right to counsel. Ante, at 864 n. 18. To complete the confusion, the Court does not explain the latter ipse dixit, but does cite one case — Faretta.
II
The Due Process Clause of the Fourteenth Amendment has long been recognized as assuring “fundamental fairness” in state criminal proceedings. See, e. g., Lisenba v. California, 314 U. S. 219, 236 (1941); Moore v. Dempsey, 261 U. S. 86, 90-91 (1923). Throughout the history of the Clause we have generally considered the question of *867fairness on a case-by-case basis, reflecting the fact that the elements of fairness vary with the circumstances of particular proceedings. As the Court observed in Snyder v. Massachusetts, 291 U. S. 97, 116-117 (1934):
“Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. . . . What is fair in one set of circumstances may be an act of tyranny in others.”
See, e. g., Sheppard v. Maxwell, 384 U. S. 333 (1966); Spencer v. Texas, 385 U. S. 554 (1967); Chambers v. Mississippi, 410 U. S. 284 (1973); Cupp v. Naughten, 414 U. S. 141 (1973).
However in some instances the Court has engaged in a process of “specific incorporation,” whereby certain provisions of the Bill of Rights have been applied against the States. See the cases cited ante, at 857 n. 7. In making the decision whether or not a particular provision relating to the conduct of a trial should be incorporated, we have been guided by whether the right in question may be deemed essential to fundamental fairness — an analytical approach which is compelled if we are to remain true to the basic orientation of the Due Process Clause. See, e. g., In re Oliver, 333 U. S. 257, 270-271 (1948) (public trial); Duncan v. Louisiana, 391 U. S. 145, 155-158 (1968) (jury trial); Pointer v. Texas, 380 U. S. 400, 403-404 (1965) (confrontation); Washington v. Texas, 388 U. S. 14, 17-19 (1967) (compulsory process); Gideon v. Wainwright, 372 U. S. 335, 342 (1963) (appointed counsel). But once we have determined that a particular right should be incorporated against the States, we have abandoned case-by-case considerations of fairness. Incorporation, in effect, results in the establishment of a strict prophylactic rule, one which is to be generally observed in every case regardless of its particular circumstances. It is a judgment on the part of *868this Court that the probability of unfairness in the absence of a particular right is so great that denigration of the right will not be countenanced under any circumstances. These judgments by this Court reflect similar judgments made by the Constitution’s Framers with regard to the Federal Government.
Beyond certain of the specified rights in the Bill of Rights, however, I do not understand the basis for abandoning the case-by-case approach to fundamental fairness. There are a myriad of rules and practices governing the conduct of criminal proceedings which may or may not in particular circumstances be necessary to assure fundamental fairness. Obvious examples are the rules governing the introduction and testing of evidence, as well as, I think, the New York rule governing summations in nonjury trials. Such matters are not specifically dealt with in the text of the Constitution, nor are they subject to the judgment that uniform application of a particular rule is necessary because the likelihood of unfairness is too great when that rule is not observed. As to such matters it is appropriate, and frequently necessary, that trial judges be accorded considerable discretion, subject of course to both appellate review on an abuse-of-discretion standard and, ultimately, to the fundamental fairness inquiry under the Fourteenth Amendment.
The present case is a prime example of why a prophylactic rule with regard to summations' in non jury trials is thoroughly inappropriate. The case was tried before a judge who, unlike a jury, may take notes on testimony, and who is experienced in both judging the credibility of witnesses and testing the relevance of their testimony to the elements which must be proved to obtain a conviction. The case was conceptually and factually a simple one, involving no more than whether one was *869to believe the victim, despite the inconsistencies in his testimony, or the defendant.1 The judge had previously permitted appellant’s counsel to summarize the evidence, on the occasion of the motion to dismiss at the close of the State’s case. That appellant’s counsel had considerable faith in the judge’s familiarity with, and ability to organize, the evidence is shown by the transcript of that earlier summation:
“[MR. ADAMS:] Do you want to hear me extensively on that, Judge? Or I have a witness here, I can go on, or would you rather hear me on some lengthy argument subsequently, Judge?
“THE COURT: I will hear anything you have to say.
“MR. ADAMS: All right. Judge, I believe here that as a matter of law we have a doubt here. Firstly, on this first witness of the prosecution here, Judge. There were numerous inconsistencies, and I will not bore the Court reading that. Of course the Court has copious notes on it, and I am sure it is very fresh in the Court’s mind. But on top of that, Judge, we have a questionable complainant, with a questionable way of how it happened, no witness other than this complainant.
“An officer who checked out this particular matter testified here and said that the man was working at that time. A definite denial by the defendant. And I believe that as a matter of law, Judge, there is- a reasonable doubt here.” App. 66 (emphasis added).
Similarly, when the opportunity to summarize was *870denied, appellant’s counsel did not so much as suggest that he thought it necessary to refresh the judge’s memory as to certain matters.2 It should also be noted that in his earlier argument counsel had referred to most of the matters which the Court today suggests might have usefully been brought to the judge’s attention in a final summation. See ante, at 864. Finally, the fact that the judge conducted this trial in a fairminded fashion, and would not arbitrarily prevent a summation which could be expected to clarify his understanding of the case, is evidenced by his dismissal of one count over the vigorous protests of the prosecution.
Whatever theoretical effect the denial of argument may have had on the judgment of conviction, its practical effect on the outcome must have been close to nothing. The trial judge was not conducting a moot court; he was sitting as the finder of fact in a trial in which he had been present during the testimony of every single witness. No experienced advocate would insist on presenting argument to such a judge after he had indicated his belief that argument would not be of assistance. Trial counsel here did not insist, and the claim which *871is today sustained by this Court is urged by other counsel.
The truth of the matter is that appellant received a fair trial, and I do not read the Court’s opinion to claim otherwise. The opinion instead establishes a right to summation in criminal trials regardless of circumstances, by tagging that right onto one of the specifically incorporated rights. It thereby conveniently avoids the difficulties of being unable to characterize appellant’s trial as fundamentally unfair, but only at the expense of ignoring the logical difficulty of adorning the specifically incorporated rights with characteristics which are not themselves necessary for fundamental fairness.3
The nature of the right which the Court today creates is as curious as its genesis. Apparently it requires nothing more than pro forma observance, since the trial judge “must be and is given great latitude” in controlling the duration and limiting the scope of closing summations. He may determine what is a “reasonable” time for argument, and at what point the argument becomes repetitive or redundant, or strays “unduly” from the mark. “In all these respects he must have broad discretion.” Ante, at 862. That is, after 30 seconds, or some other minimal period of argument, the judge is free to exercise his discretion. It is not clear why this should be so. If it is *872true that “there is no certain way for a trial judge to identify accurately [those cases in which closing argument may be beneficial], until the judge has heard the closing summation of counsel,” ante, at 863, it is equally true that he cannot determine whether continued argument will be repetitive, redundant, or otherwise useless until he has heard the continued argument. But in any event, the constitutional issue does rather quickly become framed once again according to the standards which should have governed all along — whether or not the judge’s actions in the particular case deprived the defendant of a trial which was fundamentally fair.4
By propagating a right to summation — despite such a right’s lack of textual basis, and despite the inability reasonably to conclude that the right is so basic that we cannot chance trial court discretion in the matter — the Court has furthered the practice of reviewing state criminal trials in a piecemeal fashion. The incident upon which this reversal is based was but one stage in a carefully conducted trial, and cannot be claimed to have permeated the entire proceeding as would trial without a jury, or without counsel. The Court is thus disregarding the basic question of whether the proceeding by which a defendant is deprived of his liberty is fundamentally fair.
The Court’s decision derives no support either from logic or from the Amendment it professes to apply. Since it reverses a criminal conviction which was fairly obtained, I dissent.
The employer’s credibility was not at issue. Not only was he vague as to the times at which he had seen appellant at his garage, but that garage was located only 3% blocks from the scene of the crime. App. 76, 86.
The colloquy at the end of the trial was as follows:
“MR. ADAMS: Judge, at this time I respectfully move to— make two motions, Judge. Firstly, that the Court dismiss the two counts, first count and the second count of the indictment on the grounds the People have failed to make out a prima facie case; and on the further grounds the People have failed to prove the defendant guilty of each and every part and parcel of the crimes charged in count one and count two beyond a reasonable doubt as a matter of law, and as a matter of fact.
“THE COURT: Motion denied. I will take a short recess to deliberate, and I will give you a verdict.
“MR. ADAMS: Well, can I be heard somewhat on the facts?
“THE COURT: Under the new statute, summation is discretionary, and I choose not to hear summations.
“THE CLERK: Remand.” App. 92.
While the Court, ante, at 862, presents a variety of arguments supporting the wisdom and desirability of generally permitting closing arguments in nonjury trials, none of them impress me as rising to the level of fundamental fairness. They would be of substantial merit if presented to the New York Legislature, but are hardly relevant to the constitutional inquiry which it is our duty to perform. As for the Court's final flourish (“no aspect of such advocacy could be more important”), it is obvious hyperbole which can only be uttered in complete disregard of such matters as cross-examination, the selection of trial strategy and witnesses, and attempts to exclude unconstitutionally obtained evidence.
1 would also think it not unlikely under the Court’s holding that post-trial briefing would be an adequate substitute for oral summation, since it meets the concerns which the Court expresses as the basis for its newly found constitutional right. See ante, at 862.