concur in this evisceration of fundamental due process rights, but on the basis of a rationale essentially different from the rationale of the Court's opinion. In that circumstance their joining in the Court’s opinion is puzzling. For although the opinion of the Court, admittedly obscure, may be interpreted either as importing the concept of “compulsion” into areas to which it is inapposite or as diluting the standard for waiver of fundamental constitutional rights, the concurring opinion would prefer to reverse the Court of Appeals on the ground that respondent — or more properly, respondent's attorney — committed “an inexcusable procedural default” or “tactical choice” that precludes his present assertion of this substantive right. Ante, at 513, 514. Because the concurring opinion obfuscates various issues, and because the import of this statement and the true rationale of the concurring opinion are brought into better focus by today’s opinion for the Court in Francis v. Henderson, post, p. 536, which does properly present a question of procedural default, it *524is essential to delineate two separate concepts relating to methods by which criminal defendants may yield or lose constitutional rights.
One concept is that of “waiver” which, at least with respect to constitutional rights affecting the fairness and accuracy of the factfinding process, means that the accused has engaged in conduct which may be characterized as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S., at 464; see n. 6, supra. If an accused has knowingly waived rights to which he was otherwise entitled, he has not, on the merits of his claim, been unconstitutionally deprived of anything. A separate concept is that of “procedural default,” which involves the manner in which an accused may forfeit rights by not asserting them according to the strictures of a State's procedural rules. If the accused has committed a procer dural default, there may never be an adjudication of the underlying constitutional claim on the merits. That problem was addressed in Fay v. Noia, 372 U. S. 391 (1963), which held that “the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Id., at 438. However, Fay was emphatic that it was to be “very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus,” id., at 439, and unambiguously explained that the “deliberate by-pass” test for procedural defaults was the analogue of the “knowing and intelligent” waiver standard for loss of constitutional rights in the absence of a procedural rule concerning their assertion:
“The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U. S. 458, 464—'an inten*525tional relinquishment or abandonment of a known right or privilege’ — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits— though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default. ... At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. ... A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.” Ibid.
See also Francis v. Henderson, post, at 543-545, and n. 2 (Brennan, J., dissenting). When an accused has deliberately bypassed the State’s mechanisms for adjudicating constitutional rights, a federal court generally need not address the merits of the underlying constitutional claim; as a corollary, when the state courts address the constitutional claim on the merits, the State may not seek to prohibit habeas relief on the ground that the accused was precluded from raising the claim due to a procedural default. See, e. g., Lefkowitz v. Newsome, 420 U. S. 283, 292 n. 9 (1975).
With this background in mind, two glaring inadequa*526cies in the concurring opinion become manifest. First, the issue of procedural default under state law is not presented by this case. The Texas Court of Criminal Appeals did not render its decision on state procedural grounds but on its view of federal waiver doctrine as expounded in another Court of Appeals for the Fifth Circuit opinion. See Williams v. State, 477 S. W. 2d 24, 26-27 (1972). The issue of procedural default was never raised by the State or addressed by any court below, and it is simply indefensible to seize this ground as a purported justification under which to perpetuate respondent's unconstitutional confinement. See also n. 10, infra.
Second, and even more basic, the concurring opinion, without reference to the holding of Fay and without citing any precedent, would reverse the Court of Appeals under a standard which directly repudiates Fay and which implicitly undermines its precedential value with respect to the assertion in habeas proceedings of all constitutional rights. The concurring opinion, which converts the “deliberate by-pass” test of Fay into an “inexcusable” default test, would find an “inexcusable” procedural default in the mere failure to object to an unconstitutional practice, reasoning that if there had been a timely objection the unconstitutional action would have been remedied. Such logic could, as a hindsight matter, probably be invoked any time counsel inadvertently or inexplicably fails to object contemporaneously to the deprivation of his client's fundamental rights, and the Fay knowing-and-intelligent-bypass test would thus be rendered a hollow shell. Indeed, the concurring opinion would also appear to shift the Fay burden of proof, in a case in which an unconstitutional deprivation of an accused’s rights has been shown, by requiring the accused to show that the default was not “inexcusable” rather than requiring the State to show that the default was “deliberate.”
*527Moreover, Fay required that the decision not to assert most constitutional rights be the informed choice of the accused himself rather than of his counsel. The concurring opinion would alter this aspect of Fay when “trial-type rights” are involved. The concurring opinion provides no principled content, however, to that term.7 How is the right of a defendant to the presumption of innocence — as impinged when the State hales the accused, clad in prison garb, before a judge who is supposedly charged with ensuring the fairness of a trial— more a “trial-type” right than is the right to a jury trial, the requirement that the State prove every element of the crime by proof beyond a reasonable doubt, or the right to counsel itself? The concurring opinion would apparently undermine settled doctrines concerning waiver or loss of these rights without ever addressing the departure of its methodology from the unswerving path charted by the Court's precedents.8 And if actions of *528counsel are to bind an accused in such "trial-type” situations, it would seem that the Court has an obligation to elucidate the standards by which counsel’s actions are to be judged, particularly in a case such as this in which ineffective assistance of counsel is alleged. See nn. 13, 15, infra.
In any event, if the concurring opinion means that my Brothers Stewart and Powell are forsaking the teaching of precedents such as Fay, I respectfully suggest that they have the clear responsibility not to do so by indirection, and to explicate at least the contours and outer limits of the novel and dangerous doctrines which they are formulating. See generally Francis v. Henderson, post, p. 542 (Brennan, J., dissenting). It is simply unacceptable that my Brethren, who concede that respondent was convicted in derogation of his constitutionally secured presumption of innocence, should nevertheless sanction his unconstitutional confinement on the basis of "procedural default” principles which are neither articulated nor justified in a case calling for such analysis, see Francis v. Henderson, and which are then conjured up as the ground for decision in a case in which those unarticulated principles are not even legitimately implicated. This hardly passes as reasoned adjudication, and is a grave disservice both to this Court and to the litigants who must come before it.
Ill
Even under the Court’s standard of compelled appearance, the judgment of the Court of Appeals should be affirmed. The Court’s holding relies on the per curiam statement of the Court of Appeals for the Mfth Circuit *529on petition for rehearing in Hernandez v. Beto, 443 F. 2d 634, 637, cert. denied, 404 U. S. 897 (1971), that a defendant may not willingly proceed to trial in prison garb and later protest that fact. Ante, at 508-509.9 Yet applying the standard of Hernandez, see 364 F. Supp. 335, 340 (1973), the District Court in this case expressly found that respondent had not willingly gone to trial in identifiable prison garb, and that finding was affirmed by the Court of Appeals. Significantly, the District Court stated, id., at 343 (emphasis supplied):
“It is clear from the record in this case and consistent with the evidence adduced in Dennison, the companion case, that prior to Hernandez there did exist a common practice in Harris County courts to try incarcerated defendants in jail clothing unless they were able to secure some dispensation. . . .
“There is no doubt but that the [judge] had a prac*530tice of allowing defendants to stand trial in civilian clothing, if requested, a practice evidently followed by certain of the other judges as well. . . . However, the record does not reveal that [the judge’s] practice was publicly known or that it was known to defendants or their counsel. More reasonably, at times material to the [respondent’s] criminal trial it was the standard practice to have all defendants in custody dressed alike without any policy such as that employed by [the judge] being uniformly adopted by all or even a majority of the criminal district judges in Harris County. Instead, the evidence points to the strong likelihood that the trial climate at that time acted as a natural deterrent to the raising of objections to what was commonplace — a trial in jail clothes, even assuming that defendants or their counsel thought about the problem and considered its legal implications. In the absence of such consideration it can scarcely be concluded that either [respondent] or his trial counsel knowingly, willingly and voluntarily waived the right to be tried in civilian clothing.”
Since the Court does not hold that that finding of the two courts is clearly erroneous, the finding is conclusive on us for the purpose of deciding the merits10 and compels affirmance of the Court of Appeals.
*531Indeed, even if the Court is sub silentio re-evaluating the factual findings concurred in by the two courts, the re-evaluation is not supported by the record. The Court states that defense counsel had nothing to fear from an objection, ante, at 511, yet the District Court found that the prevalent trial climate deterred the making of such objections. Further, the Court omits mention of the significant finding of the District Court that the practice followed in respondent’s case was customary in the jurisdiction. The Court also omits mention of the fact that there was uncontradicted evidence that respondent’s counsel failed to object only because objection was perceived to be futile, and that counsel had no purpose to elicit jury sympathy or otherwise acquiesce in the practice for purposes of trial tactics.11 More crucial, the Court states that defense counsel was “conscious” of the problem of trial in jail garb, since he mentioned the point at voir dire, and that the judge was thus “informed” of counsel’s knowledge. Ante, at 510. *532This impliedly suggests that the trial judge is for that reason relieved of his obligation affirmatively to inquire whether respondent actually desired to be tried in such garb, for the trial judge might conclude that respondent was engaging in a deliberate trial tactic to elicit jury sympathy. The record is wholly devoid of any basis for that analysis.
The jury’s attention to respondent’s jail garb was first directed by the prosecution on voir dire.12 Indeed, it was done so matter-of-factly as to highlight the prevalence of the practice in the Harris County courts. If the trial judge was truly sensitive to the problem and willing, as suggested, to sustain any objection that was raised to the practice, it is curious that the comments provoked no reaction from him. The Court suggests that it mattered not at all because the case against respondent was so strong that respondent had “no real case” and the testimony of eyewitnesses was “clear and *533consistent.” Ante, at 510 n. 5. Even if true (and I do not share the Court’s view of the strength of the trial evidence), that would not relieve the trial judge of his duty to inquire whether respondent was satisfied to proceed to trial in prison garb,13 particularly since the judge had no knowledge at that time that respondent had “no real case.” Indeed, the judge’s uncommunicated good intentions and alleged sensitivity to prison garb are highly questionable in light of respondent’s evidence that of the six cases involving nonbailed defendants tried in the same judge’s courtroom during the two months surrounding respondent’s case, every accused appeared in prison garb.14 And the reasonableness of respondent’s percep*534tion that trial objection would be futile is accentuated by the fact that the deputy sheriff had already denied respondent’s explicit request to wear at trial the clothes in which he was arrested.
At least, in light of the District Court’s finding that there was no knowing and voluntary waiver and that trial objections were deterred by the then prevalent trial climate, I should think the Court would remand for further factual development concerning the practice in Harris County at the time of respondent’s trial.15 But *535the record before us plainly calls for an affirmance of the Court of Appeals.
The phrase “trial-type” rights might conceivably have some value with reference to potential constitutional challenges — for example, Confrontation Clause challenges to the introduction of hearsay evidence — which arise spontaneously during the course of the trial and concerning which there may be inadequate opportunity for counsel to consult with his client. The concurrence, however, invoices “trial-type” rights almost taJismanically, with no indication of what the term connotes.
All of these rights have been held by this Court to be violated unless the accused himself knowingly and intelligently waived them, and the burden of proof of demonstrating their waiver, which may not be presumed on a silent record, rests on the State. Surely the Court would not adulterate those standards in the context of procedural defaults. See Francis v. Henderson, post, at 553 n. 4 (Brennan, J., dissenting). Indeed, the knowing-and-deliberate-bypass test of Fay has been applied as the standard for measuring procedural defaults in such other situations affecting fundamental rights as the failure to take a timely appeal, the failure to challenge in a timely manner the introduction of unconstitutionally seized evidence, and the failure to object to a prosecutor’s closing comments on a *528defendant’s failure to testify at trial. See, e. g., Fay; Kaufman v. United States, 394 U. S. 217 (1969); Camp v. Arkansas, 404 U. S. 69 (1971).
In Hernandez, no formal objection was made to the trial judge. 443 F. 2d, at 636. Although the Fifth Circuit on petition for rehearing stated that a “defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error,” id., at 637, it is clear that the court was addressing the question from a traditional waiver perspective. The court continued, ibid.: “In this case Hernandez’ counsel did not object to the jail clothing because, from past experience, he thought that a motion for change of attire would have been a frivolous motion. We cannot accept this as a voluntary waiver by Hernandez.” In the present case, the factual situation as found by the District Court is virtually identical to that found in Hernandez. The Court would distinguish Hernandez, however, on the ground that there was nothing in the record of that ease to “suggest that the state trial judge had, as here, a longstanding practice, known to members of the bar, to permit any defendant to change into civilian clothes on request.” Ante, at 509 n.. 4. In addition to failing to take account of the suspect nature of the trial judge’s affidavit, see n. 15, infra, this statement ignores the District Court’s finding that there was no indication that this purported practice was publicly known or known to respondent or his counsel. See infra, at 530, 532-534, and n. 14.
The “two-court” rule is the “long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous. See, e. g., Blau v. Lehman, 368 U. S. 403, 408-409 (1962); Faulkner v. Gibbs, 338 U. S. 267, 268 (1949); United States v. Dickinson, 331 U. S. 745, 751 (1947); United States v. Commercial Credit Co., 286 U. S. 63, 67 (1932); United States v. Chemical Foundation, 272 U. S. 1, 14 (1926); Baker v. Schofield, 243 U. S. 114, 118 (1917); Towson v. Moore, 173 U. S. 17, 24 (1899); cf. Boulden v. Holman, 394 U. S. 478, *531480-481 (1969).” Neil v. Biggers, 409 U. S. 188, 202 (1972) (Brennan, J., concurring in part and dissenting in part). The Court implies that only the Court of Appeals made such findings and that in doing so it failed to take account of relevant evidence before the District Court. Ante, at 510-511. The District Court, presented with all of the data cited by the Court, nevertheless concluded that the trial climate was such that objections to trial in prison garb were deterred; the number of cases involving this issue, particularly the substantial number emanating from Harris County courts, merely reinforced that finding.
Moreover, there is no reason in this case why the Court should reassess the finding of two courts that respondent did not willingly proceed to trial in prison garb. Petitioner did not challenge that holding in his petition for a writ of certiorari, and sought resolution only of the basic question whether trial in prison garb is so inherently prejudicial that it destroys the presumption of innocence.
See, e. g., App. 47-49, 58-59, 62-63; Tr. 5 (concession by petitioner here during habeas evidentiary hearing that trial tactics were not involved in this case).
The prosecutor, addressing his remarles to a specific member of the jury panel, stated:
“This defendant is sitting in jail clothes. I am assuming he's been in jail to the time of this trial. You are not to take this into consideration. The fact a man is in jail clothes shouldn’t make you feel he is guilty any more than if he were in street clothes.
“The second thing, oftentimes evidence will come out that a person has been in jail for seven months or eight months awaiting trial. By the same token, this should not be taken into consideration on your verdict, because you are supposed to go straight down the line, guilty or not guilty, and not let how a person is dressed influence your decision.” Exhibits, pp. 30-31.
Subsequently the prosecutor, again addressing a single juror, stated, id.) at 33:
"You have heard the questions I asked. I have gone over reasonable doubt, gone over the business of how the defendant was dressed, the fact he may or may not have been in the jail all this time.”
If the jurors had ignored respondent’s garb until then, these statements surely directed their attention to it.
“In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Herron v. Southern Pacific Co., 283 U. S. 91, 95 (1931). “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.” Glasser v. United States, 315 U. S. 60, 71 (1942). “If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.” Geders v. United States, ante, at 87. If the law relating to trial in prison garb was so clear, see ante, at 511-512, n. 8; concurring opinion, ante, at 514 n. 1, the devastating impact of such garb on the presumption of innocence so pervasive, and the trial judge’s sensitivity so genuine, invocation of the “adversary system,” see ante, at 512; concurring opinion, ante, at 515 n. 4, cannot justify the trial judge’s failure to inquire into the matter, which certainly did not escape his attention. “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and . . . judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.” McMann v. Richardson, 397 U. S. 759, 771 (1970). See Francis v. Henderson, post, at 553 n. 4 (Brennan, J., dissenting).
See Williams’ Exhibits 2-6. The cases involving nonbailed defendants constituted 50% of the jury cases before the trial judge during that period. See Williams’ Exhibit 7. Respondent’s trial counsel was aware that other defendants were appearing before the same trial judge in prison garb. App. 58-59.
A remand for further factual development is particularly appropriate if the Court believes that it has delineated the due process contours of trial in prison garb differently than did the District Court, since the District Court might not have anlayzed all factors relevant to state “compulsion.” For example, respondent objected to introduction of the trial judge’s affidavit on the ground that it was not taken pursuant to the Federal Rules of Civil Procedure and thus afforded respondent’s counsel no opportunity to cross-examine the judge and inquire into such matters as the number of times objections had actually been made to the practice of trial in prison garb, especially before the Hernandez decision, which brought about the elimination of the practice in Harris County courts. The fact that the Court seems to have delineated the right differently than did the lower courts is highlighted by the fact that the petition asked “Whether a defendant’s trial in jail clothing destroys the ‘presumption of innocence’ so as to deny him a fair trial,” Pet. for Cert. 2, while the Court states the question presented to be “whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws,” ante, at 502 (emphasis supplied). Moreover, it is particularly incongruous, if the Court is actually premising its holding, as the concurring opinion suggests, on a procedural default ground never presented or explored below, that the Court is reversing on the merits of the prison-garb issue rather than remanding for an inquiry as to whether the alleged procedural default forecloses an inquiry into the merits of respondent's claims. See supra, at 523-526.
The Court of Appeals did not address respondent’s contention that respondent was denied effective assistance of counsel, in light *535of its holding with respect to respondent’s prison-garb contention. When the Court of Appeals now addresses the issue on remand, it should of course do so in light of the fact that the Court today declares that there were “ample grounds” for an objection to trial in prison garb, see ante, at 512 n. 8, concurring opinion, ante, at 514 n. 1, and the fact that trial counsel concededly had no tactical or other reason for desiring that respondent be tried in prison garb, see n. 11, supra.