with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting.
The question in this cáse is whether Massachusetts may convict a defendant of a crime and sentence him to prison for a period of five years without a jury trial. The Court answers the question in the affirmative for two reasons. First, the conviction is almost meaningless *633since the defendant may have it vacated by an immediate appeal; and second, the defendant may minimize the burden of the trial by, in effect, stipulating that the proof need not establish his guilt beyond a reasonable doubt. To put it mildly, I find these reasons unsatisfactory.
Almost a century ago the Court decided that a comparable procedure was unconstitutional. Referring to a federal criminal proceeding, a unanimous Court stated:
"But the argument, made in behalf of the government, implies that if Congress should provide the Police Court with a grand jury, and authorize that court to try, without a petit jury, all persons indicted — even for crimes punishable by confinement in the penitentiary — such legislation would not be an invasion of the constitutional right of trial by jury, provided the accused, after being tried and sentenced in the Police Court, is given an unobstructed right of appeal to, and trial by jury in, another court to which the case- may be taken. We cannot assent to that interpretation of the Constitution. Except in that class or grade of offences called petty offences, which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried *634otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution.” Callan v. Wilson, 127 U. S. 540, 556-557.
As is evident from the Court’s language, its holding did not rest on any difference between the way the guarantee of the right to a trial by jury is described in Art. Ill, § 2, cl. 3, and the way the right is described in the Sixth Amendment. The Court’s holding reflected the Court’s appraisal of the value of the right to a trial by jury.
Before refusing to follow a precedent so nearly in point, I should think the Court would at least ask why Massachusetts requires the defendant to stand trial in the first tier before permitting him to have a jury trial. This is a requirement the defendant cannot waive. It is also a requirement which — as far as the record, the briefs, the oral argument, or the opinion announced by the Court today, shed any light on the matter — is totally irrational.1 All of the legitimate benefits of the two-tier system could be obtained by giving the defendant the right to waive the first-tier trial completely.
The only reason I can perceive for not allowing such a waiver illustrates the vice of the system. A defendant *635who can afford the financial and psychological burden of one trial may not be able to withstand the strain of a second. Thus, as a practical matter, a finding of guilt in the first-tier proceeding will actually end some cases that would have been tried by a jury if the defendant had the right to waive the first-tier proceeding. And since the nonjury trial is less expensive and time consuming, the State receives the benefit of an expedited disposition in such a case. The Court quite properly does not rely on any such justification because, if valid, it would justify the complete elimination of jury trials.
There are several reasons why I cannot accept the Court’s naive assumption that the first-tier proceeding is virtually meaningless. If it is meaningless for the defendant, it must be equally meaningless for the Commonwealth. But if so, why does the Commonwealth insist on the requirement that the defendant must submit to the first trial? Only, I suggest, because it believes the number of jury trials that would be avoided by the required practice exceeds the number that would take place in an optional system. In short, the very purpose of the requirement is to discourage jury trials by placing a burden on the exercise of the constitutional right.
The burden, in my opinion, is significant. A second trial of the same case is never the same as the first. Lawyers and witnesses are stale; opportunities for impeachment that may have little or much actual significance are present in the second trial that were not present in the first; a witness may be available at one time but not the other; the tactics on cross-examination, or on the presentation of evidence, in the first trial will be influenced by judgment of what may happen at the second; the strategy in a nonjury trial may be different than in a proceeding before a jury. Clearly, if a defend*636ant has participated in a full first-tier-nonjury trial, his jury trial in the second tier is significantly different from the normal jury trial.
The Court responds by indicating that “Massachusetts permits an accused to circumvent trial in the first tier by admitting to sufficient findings of fact.” 2 But if we presume that the defendant is innocent until proved guilty, we must also assume that the innocent defendant would deny or contradict the evidence offered by the prosecutor. The choice between admitting the truth and also the prima facie sufficiency of evidence the defendant considers false or misleading, on the one hand, or insisting on a full nonjury trial on the other, is not an insignificant price to pay for the exercise of a constitutional right.
*637Nor does the right to a trial de novo by taking an immediate appeal make the judge’s guilty finding and sentence entirely meaningless. Apart from any legal consequence, the finding certainly tarnishes the defendant’s reputation.3 The finding, and the first judge’s sentencing determination may have a greater impact on the second trial judge than the mere return of an indictment. Moreover, if we presume that at least some laymen have some knowledge of the law, we must also recognize the likelihood that some jurors at the second-tier trial will be aware of the first conviction. Such awareness inevitably compromises the defendant’s presumption of innocence. Moreover, a judge’s instructions cannot adequately avoid this risk of prejudice without creating the additional risk of letting other jurors know about the first conviction.
Unquestionably, in a great majority of proceedings the two-tier system may expedite the disposition of cases and, indeed, may give a defendant two opportunities to establish his innocence. But that fact is of no significance to the individual who wants only one trial and who wants that trial to be conducted before a jury. The Constitution guarantees him that protection; that guarantee is not fulfilled by a State which eventually offers the defendant the kind of trial he is entitled to receive in the first instance. Cf. Ward v. Village of Monroeville, 409 U. S. 57, 61-62. The burden on the right to a jury trial imposed by Massachusetts is especially un*638acceptable because the Commonwealth has offered no legitimate justification for its requirement of a first-tier-nonjury trial.
Callan v. Wilson, 127 U. S. 540, was correctly decided; it should be followed. I respectfully dissent.
At oral argument the Assistant Attorney General of the Commonwealth was asked to explain the reason for the requirement:
“QUESTION: Well, why not, when the man is going to appeal, why just say, Well, since you’re going to appeal and you’re going to get a jury trial, you don’t have to go through this other one. What good is the first hearing to the State, where you know the man is going to appeal and ask for a jury trial?
“What benefit does the State have for the first tier?
“MR. IRWIN: Well, in the situation that you gave, Mr. Justice Marshall, I would say the State really has no benefit if what you’re suggesting is, the situation that I think you are, that where they know he’s going to appeal.” Tr. of Oral Arg. 34-35.
Ante, at 630. This conclusion is based largely on the following comments made by counsel at oral argument:
“QUESTION: In your Massachusetts system, is he able to stand aside at the first tier? As was the case in Kentucky, in Colten v. Kentucky ¶
“MR. HAGOPIAN: No, he can’t.
“QUESTION: What does he do?
“MR. HAGOPIAN: The most he can do is just sit with his counsel, the government will put on their witnesses; he can — there is an informal procedure, that’s not statutory, what’s known as submitting to informal admissions of facts. Which means that you’re not really going to contest the trial, you’ll allow hearsay to go on. The government still puts its parade of witnesses on. But it’s a means of speeding up the first tier trial. But he’s still convicted if found guilty. But there’s no way of bypassing that at all.” Tr. of Oral Arg. 13.
Without questioning the accuracy of those comments as they apply in many proceedings, it should be noted that this is not a procedure set forth in any written statute or rule and conceivably may or may not be followed by some of the many judges who preside at first-tier proceedings. In all events, for reasons stated in the text, I consider it an. insufficient justification for not allowing the defendant an unequivocal right to waive the first trial entirely.
To dramatize this point, we might make the not entirely unrealistic hypothetical assumption that a defendant might suddenly suffer a fatal heart attack when the trial judge announces his finding and sentence. More realistically, we need simply recognize the fact that many convicted defendants will be unwilling to undergo the ordeal of a second trial after being found guilty by a judge.