Frederick Gray, a state prisoner confined in San Quentin Prison, California, petitions this Court for a writ of habeas corpus on the ground that his conviction is in violation of the federal constitution. Petitioner was convicted by the Superior Court of Los Angeles County of violating Section 245 of the Penal Code of California (assault with a deadly weapon). As a result of his conviction, the Superior Court revoked his probation on a prior conviction of a similar offense. Since probation on the prior conviction was revoked because of the recent conviction, his confinement for both convictions is invalid if the recent conviction is invalid.

Petitioner plead not guilty, and when the case came on for trial he waived his right to a jury trial. The waiver was taken by the trial court after the prosecutor thoroughly questioned petitioner, so that the record was clear that petitioner understood that he had a right to a jury trial and that he was making an intelligent and understanding waiver of that right. Immediately after the waiver of the jury trial was taken, the prosecutor offered to stipulate that the matter be submitted on the transcript taken at the preliminary hearing. Petitioner’s counsel, Mr. Kilbride, a deputy public defender, accepted the stipulation, waived argument, and submitted the matter. The Court found petitioner guilty of a violation of Section 245 of the Penal Code. The record does not show any assent by petitioner to the submission on the transcript without cross examination or confrontation of the witness; however, the record also fails to show any objection by petitioner to this procedure.

Since the commitment to state prison, petitioner has filed several papers with this Court seeking relief by way of habeas corpus. He alleged several grounds for relief in his various petitions, but this Court has ruled that the only possible basis for relief is the following allegation with regard to the procedure at petitioner’s trial:

The basic claim presented by the above ■allegation is that petitioner did not personally waive his right to cross examination and confrontation of the prosecution witnesses.

At the outset it should be noted that counsel have not cited any case nor has the Court found a ease where a federal court has specifically ruled that the right to cross examination and confrontation is embodied in the due process clause of the Fourteenth Amendment. However, the Supreme Court has held that procedural due process requires that •a state bar association permit an applicant to cross examine and confront the witnesses against him in an administrative hearing to determine his fitness for the practice of law. Willner v. Committee on Character, 373 U.S. 96 , 83 S. Ct. 1175 , 10 L.Ed.2d 224 . If a state must accord the right to cross examination and confrontation in an administrative hearing, a fortiori it must accord such rights in a criminal trial. Moreover, the right to cross examination and confrontation is essential to a fair trial if the rules of procedure are to have as one of their objects the ascertainment of the truth. Wigmore on Evidence, Yol. 5, p. 28, § 1367 (3rd ed.) The Court therefore holds that the right of the accused to cross examine and confront prosecution witnesses in a state criminal trial is guaranteed by the due process clause of the Fourteenth Amendment.

The accused may, however, waive his right to cross examination and confrontation. Diaz v. United States, 223 U.S. 442 , 32 S.Ct. 250 , 56 L.Ed. 500 . Normally, waiver is made by counsel as to particular witnesses, since as every trial lawyer knows, it is just as important to know when not to cross examine as it is to know how to cross examine. In such matters the accused must accede to his lawyer’s judgment. As a practical matter, a reviewing court cannot find a denial of the constitutional right to cross examination merely on the basis of an error in trial tactics unless the error is so gross as to constitute a denial of adequate and effective assistance of counsel. Brubaker v. Dickson, 310 F.2d 30 (9th Cir.1962). But there is a vast difference between questions of trial tactics and the complete submission of the issue of guilt or innocence on the cold record of a transcript. Practically speaking, such submissions are often nothing more than a “slow plea of guilty”. The waiver of cross examination and confrontation by submission on a preliminary transcript must be made by the accused rather than his attorney. Anything to the contrary in Cruzado v. People of Puerto Rico, 1 Cir., 210 F.2d 789 , suggesting a different conclusion is not controlling here in light of Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed. 2d 837 (see infra).

The Supreme Court has held that a state court’s finding of waiver does not bar independent determination of the question of waiver by the federal courts in habeas corpus hearings because waiver affecting federal rights is a federal question. Fay v. Noia, 372 U.S. 391, at 439 , 83 S.Ct. 822, at 849 . In order to determine whether there has been an effective waiver of a federal constitutional right, the Court in Fay v. Noia, supra, set forth the following guidelines :

Therefore, the issue before the Court boils down to whether the record in this matter shows an “intentional relinquishment or abandonment of a known right or privilege” by the defendant personally rather than by his counsel.

At the hearing on this matter before this Court, petitioner testified that the public defender, Mr. Kilbride, did not mention anything to him about submitting the matter on the transcript. The pertinent portions of petitioner’s testimony are as follows:

Mr. Kilbride testified that during the course of a single year he handles approximately 140 felony trials and represents approximately 300 defendants. The major problem in Mr. Kilbride’s mind at the time of trial was to present a good case for probation rather than to seriously adjudicate the question of guilt or innocence. As Mr. Kilbride explains it:

In weighing the above testimony, the Court cannot disregard the fact that petitioner, although a high school graduate, is a man of limited educational background, as seen from the above quotation of his pleadings. Nor can the Court disregard the fact that Mr. Kilbride is relating a conversation that took place two years ago at the time that Mr. Kilbride was handling several hundred cases a year in .a very busy office. Mr. Kilbride’s major concern at the time was to try to convince the Court of the desirability of probation, rather than attempting to establish petitioner’s innocence. Mr. Kilbride does not recall how long the conversation took place, how many times he talked with petitioner, or what, if anything, petitioner said in response to the suggestion to submit the case on the transcript. Mr. Kilbride’s “best recollection” is that he explained that the procedure involved having the judge read the transcript. The fact that Mr. Kilbride used the phrase “best recollection” suggests that he does not remember the details of the conversation. Nowhere in the record does it appear that petitioner was made aware of the fact that he had the constitutional right to have the wit nesses cross examined, to confront them, and to have the trial judge observe their demeanor.

In light of the above factors, the Court could do no more than guess as to whether petitioner understood that he had a constitutional right to cross examination and confrontation; that the probable consequences of such a procedure would be a finding of guilt; and that with these facts in mind he agreed to such a procedure. A waiver of a federal constitutional right is not to be lightly presumed. Himmelfarb v. United States, 9 Cir., 175 F.2d 924 . The most likely interpretation of the above record is that Mr. Kilbride suggested a procedure and the petitioner simply left the matter up to his attorney without fully understanding that he had a right to cross examination and confrontation, and that the probable consequence of this procedure would be a finding of guilt. Upon reviewing the entire record and observing the demeanor of the witnesses, the Court seriously doubts that the decision to submit this case on the transcript was the “considered choice of the petitioner”, Fay v. Noia, supra. Certainly, the Court cannot find a waiver of a federal constitutional right where the most that the record will permit is speculation as to petitioner’s understanding of his rights and the probable consequences of such a waiver.

The problem presented by this case raises an important problem in the administration of criminal justice and the role of the federal courts in post-conviction review of state proceedings by way of habeas corpus. A federal court has the duty to insure that state courts do not deprive defendants of federal constitutional rights. Certainly no federal judge relishes the thought of upsetting a state conviction where the evidence of guilt is as strong as it is in the present case. But it must be borne in mind that a great number of criminal defendants are persons of limited educational, cultural and intellectual backgrounds. Only those who are “con-wise” have more than a vague understanding of criminal procedure. A federal court cannot lightly assume or speculate that the average defendant fully understands his constitutional procedural rights.

The better procedure, although not the constitutionally required procedure, for all courts, whether state or federal, would be for the trial judge to fully examine the accused on the record to insure that he is aware of his constitutional rights, that he is making an intelligent waiver thereof, and that he appreciates the possible consequences of such a waiver. Cf. Johnson v. Zerbst, 304 U.S. 458, at 465 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1937). Not only does such a procedure have the advantage of preventing a subsequent reversal of the conviction on post-convicton review, it has the more important advantage that the accused would be assured of having a clear understanding of the significance of any waiver he might make. As a result, both the interest of the state and the rights of the accused would be more fully protected. Without a clear waiver on the record, as was done in this case with regard to the waiver of a jury trial, the federal courts must continue to hold hearings and weigh conflicting and uncertain evidence, all of which entails the double risk of failing to adequately protect the rights of the accused or to unduly interfere with the administration of state criminal justice by overturning an otherwise valid conviction.

The Court is painfully aware of the fact that many state prisoners are serving sentences under convictions which were obtained by procedures similar to that adopted in this case. In light of the fact that the federal courts are already overburdened with habeas petitions from state prisons, the Court is not pleased with having to render a decision which may tend to “open the floodgates”, but such a consideration has no place in a judge’s decision as to whether a person is presently serving a prison sentence in violation of the constitution. The duty of the federal courts in these times of change in the law of criminal procedure has been aptly stated by Judge Hastie in the recent case of United States ex rel. Craig v. Myers, 3 Cir., 329 F.2d 856 , 859:

Before concluding, the Court wishes to note for the record that its findings are not in -any way intended to cast aspersions upon Mr. Kilbride’s integrity, truthfulness or professional abilities; nor does the Court wish to imply that he was not acting in the best interests of his client by concentrating on the sentencing problem rather than the question of guilt or innocence. In light of petitioner’s own tacit admissions of guilt, his lack of protestation of innocence, and the overwhelming evidence of guilt in the record before the Court, Mr. Kilbride had little choice but to concentrate on the sentencing problem. Finally, the Court expresses its thanks to Mr. Malcolm Rains-ford of the San Francisco bar for his excellent representation of petitioner as court appointed counsel without compensation.

The petitioner is remanded to the Superior Court of the State of California in and for the County of Los Angeles for further proceedings not inconsistent with this opinion, and the respondent, Warden of the California State Prison at San Quentin, California is directed to deliver petitioner into the custody of the Sheriff of the County of Los Angeles of the State of California for the purposes of this remand. The foregoing order and directive of this Court to the respondent is stayed for a period of ten (10) days.

. “THE COURT: All right. People versus Frederick Gray, 256751. The record may reflect that defendant is present with his counsel, counsel for the People also present. “MR. KILBRIDE: Your Honor, my client wishes to waive or give up his right of trial by jury and have his case decided by this Court without a jury, and it is our wish that the matter he decided on the evidence taken at the preliminary hearing. “THE COURT: All right. Will you take the waiver of jury trial. “MR. CROSSMAN: Yes, your Honor. Frederick Gray, is that your true name? “(Defendant nods in the affirmative.) “MR. CROSSMAN: You will have to answer up so the reporter can hear you. “THE DEFENDANT: Yes. “MR. CROSSMAN: You spell your last name G-r-a-y. “THE DEFENDANT: Yes. “MR. CROSSMAN: Mr. Gray, do you understand that you are entitled to have your ease tried by a jury composed of twelve jjoople or you can give up that right and have the Judge sitting without a jury determine your ease; do you understand that? “THE DEFENDANT: Yes. “MR. CROSSMAN: And your attorney, Mr. Kilbride, has represented to the Court that you wish to give up your right to a jury trial and have the Judge decide your case. Is that what you want to do? “THE DEFENDANT: Yes. “MR. CROSSMAN: You are doing that freely and voluntarily, Mr. Gray ? “THE DEFENDANT: Yes. “MR. CROSSMAN: All right. Do you at this time give up your right to a jury trial? “THE DEFENDANT: Yes. “MR. KILBRIDE: Counsel joins in the waiver. “MR. CROSSMAN: People join in the waiver. “THE COURT: The Court will accept the waiver of jury trial.” (Reporter’s Transcript pp. 1 and 2, proceeding in Superior Court May 10, 1962.)