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Fourteenth Amendment, Section 1 — Procedural Due Process: Criminal Cases

Fourteenth Amendment, Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Essays on this page (9)

Amdt14.S1.5.5 Criminal Cases

Amdt14.S1.5.5.1 Overview of Procedural Due Process in Criminal Cases

The Fourteenth Amendment’s guarantee of procedural due process affects procedures in state criminal cases in two ways. First, through the doctrine of incorporation, the Supreme Court has held that the Due Process Clause applies to the states nearly all the criminal procedural guarantees of the Bill of Rights, including those of the Fourth, Fifth, Sixth, and Eighth Amendments.1 Second, the Court has held that the Due Process Clause prohibits government practices and policies that violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights.2 The procedural due process protections of the Fourteenth Amendment are comparable in scope to the limitations that the Fifth Amendment imposes on federal criminal proceedings.3

The Court has explained, “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.”4 In assessing whether a challenged criminal procedure denies a person procedural due process, the Court generally considers whether the practice violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.”5 The Court has also held that, “as applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice,” and that to find a denial of due process the Court “must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.”6

Procedural due process analysis contains a historical component, as Supreme Court cases “have proceeded upon the valid assumption that state criminal processes are not imaginary and theoretical schemes but actual systems bearing virtually every characteristic of the common-law system that has been developing contemporaneously in England and in this country.”7 The Court thus asks “whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty.”8

Notes
  1. Those provisions guarantee rights of criminal suspects and prisoners including the right to counsel, the right to speedy and public trial, the right to be free from use of unlawfully seized evidence and unlawfully obtained confessions, and the right not to be subjected to cruel and unusual punishments. See Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights. ↩
  2. For instance, In re Winship, 397 U.S. 358 (1970), held that, despite the absence of a specific constitutional provision requiring proof beyond a reasonable doubt in criminal cases, such proof is required by due process. See also, e.g., United States v. Bryant, 136 S. Ct. 1954, 1966 (2016) (holding that principles of due process did not prevent a defendant’s prior uncounseled convictions in tribal court from being used as the basis for a sentence enhancement, as those convictions complied with the Indian Civil Rights Act, which itself contained requirements that ensure the reliability of tribal-court convictions); Hicks v. Oklahoma, 447 U.S. 343 (1980) (where sentencing enhancement scheme for habitual offenders found unconstitutional, defendant’s sentence cannot be sustained, even if sentence falls within range of unenhanced sentences); Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions in jury instruction may not be used to shift burden of proof of an element of crime to defendant); Kentucky v. Whorton, 441 U.S. 786 (1979) (fairness of failure to give jury instruction on presumption of innocence evaluated under totality of circumstances); Taylor v. Kentucky, 436 U.S. 478 (1978) (requiring, upon defense request, jury instruction on presumption of innocence); Patterson v. New York, 432 U.S. 197 (1977) (defendant may be required to bear burden of affirmative defense); Henderson v. Kibbe, 431 U.S. 145 (1977) (sufficiency of jury instructions); Estelle v. Williams, 425 U.S. 501 (1976) (a state cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes); Mullaney v. Wilbur, 421 U.S. 684 (1975) (defendant may not be required to carry the burden of disproving an element of a crime for which he is charged); Wardius v. Oregon, 412 U.S. 470 (1973) (defendant may not be held to rule requiring disclosure to prosecution of an alibi defense unless defendant is given reciprocal discovery rights against the state); Chambers v. Mississippi, 410 U.S. 284 (1973) (defendant may not be denied opportunity to explore confession of third party to crime for which defendant is charged). ↩
  3. While the following essays focus primarily on Supreme Court litigation challenging state criminal procedures, some of the cases cited discuss federal criminal procedures. See also Amdt5.6.1 Overview of Due Process Procedural Requirements. The doctrine of incorporation applies only to state government action in criminal cases, because the Bill of Rights applies directly to the federal government without any need for incorporation. ↩
  4. Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter v. New York, 319 U.S. 427, 429 (1943). ↩
  5. Twining v. New Jersey, 211 U.S. 78, 106 (1908). The Court has also phrased the question as whether a claimed right is “implicit in the concept of ordered liberty,” whether it “partakes of the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), or whether it “offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses,” Rochin v. California, 342 U.S. 165, 169 (1952). ↩
  6. Lisenba v. California, 314 U.S. 219, 236 (1941). ↩
  7. Duncan v. Louisiana, 391 U.S. 145, 149–50 n.14 (1968). ↩
  8. Id. ↩

Amdt14.S1.5.5.2 Impartial Judge and Jury

Bias or prejudice either inherent in the structure of a trial system or imposed by external events can infringe a person’s right to a fair trial. Thus, as in the civil context,1 procedural due process requires criminal cases to be overseen by an unbiased judge and decided by an impartial jury.

For instance, in Tumey v. Ohio, the Supreme Court held that it violated due process for a judge to receive compensation out of fines imposed on convicted defendants, and no compensation (beyond his salary) “if he does not convict those who are brought before him.”2 In other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify the judge from citing and sentencing the contemnors.3

The Court has also found due process violations when a biased or otherwise partial juror participated in a criminal trial, although there is no presumption that all jurors with a potential bias are in fact prejudiced.4 Public hostility toward a defendant that intimidates a jury is a classic due process violation.5 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.6 For instance, the Supreme Court has raised concerns about the impact on a jury of televising trials, though ultimately the Court has held that the Constitution does not altogether preclude televising state criminal trials.7

The way a criminal defendant appears in court may also raise due process concerns about jury impartiality. The Court has held that it violates due process when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.8 Likewise, Court has held that the use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, raises due process concerns. In Deck v. Missouri, the Court noted a rule dating back to British common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”9 The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.”10 The Court in Deck disapproved of the routine use of visible restraints when a defendant has already been found guilty and a jury is considering the application of the death penalty. The Court explained that such restraints can be used only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it.11

Notes
  1. See Amdt14.S1.5.4.5 Impartial Decision Maker. ↩
  2. 273 U.S. 510, 520 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Similarly, in Rippo v. Baker, the Supreme Court vacated the Nevada Supreme Court’s denial of a convicted petitioner’s application for post-conviction relief based on the trial judge’s failure to recuse himself. 137 S. Ct. 905 (2017). During Rippo’s trial, the trial judge was the target of a federal bribery probe by the same district attorney’s office that was prosecuting Rippo. Rippo moved for the judge’s disqualification under the Fourteenth Amendment’s Due Process Clause, arguing the “judge could not impartially adjudicate a case in which one of the parties was criminally investigating him.” Id. at 906. After the judge was indicted on federal charges, a different judge subsequently assigned to the case denied Rippo’s motion for a new trial. In vacating the Nevada Supreme Court’s decision, the Supreme Court noted that “[u]nder our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘ha[s] no actual bias.’ Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” Id. at 907 (quoting Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 825 (1986); Withrow v. Larkin, 421 U.S. 35 (1975)). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse). ↩
  3. Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) (“it is generally wise where the marks of unseemly conduct have left personal stings [for a judge] to ask a fellow judge to take his place”); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where “marked personal feelings were present on both sides,” a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (“We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority.”). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955). ↩
  4. Ordinarily, the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury). But, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant’s right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal record, if the jury has been given a sentencing function to increase the sentence that would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra. ↩
  5. Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923). ↩
  6. Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975). ↩
  7. Initially, the Court struck down televising of certain trials on the grounds that the harmful potential effect on the jurors was substantial, the testimony presented at trial may be distorted by the multifaceted influence of television upon the conduct of witnesses, the judge’s ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381 U.S. 532 (1965). Subsequently, however, in part because of improvements in technology that caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not entirely preclude the televising of state criminal trials. Chandler v. Florida, 449 U.S. 560 (1981). ↩
  8. Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation); Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of private actors’ courtroom conduct—in this case, members of victim’s family wearing buttons with the victim’s photograph—has never been addressed by the Supreme Court and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief). ↩
  9. 544 U.S. 622, 626 (2005). In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in dictum, that “no person should be tried while shackled and gagged except as a last resort.” ↩
  10. Id. at 630, 631 (internal quotation marks omitted). ↩
  11. Id. at 633. ↩

Amdt14.S1.5.5.3 Identification in Pre-Trial Process

In criminal trials, the jury usually decides the reliability and weight to be accorded an eyewitness identification, guided by instructions from the trial judge and subject to judicial authority under the rules of evidence to exclude overly prejudicial or misleading evidence. At times, however, a defendant alleges that an out-of-court identification in the presence of police is so flawed that it is inadmissible as a matter of fundamental justice under the Due Process Clause.1 These cases most commonly challenge police-arranged procedures such as lineups, showups, and photographic displays,2 but some challenge identifications with less police involvement.3

The Court generally disfavors judicial suppression of eyewitness identifications on due process grounds in lieu of having identification testimony tested in the normal course of the adversarial process.4 Two elements are required for due process-based suppression. First, law enforcement officers must have participated in an identification process that was both suggestive and unnecessary.5 Second, the identification procedures must have created a substantial prospect for misidentification. Determination of these elements is made by examining the “totality of the circumstances” of a case.6 The Court has not recognized any per se rule for excluding an eyewitness identification on due process grounds.7 Defendants have had difficulty meeting the Court’s standards: Only one challenge has been successful.8

Notes
  1. A hearing by the trial judge on whether an eyewitness identification should be barred from admission is not constitutionally required to be conducted out of the presence of the jury. Watkins v. Sowders, 449 U.S. 341 (1981). ↩
  2. E.g., Manson v. Brathwaite, 432 U.S. 98, 114–17 (1977) (only one photograph provided to witness); Neil v. Biggers, 409 U.S. 188, 196–201 (1972) (showup in which police walked defendant past victim and ordered him to speak); Coleman v. Alabama, 399 U.S. 1 (1970) (lineup); Foster v. California, 394 U.S. 440 (1969) (two lineups, in one of which the suspect was sole participant above average height, and arranged one-on-one meeting between eyewitness and suspect); Simmons v. United States, 390 U.S. 377 (1968) (series of group photographs each of which contained suspect); Stovall v. Denno, 388 U.S. 293 (1967) (suspect brought to witness’s hospital room). ↩
  3. Perry v. New Hampshire, 565 U.S. 228 (2012) (prior to being approached by police for questioning, witness by chance happened to see suspect standing in parking lot near police officer; no manipulation by police alleged). ↩
  4. See Perry, 565 U.S. at 237–38, 245–47. ↩
  5. The Court stated; “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil, 409 U.S. at 198. An identification process can be found to be suggestive regardless of police intent. Perry, 565 U.S. at 232 & n.1 (circumstances of identification found to be suggestive but not contrived; no due process relief). The necessity of using a particular procedure depends on the circumstances. E.g., Stovall, 388 U.S. 293 (suspect brought handcuffed to sole witness’s hospital room where it was uncertain whether witness would survive her wounds). ↩
  6. Neil, 409 U.S. at 196–201; Manson, 432 U.S. at 114–17. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. See also Stovall, 388 U.S. 293. ↩
  7. The Court eschewed a per se exclusionary rule in due process cases at least as early as Stovall, 388 U.S. at 302. In Manson, the Court evaluated application of a per se rule versus the more flexible, ad hoc “totality of the circumstances” rule, and found the latter to be preferable in the interests of deterrence and the administration of justice. 432 U.S. at 111–14. The rule in due process cases differs from the per se exclusionary rule adopted in the Wade-Gilbert line of cases on denial of the right to counsel under the Sixth Amendment in post-indictment lineups. Cases refining the Wade-Gilbert holdings include Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel inapplicable to post-arrest police station identification made before formal initiation of criminal proceedings; due process protections remain available) and United States v. Ash, 413 U.S. 300 (1973) (right to counsel inapplicable at post-indictment display of photographs to prosecution witnesses out of defendant’s presence; record insufficient to assess possible due process claim). ↩
  8. Foster v. California, 394 U.S. 440 (1969) (“[T]he pretrial confrontations [between the witness and the defendant] clearly were so arranged as to make the resulting identifications virtually inevitable.”). In a limited class of cases, pretrial identifications have been found to be constitutionally objectionable on a basis other than due process. See Amdt6.6.3.4 Lineups and Other Identification Situations and Right to Counsel. ↩

Amdt14.S1.5.5.4 Plea Bargaining in Pre-Trial Process

A criminal defendant may elect to plead guilty instead of requiring that the prosecution prove him guilty. Often, a defendant who pleads guilty does so as part of a “plea bargain” with the prosecution, where the defendant is guaranteed a lighter sentence or is allowed to plead guilty to a lesser offense.1 The Supreme Court has held that the government may not structure its system to coerce a guilty plea.2 However, the Court has upheld guilty pleas that are entered voluntarily, knowingly, and understandingly, even if the defendant pled guilty to obtain an advantage.3

The guilty plea and the often concomitant plea bargain are important components of the criminal justice system,4 and it is permissible for a prosecutor negotiating a plea bargain to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty.5 A defendant who pleads guilty gives up the right to challenge most aspects of the proceeding against him. However, some constitutional challenges may survive a plea if they go to “‘the very power of the State’ to prosecute the defendant.”6 Moreover, a prosecutor denies due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence.7

In accepting a guilty plea, a court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly.8 The Court has also held that “the adjudicative element” inherent in accepting a guilty plea must include safeguards “to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”9

Notes
  1. There are a number of other reasons why a defendant may be willing to plead guilty. For instance, there may be overwhelming evidence against him. ↩
  2. United States v. Jackson, 390 U.S. 570 (1968). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386, 394 (1987). ↩
  3. See Tollett v. Henderson, 411 U.S. 258, 265–66 (1973); North Carolina v. Alford, 400 U.S. 25, 38 (1970); Parker v. North Carolina, 397 U.S. 790, 795 (1970); McMann v. Richardson, 397 U.S. 759, 771 (1970); Brady v. United States, 397 U.S. 742, 758 (1970). ↩
  4. Blackledge v. Allison, 431 U.S. 63, 71 (1977). ↩
  5. Bordenkircher v. Hayes, 434 U.S. 357 (1978); see also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction). ↩
  6. Class v. United States, 138 S. Ct. 798, 809 (2018) (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)) (holding guilty plea did not bar defendant from challenging the constitutionality of the statute of conviction on direct appeal). See also Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (holding guilty plea did not waive defendant’s claim on direct appeal that double jeopardy prohibited his prosecution); Blackledge v. Perry, 417 U.S. 21, 31 (1974). (holding guilty plea did not foreclose defendant in habeas challenge from arguing that due process prohibited his prosecution). The state can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975). ↩
  7. Blackledge v. Perry, 417 U.S. 21. The defendant in Blackledge was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court drew between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and post-trial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line drawing, but it appears to be one the Court is committed to. ↩
  8. Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. The Court stated: “A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.” Id. at 645 n.13. However, this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel’s representations to the defendant. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was done by someone else, guilty plea to aggravated manslaughter was still valid, as such charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such plea bargain was not honored). ↩
  9. Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984). ↩

Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt

Absent a guilty plea,1 the Due Process Clause requires proof beyond a reasonable doubt before a person may be convicted of a crime. The reasonable doubt standard is closely related to the rule that a defendant is presumed innocent unless proven guilty.2 These rules help to ensure a defendant a fair trial3 and require that a jury consider a case solely on the evidence.4 The Supreme Court has explained:

The reasonable doubt standard plays a vital role in the American scheme of criminal

procedure. It is a prime instrument for reducing the risk of convictions resting on

factual error. The standard provides concrete substance for the presumption of

innocence—that bedrock “axiomatic and elementary” principle whose “enforcement

lies at the foundation of the administration of our criminal law.”5

For many years, the Court presumed that “reasonable doubt” was the proper standard for criminal cases.6 However, because the standard was so widely accepted, it was not until 1970 that the Court expressly held that due process required the standard. That year, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments protect the accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”7

The Court had long held under the Due Process Clause that it must set aside convictions that are supported by no evidence at all.8 However, the holding in Winship left open the question of whether appellate courts reviewing criminal convictions should weigh the sufficiency of trial evidence. In the 1979 case Jackson v. Virginia, the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt.9 The appropriate inquiry is not whether the reviewing court itself believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.10

Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.11 Thus, the Court held in Mullaney v. Wilbur that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce his offense from homicide to manslaughter.12 The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision called into question practices in many states under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant task given the large numbers of affirmative defenses.13

In a subsequent case, however, the Court rejected the argument that Mullaney means that the prosecution must negate an insanity defense.14 Later, in Patterson v. New York, the Court upheld a state statute that required a defendant asserting extreme emotional disturbance as an affirmative defense to murder to prove the defense by a preponderance of the evidence.15 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (including death, intent to kill, and causation) beyond a reasonable doubt, while allowing the defendant to prove by preponderance of the evidence an affirmative defense that would reduce the degree of the offense.16

Another distinction that can substantially affect the prosecution’s burden is whether a fact to be proven in a criminal trial is an element of a crime or a factor in determining a convicted offender’s sentence. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence standard.” The Court has taken a formalistic approach to this issue, allowing states to designate which facts fall under which of these two categories. For instance, the Court has held that a state may designate as a sentencing factor the question whether a defendant “visibly possessed a gun” during a crime, allowing a judge to resolve the question based on the preponderance of evidence.17

Although the Court has generally deferred to the legislature’s characterizations in this area, it limited that principle in Apprendi v. New Jersey, holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.18 The Court subsequently overruled conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.19 These holdings are subject to at least one exception, however, as the Apprendi Court held that its limitation does not apply to sentencing enhancements based on recidivism.20 Legislatures might also evade these limitations by revising criminal provisions to increase maximum penalties, then providing for mitigating factors that could reduce sentences within the newly established sentencing ranges.

An issue related to the burden of proof involves statutory presumptions, where proof of a “presumed fact” that is a required element of a crime is established through proof of another fact, known as the “basic fact.”21 In Tot v. United States, the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test.22 In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received the firearm in interstate commerce. “Under our decisions,” it explained, “a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.”23

In Leary v. United States, the Court applied a more stringent due process test to require that, for a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”24 The Leary Court struck down a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States was of foreign origin, there was still a significant amount produced domestically, and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.25 The Court left open the question of whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.”26

In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”27 But, with respect to permissive presumptions,

the prosecution may rely on all of the evidence in the record to meet the reasonable

doubt standard. There is no more reason to require a permissive statutory

presumption to meet a reasonable-doubt standard before it may be permitted to play

any part in a trial than there is to require that degree of probative force for other

relevant evidence before it may be admitted. As long as it is clear that the presumption

is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test

described in Leary.28

Applying that analysis, the Court concluded that a statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle did not violate due process.29

Notes
  1. See Amdt14.S1.5.5.4 Plea Bargaining in Pre-Trial Process. ↩
  2. The presumption of innocence has been central to a number of Supreme Court cases. Under some circumstances, it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence, although the defendant bears a heavy burden to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (reiterating that courts must look to the totality of the circumstances in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting the jury to consider the defendant’s prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s death that “law presumes that a person intends the ordinary consequences of his voluntary acts” denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event state would not have carried its burden of proving guilt). See also Cupp v. Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1977). For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state’s burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)); Middleton v. McNeil, 541 U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other instructions made correct standard clear). Similarly, improper arguments by a prosecutor do not necessarily constitute “plain error,” and a reviewing court may consider in the context of the entire record of the trial the trial court’s failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985). ↩
  3. E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to a “substantial doubt,” and as requiring a “moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define “reasonable doubt” as requiring a “moral certainty” or as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.) ↩
  4. Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S. 36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895), in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt. ↩
  5. In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin, 156 U.S. at 453). Justice John Marshall Harlan’s concurrence in Winship proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard. Id. at 368. ↩
  6. Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt, 218 U.S. at 253; Speiser v. Randall, 357 U.S. 513, 525–26 (1958). ↩
  7. Winship, 397 U.S. at 364. See Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the interrelationship of the reasonable doubt burden and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979). ↩
  8. Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957). ↩
  9. 443 U.S. 307 (1979). ↩
  10. 443 U.S. at 316, 18–19. See also Musacchio v. United States, 136 S. Ct. 709 (2016) (“When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the fact that the government did not introduce evidence of the additional element—which was not required to prove the offense, but was included in the erroneous jury instruction—does not implicate the principles that sufficiency review protects.”); Griffin v. United States, 502 U.S. 46 (1991) (general guilty verdict on a multiple-object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conviction, but is adequate to support conviction as to another object). ↩
  11. Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court remanded the cases to determine if the new interpretation was in effect at the time of the previous convictions, in which case the convictions would violate due process. ↩
  12. 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). ↩
  13. The general notion of “burden of proof” can be divided into the “burden of production” (providing probative evidence on a particular issue) and the “burden of persuasion” (persuading the factfinder with respect to an issue by a standard such as proof beyond a reasonable doubt). Mullaney, 421 U.S. at 695 n.20. ↩
  14. Rivera v. Delaware, 429 U.S. 877 (1976) (dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a state from placing on the defendant the burden of proving insanity by a preponderance of the evidence). See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice William Rehnquist and Chief Justice Warren Burger, concurring in Mullaney, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that the defense may be required to prove insanity beyond a reasonable doubt. 421 U.S. at 704, 705. ↩
  15. 432 U.S. 197 (1977). Proving the defense would reduce a murder offense to manslaughter. ↩
  16. See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal firearms case to prove her duress defense by a preponderance of evidence did not violate due process). Justice Lewis Powell criticized the distinction in Patterson as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses. Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts that historically have made a substantial difference in the punishment and stigma flowing from a criminal act the state always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. 432 U.S. at 216. The Court followed Patterson in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design”). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240. ↩
  17. McMillan v. Pennsylvania, 477 U.S. 79 (1986). These types of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may be evaluated by a judge. See Amdt6.6.3.1 Overview of When the Right to Counsel Applies. ↩
  18. 530 U.S. 466, 490 (2000) (interpreting New Jersey’s hate crime law). Prior to its decision in Apprendi, the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, the Court subsequently reaffirmed McMillan in Harris v. United States, 536 U.S. 545 (2002). ↩
  19. Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002). ↩
  20. 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction). ↩
  21. See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent). ↩
  22. 319 U.S. 463, 467–68 (1943). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was “carrying on” or aiding in “carrying on” its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still). ↩
  23. 319 U.S. at 467. ↩
  24. 395 U.S. 6, 36 (1969). ↩
  25. 395 U.S. at 37–54. The Court disapproved some of the reasoning in Yee Hem, supra, but factually distinguished that case as involving users of “hard” narcotics. ↩
  26. 395 U.S. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the “rational connection” test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process). ↩
  27. Ulster County Court v. Allen, 442 U.S. 140, 167 (1979). ↩
  28. 442 U.S. at 167. ↩
  29. 442 U.S. at 142. The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. 442 U.S. at 168. See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction that, in the view of dissenting Justices O’Connor and Stevens, id. at 75, seemed to direct the jury to draw the inference that evidence that a child had been “battered” in the past meant that the defendant, the child’s father, had necessarily done the battering). ↩

Amdt14.S1.5.5.6 Evidentiary Requirements in Criminal Cases

Beyond the general rule that the prosecution must prove a criminal defendant’s guilt beyond a reasonable doubt,1 the Due Process Clause also imposes certain limitations on specific evidentiary matters in criminal trials. For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding hypnotically refreshed testimony.2 And, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process calls for reciprocal discovery in such circumstances, requiring the state to give the defendant pretrial notice of its rebuttal evidence on the alibi issue.3

In evaluating whether certain procedures satisfy due process, the Court may consider how separate procedures interact. The combination of otherwise acceptable rules of criminal procedure may in some instances deny a defendant due process. Thus, in one case, the Court found that a defendant was denied his constitutional right to present his defense in a meaningful way by the combination of two rules that (1) denied the defendant the right to cross-examine his own witness in order to elicit exculpatory evidence and (2) denied him the right to introduce the testimony of witnesses about matters told to them out of court on the ground that the testimony would be hearsay.4 Conversely, a questionable procedure may be saved by its combination with another. Thus, in another case, the Court held that it does not deny a defendant due process to subject him to trial before a non-lawyer police court judge when he can obtain a later trial de novo in the state’s court system.5

The government violates the Due Process Clause when it obtains a conviction by presenting testimony the prosecuting authorities know was perjured. In one case, the Court stated in dictum that the clause

cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a

conviction through the pretense of a trial which in truth is but used as a means of

depriving a defendant of liberty through a deliberate deception of court and jury by the

presentation of testimony known to be perjured. Such a contrivance . . . is as

inconsistent with the rudimentary demands of justice as is the obtaining of a like

result by intimidation.6

The Court has applied that principle to require state officials to controvert allegations that knowingly false testimony had been used to convict7 and to overturn convictions found to have been so procured.8 Extending the principle, the Court in Miller v. Pate overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a crime belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts, the shorts were not in fact bloodstained, and the prosecution had known those facts.9

This line of reasoning has also required disclosure to the defense of information that the prosecution did not rely on at trial.10 In Brady v. Maryland, the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”11 In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.12 In a subsequent case, the Court described the “heart of the holding in Brady” as concerning

the prosecution’s suppression of evidence, in the face of a defense production request,

where the evidence is favorable to the accused and is material either to guilt or to

punishment. Important, then, are (a) suppression by the prosecution after a request by

the defense, (b) the evidence’s favorable character for the defense, and (c) the

materiality of the evidence.13

In United States v. Agurs, the Court summarized and expanded the prosecutor’s obligation to disclose exculpatory evidence to the defense, even in the absence of a request by the defendant, or upon a general request.14 The Agurs Court laid out three due process principles that apply to the use of evidence in criminal cases. First, if the prosecutor knew or should have known that testimony given during the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.15 Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.16 Third, as the Court held for the first time in Agurs, if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” the prosecution has a duty to reveal to the defense obviously exculpatory evidence.17 Under the third prong, if the prosecutor did not reveal relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt.18

Agurs left open questions about how courts should evaluate the materiality of undisclosed evidence. The Court addressed those questions in the 1985 case United States v. Bagley.19 In Bagley, the Court established a uniform test for materiality, holding that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.20 That materiality standard, also found in contexts outside of Brady inquiries,21 applies not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses.22 Thus, in a case where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and the punishment, concluding that there was no reasonable probability that the jury would have reached a different result.23

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor’,” and that “‘the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”24

Notes
  1. See Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt. ↩
  2. Rock v. Arkansas, 483 U.S. 44 (1987). ↩
  3. Wardius v. Oregon, 412 U.S. 470 (1973). ↩
  4. Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 308 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of third-party guilt can be excluded if there is strong forensic evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea). ↩
  5. North v. Russell, 427 U.S. 328 (1976). ↩
  6. Mooney v. Holohan, 294 U.S. 103, 112 (1935). ↩
  7. Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941). ↩
  8. Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was the defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated). ↩
  9. 386 U.S. 1 (1967). ↩
  10. The Constitution does not require the government, prior to entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United States v. Ruiz, 536 U.S. 622 (2002). Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting). ↩
  11. 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements that had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500. ↩
  12. Although the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The Court rejected the defendant’s appeal of the latter decision. As the Court saw it, the issue was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged. ↩
  13. Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The Court has not extended Brady toward a general requirement of criminal discovery. See Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 556 U.S. 449, 472, 476 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence. ↩
  14. 427 U.S. 97 (1976). ↩
  15. 427 U.S. at 103–04; cf. Mooney v. Holohan, 294 U.S. 103 (1935). ↩
  16. 427 U.S. at 104–06; cf. Brady v. Maryland, 373 U.S. 83 (1963). A statement by the prosecution that it will “open its files” to the defendant appears to relieve the defendant of his obligation to request such materials. See Strickler v. Greene, 527 U.S. 263, 283–84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004). ↩
  17. 427 U.S. at 106–07. ↩
  18. 427 U.S. at 106–14. This was the Agurs fact situation. There is no obligation that law enforcement officials preserve breath samples that have been used in a breath-analysis test; to meet the Agurs materiality standard, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police); Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of cocaine eleven years after an arrest, the defendant having fled prosecution during the intervening years, does not violate due process). ↩
  19. 473 U.S. 667 (1985). ↩
  20. 473 U.S. at 682. Put differently, a Brady violation requires a showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995). Accord Smith v. Cain, 565 U.S. 73 (2012) (prior inconsistent statements of sole eyewitness withheld from defendant; state lacked other evidence sufficient to sustain confidence in the verdict independently). ↩
  21. See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel). ↩
  22. 473 U.S. at 676–77. See also Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016) (per curiam) (finding that a state post-conviction court had improperly (1) evaluated the materiality of each piece of evidence in isolation, rather than cumulatively; (2) emphasized reasons jurors might disregard the new evidence, while ignoring reasons why they might not; and (3) failed to consider the statements of two impeaching witnesses). ↩
  23. Strickler v. Greene, 527 U.S. 263, 296 (1999); see also Turner v. United States, 137 S. Ct. 1885, 1894 (2017) (holding that, when considering the withheld evidence in the context of the entire record, the evidence was “too little, too weak, or too distant” from the central evidentiary issues in the case to meet Brady’s standards for materiality). ↩
  24. Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam) (quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995)). ↩

Amdt14.S1.5.5.7 Competency for Trial

The Supreme Court has held that it is a denial of due process to try or sentence a defendant who is “insane” or incompetent to stand trial.1 When it becomes evident during the trial that a defendant is or has become “insane” or incompetent, the court on its own initiative must conduct a hearing on the issue.2 There is no constitutional requirement that the state assume the burden of proving a defendant competent, though the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process.3

A person found incompetent for trial may be committed to a psychiatric institution, but a state cannot indefinitely commit a person charged with a criminal offense based on a finding of incompetence to stand trial. Rather, a court has the power to commit the accused for a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that he will not, the state must either release the defendant or institute the ordinary civil commitment proceeding that would be required to commit any other citizen.4

When a defendant is found competent to stand trial, the state has significant discretion in how it takes account of any mental illness or defect that affected the defendant at the time of the offense in determining criminal responsibility.5 The Court has identified several tests that states use in varying combinations to assess insanity defenses: the M’Naghten test (cognitive incapacity or moral incapacity),6 volitional incapacity,7 and the irresistible-impulse test.8 Based on these varying tests, the Court has opined that “it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.”9 To illustrate, in the 2020 case Kahler v. Kansas, the Court held that the Due Process Clause does not require a state to adopt M’Naghten’s moral-incapacity test as a complete insanity defense resulting in an acquittal.10 The Court stated that “[d]efining the precise relationship between criminal culpability and mental illness,” because it involves “hard choices” among competing values and evolving understandings of mental health, “is a project for state governance, not constitutional law.”11

Despite the requirement that states prove each element of a criminal offense,12 criminal trials generally proceed with a presumption that the defendant does not have a severe mental illness, and states may limit the evidence that a defendant may present to challenge that presumption. In Clark v. Arizona, the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea, ruling that the use of such evidence could be limited to an insanity defense.13 The Clark Court weighed competing interests to hold that such evidence could be “channeled” to the issue of insanity due to “the controversial character of some categories of mental disease,” the “potential of mental disease evidence to mislead,” and the “danger of according greater certainty to such evidence than experts claim for it.”14

If a criminal defendant is acquitted by reason of insanity, due process does not bar commitment of the defendant to a mental hospital, and the period of confinement may extend beyond the period for which he could have been sentenced to prison if convicted.15 The Court has explained that the purpose of confinement is not punishment, but treatment, and therefore the length of a possible criminal sentence is “irrelevant to the purposes of . . . commitment.”16 Thus, a defendant acquitted by reason of insanity may be confined for treatment “until such time as he has regained his sanity or is no longer a danger to himself or society.”17 However, a state may not indefinitely confine an insanity defense acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct.18

Substantive due process issues may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial. In Washington v. Harper, the Court had found that an individual has a significant “liberty interest” in avoiding the unwanted administration of antipsychotic drugs.19 In Sell v. United States, the Court found that this liberty interest could in “rare” instances be outweighed by the government’s interest in bringing an incompetent individual to trial.20 First, however, the government must engage in a fact-specific inquiry as to whether that interest is important in a particular case.21 Second, the court must find that the treatment is likely to render the defendant competent to stand trial without resulting in side effects that will interfere with the defendant’s ability to assist counsel. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests.22

Notes
  1. Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). The standard for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a defendant is mentally competent to stand trial does not preclude a court from finding him not mentally competent to represent himself at trial. Edwards, 128 S. Ct. 2379. ↩
  2. Pate, 383 U.S. at 378; see also Drope v. Missouri, 420 U.S. 162, 180 (1975) (noting the relevant circumstances that may require a trial court to inquire into the mental competency of the defendant). In Ake v. Oklahoma, the Court established that, when an indigent defendant’s mental condition is both relevant to the punishment and seriously in question, the state must provide the defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985). While the Court has not decided whether Ake requires that the state provide a qualified mental health expert who is available exclusively to the defense team, see McWilliams v. Dunn, 137 S. Ct. 1790, 1799 (2017), a state nevertheless deprives an indigent defendant of due process when it provides a competent psychiatrist only to examine the defendant without also requiring that an expert provide the defense with help in evaluating, preparing, and presenting its case, id. at 1800. ↩
  3. Medina v. California, 505 U.S. 437 (1992). It is a violation of due process, however, for a state to require that a defendant prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996). ↩
  4. Jackson v. Indiana, 406 U.S. 715 (1972). ↩
  5. Clark v. Arizona, 548 U.S. 735 (2006). ↩
  6. M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722. ↩
  7. See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible.”). ↩
  8. See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease which irresistibly impelled him to kill his wife—if the killing was the product of mental disease in him—he is not guilty; he is innocent—as innocent as if the act had been produced by involuntary intoxication, or by another person using his hand against his utmost resistance.”). ↩
  9. Clark, 548 U.S. at 752. In Clark, the Court considered an Arizona statute, based on M’Naghten, that was amended to eliminate the defense of cognitive incapacity. The Court noted that, despite the amendment, proof of cognitive incapacity could still be introduced as it would be relevant (and sufficient) to prove the remaining moral incapacity test. Id. at 753. ↩
  10. 140 S. Ct. 1021, 1027, 1037 (2020). ↩
  11. Id. at 1037. Cf. Atkins v. Virginia, 536 U.S. 304, 317 (2002) (holding that the Eighth Amendment prohibits the states from executing certain persons with an intellectual disability, but “leav[ing] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”). ↩
  12. See Amdt14.S1.5.5.5 Guilt Beyond a Reasonable Doubt. ↩
  13. 548 U.S. 735 (2006). ↩
  14. 548 U.S. at 770, 774. ↩
  15. Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere “idiosyncratic behavior.” Id. at 367. ↩
  16. 463 U.S. at 368. ↩
  17. 463 U.S. at 370. ↩
  18. Foucha v. Louisiana, 504 U.S. 71 (1992). ↩
  19. 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he presented a risk of serious harm to himself or others). ↩
  20. 539 U.S. 166 (2003). ↩
  21. For instance, if the defendant is likely to remain civilly committed absent medication, this diminishes the government’s interest in prosecution. 539 U.S. at 180. ↩
  22. 539 U.S. at 181. ↩

Amdt14.S1.5.5.8 Due Process Rights of Juvenile Offenders

All fifty states and the District of Columbia have specialized laws to deal with juvenile offenders outside the criminal justice system for adult offenders.1 Juvenile justice systems handle both offenses that would be criminal if committed by an adult and delinquent behavior not recognizable under laws dealing with adults, such as habitual truancy, conduct endangering the morals or health of the juvenile or others, or disobedience making the juvenile uncontrollable by his parents. Reforms during the early part of the twentieth century provided for separating juveniles from adult offenders in adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules that due process required in criminal trials. The justification for this lack of constitutional protections was that juvenile courts were deemed to be civil, not criminal, and that the state was acting as parens patriae for juvenile offenders and was not their adversary.2

In the 1960s, however, the Supreme Court imposed substantial restriction of these elements of juvenile jurisprudence. After tracing in much detail this history of juvenile courts, the Court held in In re Gault that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the beneficial features of the system—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, and low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.3

Thus, the Court in Gault required notice of charges in time for the juvenile to prepare a defense, a hearing in which the juvenile could be represented by retained or appointed counsel, observance of the rights of confrontation and cross-examination, and protections against self-incrimination.4 The Court also held that before a juvenile could be “waived” to an adult court for trial, there had to be a hearing and findings of reasons.5 Subsequently, the Court held that the “essentials of due process and fair treatment” required that a juvenile could be adjudged delinquent only on evidence beyond a reasonable doubt when the offense charged would be a crime if committed by an adult.6 However, the Court has also held that jury trials are not constitutionally required in juvenile proceedings.7

On a few occasions, the Court has considered whether juveniles must be afforded the rights guaranteed to adults during investigation of crimes. In one such case, the Court ruled that a juvenile undergoing custodial interrogation by police had not invoked a Miranda right to remain silent by requesting permission to consult with his probation officer, since a probation officer could not be equated with an attorney, but also indicated that a juvenile’s waiver of Miranda rights was to be evaluated under the same totality-of-the-circumstances approach applicable to adults. That approach requires “inquiry into all the circumstances surrounding the interrogation . . . includ[ing] evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him.”8 In another case, the Court ruled that, although the Fourth Amendment applies to searches of students by public school authorities, neither the warrant requirement nor the probable cause standard is appropriate.9 Instead, a simple reasonableness standard governs searches of students’ persons and effects by school authorities.10

In Schall v. Martin, the Court ruled that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, the terms of confinement serve those legitimate purposes and are nonpunitive, and applicable procedures provide sufficient protection against erroneous and unnecessary detentions.11 The Court found that a statute authorizing pretrial detention of accused juvenile delinquents upon a finding of “serious risk” that the juvenile would commit crimes prior to trial, providing for expedited hearings, and guaranteeing a formal, adversarial probable cause hearing satisfied those requirements.

Notes
  1. For analysis of the state laws and application of constitutional principles to juveniles, see SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM (2d ed. 2006). ↩
  2. In re Gault, 387 U.S. 1, 12–29 (1967). ↩
  3. 387 U.S. 1. ↩
  4. 387 U.S. at 31–35. ↩
  5. An earlier case had reached the same result based on statutory interpretation; the Gault Court apparently reached it on constitutional grounds. Gault, 387 U.S. at 30–31 (citing Kent v. United States, 383 U.S. 541 (1966)). The Gault Court did not rule on the right of appeal or the failure to make transcripts of hearings. ↩
  6. In re Winship, 397 U.S. 358 (1970). ↩
  7. McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion won the support of a majority of the Justices. Justice Harry Blackmun’s opinion of the Court, which was joined by Chief Justice Warren Burger and Justices Potter Stewart and Byron White, reasoned that a juvenile proceeding was not “a criminal prosecution” within the terms of the Sixth Amendment, so jury trials were not automatically required; instead, the prior cases had proceeded on a “fundamental fairness” approach and in that regard a jury was not a necessary component of fair fact-finding and its use would have serious repercussions on the rehabilitative and protection functions of the juvenile court. Justice White also submitted a brief concurrence emphasizing the differences between adult criminal trials and juvenile adjudications. Id. at 551. Justice William Brennan concurred in one case and dissented in another because, in his view, open proceedings would operate to protect juveniles from oppression in much the same way a jury would. Id. at 553. Justice John Marshall Harlan concurred because he did not believe jury trials were constitutionally mandated in state courts. Id. at 557. Justices William O. Douglas, Hugo Black, and Thurgood Marshall dissented. Id. at 557. ↩
  8. Fare v. Michael C., 442 U.S. 707, 725 (1979). ↩
  9. New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the search of a student’s purse to determine whether the student possessed cigarettes in violation of school rule; evidence of drug activity held admissible in a prosecution under the juvenile laws). In Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009), the Court found unreasonable a strip search of a thirteen-year-old girl suspected of possessing ibuprofen. See also Amdt4.6.6.6 School Searches. ↩
  10. This single rule, the Court explained, permits school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S. at 343. Rejecting the suggestion of dissenting Justice John Paul Stevens, the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.” 469 U.S. at 342 n.9. ↩
  11. 467 U.S. 253 (1984). ↩