Annotation 16 - Fourteenth Amendment

Guilty Pleas .--A defendant may plead guilty instead of insisting that the prosecution prove him guilty. There are a number of different reasons why a defendant may be willing to plead guilty, perhaps because of overwhelming evidence against him, perhaps because, while the evidence leaves the outcome in doubt, should he go to trial and be convicted his sentence will be more severe than if he pleads guilty, perhaps to secure some other advantage. Often the defendant and his attorney engage in ''plea bargaining'' with the prosecution so that he is guaranteed a light sentence or is allowed to plead to a lesser offense. While the government may not structure its system so as to coerce a guilty plea, 63 a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections. 64 The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system, 65 and it is not impermissible for a prosecutor during such plea bargains to put a defendant to a hard choice, requiring him to forego his right to go to trial in return for escaping what is likely to be a much more severe penalty if he does elect to go to trial. 66  

The court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly, 67 and ''the adjudicative element inherent in accepting a plea of guilty must be attended by 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.'' 68  

Prosecutorial Misconduct .--When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. 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.'' 69 The quoted language was dictum in the case in which it was uttered, 70 but the principle enunciated has been utilized to require state officials to controvert allegations of convicted persons that knowingly false tes timony had been used to convict, 71 and to upset convictions found to have been so procured. 72 Extending the principle, the Court in Miller v. Pate 73 upset a conviction obtained after the prosecution had represented to the jury that a pair of men's shorts found near the scene of a sex attack 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 and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

Furthermore, in Brady v. Maryland, 74 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.'' In that case, the prosecution had suppressed an extrajudicial confession of defendant's accomplice that he had actually committed the murder; the accomplice's confession could have influenced the jury's determination of punishment but not its judgment of guilt. But this beginning toward the development of criminal discovery was not carried forward, 75 and the Court has waivered in its application of Brady.

In finding Brady inapplicable because the evidence withheld was not material and not exculpatory, the Court in Moore v. Illinois, 76 restated the governing principles. ''The heart of the holding in Brady is 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.''

In United States v. Agurs, 77 the Court summarized and somewhat expanded the prosecutor's obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. The obligation is expressed in a tripartite test of materiality of the exculpatory evidence in the context of the trial record. First, if the prosecutor knew or should have known that testimony given to 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. 78 Second, 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. 79 Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for ''all Brady material'' or for ''anything exculpatory,'' a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant's guilt. 80  

A prosecutor does not violate the due process clause when, in negotiating with a defendant to obtain a guilty plea or some other action that will lessen the trial burden, such as trial before a judge rather than jury, he threatens and carries out the threat to seek a more severe sentence, either by charging a greater offense or recommending a longer sentence. 81 But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence. 82 The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to.

Proof, Burden of Proof, and Presumptions .--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.'' 83 ''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.''' 84 In many past cases, this standard was assumed to be the required one, 85 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process. 86 The presumption of inno cence is valuable in assuring defendants a fair trial, 87 and it operates to ensure that the jury considers the case solely on the evidence. 88  

The Court has long held it would set aside under the due process clause convictions that are supported by no evidence at all, 89 but Winship necessitated a reconsideration of whether it should in reviewing state cases weigh the sufficiency of the evidence. Thus, in Jackson v. Virginia, 90 it held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it 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. 91  

Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the Court held in Mullaney v. Wilbur 92 that it was a denial of this constitutional guarantee to require a defendant charged with murder to prove that he acted ''in the heat of passion on sudden provocation'' in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test was to be employed to determine when the due process clause re quired the prosecution to carry the burden and when some part of the burden might be shifted to the defendant, but the decision called into question the practice 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 and weighty task given the large numbers of affirmative defenses.

But the Court soon summarily rejected the argument that Mullaney means that the prosecution must negate the insanity defense, 93 and in full-scale consideration upheld a state statute that provided that an intentional killing is murder but permitted the defendant to assert ''extreme emotional disturbance'' as an affirmative defense which, if proved by the defense by a preponderance of the evidence, would reduce the murder offense to manslaughter. 94 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense but permitted malice to be presumed upon proof of the other elements and required the defendant to prove the absence of malice. In Patterson the statute obligated the State to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, but allowed the defendant to present an affirmative defense that would reduce the degree of the offense, and as to which the defendant bears the burden of persuasion by a preponderance of the evidence. The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. So defined, the distinction and the constitutional mandate are formalistic, and the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses. 95 Also formalistic is the distinction between elements of the crime and sentencing factors; a state may treat as a sentencing consideration provable by a preponderance of the evidence the fact that the defendant ''visibly possessed a firearm'' during commission of the offense. 96  

Quite closely related is the issue of statutory presumptions; these generally provide for the proof of the presumed fact, an element of a crime, by the establishment of another fact, the basic fact. 97 In Tot v. United States, 98 the Court held that a statutory presumption was valid under the due process clause if it met a ''rational connection'' test. ''Under our decisions, 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.'' In Leary v. United States, 99 however, the due process test was stiffened to require that for such 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.'' Thus, a provision which permitted a jury to infer from defendant's possession of marijuana his knowledge of its illegal importation was voided. A lengthy canvass of factual materials established to the Court's satisfaction that while the greater part of marijuana consumed here is of foreign origin there was still a good amount produced domestically and there was thus no way to assure that the majority of those possessing marijuana have any reason to know their marijuana is imported. 100 The Court left open the question whether a presumption which 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.'' 101  

In its most recent 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.'' 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.'' 102 Thus, because the jury was told it had to believe in defendants' guilt beyond a reasonable doubt and that it could consider the inference, due process was not violated by the application of the statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. 103  

The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled doctrinal nature of the issues.

Sentencing .--In Townsend v. Burke 104 the Court overturned a sentence imposed on an uncounseled defendant by a judge who in reciting defendant's record from the bench made several errors and facetious comments. ''[W]hile disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.'' But in the absence of revelations of errors by the sentencing judge, the content of procedural due process at sentencing is vague.

Williams v. New York 105 upheld the imposition of the death penalty although the jury in convicting had recommended mercy, the judge indicating that he was disregarding the recommendation because of information in the presentence report prepared by a probation officer and not shown to the defendant or his counsel. The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material; similarly, disclosure of such information to the defense could well dry up sources which feared retribution or embarrassment. Thus, hearsay and rumors would be considered and there would be no opportunity of rebuttal. Still in the context of capital cases, the Court has now, although by no consistent rationale, limited Williams. In Gardner v. Florida, 106 the jury had recommended a life sentence upon convicting defendant of murder, but the trial judge sentenced the defendant to death, relying in part on a confidential presentence report which he did not characterize or make available to defense or prosecution. Three Justices found that because death was significantly different from other punishments and because sentencing procedures were subject to higher due process standards than when Williams was decided, the report must be made part of the record for review so that the factors motivating imposition of the death penalty may be known, and ordinarily must be made available to the defense. All but one of the other Justices joined the result on various other bases. 107 On the other hand, in United States v. Grayson, 108 a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed. Under the current scheme of individualized indeterminate sentencing, the Court declared, the judge must be free to consider the broadest range of information in assessing the defendant's prospects for rehabilitation; defendant's truthfulness, as assessed by the trial judge from his own observations, is relevant information. 109  

In Specht v. Patterson, 110 the Court specifically reaffirmed Williams, but declined to apply it, finding that due process had been denied under circumstances significantly different from those of Williams. Specht had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing. Instead, by triggering a new hearing to determine whether the convicted person was a public threat, an habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. Mempa v. Rhay 111 held that when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected. Moreover, in Kent v. United States 112 the Court required that before a juvenile court decided to waive jurisdiction and transfer a juvenile to an adult court it must hold a hearing and permit defense counsel to examine the probation officer's report which formed the basis for the court's decision.

It is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others. 113 If the judge does impose a longer sentence the second time, he must justify it on the record by showing, for example, the existence of new information meriting a longer sentence. 114  

Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, Pearce's requirement that a judge resentencing on a subsequent trial must justify a more severe sentence is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence. The Court concluded that the possibility of vindictiveness was so low because normally the jury would not know of the result of the prior trial nor the sentence imposed, nor would it feel either the personal or institutional interests of judges leading to efforts to discourage the seeking of new trials. 115 The presumption of vindictiveness is also inapplicable if the first sentence was imposed following a guilty plea. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea. 116  

Due process does not impose any limitation upon the sentence that a legislature may affix to any offense; that function is in the Eighth Amendment. 117  

The Problem of the Incompetent or Insane Defendant or Convict .-- It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial. 118 When it becomes evident during the trial that a defendant is or has become insane, or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue. 119 What the state must do is to provide the defendant with a chance to prove that he is incompetent to stand trial; there is no further constitutional requirement that the state assume the burden of proving the defendant competent. Due process is not offended, therefore, by a statutory presumption that a criminal defendant is competent to stand trial, or by a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence. 120 When a State determines that a person charged with a criminal offense is incompetent to stand trial he cannot be committed indefinitely for that reason. The court's power is to commit him to 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 this is not the case, then the State must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen. 121  

Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted. 122 The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence ''therefore is irrelevant to the purposes of . . . commitment.'' 123 Thus, the in sanity acquittee may be confined for treatment ''until such time as he has regained his sanity or is no longer a danger to himself or society.'' 124 It follows, however, that a state may not indefinitely confine an insanity acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct. 125  

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from carrying out the death penalty on an individual who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding satisfying the minimum requirements of due process. 126 Those minimum standards are not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board. 127  

Corrective Process: Appeals and Other Remedies .--''An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review.'' 128 This holding has been recently reaffirmed 129 although the Court has also held that when a State does provide appellate process it may not so condition the privilege as to deny it irrationally to some persons, such as indigents. 130 But it is not the case that a State is free to have no corrective process at all in which defendants may pursue remedies for federal constitutional violations. In Frank v. Mangum, 131 the Court asserted that a conviction obtained in a mob-dominated trial was contrary to due process: ''if the State, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the State deprives the accused of his life or liberty without due process of law.'' Consequently, it has been stated numerous times that the absence of some form of corrective process when the convicted defendant alleges a federal constitutional violation contravenes the Fourteenth Amendment, 132 and it has been held that to burden this process, such as limiting the right to petition for habeas corpus, is to deny the convicted defendant his constitutional rights. 133  

The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine. ''Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. . . . In respecting the duty laid upon them . . . States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at a place of detention. . . . So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated.'' 134 If a State provides a mode of redress, a defendant must first exhaust that mode, and if unsuccessful may seek relief in federal court; if there is no adquate remedy in state court, the defendant may petition a federal court for relief through a writ of habeas corpus. 135  

When appellate or other corrective process is made available, inasmuch as it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. At first, the Court seemed content to assume that when a state appellate process formally appeared to be sufficient to correct constitutional errors committed by the trial court, the conclusion by the appellate court that the trial court's sentence of execution should be affirmed was ample assurance that life would not be forfeited without due process of law. 136 But in Moore v. Dempsey, 137 while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners--mob domination of their trial--notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations. Indubitably, Moore marked the abandonment of the Supreme Court's deference, founded upon considerations of comity, to decisions of state appellate tribunals on issues of constitutionality, and the proclamation of its intention no longer to treat as virtually conclusive pronouncements by the latter that proceedings in a trial court were fair, an abandonment soon made even clearer in Brown v. Mississippi 138 and now taken for granted.


[Footnote 63] United States v. Jackson, 390 U.S. 570 (1968).

[Footnote 64] North Carolina v. Alford, 400 U.S. 25 (1971); Parker v. North Carolina, 397 U.S. 790 (1970). See also Brady v. United States, 397 U.S. 742 (1970). A guilty plea will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21 (1974). 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 (1975). 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 (1987).

[Footnote 65] Blackledge v. Allison, 431 U.S. 63, 71 (1977).

[Footnote 66] Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982).

[Footnote 67] 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. ''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. See also Blackledge v. Allison, 431 U.S. 63 (1977).

[Footnote 68] 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).

[Footnote 69] Mooney v. Holahan, 294 U.S. 103, 112 (1935).

[Footnote 70] The Court dismissed the petitioner's suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied 305 U.S. 598 (1938).

[Footnote 71] 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).

[Footnote 72] 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 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. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? 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).

[Footnote 73]   386 U.S. 1 (1967).

[Footnote 74]   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 which 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. Sec. 3500.

[Footnote 75] See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967).

[Footnote 76]   408 U.S. 786, 794 -95 (1972). Joining Justice Blackmun's opinion were Justices Brennan, White, Rehnquist, and Chief Justice Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell. Id. at 800. See also Wood v. Bartholomew, 116 S. Ct. 7 (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).

[Footnote 77]   427 U.S. 97 (1976).

[Footnote 78] Id. at 103-04. This situation is the Mooney v. Holohan type of case.

[Footnote 79] Id. at 104-06. This the Brady situation.

[Footnote 80] Id. at 106-14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples which have been utilized in a breath-analysis test; the Agurs materiality standard is met only by evidence which ''possess[es] an exculpatory value . . . apparent before [it] was destroyed, and also [is] 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).

[Footnote 81] Bordenkircher v. Hayes, 434 U.S. 357 (1978); United States v. Goodwin, 457 U.S. 368 (1982). In the former case, during plea negotiations, the prosecutor told defendant that if he did not plead guilty to the charges he would bring additional charges, and he did so upon defendant's continued refusal. In the latter case, defendant was charged with a misdemeanor and could have been tried before a magistrate; he refused to plead guilty and sought a jury trial in district court. The Government obtained a four-count felony indictment based upon the same conduct and acquired a conviction.

[Footnote 82] Blackledge v. Perry, 417 U.S. 21 (1974). Defendant 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 draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and posttrial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984).

[Footnote 83] In re Winship, 397 U.S. 358, 364 (1970). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a juryverdict of guilty beyond a reasonable doubt).

[Footnote 84] Id. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). Justice Harlan's Winship concurrence, id. at 368, proceeded on the basis that inasmuch as 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.

[Footnote 85] Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S. 245, 253 (1910); Speiser v. Randall, 357 U.S. 513, 525 -26 (1958).

[Footnote 86] In addition to Winship, see also 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); Sandstorm v. Montana, 442 U.S. 510, 520 -24 (1979). On the interrelated concepts of the burden of the prosecution to prove guilt beyond a reasonable doubt 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).

[Footnote 87] 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.)

[Footnote 88] 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.

[Footnote 89] 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).

[Footnote 90]   443 U.S. 307 (1979).

[Footnote 91] Id. at 316, 318-19. On a somewhat related point, the Court has ruled that a 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 conspiracy, but is adequate to support conviction as to another. Griffin v. United States, 112 U.S. 466 (1991).

[Footnote 92]   421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520 -24 (1979).

[Footnote 93] 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 Rehnquist and Chief Justice Burger concurring in Mullaney, 421 U.S. at 704 , 705, 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.

[Footnote 94] Patterson v. New York, 432 U.S. 197 (1977).

[Footnote 95] 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 which 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. Id. at 216. Patterson was followed 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.

[Footnote 96] McMillan v. Pennsylvania, 477 U.S. 79 (1986) (the finding increased the minimum sentence that could be imposed but did not affect the maximum sentence). The Court has held, however, that for purposes of a recidivism-based sentence enhancement where a prosecutor carries the burden of establishing a prior conviction, a defendant can be required to bear the burden of production in challenging the validity of such conviction. See Parke v.Raley, 506 U.S. 20 (1992) (a sentencing court considering a guilty plea in prior case may rely upon a presumption of regularity during that proceeding).

[Footnote 97] 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).

[Footnote 98]   319 U.S. 463, 467 (1943) (voiding presumption of transportation of firearm in interstate commerce from possession). 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).

[Footnote 99]   395 U.S. 6, 36 (1969).

[Footnote 100] Id. at 37-54. While some of the reasoning in Yee Hem, supra n.97, was disapproved, it was factually distinguished as involving users of ''hard'' narcotics.

[Footnote 101] Id. 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).

[Footnote 102] Ulster County Court v. Allen, 442 U.S. 140, 166 -67 (1979).

[Footnote 103] The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. Id. at 168 (Justices Powell, Brennan, Stewart, and Marshall). See also Estelle v. McGuire, 112 S. Ct. 475 (1991) (upholding a jury instruction that, to dissenting Justices O'Connor and Stevens, id. at 484, 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).

[Footnote 104]   334 U.S. 736, 740 -41 (1948). In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in accordance with an habitual offender statute that if it found defendant guilty of the offense charged, which would be a third felony conviction, it should assess punishment at 40 years imprisonment. The jury convicted and gave defendant 40 years. Subsequently, in another case, the habitual offender under which Hicks had been sentenced was declared unconstitutional, but Hicks' conviction was affirmed on the basis that his sentence was still within the permissible range open to the jury. The Supreme Court reversed. Hicks was denied due process because he was statutorily entitled to the exercise of the jury's discretion and could have been given a sentence as low as ten years. That the jury might still have given the stiffer sentence was only conjectural. On other due process restrictions on the determination of the applicability of recidivist statutes to convicted defendants, see Chewing v. Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. Texas, 385 U.S. 554 (1967); and Parke v. Raley, 506 U.S. 20 (1992). On Eighth Amendment relevance, see supra, pp. 1495- 96.

[Footnote 105]   337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959).

[Footnote 106]   430 U.S. 349 (1977).

[Footnote 107] Only Justices Stevens, Stewart, and Powell took the position described in the text. Id. at 357-61. Justice Brennan without elaboration thought the result compelled by due process, id. at 364, Justices White and Blackmun thought the result necessitated by the Eighth Amendment, id. at 362, 364, as did Justice Marshall in a different manner. Id. at 365. Chief Justice Burger concurred only in the result, id. at 362, and Justice Rehnquist dissented. Id. at 371. See also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where judge sentenced defendant to death after judge's and prosecutor's actions misled defendant and counsel into believing that death penalty would not be at issue in sentencing hearing).

[Footnote 108]   438 U.S. 41 (1978).

[Footnote 109] See also United States v. Tucker, 404 U.S. 443, 446 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. Sec. 3577.

[Footnote 110]   386 U.S. 605 (1967).

[Footnote 111]   389 U.S. 128 (1967).

[Footnote 112]   383 U.S. 541, 554 , 561, 563 (1966). Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis; In re Gault, 387 U.S. 1 (1967), appears to have constitutionalized the language.

[Footnote 113] North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was held to be nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973). When a State provides a two-tier court system in which one may have an expeditious and somewhat informal trial in an inferior court with an absolute right to trial de novo in a court of general criminal jurisdiction if convicted, the second court is not bound by the rule in Pearce, inasmuch as the potential for vindictiveness and inclination to deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972). But see Blackledge v. Perry, 417 U.S. 21 (1974), discussed supra, p. 1761.

[Footnote 114] An intervening conviction on other charges for acts committed prior to the first sentencing may justify imposition of an increased sentence following a second trial. Wasman v. United States, 468 U.S. 559 (1984).

[Footnote 115] Chaffin v. Stynchcombe, 412 U.S. 17 (1973). Justices Stewart, Brennan, and Marshall thought the principle was applicable to jury sentencing and that prophylactic limitations appropriate to the problem should be developed. Id. at 35, 38. Justice Douglas dissented on other grounds. Id. at 35. The Pearce presumption that an increased, judge-imposed second sentence represents vindictiveness also is inapplicable if the second trial came about because the trial judge herself concluded that a retrial was necessary due to prosecutorial misconduct before the jury in the first trial. Texas v. McCullough, 475 U.S. 134 (1986).

[Footnote 116] Alabama v. Smith, 490 U.S. 794 (1989).

[Footnote 117] Williams v. Oklahoma, 358 U.S. 576, 586 -87 (1959). See also Collins v. Johnston, 237 U.S. 502 (1915). On recidivist statutes, see Graham v. West Virginia, 224 U.S. 616, 623 (1912); Ughbanks v. Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263 (1980).

[Footnote 118] Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)).

[Footnote 119] Id. For treatment of the circumstances when a trial court should inquire into the mental competency of the defendant, see Drope v. Missouri, 420 U.S. 162 (1975). Also, an indigent who makes a preliminary showing that his sanity at the time of his offense will be a substantial factor in his trial is entitled to a court-appointed psychiatrist to assist in presenting the defense. Ake v. Oklahoma, 470 U.S. 68 (1985).

[Footnote 120] Medina v. California, 112 S. Ct. 2572 (1992). It is a violation of due process, however, for a state to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 116 S. Ct. 1373 (1996).

[Footnote 121] Jackson v. Indiana, 406 U.S. 715 (1972).

[Footnote 122] 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.

[Footnote 123]   463 U.S. at 368 .

[Footnote 124] Id. at 370.

[Footnote 125] Foucha v. Louisiana, 112 S. Ct. 1780 (1992).

[Footnote 126]   477 U.S. 399 (1986).

[Footnote 127] There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that ''the ascertainment of a prisoner's sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.'' 477 U.S. at 411 - 12. Concurring Justice Powell thought that due process might be met by a proceeding ''far less formal than a trial,'' that the state ''should provide an impartial officer or board that can receive evidence and argument from the prisoner's counsel.'' Id. at 427. Concurring Justice O'Connor, joined by Justice White, emphasized Florida's denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell's opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court's holding.

[Footnote 128] McKane v. Durston, 153 U.S. 684, 687 (1894). See also Andrews v. Swartz, 156 U.S. 272, 275 (1895); Murphy v. Massachusetts, 177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).

[Footnote 129] Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21 (Justice Frankfurter concurring), 27 (dissenting opinion); Ross v. Moffitt, 417 U.S. 600 (1974).

[Footnote 130] The line of cases begins with Griffin v. Illinois, 351 U.S. 12 (1956), in which it was deemed to violate both the due process and the equal protection clauses for a State to deny to indigent defendants free transcripts of the trial proceedings, which would enable them adequately to prosecute appeals from convictions. See infra, pp. 1916- 20.

[Footnote 131]   237 U.S. 309, 335 (1915).

[Footnote 132] Moore v. Dempsey, 261, U.S. 86, 90, 91 (1923); Mooney v. Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson, 318, U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238 -39 (1949).

[Footnote 133] Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945).

[Footnote 134] Carter v. Illinois, 329 U.S. 173, 175 -76 (1946).

[Footnote 135] Supra, pp. 811-12. Note that in Case v. Nebraska, 381 U.S. 336 (1965), the Court had taken for review a case which raised the issue whether a State could simply omit any corrective process for hearing and determining claims of federal constitutional violations, but it dismissed the case when the State in the interim enacted provisions for such process.

[Footnote 136] Frank v. Mangum, 237 U.S. 309 (1915).

[Footnote 137]   261 U.S. 86 (1923).

[Footnote 138]   297 U.S. 278 (1936).

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