No. 95-566 In the Supreme Court of the United States OCTOBER TERM, 1995 STATE OF MONTANA, PETITIONER v. JAMES ALLEN EGELHOFF ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General NINA GOODMAN Attorney Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Due Process Clause of the Fourteenth Amendment bars a state from providing that the jury in a criminal ease may not consider evidence of the defendant's voluntary intoxication in determining whether he possessed the mental state required for the charged offense. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Interest of the United States . . . . 1 Statement . . . . 2 Summary of argument . . . . 6 Argument: Due process does not require states to recognize voluntary intoxication or any other form of dimin- ished capacity as a basis on which defendants, may avoid or limit punishment for homicide . . . . 8 Conclusion . . . . 27 TABLE OF AUTHORITIES Cases: Bethea V. United States, 365 A.2d 64 (D.C. App. 1976), cert. denied, 433 U.S. 911 (1977) . . . . 11 Caban V. Mohammed, 441 U.S. 380 (1979) . . . . 14 California V. Trombetta, 467 U.S. 479 (1984 ). . . . 26 Campbell V. Wainwright, 738 F.2d 1573 (11th Cir. 1984), cert. denied, 475 U.S. 1126 (1986) . . . . 13 Chambers V. Mississippi, 410 U.S. 284 (1973) . . . . 4, 26 Colbath V. State, 4 Tex. Crim. 76 (1878 ) . . . . 21 Coleman V. California, 317 U.S. 596 (1942) . . . . 12, 14, 19, 22 Cool v. United States, 409 U.S. 100 (1972) . . . . 23 Crane v. Kentucky, 476 U.S. 683 (1986) . . . . 26 Daubert V. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993) . . . . 26 Eaglin V. Welborn, 57 F.3d 496 (7th Cir.), cert. denied, 116 S. Ct. 421 (1995) . . . . 9 Engle V. Isaac, 456 U.S. 107 (1982) . . . . 24 Fisher V. United States: 149 F.2d 28 (D.C. Cir. 1945), aff'd, 328 U.S. 463 (1946) . . . . 15 328 U.S. 463 (1946) . . . . passim (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Foucha V. Louisiana, 504 U.S. 71 (1992) . . . . 8 Gilmore V. Taylor, 113 S. Ct. 2112 (1993) . . . . 7, 26 Griffin V. United States, 336 U.S. 704 (1949) . . . . 18 Haas V. Abrahamson, 910 F.2d 384 (7th Cir. 1990 ). . . . 12 Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . 9, 19 Hicks V. Miranda, 422 U.S. 332 (1975) . . . . 13 Hopt V. People, 104 U.S. 631 (1881) . . . . 17, 20 Huddleston V. United States, 485 U.S. 681 (1988 ) . . . . 25 Jackson V. Virginia, 443 U.S. 307 (1979) . . . . 20, 24, 26 Leland V. Oregon, 343 U.S. 730 (1952) . . . . 23 Martin V. Ohio, 480 U.S. 228 (1987) . . . . 4, 5, 7, 23, 25 McMillan V. Pennsylvania, 477 U.S. 79 (1986) . . . . 8, 10, 23, 24 Medina V. California, 505 U.S. 437 (1992) . . . . 6, 9, 10, 20 Michigan v, Lucas, 500 U.S. 145 (1991) . . . . 26 Miles V. United Mates, 103 U.S. 304 (1881) . . . . 19 Muench v. Israel, 715 F.2d 1124 (1983), cert. denied, 467 U.S. 1228 (1984) . . . . 12, 15 Patterson V. New York, 432 U.S. 197 (1977) . . . . 9, 19, 20, 23 People V. Coleman, 126 P.2d 349 (1942) . . . . 14 People V. DelGuidice, 606 P.2d 840 (Colo. 1979) . . . . 11 People v. Troche, 273 P. 767 (Cal. 1928) . . . . 13 Powell v. Texas, 392 U.S. 514 (1968) . . . . 9, 10 Robinson V. Ponte, 933 F.2d 101 (1st Cir. 1991), cert. denied, 503 U.S. 922 (1992) . . . . 17 Rock V. Arkansas, 483 U.S. 44 (1987) . . . . 26 Rodriguez de Quijas V. Shearson/American Ex- press, Inc., 490 U.S. 477 (1989) . . . . 13 Sandstrom V. Montana, 442 U.S. 510 (1979) . . . . 24 Schad V. Arizona, 501 U.S. 624 (1991) . . . . 10 Sollars V. State, 316 P.2d 917 (Nev. 1957) . . . . 11 Staples V. United States, 114 S. Ct. 1793 (1994 ). . . . 24 State V. Brom, 463 N.W.2d 758 (Minn. 1990), cert. denied, 499 U.S. 940 (1991) . . . . 13 State V. Ramos, 648 P.2d 119 (Ariz. 1982) . . . . 11 State V. Shipman, 189 S.W.2d 273 (Mo. 1945) . . . . 22 State V. Souza, 813 P.2d 1384 (Hawaii 1991) . . . . 11 State V. Stacy, 160 A. 257 (1932) . . . . 22 Troche V. California, 280 U.S. 524 (1929) . . . . ..12, 14, 19, 22 United States V. Gaudin, 115 S. Ct. 2310 (1995) . . . . 24 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page United States V. Pohlot, 827 F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988) . . . . 16 United States V. Pomponio, 429 U.S. 10 (1976) . . . . 15 Walker V. Sauvinet, 92 U.S. 90 (1876) . . . . 19 Welcome V. Blackburn, 793 F.2d 672 (5th Cir. 1986), cert. denied, 481 U.S. 1042 (1987) . . . . 15 Winship, In re, 397 U.S. 358 (1970) . . . . 5, 6, 19, 20, 24, 25 Constitution, statutes and rules: Us. Const. : Amend. VI . . . . 26 Amend. VIII . . . . 10, 19 Amend. XIV (Due Process Clause) . . . . 10, 11, 18, 26 Insanity Reform Act of 1984,18 U.S.C. . . . .17, 16 Mont. Code Ann. (1993): 45-2-203 . . . . 4, 5, 11,24 45-5-102 (1) (a) . . . . 2 Fed. R. Evid.: Rule 105 . . . . 1 Rule 401 . . . . 25 Advisory Committee Note . . . . 25 Rule 404 (b) . . . . 26 Rule 501 . . . . 1 Rule 609 . . . . 26 Rule 702 . . . . 26 Rule 704 (b) . . . . 1 Rule 802 . . . . 1 Miscellaneous: ALI, Model Penal Code (1985) . . . . 21 4 William Blackstone, Commentaries . . . . 21 1 Matthew Hale, History of the Pleas of the Crown . . . . 21 Jerome Hall, Intoxication and Criminal Responsi- bility, 57 Harv. L. Rev. 1045 (1944) . . . . 21 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law (1986) . . . . 22 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-566 STATE OF MONTANA, PETITIONER v. JAMES ALLEN EGELHOFF ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONER INTEREST OF THE UNITED STATES The Montana Supreme Court concluded that a de- fendant in a criminal case has a "due process right to present and have considered by the jury all rele- vant evidence to rebut the State's evidence on all elements of the offense charged." Pet. App. 16a. The Federal Rules of Evidence contain a number of exclusionary provisions whose validity might be sub- ject to challenge if this Court were to endorse such a broad due process right. See Fed. R. Evid. 501 (privilege), 704 (b) (expert testimony on defendant's mental state when an element of a crime or defense) ; 802 (hearsay). In addition, Rule 105 provides that when, as a result of those rules, evidence is admitted (1) ---------------------------------------- Page Break ---------------------------------------- 2 only for a limited purpose "the court * * * shall restrict the evidence to its proper scope and instruct the jury accordingly." The United States therefore has an interest in the proper resolution of this case. STATEMENT 1. Respondent spent most of July 12, 1992, drink- ing with two companions, Roberta Pavola and John Christianson. That evening, witnesses saw Christian- son's station wagon being driven erratically. Around midnight, officers-found the station wagon in a ditch. The bodies of Pavola and Christianson were in the front seat; each had been shot in the head. Respond- ent was lying in the rear cargo area, yelling obscen- ities. A handgun belonging to respondent was found in the station wagon; forensics testing identified gun- shot residue on respondent's hands. Pet. App. 3a-6a. 2. Respondent was charged with two counts of deliberate homicide. Pet. App. 3a. Under Montana law, to convict a defendant of that offense, the State is required to prove that the defendant "purposely or knowingly cause [d] the death of another human being." Mont. Code Ann. 45-5-102(1) (a) (1993). At trial, the government introduced evidence that respondent was capable of purposeful action on the night of the murders. For example, while sitting in the back seat of the moving car, respondent appar- ently used a stick to depress the accelerator so that he could drive. He `made an attempt to flee when the station wagon ran off the road, tried to avoid detec- tion by witnesses who approached the vehicle, and kicked a camera out of the hands of a police officer who was attempting to take his picture. Pet, App. 11a-12a; see id. at 5a. ---------------------------------------- Page Break ---------------------------------------- 3 Respondent was allowed to introduce evidence of his intoxication on the night of the murders in order to explain his purported inability to remember the events, and in support of a claim that he lacked the level of physical coordination required to drive Chris- tianson's car or to commit the crimes, thus leading to the inference that "a fourth person was respon- sible for the shootings." Br. in Opp. 1; Pet. App. 10a. Evidence at trial showed that respondent's blood alcohol level was measured at .36 when he was treated at a hospital shortly after the bodies of Pavola and Christianson were discovered. A doctor who ex- amined respondent at the hospital testified that based on respondent's blood alcohol level and his behavior, it was likely that he had suffered an alcoholic "black- out" around the time of the murders. Respondent testified that he remembered almost nothing of what took place that night. Pet. App. 5a-7a. The trial court instructed the jury that respondent was presumed innocent, that his plea of not guilty was a denial of "every allegation of the charges against him," and that the State was required to prove his guilt beyond a reasonable doubt-that is, adduce "proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his own affairs." Pet. App. 27a- 28a; see also J.A. 13-14. The court also told the jury that it could not consider evidence of respondent's voluntary intoxication in determining whether he acted "purposely or knowingly": A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any of- fense and may not be taken into consideration in ---------------------------------------- Page Break ---------------------------------------- 4 determining the existence of a mental state which is an element of the offense unless the De- fendant proves that he did not know that it was an intoxicating substance when he consumed the substance causing the condition. Pet. App. 7a-8a. That instruction was based on a state statute, Mont. Code Ann. $45-2-203 (1993), which provides: Responsibility y-intoxicated condition. A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determin- ing the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an in- toxicating substance when he consumed, smoked, injected, or otherwise ingested the substance causing the condition. The jury convicted respondent of two counts of delib- erate homicide. Pet. App. 3a. 3. The Supreme Court of Montana reversed re- spondent's convictions, holding that he "was denied due process when the jury was instructed that volun- tary intoxication may not be taken into consideration in determining the existence of a mental state which is an element of the offense." Pet. App. 16a. While the court noted in passing that Chambers v. Missis- sippi, 410 U.S. 284 (1973), recognized a defendant's due process "right to present a defense," Pet. App. 12a, the court relied principally on Martin v. Ohio, 480 U.S. 228 (1987), where this Court upheld Ohio's rule requiring the defendant to prove self-defense. ---------------------------------------- Page Break ---------------------------------------- 5 The court noted that Martin emphasized that the jury in that case was permitted to consider, in deter- mining whether there was reasonable doubt about the State's case, the evidence offered by the defendant in support of a claim of self-defense, and that Martin stated that an instruction precluding the jury from considering the self-defense evidence for that pur- pose would "plainly run afoul" of In re Winship, 397 U.S. 358 (1970). Pet. App. 13a (quoting Martin, 480 U.S. at 233-234). In light of that passage from Martin, the court concluded that the defendant in a criminal ease has "a due process right to present and have considered by the jury all relevant evidence to rebut the State's evidence on all elements of the offense charged." Pet. App. 16a. Precluding the jury from considering rele- vant evidence, the court believed, lessens the State's burden under Winship of proving guilt beyond a reasonable doubt, because a jury that is allowed to consider such evidence could entertain a reasonable doubt as to whether the defendant acted " `knowingly' and [sic, or] `purposely.' " Pet. App. 14a; see also id. at 14a-15a ("The burden * * * is lessened be- cause the defendant is precluded from presenting ar- guments concerning the prosecution's `failure of proof' of the subjective mental state element."). The court reasoned that "[b] y allowing the jury to consider such evidence, we permit the jury to make its deci- sion on all of the relevant evidence as required under Martin." Id. at 14a. Accordingly, the court declared unconstitutional the portion of Mont. Code Ann. $45-2-203 (1993) that provides that a defendant's intoxicated condition "may not be taken into con- sideration in determining the existence of a mental state which is an element of the offense." Ibid. ---------------------------------------- Page Break ---------------------------------------- 6 SUMMARY OF ARGUMENT The Montana legislature has made a policy deter- mination that persons who engage in antisocial con- duct, including homicide, while voluntarily intoxi- cated should be held criminally responsible to the same extent as if they had been sober when they committed the criminal acts. Nothing in the Winship line of cases, under which the State must prove each element of a criminal charge beyond a reasonable doubt, forecloses that policy choice. To the contrary, those cases make clear that the applicability of the reasonable-doubt standard has always been dependent on how a State defines the offense in the first instance. The State's policy decisions in that regard are subject to due process challenge only if the defendant demon- strates that those decisions "off end [] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," Medina v. California, 505 U.S. 437, 445 (1992). There is no settled tradition that a State may not define its criminal offenses so as to preclude excuses based on any form of diminished capacity, including voluntary intoxication. Under the common law of England, voluntary intoxication afforded no excuse for the crime of murder, even though intoxication might be thought logically "relevant" to one's ability to act with the required element of "malice afore- thought." In this country, many States that classi- fied murder into degrees in the mid-nineteenth cen- tury departed from the common-law rule and accepted the relevance of intoxication evidence for those mur- ders that required proof of "specific intent." Other States, however, followed the common-law rule on ---------------------------------------- Page Break ---------------------------------------- 7 intoxication even with respect to "specific intent" crimes well into this century. Moreover, some States precluded defendants from making an analytically indistinguishable claim-i.e., that, as a result of a mental defect not amounting to legal insanity, the defendant could not form the "spe- cific intent" required to commit the crime. In three cases this century, this Court rejected pleas from defendants who claimed that they should have been permitted to rely on that type of diminished capacity to negate the intent element of their murders. In the third of those cases, Fisher v. United States, 328 U.S. 463 (1946), the Court not only failed to see any due process problem, but also declined to prescribe a dif- ferent rule under its supervisory authority over the courts of the District of Columbia. In light of that history, respondent cannot sustain his burden of dem- onstrating that Montana's policy choice violates a deeply rooted tradition of our people. This Court's decision in Martin v. Ohio, 480 U.S. 228 (1987 ), lends no support to the decision below. Martin does not create a rule of constitutionally rele- vant evidence, see Gilmore v. Taylor, 113 S. Ct. 2112 (1993), and recognition of such a broad due process principle could cast unwarranted doubt on the validity of numerous exclusionary rules of evidence. Martin does indicate that Winship limits a State's ability to preclude defendants from attempting to create a "rea- sonable doubt about the State's case." That state- ment, however, does not aid respondent, because the State's "case" consists of. proving only those facts that the legislature has made pertinent to criminal liability. Martin therefore cannot fairly be invoked to" invalidate the legislature's policy judgment that ---------------------------------------- Page Break ---------------------------------------- 8 intoxication is irrelevant to culpability. That con- clusion is not changed in any way by the Montana Supreme Court's observation that the defendant's "purpose" or "knowledge" is an "element" of murder that must be proved beyond a reasonable doubt under Winship. The court's observation simply begs the question, because the Montana legislature is free to provide that "purpose" and "knowledge" must be determined without regard to a defendant's voluntary intoxication. Because the Montana Supreme Court's misreading of Martin led to the unwarranted invali- dation of that policy choice, the judgment of that court should be reversed. ARGUMENT DUE PROCESS DOES NOT REQUIRE STATES TO RECOGNIZE VOLUNTARY INTOXICATION OR ANY OTHER FORM OF DIMINISHED CAPACITY AS A BASIS ON WHICH DEFENDANTS MAY AVOID OR. LIMIT PUNISHMENT FOR HOMICIDE 1. The Supreme Court of Montana held that fed- eral constitutional law bars the legislature from mak- ing the policy judgment to exclude consideration of voluntary intoxication from the mental state that is necessary for the commission of a crime. That analy- sis is fundamentally mistaken. This Court has made clear that it is for legislatures to prescribe the condi- tions for criminal punishment for antisocial conduct, see, e.g., Medina v. California, 505 U.S. 437, 445-446 (1992) ; McMillan v. Pennsylvania, 477 U.S. 79, 85- 86 (1986); Fowcha v. Louisiana, 504 U.S. 71, 94 (1992) (Kennedy, J., dissenting), and that courts therefore "should not lightly construe the Constitu- tion so as to intrude upon the administration of jus- ---------------------------------------- Page Break ---------------------------------------- 9 tice by the individual States." Medina v. California, 505 U.S. at 445 (quoting Patterson v. New York, 432 U.S. 197, 201-202 (1977)). As Justice Marshall explained in Powell v. Texas, 392 U.S. 514, 536 (1968) (plurality opinion), "[t]he doctrines of actus reus, mens rea, insanity, mistake, justification and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the states." See also id. at 545 (Black, J., concurring) ( "legisla- tures have always been allowed wide freedom to de- termine the extent to which moral culpability should be a prerequisite to conviction of a crime" since it would be "indefensible]" to "impos[e] on the States any particular test of criminal responsibility"); Harmelin v. Michigan, 501 U.S. 957, 999 (1991) (Kennedy, J., concurring in judgment) ("The fed- eral and state criminal systems have accorded differ- ent weights at different times to the penological goals of retribution, deterrence, incapacitation, and reha- bilitation"); Eaglin v. Welborn, 57 F.3d 496, 502 (7th Cir.) (en banc) (state may provide defense of entrapment only to those defendants who admit com- mitting the crime, despite contrary rule in the federal system, since "[t] he Constitution does not require the states to adopt the latest and best thinking on crim- inal procedure or any other subject"), cert. denied, 116 S. Ct. 421 (1995). That principle has been applied in a variety of contexts. In Powell v. Texas, supra, the plurality relied on it to reject a challenge to the State's power to criminalize public intoxication, which, because of ---------------------------------------- Page Break ---------------------------------------- 10 the defendant's compulsion to drink, was asserted to constitute "cruel and unusual punishment" barred by the Eighth Amendment. The plurality emphasized that "whatever may be the merits of such a doctrine of criminal responsibility," 392 U.S. at 533, this Court has "never articulated a general constitutional doctrine of mens rea." Id. at 535. In McMillan v. Pennsylvania, supra, the Court upheld against a due process challenge the State's decision to provide for increased punishment on the basis of a fact that it proved only by a preponderance of the evidence at sentencing, and expressly "reject [cd] the view that anything in the Due Process Clause bars States from making changes in their criminal law that have the effect of making it easier for the prosecution to ob- tain convictions." 477 U.S. at 89 n.5; accord Medina v. California, 505 U.S. at 451. And, more recently, in Schad v. Arizona, 501 U.S. 624 (1991), the Court upheld the power of the State to provide that the de- fendant could be convicted of murder upon proof of either of two alternative mental states, neither of which required jury unanimity. Speaking for the plurality, Justice Souter explained (id. at 638) that "[decisions about what facts are material and what are immaterial, or, in terms of Winship * * * what `fact [s] [are] necessary to constitute the crime,' and therefore must be proved individually, * * * repre- sent value choices more appropriately made in the first instance by a legislature than by a court." See also id. at 651-652 ( Scalia, J., concurring in judg- ment). The Montana statute invalidated by the court below represents an equally valid value choice about what facts are "material" to criminal responsibility and punishment, The Montana legislature has deter- ---------------------------------------- Page Break ---------------------------------------- 11 mined that "[a] person who is in an intoxicated condition is criminally responsible for his conduct" and that, accordingly, intoxication "may not be taken into consideration in determining the existence of a mental state" that otherwise is necessary to commit the crime. Mont. Code Ann. 45-2-203 (1993). The combined effect of Montana's statutes is therefore to require proof of purposeful or knowing conduct, apart from voluntary intoxication, as a prerequisite to a conviction for deliberate homicide. It may well be that the mental state that the prosecution is re- quired to prove under state law "is a watered down mens rea; however, this is the prerogative of the legislature." State v. Ramos, 648 P.2d 119, 121 (Ariz. 1982) (upholding statute barring evidence of intoxication on the issue whether the defendant acted "knowingly"); accord People v. DelGuidice, 606 P.2d 840, 842-844 ( Colo. 1979) (same; rejecting Win-ship challenge); see also State v. Souza, 813 P.2d 1384, 1386 (Hawaii 1991). Nothing in the Due Process Clause requires a leg- islature that makes certain forms of intent relevant to criminal culpability also to recognize excuses based on claims of diminished capacity at the time of the offense. A legislature is free to conclude, for ex- ample, that a claim of mental abnormality short of insanity does not diminish the moral blameworthi- ness of the criminal act or bear on the justness of its criminal punishment. Cf. Bethea v. United States, 365 A.2d 64, 87 (D.C. App. 1976), cert. denied, 433 U.S. 911 ( 1977).1 The same is true about the state ___________________(footnotes) 1 As the court noted in Sollars V. State, 316 P.2d 917, 919 (Nev. 1957), "[t]he existence of mental disorder may well be a fact. * * * It is quite another thing, however, to qualify as ---------------------------------------- Page Break ---------------------------------------- 12 of voluntary intoxication, And, where the substantive law of the State makes such a mental condition irrelevant to the defendant's responsibility, there can be no constitutional error in excluding such evidence when offered for that purpose, or in instructing the jury in accordance with state law. 2. This Court's cases bearing on the due process limits on a State's ability to preclude a defendant's claim that he lacked the mental capacity to commit the offense were thoroughly explored by the Seventh Circuit in Muench v. Israel, 715 F.2d 1124 (1983) (upholding Wisconsin rule that limits psychiatric evidence to insanity stage of bifurcated trial), cert. denied, 467 U.S. 1228 (1984) ; see also Haas v. Abrahamson, 910 F.2d 384, 391-397 (7th Cir. 1990). The Seventh Circuit correctly noted that this Court rejected similar claims in Fisher v. United States, 328 U.S. 463 (1946), for cases arising in the Dis- trict of Columbia, as it had earlier rejected them as a rule of due process for the States in Troche v. California, 280 U.S. 524 (1929) (per curiam), and Coleman v. California, 317 U.S. 596 (1942) (per curiam). In our view, those eases are inconsistent with the broad due process theory espoused by the Montana Supreme Court in this case. Troche involved the validity of state statutes pro- viding for a bifurcated trial in murder cases where the defendant asserted the defense of insanity. A trial was first held on the defendant's guilt, at which he was presumed to be sane and all matters of fact tending to establish insanity were inadmissible. The ___________________(footnotes) factual the determination that a certain state of disorder ought to relieve one from responsibility. This is a moral, not a factual, judgment." ---------------------------------------- Page Break ---------------------------------------- 13 sanity issue was determined only after the jury found the defendant guilty. See People v. Troche, 273 P. 767, 769-770 (Cal. 1928). In holding that the trial judge properly excluded evidence of Troche's mental illness at the first stage of the proceedings, the California Supreme Court relied on the fact that California criminal law did not recognize an excuse from criminal responsibility based on a mental defect other than insanity. Id. at 772. Troche appealed to this Court, challenging the statutory presumption of sanity and the exclusion of the insanity evidence at the guilt stage. He contended that those rulings "conclusively presum[ed] one of the main elements of a crime against the defendant, said element being that of intent." 715 F.2d at" 1138 (quoting from appellant's brief in this Court). This Court dis- missed for want of a substantial federal question. 280 U.S. at 524.2 ___________________(footnotes) 2 Such a dismissal is a ruling on the merits of the question that is binding on the lower courts until squarely overruled by this Court. See Hicks V. Miranda, 422 U.S. 332, 343-345 (1975); cf. Rodriguez de Quijas V. Shearson/American Ex- press, Inc., 490 U.S. 477, 484 (1989). See also Campbell v. Wainwright, 738 F.2d 1573, 1580-1582 (11th Cir. 1984) (up- holding exclusion of psychiatric evidence offered to negate specific intent; Troche and Coleman "are decisions on the merits of this question binding on the circuits courts to the extent that they have not been overruled"), cert. denied, 475 U.S. 1126 (1986); State V. Brom,, 463 N.W.2d 758,764 (Minn. 1990) (relying on Troche and Coleman to conclude that "a bifurcated trial procedure in which psychiatric testimony is inadmissible on the issue of premeditation does not violate the federal due process guarantee"), cert. denied, 499 U.S. 940 (1991). That dismissal is also entitled to precedential weight in this Court, though not "to the same deference given a rul- ing after briefing, argument, and a written opinion." Caban ---------------------------------------- Page Break ---------------------------------------- 14 Coleman also involved a challenge to the California scheme for proving insanity. The defendant in Cole- man challenged his conviction on the ground that the jury should be permitted to consider "mental abnor- malities not amounting to a complete defense of legal insanity, but which still may show the lack of capac- ity to form the specific intent to commit first degree murder." People v. Coleman, 126 P.2d 349, 353 (1942). The California Supreme Court rejected that claim, noting that such a view was more properly addressed "to the desirability of the legislative policy, rather than to the question of deprivation of consti- tutional rights under the established system." Id. at 353. Citing. its prior summary disposition in Troche, this Court dismissed Coleman's ensuing ap- peal. Coleman, 317 U.S. at 596. Shortly thereafter, this Court reached the same conclusion, after briefing and argument, in a murder case prosecuted by the Unite-d States in the local courts of the District of Columbia. See Fisher v. United States, 328 U.S. 463 (1946). After a unitary trial, the defendant in Fisher was convicted and sen- tenced to death for first degree murder, an offense for which "[d]eliberation and premeditation [were] necessary elements." Id. at 464-466. At his trial, he was permitted to introduce testimony of his mental infirmities in support of an insanity defense, but the trial court refused to instruct the jury that such evidence should be considered in deciding whether the ___________________(footnotes) V. Mohammed, 441 U.S. 380, 390 n.9 (1979). As we explain below, Fisher rejected similar claims after briefing and argument. ---------------------------------------- Page Break ---------------------------------------- 15 killing was deliberate and premeditated.3 This Court agreed with Fisher's submissions that the jury "could have determined from the evidence [of his mental deficiency] that the homicide was not the result of premeditation and deliberation," id. at 467, and that "[t]he jury might not have reached the result it did if the theory of partial responsibility for his acts which the petitioner urges had been submitted." Id. at 470.4 The Court nonetheless affirmed, emphasizing ___________________(footnotes) 3 The instruction requested by the defendant provided: "The jury is instructed that in considering the question of intent or lack of intent to kill on the part of the defendant, the question of premeditation or no premeditation, deliberation or no deliberation, whether or not the defendant at the time of the fatal acts was of sound memory and discretion, it should consider the entire personality of the defendant, his mental, nervous, emotional and physical characteristics as developed by the evidence in the case." Fisher- V. United States, 149 F.2d 28, 29 (D.C. Cir. 1945), aff'd, 328 U.S. 463 (1946) . 4 That recognition indicates that the Court's affirmance was not based on the view that the defendant's theory of defense was adequately covered by the balance of the trial court's instructions, compare United States V. Pomponio, 429 U.S. 10, 12-13 (1976) (per curiam), but on the view that the applicable substantive law, which did not recognize the de- fendant's theory of excuse, would have made the giving of the proposed instruction error. See also Fisher, 328 U.S. at 491 (Murphy, J., dissenting) ("The issue here is narrow yet replete with significance. Stated briefly, it is this: May mental deficiency not amounting to complete insanity properly be considered by the jury in determining whether a homicide has been committed with the deliberation and premeditation necessary to constitute first degree murder?"); Muench v. Israel, 715 F.2d at 1142 ("Under Fisher, it seems inescapable that it would have been proper to instruct the jury that the evidence it did in fact hear concerning the defendant's mental ---------------------------------------- Page Break ---------------------------------------- 16 (id. at 476) that recognition of any doctrine excusing criminal acts on the ground of "partial responsibility" would be "a radical departure from common law con- cepts * * * [and] more properly a subject for the exercise of legislative power or at least for the dis- cretion of the courts of the District." As the Court noted: [T]here was sufficient evidence to support a ver- dict of murder in the first degree, if petitioner was a normal man in his mental and emotional characteristics. But the defense takes the posi- tion that the petitioner is fairly entitled to be judged as to deliberation and premeditation, not by a theoretical normality but by his own per- sonal traits. In view of the status of the defense of partial responsibility in the District and the nation no contention is or could be made of the denial of due process. 328 U.S. at 466 (citation omitted). Indeed, the Court did not even find it appropriate to exercise its super- visory power to require the instruction sought by the defendant. Id. at 476-477.5 ___________________(footnotes) illness could not be considered by it in reaching its verdict on the mens rea question, but only in its deliberation on the insanity question."); Welcome V. Blackburn, 793 F.2d 672, 674 (5th Cir. 1986) (upholding, as "a proper statement of Louisiana law" which is "permissible as a matter of federal constitutional law" under Fisher, an instruction telling the jury that "any mental disability short of legal insanity * * * cannot serve to negate specific intent and reduce the degree of the crime"), cert. denied, 481 U.S. 1042 (1987). 5 A similar issue has arisen in the lower courts under the Insanity Reform Act of 1984, 18 U.S.C. 17, which not only restricted the defense of insanity, but also provided that "[m]ental disease or defect does not otherwise constitute a ---------------------------------------- Page Break ---------------------------------------- 17 Significantly for this case, the defendant in Fisher relied on this Court's earlier decision in Hopt v. People, 104 U.S. 631 (1881), in which this Court had "reversed the Supreme Court of the Territory of Utah for failure to give a partial responsibility charge upon evidence of drunkenness." 328 U.S. at 475.6 The Fisher Court did not disagree that, insofar as Fisher's and Hopt's crimes each required proof of deliberation and premeditation, the issues were an- alytically identical. See 328 U.S. at 491-493 (Murphy, J., dissenting) (arguing that Hopt controlled, and that the lower courts were under a "duty * * * to fashion rules to permit the jury to utilize all relevant evidence directed toward" the existence of delibera- tion and premeditation) .7" The Court distinguished ___________________(footnotes) defense." Ibid. Several courts of appeals have concluded that, in enacting that Act, Congress did not intend to preclude claims of mental defect (short of insanity) when the pur- ported mental abnormalities would negate the intent element of a crime. See, e.g., United States V. Pohlot, 827 F.2d 889, 900-903 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988); see also id. at 902 n.12. In our view, if Congress concludes that those courts have misread its intent on that question, it clearly would have the constitutional authority to preclude admission of such evidence on the issue of mens rea. 6 Respondent also relied on Hopt in opposing the, State's petition for a writ of certiorari. See Br. In Opp. 8-9. 7 See also Robinson V. Ponte, 933 F.2d 101, 104-105 (1st Cir. 1991) (noting the First Circuit's reluctance to hold that "federal constitutional law compels an instruction, where war- ranted by the evidence, that evidence of intoxication may be considered in deciding whether the prosecution has proved specific intent beyond a reasonable doubt," and citing, inter alia, Fisher), cert. denied, 503 U.S. 92,2 (1992). Indeed, Fisher argued that his claim was far more compelling than Hopt's: ---------------------------------------- Page Break ---------------------------------------- 18 Hopt, however, on the ground that "the Territory of Utah had a statute specifically establishing such a rule." 328 U.S. at 475; see also id. at 473 n.11 ("The Court was there considering intoxication under a statutory requirement that the intoxication should be taken into consideration by the jury in determin- ing the degree of the offense."). Neither Congress nor the local courts of the District of Columbia, to which "[m]atters relating to law enforcement in the District [were] entrusted," had made an analogous policy choice with respect to Fisher's theory of re- duced responsibility resulting from mental deficiency. Id. at 476.8 ___________________(footnotes) "If intoxication voluntarily induced and carried to such a degree that the accused is incapable of deliberating can reduce the crime from murder in the first degree to murder in the second degree, it certainly would appear that disease and congenital defects which the accused can neither prevent nor cure should have under similar circumstances no less effect." Petition for a Writ of Certiorari at 14, Fisher v. United States, 328 U.S. 463 (1946) (No. 122) . 8 That the Court regarded the issue as one of policy is underworld by its response to Fisher's observation that "evi- dence of intoxication to a state where one guilty of the crime of murder may not be capable of deliberate premeditation requires in the District of Columbia an instruction to that effect," Fisher, 328 U.S. at 473-475. Fisher argued that it necessarily followed that mental deficiency evidence warranted a similar instruction. While not disputing Fisher's suggestion that mental deficiency evidence was logically just as relevant as intoxication evidence, id. at 475, the Court determined that whether the jury should be instructed to consider mental defi- ciency evidence was not a matter of due process, id. at 466, but was a matter "more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District." Id. at 476; see also Griffit V. United States, ---------------------------------------- Page Break ---------------------------------------- 19 The teaching of Troche, Coleman, and Fisher is that the substantive judgments about what sorts of mental characteristics-particularly claims of dimin- ished capacity-will be deemed legally significant to excuse an individual's responsibility for criminal con- duct are to be made by lawmaking bodies, not by application of the Due Process Clause. Within broad limits set by other constitutional guarantees, such as any proportionality inquiry required under the cir- cumstances by the Eighth Amendment, cf. Harmelin v. Michigan, supra, it is within the competence of legislative powers to punish crimes based on proof of a mental state that assumes a defendant's "theoret- ical normality [apart from] his own personal traits." Fisher, 328 U.S. at 466. Because that is precisely the effect of the Montana statute that makes intoxica- tion irrelevant to a defendant's mens rea, the court below erred in invalidating it. 3. Nothing in In re Winship, 397 U.S. 358 (1970), or its progeny, requires a different conclusion. Win- ship accorded substantive due process protection to the longstanding common law rule that prohibited a defendant's conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364; see also Miles v. United States, 103 U.S. 304, 312 (1881). That was far from a radical development, since "[l]ong before Winship, the universal rule in this country was that the prosecution must prove ___________________(footnotes) 336 U.S. 704, 717 (1949) ("The conviction in [Fisher] was affirmed essentially on the principle that the law of evidence and procedure governing criminal trials in the District of Columbia is in the keeping of the Court of Appeals for the District and is not to be exercised by this Court"). ---------------------------------------- Page Break ---------------------------------------- 20 guilt beyond a reasonable doubt." Patterson v. New York, 432 U.S. at 211; see also Winship, 397 U.S. at 361 (noting "virtually unanimous adherence to the reasonable-doubt standard in common-law juris- dictions" ).9 And, as subsequent decisions have made clear, Winship did not alter the antecedent under- standing that the proof that is sufficient for convic- tion "must be gauged in light of the applicable [state] law." Jackson v. Virginia, 443 U.S. 307, 324 (1979); Patterson v. New York, 432 U.S. at 211 n.12 ("The applicability of the reasonable-doubt standard * * * has always been dependent on how a State defines the offense that is charged in any given case"). A State's decisions in this regard are not subject to due process challenge unless they " `offend [] some princi- ple of justice so rooted in the traditions and con- science of our people as to be ranked as funda- mental.' " Medina v. California, 505 U.S. at 445 (quoting Patterson v. New York, 432 U.S. at 201- 202). Here, there is "no historical basis for concluding" (Medina v. California, 505 U.S. at 448) that there is "a settled tradition" (id. at 446) that prevents a State from defining its criminal offenses so as to preclude excuses based on any form of diminished ___________________(footnotes) 9 Thus, where the reasonable-doubt right was recognized as applicable, failure of the State to respect it would amount to a due process violation, even before Winship. See 397 U.S. at 386 (Black, J., dissenting) ("as long as a particular juris- diction requires proof beyond a reasonable doubt, then the Due Process Clause commands that every trial in the juris- diction must adhere to that standard"); cf. Walker v. Sauvinet, 92 U.S. 90, 93 (1876). Winship arose only because the state law at issue did not extend the same right to juvenile adjudications. 397 U.S. at 360. ---------------------------------------- Page Break ---------------------------------------- 21 capacity, including voluntary intoxication. As the Court noted in Hopt v. People, supra, "[a] t common law, indeed, as a general rule, voluntary intoxication afford [cd] no excuse, justification, or extenuation of a crime committed under its influence." 104 U.S. at 633; see also Jerome Hall, Intoxication and Criminal Responsibility, 57 Harv. L. Rev. 1045, 1046 (1944) ("The early common law apparently made no concession whatever because of intoxication, however gross"); Colbath v. State, 4 Tex. Crim. 76, 77-79 (1878).10 It was not until the mid-nineteenth cen- tury that some States began relaxing that rule, but even then only with respect to statutory crimes re- quiring "specific intent" for their commission. See Hall, 57 Harv. L. Rev. at 1049-1050.11 Some States, ___________________(footnotes) 10 As the court noted in Colbath, "[w]e find it laid down as early as the reign of Edward VI. (1548), that `if a person that is drunk kills another, this shall be a felony, and he shall be hanged for it, and yet he did it through ignorance, for- when he was drunk he had no understanding nor memory; but inasmuch as that ignorance was occasioned by his own act and folly, he might have avoided it, he shall not be privileged thereby.' Plowd. l9." 4 Tex. Crim. at 77-78; see also id. at 78 (noting Hale's view that "such a person shall have no privilege by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses") (quot- ing 1 Matthew Hale, History of the Pleas of the Crown 32); 4 William Blackstone, Commentaries *26 ("The law of Eng- land, considering how easy it is to contract this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by another."). 11 The Model Penal Code recognizes intoxication as an ex- cuse when it "negatives an element of the offense" other than recklessness. See Model Penal Code 2.08(1) (1985). As the drafters recognized, the Code's distinction turns purely on policy choices since " [as] a matter of logic the fact of acute ---------------------------------------- Page Break ---------------------------------------- 22 however, retained the common law rule even with respect to "specific intent" offenses well into this cen- tury. See State v. Shipman, 189 S.W.2d 273, 274- 275 (Me. 1945); State v. Stacy, 160 A. 257, 268-269 (Vt. 1932). Indeed, as demonstrated by Troche, Coleman, and Fisher, there was no widely-shared understanding- late into this century-that a defendant's purported lack of mental capacity to form a "specific intent" to commit murder inherently precluded his criminal responsibility, even with respect to the far more sympathetic cases posed by defendants whose asserted lack of capacity stemmed from mental abnormality rather than from their own voluntary conduct. The defendant in Fisher specifically urged that his pro- posed rule followed from Congress's decision to de- part from the common law by recognizing degrees of murder. 328 U.S. at 472-473. In rejecting that claim, the Court noted that common-law murder required "malice aforethought, either express or im- plied," and explained that " [a]s capacity of a defend- ant to have malice would depend upon the same kind of evidence and instruction which is urged here, it cannot properly be said that the separation of murder into degrees introduced a new situation into the law * * *." Id. at 473 (footnotes omitted).12 ___________________(footnotes) alcoholic intoxication may ground an inference that the actor did not act with the knowledge or purpose or recklessness required as an element of the crime." Id. at 352 n.7 (emphasis added). 12 Whether or not "most of the modern [state] criminal codes provide either that intoxication is a defense if it nega- tives a mental state or that it is admissible in evidence when- ever relevant to negate an element of the offense charged," ---------------------------------------- Page Break ---------------------------------------- 23 The Montana Supreme Court erred in reading this Court's decision in Martin v. Ohio, supra, as requir- ing a different conclusion. Martin did state that it would be error under Winship to instruct the jury "that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case." 480 U.S. at 233; see also Leland v. Oregon, 343 U.S. 790, 794-795 (1952). That statement, however, has meaning only with ref- erence to what "the State's case" is. It therefore cannot be divorced from the settled rule that " [t]he applicability of the reasonable-doubt standard * * * has always been dependent on how a State defines the offense that is charged in any given case." Pat- terson v. New York, 432 U.S. at 211 n.12; McMillan v. Pennsylvania, 477 U.S. at 85.13 Martin's obser- ___________________(footnotes) see 1 Wayne R. LaFave & Austin W. Scott, Substantive Crimi- nal Law 410 (a), at 551 n.8 (1986), the issue remains one of legislative policy. There is no uniform rule in this country that evidence of voluntary intoxication must always be admitted, see 95-566 Amicus Br. of Delaware et al. at 4 n.1 (filed Nov. 6, 1995) (listing ten States with provisions comparable to Mon- tana's), or that all purported "diminished capacity" evidence must be admitted. See also Martin V. Ohio, 480 U.S. at 236 (that all but two States had abandoned common law rule of requiring the defendant to prove self-defense did not render the rule of those two States unconstitutional). 13 Indeed, the statement that followed the one we quote in the text indicates that the Court was concerned about an entirely different problem: "i.e., [an instruction] that self- defense evidence must be put aside for all purposes unless it satisfied the preponderance standard." 480 U.S. at 233-234. That type of "discrimination" against defense evidence has long been held to burden the reasonable-doubt standard, and therefore to violate Winship, See Cool V. United States, 409 U.S. "100, 102-104 (1972) (instruction directing jury to con- ---------------------------------------- Page Break ---------------------------------------- 24 vation was correct so far as it went, but only because it was not disputed in that case that Ohio law defined the intent element of murder in a way that made the "self-defense evidence" relevant to whether the State had proved that element beyond a reasonable doubt. Compare Jackson v. Virginia, supra, where the Court considered evidence of the defendant's intoxication in determining whether he acted with premeditation (443 U.S. at 325), but only after carefully noting that " [u]nder Virginia law, voluntary intoxication * * * is material to the element of premeditation and may be found to have negated it." Id. at 311 n.12. It is true, as the Montana Supreme Court observed, that mens rea-i.e., "purpose" or "knowledge''-is an "element" of the crime with which respondent was charged and that this mental element must there- fore be proved beyond a reasonable doubt under Winship. See also Sandstrom v. Montana, 442 U.S. 510, 520-521 n.10 (1979). But that observation simply begs the question, because the Montana legis- lature is free to define what "purpose" and "knowl- edge" mean by regulating the factors that bear on proof of a "mental state which is an element of the offense." Mont. Code Ann. $45-2-203. See, e.g., Mc- Millan v. Pennsylvania, 477 U.S. at 85; see also Staples v. United States, 114 S. Ct. 1793, 1796 (1994); United .States v. Gaudin, 115 S, Ct. 2310, 2321 (1995) (Rehnquist, C. J., concurring), Winship requires the prosecutor to prove the elements of the crime as those elements have been defined by the entire corpus of state law, cf. Martin, 480 U.S. at 235; Engle v. Isaac, 456 U.S. 107, 120-121 (1982), ___________________(footnotes) sider testimony of defense witness only if satisfied of its truth beyond a reasonable doubt). ---------------------------------------- Page Break ---------------------------------------- 25 including all relevant statutes passed by the state legislature. Winship does not require that courts as- sume the quite different task that the Montana Su- preme Court undertook here-viz., to invalidate a statute that makes a particular mental condition irrel- evant to a defendant's responsibility, without even considering that the state legislature is free to make policy choices in the definition `of crimes by refining the state of mind required for conviction. As an interpretation of Winship and its progeny, the analy- sis of the court below amounts to putting the cart before the proverbial horse. The circularity of the Montana Supreme Court's reasoning is well illustrated by its conclusion that Martin and Winship require "the jury to make its decision on all of the relevant evidence." Pet. App. 14a. Relevance is not ordinarily understood as "an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in a case." Hud- dleston v. United States, 485 U.S. 681, 689 (1988) (quoting Advisory Committee's Notes on Fed. R. Evid. 401). Because the matters "properly provable" in a state criminal case traditionally have been thought to be in the province of the legislature, it is anomalous to invoke the criterion of "relevance" to invalidate a state statute that purports to provide that some matters are not "properly provable" in a case. Moreover, apart from begging the question of what matters were properly provable to establish respond- ent's crime, there is no support in this Court's cases for the proposition that due process requires admis- sion of "all relevant evidence" (Pet. App. 14a, 16a) ---------------------------------------- Page Break ---------------------------------------- 26 that theoretically could create a reasonable doubt about the State's case. If accepted, such a broad view of a defendant's due process rights could ef- fectively preclude application in criminal cases of many exclusionary rules of evidence the validity of which has never before been doubted.14 Winship, however, did not establish any doctrine of "constitu- tionally relevant evidence." Gilmore v. Taylor, 113 S. Ct. 2112, 2118-2119 (1993) ; accord Michigan v. Lucas, 500 U.S. 145, 149 (1991 ) (the fact that state evidentiary rules "operate [] to prevent a crim- inal defendant from presenting relevant evidence * * * does not necessarily render [them] unconstitu- tional" under-the Sixth Amendment).15 ___________________(footnotes) 14 Under the broad due process principle articulated by the Montana Supreme Court, a criminal defendant could claim an absolute right to impeach government witnesses with ancient convictions, see Fed. R. Evid. 609, to introduce logically rele- vant expert testimony that is insufficiently reliable to amount to "scientific knowledge," see Fed. R. Evid. 702; Daubert V. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2795 (1993), or to introduce evidence of his co-defendant's "other wrongs" to demonstrate that cc-defendant's "propensity" to commit crimes and thus the likelihood that he, rather than the defend- ant, was the guilty party, see Fed. R. Evid. 404(b). 15 That is not to say, of course, that there are no due process limits to the State's ability to exclude evidence from a criminal case. The Due Process Clause "guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane V. Kentucky, 476 U.S. 683, 690 (1986) (quoting Cali- fornia V. Trombetta, 467 U.S. 479, 485 (1984)); see Rock V. Arkansas, 483 U.S. 44, 55-56 (1987); Chambers V. Mississippi, 410 U.S. 284, 294 (1973); see also Jackson V. Virginia, 443 U.S. at 314-315 (distinguishing Winship right from the due process right of "a meaningful opportunity to defend"). In our view, that separate due Process right is not at issue here, ---------------------------------------- Page Break ---------------------------------------- 27 CONCLUSION The judgment of the Supreme Court of Montana should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DreEBEN Deputy Solicitor General MIGUEL A. EStradA Assistant to the Solicitor General NINA GOODMAN Attorney JANUARY 1996 ___________________(footnotes) because its existence necessarily turns on a recognition by the law that defines the crime that the claim being advanced by the defendant would provide grounds for an acquittal * U.S. GOVERNMENT PRINTING OFFICE; 1996 405017 40045 ---------------------------------------- Page Break ----------------------------------------