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Contents: Chapter Six--Criminal Defenses

Patterson v. New York
Justice White's majority opinion
Justice Marshall's dissenting opinion
Montana v. Egelhoff
Justice Scalia's majority opinion
Justice O'Connor's dissenting opinion

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The following case is associated with footnote 1 on page 199.

Patterson v. New York
U.S. Supreme Court
432 U.S. 197
June 17, 1977

MR. JUSTICE WHITE delivered the opinion of the Court.

The question here is the constitutionality under the Fourteenth Amendment's Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.

I

After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head. 

Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) "intent to cause the death of another person"; and (2) "caus[ing] the death of such person or of a third person." N.Y. Penal Law 125.25 (McKinney 1975).... Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." ...

New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person "under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance."... Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance....

The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged:

"Before you, considering all of the evidence, can convict this defendant or anyone of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill either the victim himself or some other human being....

"Always remember that you must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness, he is not obliged, he is not obligated to prove anything. It is always the People's burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt." ...

The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder.

The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, ... (1975), in which the Court declared Maine's murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he committed the offense with "malice aforethought" by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process. In the Court of Appeals appellant urged that New York's murder statute is functionally equivalent to the one struck down in Mullaney and that therefore his conviction should be reversed....

The Court of Appeals rejected appellant's argument, holding that the New York murder statute is consistent with due process. 39 N.Y. 2d 288, 347 N. E. 2d 898 (1976). The Court distinguished Mullaney on the ground that the New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder. This appeal ensued, and we noted probable jurisdiction. ... We affirm. 

II

It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, ... (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally "within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion," and its decision in this regard is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." ...

In determining whether New York's allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defense--indeed, "all ... circumstances of justification, excuse or alleviation"--rested on the defendant. ...  This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified....

In 1895 the common-law view was abandoned with respect to the insanity defense in federal prosecutions. Davis v. United States, ... (1895). This ruling had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses, and the prosecution in a majority of jurisdictions in this country sooner or later came to shoulder the burden of proving the sanity of the accused and of disproving the facts constituting other affirmative defenses, including provocation. Davis was not a constitutional ruling, however, as Leland v. Oregon, supra, made clear....

At issue in Leland v. Oregon was the constitutionality under the Due Process Clause of the Oregon rule that the defense of insanity must be proved by the defendant beyond a reasonable doubt. Noting that Davis "obviously establish[ed] no constitutional doctrine,"... the Court refused to strike down the Oregon scheme, saying that the burden of proving all elements of the crime beyond a reasonable doubt, including the elements of premeditation and deliberation, was placed on the State under Oregon procedures and remained there throughout the trial. To convict, the jury was required to find each element of the crime beyond a reasonable doubt, based on all the evidence, including the evidence going to the issue of insanity. Only then was the jury "to consider separately the issue of legal sanity per se...." ... This practice did not offend the Due Process Clause even though among the 20 States then placing the burden of proving his insanity on the defendant, Oregon was alone in requiring him to convince the jury beyond a reasonable doubt. 

In 1970, the Court declared that the Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, ... 364 (1970). Five years later, in Mullaney v. Wilbur, ... (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity. 

Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, ... (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question.... 

III

We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. The statute does provide an affirmative defense--that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation--which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.

Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson's mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson's affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [Patterson was] charged."...

In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant's mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.

The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting "the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them," ... does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson's conviction must be sustained.

We are unwilling to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. Here, in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant's emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate, but which must be established by the defendant to be operative…. The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.

The requirement of proof beyond a reasonable doubt in a criminal case is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."... The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan's aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail. 

It is said that the common-law rule permits a State to  punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate....
 
We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. "[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime." ... The legislature cannot "validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt." ...

Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required.... This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses--for whatever reasons--mean that those States that strike a different balance are in violation of the Constitution.... 

IV

It is urged that Mullaney v. Wilbur necessarily invalidates Patterson's conviction. In Mullaney the charge was murder, ... which the Maine statute defined as the unlawful killing of a human being "with malice aforethought, either express or implied." The trial court instructed the jury that the words "malice aforethought" were most important because "malice aforethought is an essential and indispensable element of the crime of murder." Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from "any deliberate, cruel act committed by one person against another suddenly ... or without a considerable provocation," in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed "in the heat of passion, on sudden provocation." The instructions emphasized that "'malice aforethought and heat of passion on sudden provocation are two inconsistent things'; thus, by proving the latter the defendant would negate the former." ...
 
Wilbur's conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty of manslaughter rather than murder--a burden which the Maine law had allocated to him at least since the mid-1800s.

The Court of Appeals for the First Circuit then ordered that a writ of habeas corpus issue, holding that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime. The Maine Supreme Judicial Court disputed this interpretation of Maine law in State v. Lafferty, … (1973), declaring that malice aforethought, in the sense of premeditation, was not an element of the crime of murder and that the federal court had erroneously equated the presumption of malice with a presumption of premeditation. 

"Maine law does not rely on a presumption of 'premeditation' (as Wilbur v. Mullaney assumed) to prove an essential element of unlawful homicide punishable as murder.  Proof beyond a reasonable doubt of 'malice aforethought' (in the sense of 'premeditation') is not essential to conviction.... [T]he failure of the State to prove 'premeditation' in this context is not fatal to such a prosecution because, by legal definition under Maine law, a killing becomes unlawful and punishable as 'murder' on proof of 'any deliberate, cruel act, committed by one person against another, suddenly without any, or without a considerable provocation.' State v. Neal, ... (1854). Neal has been frequently cited with approval by our Court."...

 
When the judgment of the First Circuit was vacated for reconsideration in the light of Lafferty, that court reaffirmed its view that Wilbur's conviction was unconstitutional. This Court, accepting the Maine court's interpretation of the Maine law, unanimously agreed with the Court of Appeals that Wilbur's due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation. 

Mullaney's holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.... In our view, the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mullaney when Rivera was dismissed for want of a substantial federal question.

Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State's practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, "suddenly without any, or without a considerable provocation."... Premeditation was not within the definition of murder; but malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have been, it is contrary to the Due Process Clause as construed in Winship.

As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is Affirmed.

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MR. JUSTICE POWELL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. 

In the name of preserving legislative flexibility, the Court today drains In re Winship, ... (1970), of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence.

I

An understanding of the import of today's decision requires a comparison of the statutes at issue here with the statutes and practices of Maine struck down by a unanimous Court just two years ago in Mullaney v. Wilbur, ... (1975).

A

Maine's homicide laws embodied the common-law distinctions along with the colorful common-law language. Murder was defined in the statute as the unlawful killing of a human being "with malice aforethought, either express or implied." Manslaughter was a killing "in the heat of passion, on sudden provocation, without express or implied malice aforethought." ... Although "express malice" at one point may have had its own significant independent meaning, ... in practice a finding that the killing was committed with malice aforethought had come to mean simply, that heat of passion was absent. Indeed, the trial court in Mullaney expressly charged the jury that "malice aforethought and heat of passion on sudden provocation are two inconsistent things."  ...  And the Maine Supreme Judicial Court had held that instructions concerning express malice (in the sense of premeditation) were unnecessary. The only inquiry for the jury in deciding whether a homicide amounted to murder or manslaughter was the inquiry into heat of passion on sudden provocation....

Our holding in Mullaney found no constitutional defect in these statutory provisions. Rather, the defect in Maine practice lay in its allocation of the burden of persuasion with respect to the crucial factor distinguishing murder from manslaughter. In Maine, juries were instructed that if the prosecution proved that the homicide was both intentional and unlawful, the crime was to be considered murder unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. Only if the defendant carried this burden would the offense be reduced to manslaughter. 

New York's present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the factors of real importance in the jury's decision. Also, only a limited range of aggravations would lead to mitigation under the common-law formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man's passions to cool, regardless of whether the actor's own thermometer had registered any decline.... The American Law Institute took the lead in moving to remedy these difficulties. As part of its commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace "heat of passion" with the moderately broader concept of "extreme mental or emotional disturbance." The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included as 210.3 of the 1962 Proposed Official Draft.

At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter.... Under current New York law, ... those who kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse," the crime is reduced to manslaughter. The supposed defects of a formulation like Maine's have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined "from the viewpoint of a person in the defendant's situation under the circumstances ... as the defendant believed them to be." ... The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.

Despite these changes, the major factor that distinguishes murder from manslaughter in New York--"extreme emotional disturbance"--is undeniably the modern equivalent of "heat of passion." The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation.... The New York drafters left no doubt about their reliance on the ALI work.... Both the majority and the dissenters in the New York Court of Appeals agreed that extreme emotional disturbance is simply "a new formulation" for the traditional language of heat of passion. ...
 
But in one important respect the New York drafters chose to parallel Maine's practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised.... In New York, however, extreme emotional disturbance constitutes an affirmative defense rather than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well.... 

B

Mullaney held invalid Maine's requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York's requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine's law from New York's. It does so on the basis of distinctions in language that are formalistic rather than substantive.

This result is achieved by a narrowly literal parsing of the holding in Winship: "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." ... The only "facts" necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime.... Maine's statute was invalid, the Court reasons, because it "defined [murder] as the unlawful killing of a human being 'with malice aforethought, either express or implied.'"... "[M]alice," the Court reiterates, "in the sense of the absence of provocation, was part of the definition of that crime."... Winship was violated only because this "fact"--malice--was "presumed" unless the defendant persuaded the jury otherwise by showing that he acted in the heat of passion.... New York, in form presuming  no affirmative "fact" against Patterson, ... and blessed with a statute drafted in the leaner language of the 20th century, escapes constitutional scrutiny unscathed even though the effect on the defendant of New York's placement of the burden of persuasion is exactly the same as Maine's....
 
This explanation of the Mullaney holding bears little resemblance [432 U.S. 197, 223] to the basic rationale of that decision.... But this is not the cause of greatest concern. The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense....

Perhaps the Court's interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, "a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."... (concurring opinion). ...  Explaining Mullaney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing--a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York's factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in society demands. According to the Court, it is because Maine happened to attach a name--"malice aforethought"--to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance. ... 

With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court's opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.... It would be preferable, if the Court has found reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents.

The Court understandably manifests some uneasiness that its formalistic approach will give legislatures too much latitude in shifting the burden of persuasion. And so it issues a warning that "there are obviously constitutional limits beyond which the States may not go in this regard."... The Court thereby concedes that legislative abuses may occur and that they must be curbed by the judicial branch. But if the State is careful to conform to the drafting formulas articulated today, the constitutional limits are anything but "obvious." This decision simply leaves us without a conceptual framework for distinguishing abuses from legitimate legislative adjustments of the burden of persuasion in criminal cases....

II

It is unnecessary for the Court to retreat to a formalistic test for applying Winship. Careful attention to the Mullaney decision reveals the principles that should control in this and like cases. Winship held that the prosecution must bear the burden of proving beyond a reasonable doubt "the existence of every fact necessary to constitute the crime charged."... quoting Davis v. United States, ... (1895). In Mullaney we concluded that heat of passion was one of the "facts" described in Winship--that is, a factor as to which the prosecution must bear the burden of persuasion beyond a reasonable doubt. ... We reached that result only after making two careful inquiries. First, we noted that the presence or absence of heat of passion made a substantial difference in punishment of the offender and in the stigma associated with the conviction.... Second, we reviewed the history, in England and this country, of the factor at issue.... Central to the holding in Mullaney was our conclusion that heat of passion "has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide." ...

Implicit in these two inquiries are the principles that should govern this case. The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition ... the factor in question historically has held that level of importance.... If either branch of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence, "that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.'" ... This is not a test that rests on empty form, for "Winship is concerned with substance rather than ... formalism."...

I hardly need add that New York's provisions allocating the burden of persuasion as to "extreme emotional disturbance" are unconstitutional when judged by these standards. "Extreme emotional disturbance" is, as the Court of Appeals recognized, the direct descendant of the "heat of passion" factor considered at length in Mullaney. I recognize, of course, that the differences between Maine and New York law are not unimportant to the defendant; there is a somewhat broader opportunity for mitigation. But none of those distinctions is relevant here. The presence or absence of extreme emotional disturbance makes a critical difference in punishment and stigma, and throughout our history the resolution of this issue of fact, although expressed in somewhat different terms, has distinguished manslaughter from murder. ... 

III

The Court beats its retreat from Winship apparently because of a concern that otherwise the federal judiciary will intrude too far into substantive choices concerning the content of a State's criminal law.... The concern is legitimate, ... but misplaced. Winship and Mullaney are no more than what they purport to be: decisions addressing the procedural requirements that States must meet to comply with due process. They are not outposts for policing the substantive boundaries of the criminal law.

The Winship/Mullaney test identifies those factors of such importance, historically, in determining punishment and stigma that the Constitution forbids shifting to the defendant the burden of persuasion when such a factor is at issue. Winship and Mullaney specify only the procedure that is required when a State elects to use such a factor as part of its substantive criminal law. They do not say that the State must elect to use it. For example, where a State has chosen to retain the traditional distinction between murder and manslaughter, as have New York and Maine, the burden of persuasion must remain on the prosecution with respect to the distinguishing factor, in view of its decisive historical importance. But nothing in Mullaney or Winship precludes a State from abolishing the distinction between murder and manslaughter and treating all unjustifiable homicide as murder.... In this significant  respect, neither Winship nor Mullaney eliminates the substantive flexibility that should remain in legislative hands. 

Moreover, it is unlikely that more than a few factors--although important ones--for which a shift in the burden of persuasion seriously would be considered, will come within the Mullaney holding. With some exceptions, then, the State has the authority "to recognize a factor that mitigates the degree of criminality or punishment" without having "to prove its nonexistence in each case in which the fact is put in issue."... New ameliorative affirmative defenses, ... about  which the Court expresses concern, generally remain undisturbed by the holdings in Winship and Mullaney--and need not be disturbed by a sound holding reversing Patterson's conviction....

Furthermore, as we indicated in Mullaney, ... even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production, ... that is, the burden of going forward with sufficient evidence "to justify [a reasonable] doubt upon the issue." ... If the defendant's evidence does not cross this threshold, the issue--be it malice, extreme emotional disturbance, self-defense, or whatever--will not be submitted to the jury.... Ever since this Court's decision in Davis v. United States, ... (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production.... I know of no indication that this  practice has proven a noticeable handicap to effective law enforcement. ...

To be sure, there will be many instances when the Winship/Mullaney test, as I perceive it, will be more difficult to apply than the Court's formula. Where I see the need for a careful and discriminating review of history, the Court finds a brightline standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend.

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The following case is associated with  Website Note A on page 215.
Montana v. Egelhoff
U.S. Supreme Court
518 U.S. 37
June 13, 1996
 
Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Thomas join.

We consider in this case whether the Due Process Clause is violated by Montana Code Annotated Section(s) 45-2-203, which provides, in relevant part, that voluntary intoxication "may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense."

I

In July 1992, while camping out in the Yaak region of northwestern Montana to pick mushrooms, respondent made friends with Roberta Pavola and John Christenson, who were doing the same. On Sunday, July 12, the three sold the mushrooms they had collected and spent the rest of the day and evening drinking, in bars and at a private party in Troy, Montana. Some time after 9 p.m., they left the party in Christenson's 1974 Ford Galaxy station wagon. The drinking binge apparently continued, as respondent was seen buying beer at 9:20 p.m. and recalled "sitting on a hill or a bank passing a bottle of Black Velvet back and forth" with Christenson. ...
 
At about midnight that night, officers of the Lincoln County, Montana, sheriff's department, responding to reports of a possible drunk driver, discovered Christenson's station wagon stuck in a ditch along U.S. Highway 2. In the front seat were Pavola and Christenson, each dead from a single gunshot to the head. In the rear of the car lay respondent, alive and yelling obscenities. His blood-alcohol content measured .36 percent over one hour later. On the floor of the car, near the brake pedal, lay respondent's .38 caliber handgun, with four loaded rounds and two empty casings; respondent had gunshot residue on his hands.

Respondent was charged with two counts of deliberate homicide, a crime defined by Montana law as "purposely" or "knowingly" causing the death of another human being. Mont. Code Ann. Section(s) 45-5-102 (1995). A portion of the jury charge, uncontested here, instructed that "[a] person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result," and that "[a] person acts knowingly when he is aware of his conduct or when he is aware under the circumstances his conduct constitutes a crime; or, when he is aware there exists the high probability that his conduct will cause a specific result." ... Respondent's defense at trial was that an unidentified fourth person must have committed the murders; his own extreme intoxication, he claimed, had rendered him physically incapable of committing the murders, and accounted for his inability to recall the events of the night of July 12. Although respondent was allowed to make this use of the evidence that he was intoxicated, the jury was instructed, pursuant to Mont. Code Ann. Section(s) 45-2-203 (1995), that it could not consider respondent's "intoxicated condition ... in determining the existence of a mental state which is an element of the offense." ... The jury found respondent guilty on both counts, and the court sentenced him to 84 years' imprisonment.

The Supreme Court of Montana reversed. It reasoned (1) that respondent "had 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,"... and (2) that evidence of respondent's voluntary intoxication was "clear[ly] ... relevant to the issue of whether [respondent] acted knowingly and purposely."... Because Section(s) 45-2-203 prevented the jury from considering that evidence with regard to that issue, the court concluded that the State had been "relieved of part of its burden to prove beyond a reasonable doubt every fact necessary to constitute the crime charged,"... and that respondent had therefore been denied due process. We granted certiorari....

II

The cornerstone of the Montana Supreme Court's judgment was the proposition that the Due Process Clause guarantees a defendant the 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." ... (emphasis added). Respondent does not defend this categorical rule; he acknowledges that the right to present relevant evidence "has not been viewed as absolute."... That is a wise concession, since the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. As we have said: "The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." ... Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements.... And any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence. For example, Federal (and Montana) Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence" (emphasis added). Hearsay rules, see Fed. Rule Evid. 802, similarly prohibit the introduction of testimony which, though unquestionably relevant, is deemed insufficiently reliable.... Of course, to say that the right to introduce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right. But it is to say that the defendant asserting such a limit must sustain the usual heavy burden that a due process claim entails:

"[P]reventing and dealing with crime is much more the business of the States than it is of the Federal Government, and ... we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out,' ... and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Patterson v. New York, ... (1977) ...

Respondent's task, then, is to establish that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a "fundamental principle of justice." Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice. ... Here that gives respondent little support. By the laws of England, wrote Hale, the intoxicated defendant "shall have no privilege by this voluntarily contracted madness, but shall have the same judgment as if he were in his right senses.... According to Blackstone and Coke, the law's condemnation of those suffering from dementia affectata was harsher still: Blackstone, citing Coke, explained that the law viewed intoxication "as an aggravation of the offence, rather than an excuse for any criminal misbehaviour." This stern rejection of inebriation as a defense became a fixture of early American law as well. The American editors of the 1847 edition of Hale wrote:

"Drunkenness, it was said in an early case, can never be received as a ground to excuse or palliate an offence: this is not merely the opinion of a speculative philosopher, the argument of counsel, or the obiter dictum of a single judge, but it is a sound and long established maxim of judicial policy, from which perhaps a single dissenting voice cannot be found. But if no other authority could be adduced, the uniform decisions of our own Courts from the first establishment of the government, would constitute it now a part of the common law of the land."...
 
In an opinion citing the foregoing passages from Blackstone and Hale, Justice Story rejected an objection to the exclusion of evidence of intoxication as follows:

"This is the first time, that I ever remember it to have been contended, that the commission of one crime was an excuse for another. Drunkenness is a gross vice, and in the contemplation of some of our laws is a crime; and I learned in my earlier studies, that so far from its being in law an excuse for murder, it is rather an aggravation of its malignity." ...

The historical record does not leave room for the view that the common law's rejection of intoxication as an "excuse" or "justification" for crime would nonetheless permit the defendant to show that intoxication prevented the requisite mens rea. Hale, Coke and Blackstone were familiar, to say the least, with the concept of mens rea, and acknowledged that drunkenness "deprive[s] men of the use of reason," ... It is inconceivable that they did not realize that an offender's drunkenness might impair his ability to form the requisite intent, and inconceivable that their failure to note this massive exception from the general rule of disregard of intoxication was an oversight. Hale's statement that a drunken offender shall have the same judgment "as if he were in his right senses" must be understood as precluding a defendant from arguing that, because of his intoxication, he could not have possessed the mens rea required to commit the crime. And the same must be said of the exemplar of the common-law rule cited by both Hale and Blackstone, ... which is Serjeant Pollard's argument to the King's Bench in Reniger v. Fogossa, 1 Plowd. 1, 19, 75 Eng. Rep. 1, 31 (K. B. 1550): "[I]f a person that is drunk kills another, this shall be 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, and he might have avoided it, he shall not be privileged thereby." ... See also Beverley's Case, 4 Co. Rep. 123b, 125a, 76 Eng. Rep. 1118, 1123 (K.B. 1603) ("although he who is drunk, is for the time non compos mentis, yet his drunkenness does not extenuate his act or offence, nor turn to his avail") (emphasis added) (footnote omitted).

Against this extensive evidence of a lengthy common-law tradition decidedly against him, the best argument available to respondent is the one made by his amicus and conceded by the State: Over the course of the 19th century, courts carved out an exception to the common law's traditional across-the-board condemnation of the drunken offender, allowing a jury to consider a defendant's intoxication when assessing whether he possessed the mental state needed to commit the crime charged, where the crime was one requiring a "specific intent." The emergence of  this new rule is often traced to an 1819 English case, in which Justice Holroyd is reported to have held that "though voluntary drunkenness cannot excuse from the commission of crime, yet where, as on a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated [is] a circumstance proper to be taken into consideration."... This exception was "slow to take root," however, ... even in England. Indeed, in the 1835 case of King v. Carroll, ... Justice Park claimed that Holroyd had "retracted his opinion" in Grindley, and said, "there is no doubt that that case is not law." In this country, as late as 1858 the Missouri Supreme Court could speak as categorically as this:
"To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent; and if this deprivation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This however is not the doctrine of the common law; and to its maxims, based as they obviously are upon true wisdom and sound policy, we must adhere." ...

And as late as 1878, the Vermont Supreme Court upheld the giving of the following instruction at a murder trial:
"The voluntary intoxication of one who without provocation commits a homicide, although amounting to a frenzy, that is, although the intoxication amounts to a frenzy, does not excuse him from the same construction of his conduct, and the same legal inferences upon the question of premeditation and intent, as affecting the grade of his crime, which are applicable to a person entirely sober." State v. Tatro, ...(1878). ...

Eventually, however, the new view won out, and by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged. ...

On the basis of this historical record, respondent's amicus argues that "[t]he old common-law rule ... was no longer deeply rooted at the time the Fourteenth Amendment was ratified."... That conclusion is questionable, but we need not pursue the point, since the argument of amicus mistakes the nature of our inquiry. It is not the State which bears the burden of demonstrating that its rule is "deeply rooted," but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." ... Thus, even assuming that when the Fourteenth Amendment was adopted the rule Montana now defends was no longer generally applied, this only cuts off what might be called an a fortiori argument in favor of the State. The burden remains upon respondent to show that the "new common law" rule--that intoxication may be considered on the question of intent--was so deeply rooted at the time of the Fourteenth Amendment (or perhaps has become so deeply rooted since) as to be a fundamental principle which that Amendment enshrined.

That showing has not been made. Instead of the uniform and continuing acceptance we would expect for a rule that enjoys "fundamental principle" status, we find that fully one-fifth of the States either never adopted the "new common-law" rule at issue here or have recently abandoned it....

It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary intoxication in the determination of mens rea, because that rule has considerable justification ... which alone casts doubt upon the proposition that the opposite rule is a "fundamental principle." A large number of crimes, especially violent crimes, are committed by intoxicated offenders; modern studies put the numbers as high as half of all homicides, for example.... Disallowing consideration of voluntary intoxication has the effect of increasing the punishment for all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk. The rule also serves as a specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison. And finally, the rule comports with and implements society's moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences....

There is, in modern times, even more justification for laws such as Section(s) 45-2-203 than there used to be. Some recent studies suggest that the connection between drunkenness and crime is as much cultural as pharmacological--that is, that drunks are violent not simply because alcohol makes them that way, but because they are behaving in accord with their learned belief that drunks are violent.... This not only adds additional support to the traditional view that an intoxicated criminal is not deserving of exoneration, but it suggests that juries--who possess the same learned belief as the intoxicated offender--will be too quick to accept the claim that the defendant was biologically incapable of forming the requisite mens rea. Treating the matter as one of excluding misleading evidence therefore makes some sense....

In sum, not every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice. Although the rule allowing a jury to consider evidence of a defendant's voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance to qualify as fundamental, especially since it displaces a lengthy common-law tradition which remains supported by valid justifications today. ...
III

The Supreme Court of Montana's conclusion that Mont. Code Ann. Section(s) 45-2-203 violates the Due Process Clause purported to rest on two lines of our jurisprudence. First, it derived its view that the Due Process Clause requires the admission of all relevant evidence from the statement in Chambers v. Mississippi, ... (1973), that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Respondent relies heavily on this statement, which he terms "the Chambers principle,"...

We held in Chambers that "the exclusion of [certain] critical evidence, coupled with the State's refusal to permit [petitioner] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process." ... Continued, however:

"In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial." ...

In other words, Chambers was an exercise in highly case-specific error correction. At issue were two rulings by the state trial court at Chambers' murder trial: denial of Chambers' motion to treat as an adverse witness one McDonald, who had confessed to the murder for which Chambers was on trial, but later retracted the confession; and exclusion, on hearsay grounds, of testimony of three witnesses who would testify that McDonald had confessed to them. We held that both of these rulings were erroneous, the former because McDonald's testimony simply was adverse, ... and the second because the statements "were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability,"... and were "well within the basic rationale of the exception for declarations against interest." ... Thus, the holding of Chambers--if one can be discerned from such a fact-intensive case--is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.

Respondent cites our decision in Crane v. Kentucky, ... (1986), as evidence that his version of the "Chambers principle" governs our jurisprudence. He highlights statements in Crane to the effect that "an essential component of procedural fairness is an opportunity to be heard," which would effectively be denied "if the State were permitted to exclude competent, reliable evidence ... when such evidence is central to the defendant's claim of innocence." ... But the very next sentence of that opinion (which respondent omits) makes perfectly clear that we were not setting forth an absolute entitlement to introduce crucial, relevant evidence: "In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing."... Our holding that the exclusion of certain evidence in that case violated the defendant's constitutional rights rested not on a theory that all "competent, reliable evidence" must be admitted, but rather on the ground that the Supreme Court of Kentucky's sole rationale for the exclusion (that the evidence "did not relate to the credibility of the confession." ... Crane does nothing to undermine the principle that the introduction of relevant evidence can be limited by the State for a "valid" reason, as it has been by Montana.

The second line of our cases invoked by the Montana Supreme Court's opinion requires even less discussion. In re Winship, ... announced the proposition that the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the charged crime, and Sandstrom v. Montana, ... (1979), established a corollary, that a jury instruction which shifts to the defendant the burden of proof on a requisite element of mental state violates due process. These decisions simply are not implicated here because, as the Montana court itself recognized, "[t]he burden is not shifted" under Section(s) 45-2-203. 272 Mont.... The trial judge instructed the jury that "[t]he State of Montana has the burden of proving the guilt of the Defendant beyond a reasonable doubt," ... and that "[a] person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being." ... Thus, failure by the State to produce evidence of respondent's mental state would have resulted in an acquittal. That acquittal did not occur was presumably attributable to the fact, noted by the Supreme Court of Montana, that the State introduced considerable evidence from which the jury might have concluded that respondent acted "purposely" or "knowingly." ... For example, respondent himself testified that, several hours before the murders, he had given his handgun to Pavola and asked her to put it in the glove compartment of Christenson's car.... That he had to retrieve the gun from the glove compartment before he used it was strong evidence that it was his "conscious object" to commit the charged crimes; as was the execution-style manner in which a single shot was fired into the head of each victim.

Recognizing that Sandstrom is not directly on point, the Supreme Court of Montana described Section(s) 45-2-203 as a burden-reducing, rather than burden-shifting, statute. ... This obviously was not meant to suggest that the statute formally reduced the burden of proof to clear-and-convincing, or to a mere preponderance; there is utterly no basis for that, neither in the text of the law, nor in the jury instruction that was given. What the court evidently meant is that, by excluding a significant line of evidence that might refute mens rea, the statute made it easier for the State to meet the requirement of proving mens rea beyond a reasonable doubt--reduced the burden in the sense of making the burden easier to bear. But any evidentiary rule can have that effect. "Reducing" the State's burden in this manner is not unconstitutional, unless the rule of evidence itself violates a fundamental principle of fairness (which, as discussed, this one does not). We have "reject[ed] 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 obtain convictions." McMillan v. Pennsylvania, ... (1986).

Finally, we may comment upon the Montana Supreme Court's citation of the following passage in Martin v. Ohio, ... (1987), a case upholding a state law that placed on the defendant the burden of proving self-defense by a preponderance of the evidence:

"It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of [In re] Winship's mandate. The instructions in this case ... are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State's proof of the elements of the crime."...
 
This passage can be explained in various ways--e.g., as an assertion that the right to have a jury consider self-defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication), is fundamental, a proposition that the historical record may support. But the only explanation needed for present purposes is the one given in Kokkonen v. Guardian Life Ins. Co., ...(1994).... "It is to the holdings of our cases, rather than their dicta, that we must attend." If the Martin dictum means that the Due Process Clause requires all relevant evidence bearing on the elements of a crime to be admissible, the decisions we have discussed show it to be incorrect.

"The 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." ... The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so, and the judgment of the Supreme Court of Montana to the contrary must be reversed.
It is so ordered.

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Justice O'Connor, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

The Montana Supreme Court unanimously held that Mont. Code Ann. Section(s) 45-2-203 (1995) violates due process. I agree. Our cases establish that due process sets an outer limit on the restrictions that may be placed on a defendant's ability to raise an effective defense to the State's accusations. Here, to impede the defendant's ability to throw doubt on the State's case, Montana has removed from the jury's consideration a category of evidence relevant to determination of mental state where that mental state is an essential element of the offense that must be proved beyond a reasonable doubt. Because this disallowance eliminates evidence with which the defense might negate an essential element, the State's burden to prove its case is made correspondingly easier. The justification for this disallowance is the State's desire to increase the likelihood of conviction of a certain class of defendants who might otherwise be able to prove that they did not satisfy a requisite element of the offense. In my view, the statute's effect on the criminal proceeding violates due process.

I

This Court's cases establish that limitations placed on the accused's ability to present a fair and complete defense can, in some circumstances, be severe enough to violate due process. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, ... (1973). Applying our precedent, the Montana Supreme Court held that keeping intoxication evidence away from the jury, where such evidence was relevant to establishment of the requisite mental state, violated the due process right to present a defense, ... (1995), and that the instruction pursuant to Section(s) 45-2-203 was not harmless error.... In rejecting the Montana Supreme Court's conclusion, the Court emphasizes that "any number of familiar and unquestionably constitutional evidentiary rules" permit exclusion of relevant evidence. Ante, at 3. It is true that a defendant does not enjoy an absolute right to present evidence relevant to his defense..... But none of the "familiar" evidentiary rules operates as Montana's does. The Montana statute places a blanket exclusion on a category of evidence that would allow the accused to negate the offense's mental-state element. In so doing, it frees the prosecution, in the face of such evidence, from having to prove beyond a reasonable doubt that the defendant nevertheless possessed the required mental state. In my view, this combination of effects violates due process.

The proposition that due process requires a fair opportunity to present a defense in a criminal prosecution is not new.... In Chambers, the defendant had been prevented from cross-examining a witness and from presenting witnesses on his own behalf by operation of Mississippi's "voucher" and hearsay rules. The Court held that the application of these evidentiary rules deprived the defendant of a fair trial. "[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."... The plurality's characterization of Chambers as "case-specific error correction," ... cannot diminish its force as a prohibition on enforcement of state evidentiary rules that lead, without sufficient justification, to the establishment of guilt by suppression of evidence supporting the defendant's case. In Crane, a trial court had held that the defendant could not introduce testimony bearing on the circumstances of his confession, on the grounds that this information bore only on the "voluntariness" of the confession, a matter already resolved. We held that by keeping such critical information from the jury this exclusion "deprived petitioner of his fundamental constitutional right to a fair opportunity to present a defense."... The Court emphasized that, while States have the power to exclude evidence through evidentiary rules that serve the interests of fairness and reliability, limitations on evidence may exceed the bounds of due process where such limitations undermine a defendant's ability to present exculpatory evidence without serving a valid state justification.

In Washington v. Texas, ... (1967), the trial court refused to permit a defense witness to testify on the basis of Texas statutes providing that persons charged or convicted as coparticipants in the same crime could not testify for one another, although they could testify for the State. The Court held that the Constitution prohibited a State from establishing rules to prevent whole categories of defense witnesses from testifying out of a belief that such witnesses were untrustworthy. Such action by the State detracted too severely and arbitrarily from the defendant's right to call witnesses in his favor.

These cases, taken together, illuminate a simple principle: Due process demands that a criminal defendant be afforded a fair opportunity to defend against the State's accusations. Meaningful adversarial testing of the State's case requires that the defendant not be prevented from raising an effective defense, which must include the right to present relevant, probative evidence. To be sure, the right to present evidence is not limitless; for example, it does not permit the defendant to introduce any and all evidence he believes might work in his favor, Crane, ... nor does it generally invalidate the operation of testimonial privileges, ... Nevertheless, "an essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence" that is essential to the accused's defense.... Section 45-2-203 forestalls the defendant's ability to raise an effective defense by placing a blanket exclusion on the presentation of a type of evidence that directly negates an element of the crime, and by doing so, it lightens the prosecution's burden to prove that mental-state element beyond a reasonable doubt.

This latter effect is as important to the due process analysis as the former. A state legislature certainly has the authority to identify the elements of the offenses it wishes to punish, but once its laws are written, a defendant has the right to insist that the State prove beyond a reasonable doubt every element of an offense charged.... Because the Montana legislature has specified that a person commits "deliberate homicide" only if he "purposely or knowingly causes the death of another human being," Mont. Code Ann. Section(s) 45-5-102(1)(a) (1995), the prosecution must prove the existence of such mental state in order to convict. That is, unless the defendant is shown to have acted purposely or knowingly, he is not guilty of the offense of deliberate homicide. The Montana Supreme Court found that it was inconsistent with the legislature's requirement of the mental state of "purposely" or "knowingly" to prevent the jury from considering evidence of voluntary intoxication, where that category of evidence was relevant to establishment of that mental-state element ...
 
Where the defendant may introduce evidence to negate a subjective mental-state element, the prosecution must work to overcome whatever doubts the defense has raised about the existence of the required mental state. On the other hand, if the defendant may not introduce evidence that might create doubt in the factfinder's mind as to whether that element was met, the prosecution will find its job so much the easier. A subjective mental state is generally proved only circumstantially. If a jury may not consider the defendant's evidence of his mental state, the jury may impute to the defendant the culpability of a mental state he did not possess.

In Martin v. Ohio, ... (1987), the Court considered an Ohio statute providing that a defendant bore the burden of proving, by a preponderance of the evidence, an affirmative defense such as self-defense. We held that placing that burden on the defendant did not violate due process. The Court noted in explanation that it would nevertheless have been error 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" where Ohio's definition of the intent element made self-defense evidence relevant to the State's burden. ... "Such an instruction would relieve the State of its burden and plainly run afoul of Winship's mandate." ... In other words, the State's right to shift the burden of proving an affirmative defense did not include the power to prevent the defendant from attempting to prove self-defense in an effort to cast doubt on the State's case. Dictum or not, this observation explained our reasoning and is similarly applicable here, where the State has benefited from the defendant's inability to make an argument which, if accepted, could throw reasonable doubt on the State's proof. The placement of the burden of proof for affirmative defenses should not be confused with the use of evidence to negate elements of the offense charged.

Crane noted, "In the absence of any valid state justification, exclusion of this kind of exculpatory evidence [circumstances of confession] deprives a defendant of the basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing."... The State here had substantial proof of the defendant's knowledge or purpose in committing these homicides, and might well have prevailed even had the jury been permitted to consider the defendant's intoxication. But as in Crane, the prosecution's case had been insulated from meaningful adversarial testing by the scale-tipping removal of the necessity to face a critical category of defense evidence.

The Court ignores Crane's caution that the prosecution must be put to a full test. Rather, it invokes Crane to emphasize that "introduction of relevant evidence can be limited by the State for a 'valid' reason, as it has been by Montana." ... The State's brief to this Court enunciates a single reason: due to the well-known risks related to voluntary intoxication, it seeks to prevent a defendant's use of his own voluntary intoxication as basis for exculpation.... That is, its interest is to ensure that even a defendant who lacked the required mental-state element--and is therefore not guilty--is nevertheless convicted of the offense. The Court elaborates, ... on reasons why Montana might wish to preclude exculpation on the basis of voluntary intoxication, but these reasons--increased punishment and concomitant deterrence for those who commit unlawful acts while drunk, and implementation of society's moral perception that those who become drunk should bear the consequences--merely explain the State's purpose in trying to improve its likelihood of winning convictions. The final justification proffered by the Court on Montana's behalf is that Montana's rule perhaps prevents juries, who might otherwise be misled, from being "too quick to accept the claim that the [drunk] defendant was biologically incapable of forming the requisite mens rea."... But this proffered justification is inconsistent with Section(s) 45-2-203's exception for persons who are involuntarily intoxicated. That exception makes plain that Montana does not consider intoxication evidence misleading--but rather considers it relevant--for the determination of a person's capacity to form the requisite mental state.

A State's placement of a significant limitation on the right to defend against the State's accusations "requires that the competing interest be closely examined." ... Montana has specified that to prove guilt, the State must establish that the defendant acted purposely or knowingly, but has prohibited a category of defendants from effectively disputing guilt through presentation of evidence relevant to that essential element. And the evidence is indisputably relevant: The Montana Supreme Court held that evidence of intoxication is relevant to proof of mental state, ... and furthermore, Section(s) 45-2-203's exception for involuntary intoxication shows that the legislature does consider intoxication relevant to mental state. Montana has barred the defendant's use of a category of relevant, exculpatory evidence for the express purpose of improving the State's likelihood of winning a conviction against a certain type of defendant. The plurality's observation that all evidentiary rules that exclude exculpatory evidence reduce the State's burden to prove its case, ... is beside the point. The purpose of the familiar evidentiary rules is not to alleviate the State's burden, but rather, to vindicate some other goal or value--e.g., to ensure the reliability and competency of evidence or to encourage effective communications within certain relationships. Such rules may or may not help the prosecution, and when they do help, do so only incidentally. While due process does not "ba[r] States from making changes ... that have the effect of making it easier for the prosecution to obtain convictions," ... an evidentiary rule whose sole purpose is to boost the State's likelihood of conviction distorts the adversary process.... Unlike Chambers and Washington, where the State at least claimed that the evidence at issue was unreliable, Montana does not justify its rule on grounds that intoxication evidence is unreliable, cumulative, privileged, or irrelevant. The sole purpose for this disallowance is to keep from the jury's consideration a category of evidence that helps the defendant's case and weakens the government's case.

The plurality brushes aside this Court's precedents as variously fact-bound, irrelevant, and dicta. I would afford more weight to principles enunciated in our case law than is accorded in the Court's opinion today. It seems to me that a State may not first determine the elements of the crime it wishes to punish, and then thwart the accused's defense by categorically disallowing the very evidence that would prove him innocent.

II

The Court does, however, raise an important argument for the statute's validity: the disallowance, at common law, of consideration of voluntary intoxication where a defendant's state of mind is at issue. Because this disallowance was permitted at common law, the plurality argues, its disallowance by Montana cannot amount to a violation of a "fundamental principle of justice."...
 
From 1551 until its shift in the 19th century, the common-law rule prevailed that a defendant could not use intoxication as an excuse or justification for an offense, or, it must be assumed, to rebut establishment of a requisite mental state. "Early law was indifferent to the defence of drunkenness because the theory of criminal liability was then too crude and too undeveloped to admit of exceptions.... But with the refinement in the theory of criminal liability ... a modification of the rigid old rule on the defence of drunkenness was to be expected." ... As the plurality concedes, that significant modification took place in the 19th century. Courts acknowledged the fundamental incompatibility of a particular mental-state requirement on the one hand, and the disallowance of consideration of evidence that might defeat establishment of that mental state on the other. In the slow progress typical of the common law, courts began to recognize that evidence of intoxication was properly admissible for the purpose of ascertaining whether a defendant had met the required mental-state element of the offense charged. This recognition, courts believed, was consistent with the common-law rule that voluntary intoxication did not excuse commission of a crime; rather, an element of the crime, the requisite mental state, was not satisfied and therefore the crime had not been committed. As one influential mid-19th century case explained, "Drunkenness is no excuse for crime; yet, in that class of crimes and offences which depend upon guilty knowledge, or the coolness and deliberation with which they shall have been perpetrated, to constitute their commission ... [drunkenness] should be submitted to the consideration of the Jury"; for, where the crime required a particular mental state, "it is proper to show any state or condition of the person that is adverse to the proper exercise of the mind" in order "[t]o rebut" the mental state or "to enable the Jury to judge rightly of the matter." ... ("The rule is well settled that intoxication is not a justification or an excuse for crime.... But in many cases evidence of intoxication is admissible with a view to the question whether a crime has been committed; ... As [mental state], in such case, is of the essence of the offense, it is possible that in proving intoxication you go far to prove that no offense was committed").

Courts across the country agreed that where a subjective mental state was an element of the crime to be proved, the defense must be permitted to show, by reference to intoxication, the absence of that element. One court commented that it seemed "incontrovertible and to be universally applicable" that "where the nature and essence of the crime are made by law to depend upon the peculiar state and condition of the criminal's mind at the time with reference to the act done, drunkenness may be a proper subject for the consideration of the jury, not to excuse or mitigate the offence but to show that it was not committed."...

With similar reasoning, the Montana Supreme Court recognized the incompatibility of a jury instruction pursuant to Section(s) 45-2-203 in conjunction with the legislature's decision to require a mental state of "purposely" or "knowingly" for deliberate homicide. It held that intoxication is relevant to formation of the requisite mental state. Unless a defendant is proved beyond a reasonable doubt to have possessed the requisite mental state, he did not commit the offense. Elimination of a critical category of defense evidence precludes a defendant from effectively rebutting the mental-state element, while simultaneously shielding the State from the effort of proving the requisite mental state in the face of negating evidence. It was this effect on the adversarial process that persuaded the Montana Supreme Court that the disallowance was unconstitutional.

The Due Process Clause protects those "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."... At the time the Fourteenth Amendment was ratified, the common-law rule on consideration of intoxication evidence was in flux. The Court argues that rejection of the historical rule in the 19th century simply does not establish that the "new common law" rule is a principle of procedure so "deeply rooted" as to be ranked "fundamental." ... But to determine whether a fundamental principle of justice has been violated here, we cannot consider only the historical disallowance of intoxication evidence, but must also consider the "fundamental principle" that a defendant has a right to a fair opportunity to put forward his defense in adversarial testing where the State must prove the elements of the offense beyond a reasonable doubt. As concepts of mens rea and burden of proof developed, these principles came into conflict, as the shift in the common law in the 19th century reflects.

III

Justice Ginsburg concurs in the Court's judgment based on her determination that Section(s) 45-2-203 amounts to a redefinition of the offense that renders evidence of voluntary intoxication irrelevant to proof of the requisite mental state. The concurrence emphasizes that States enjoy wide latitude in defining the elements of crimes and concludes that, "[c]omprehended as a measure redefining mens rea, Section(s) 45-2-203 encounters no constitutional shoal." ...
 
A state legislature certainly possesses the authority to define the offenses it wishes to punish. If the Montana legislature chose to redefine this offense, so as to alter the requisite mental-state element, the due process problem presented in this case would not be at issue.

There is, however, no indication that such a "redefinition" occurred. Justice Ginsburg's reading of Montana law is plainly inconsistent with that given by the Montana Supreme Court, and therefore cannot provide a valid basis to uphold Section(s) 45-2-203's operation. "We are, of course, bound to accept the interpretation of [state] law by the highest court of the State." ... The Montana Supreme Court held that evidence of voluntary intoxication was relevant to the requisite mental state.... And  in summing up the court's holding, Justice Nelson's concurrence explains that while the legislature may enact the statutes it chooses, Section(s) 45-2-203 "effectively and impermissibly ... lessens  the burden of the State to prove beyond a reasonable doubt an essential element of the offense charged--the mental state element--by statutorily precluding the jury from considering the very evidence that might convince them that the State had not proven that element."... The Montana Supreme Court's decision cannot be read consistently with a "redefinition" of the offense.

Because the management of criminal justice is within the province of the States, ... this Court is properly reluctant to interfere in the States' authority in these matters. Nevertheless, the Court must invalidate those rules that violate the requirements of due process. The Court acknowledges that a reduction of the State's burden through disallowance of exculpatory evidence is unconstitutional if it violates a principle of fairness.... I believe that such a violation is present here. Montana's disallowance of consideration of voluntary-intoxication evidence removes too critical a category of relevant, exculpatory evidence from the adversarial process by prohibiting the defendant from making an essential argument and permitting the prosecution to benefit from its suppression. Montana's purpose is to increase the likelihood of conviction of a certain class of defendants, who might otherwise be able to prove that they did not satisfy a requisite element of the offense. The historical fact that this disallowance once existed at common law is not sufficient to save the statute today. I would affirm the judgment of the Montana Supreme Court.

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