Mathews v. United States

Justice White,

with whom

Justice Blackmun joins, dissenting.

At his criminal trial, petitioner took the stand and flatly denied accepting a loan “for or because of any official act.” App. 128-130; 18 U. S. C. § 201 (g). Petitioner later moved for a mistrial because the District Court would not permit *69 him to rely on that testimony while he simultaneously argued that, in fact, he had accepted a loan for an official act, but only at the Government’s instigation. Today, the Court holds that this rather sensible ruling on the part of the District Court constitutes reversible error. The reasons the Court offers for reaching this conclusion are not at all persuasive, and I respectfully dissent.

I

The Court properly recognizes that its result is not compelled by the Constitution. As the Court acknowledges, petitioner has no Fifth or Sixth Amendment right to conduct the inconsistent entrapment defense that he wished to mount at trial. Ante, at 66. And yet, if the Constitution does not compel reversal of the decision below, then what does?

Certainly not any Act of Congress, or the Federal Rules of Criminal Procedure. As the majority candidly admits, “Congress . . . has never spoken on the subject [at issue here], and so the decision is left to the courts.” Ibid. Moreover, the Court also frankly notes that while the Federal Rules of Civil Procedure contain a provision expressly authorizing inconsistent defenses, Fed. Rule Civ. Proc. 8(e)(2), the Federal Criminal Rules are without any such authorization. Ante, at 64. Indeed, the rather scant authority the majority cites in support of its view that inconsistent defenses are generally permitted in criminal trials, ibid., is strongly suggestive of just how extraordinary such pleadings are in the criminal context. 1

*70 Nor is the result the Court reaches urged by a predominance of authority in the lower courts. As the Court recognizes, only two Circuits have held, as the Court does today, that a criminal defendant may deny committing the elements of a crime, and then contend that the Government entrapped him into the offense. The remaining Circuits are far more restrained in their allowance of such inconsistent defenses, divided along the lines the majority discusses in its opinion. Ante, at 59-60, n. 1.

Thus, neither the Constitution, nor a statute, nor the Criminal Rules, nor the bulk of authority compels us to reverse petitioner’s conviction. Nor does the Court claim support from any of these sources for its decision. Instead, the majority rests almost exclusively on an application of the “general proposition [that] a defendant is entitled to an instruction as to any legally sufficient defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Ante, at 63. There are several reasons, however, why this “general proposition” is inapposite here.

II

First, there is the unique nature of the entrapment defense. There is a valuable purpose served by having civil litigants plead alternative defenses which may be legally inconsistent. Allowing a tort defendant to claim both that he owed no duty of care to the plaintiff, but that if he did, he met that duty, preserves possible alternative defenses under which the defendant is entitled to relief. It prevents formalities of pleadings, or rigid application of legal doctrines, from standing in the way of the equitable resolution of a civil dispute. See generally 2A J. Moore, J. Lucas, & G. Grotheer, Moore’s Federal Practice ¶8.32, pp. 8-224 — 8-229 (2d ed. 1987). The same may be true for some criminal defenses *71 (such as “self-defense” or “provocation”) where a defendant may truthfully testify as to the facts of the crime, leaving it to his counsel to argue that these facts make out, as a matter of law, several possible defenses.

But the entrapment defense, by contrast, “is a relatively limited defense”; it is only available to “a defendant who has committed all the elements of a proscribed offense.” United States v. Russell, 411 U. S. 423, 435 (1973). Thus, when a defendant (as petitioner did here) testifies that he did not commit the elements of the offense he is charged with, the defense of entrapment is not a plausible alternative legal theory of the case; rather, it is a proper defense only if the accused is lying. We have rejected before the notion that a defendant has a right to lie at trial, or a right to solicit his attorney’s aid in executing such a defense strategy. See Nix v. Whiteside, 475 U. S. 157, 173 (1986). And there is respectable authority for concluding that no legitimate end of the criminal justice system is served by requiring a trial court to entertain such tactics, in the form of an entrapment defense which is at odds with the defendant’s own testimony. 2

Allowing such inconsistency in defense tactics invites the scourge of an effective criminal justice system: perjury. In the past, we have taken extraordinary steps to combat perjury in criminal trials; these steps have even included permitting the admission of otherwise inadmissible evidence to prevent a defendant from procuring an acquittal via false testimony. See, e. g., Oregon v. Hass, 420 U. S. 714, 720-723 (1975); Harris v. New York, 401 U. S. 222, 225-226 (1971). Yet today, the Court reaches a result which it concedes “may ... on occasion” increase the risk of perjury. Ante, at 65. This is reason enough to reject the Court’s result. Worse still, the majority’s prognostication may well *72 be an understatement. Even if — as the Court suggests, ibid, —inconsistent defenses do not measurably increase the frequency of perjury in civil trials, the risk of perjury in a criminal trial is always greater than in a civil setting because the stakes are so much higher. See Britt v. North Carolina, 404 U. S. 226, 238 (1971) (Douglas, J., dissenting). Absent some constitutional or statutory mandate to conduct criminal trials in a particular way, we should be taking steps to minimize, not increase, the danger of perjured testimony.

After all, a criminal trial is not a game or a sport. “[T]he very nature of a trial [i]s a search for truth.” Nix v. Whiteside, supra, at 166 . This observation is particularly applicable to criminal trials, which are the means by which we affix our most serious judgments of individual guilt or innocence. It is fundamentally inconsistent with this understanding of criminal justice to permit a defendant to win acquittal on a rationale which he states, under oath, to be false. “Permitting a defendant to argue two defenses that cannot both be true is equivalent to sanctioning perjury by the defendant.” See Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 883-884.

Finally, even if the Court’s decision does not result in increased perjury at criminal trials, it will — at the very least— result in increased confusion among criminal juries. 3 The lower courts have rightly warned that jury confusion is likely to result from allowing a defendant to say “I did not do it” *73 while his lawyer argues “he did it, but the government tricked him into it.” See, e. g., United States v. Dorta, 783 F. 2d 1179, 1182 (CA4 1986). Creating such confusion may enable some defendants to win acquittal on the entrapment defense, but only under the peculiar circumstances where a jury rejects the defendant’s own stated view of the facts. We have not previously endorsed defense efforts to prevail at trial by playing such “shell games” with the jury; rather, we have written that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” Strickland v. Washington, 466 U. S. 668, 695 (1984). Nor, it should be added, is there any entitlement to a baffled decisionmaker.

Ill

Ultimately, only petitioner knows whether he accepted a loan in exchange for an official act, or whether he obtained it as a personal favor. Today, the Court holds that petitioner has a right to take the stand and claim the latter, while having his attorney argue that he was entrapped into doing the former. Nothing counsels such a result — let alone compels it. Hence this dissent.

While some cases have explicitly permitted inconsistent criminal defenses outside of the entrapment area, e. g., Whittaker v. United States, 108 U. S. App. D. C. 268, 269, 281 F. 2d 631, 632 (1960), others have been less receptive to this defense strategy, see, e. g., United States v. Ervin, 436 F. 2d 1331 , 1334 (CA5 1971); Blunt v. United States, 131 U. S. App. D. C. 306, 312, n. 12, 404 F. 2d 1283, 1289, n. 12 (1968). Given the rarity of reported federal cases on this question, drawing any conclusion about the prevailing practice in the federal courts is difficult. See Note, Entrap *70 ment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 878-879, and n. 127.

See, e. g., United States v. Dorta, 783 F. 2d 1179, 1181-1182 (CA4 1986); United States v. Smith, 757 F. 2d 1161, 1167-1168 (CA11 1985); United States v. Henry, 749 F. 2d 203, 214-216 (CA5 1984) (en banc) (Gee, J., dissenting).

Again, the fact that the system endures the jury confusion caused by inconsistent civil defenses is no support for the Court’s conclusion here. For one thing, reliability is obviously a more important concern in criminal cases than in civil.

Moreover, in civil cases, the trial court has the option of ordering the jury to complete a special verdict form, thus minimizing any errors in judgment which may result from inconsistent defenses. See Fed. Rule Civ. Proc. 49(a). The Criminal Rules contain no similar provision, cf. Fed. Rule Crim. Proc. 31, and “as a general rule special verdicts are disfavored in criminal cases,” see United States v. Buishas, 791 F. 2d 1310, 1317 (CA7 1986).