State v. Amini

ARMSTRONG, J.,

dissenting.

This case does not come to us on a clean slate. We already decided the essential issue, a decision that the majority now repudiates without an explanation that confronts our previous analysis. In our previous decision, we held that it is fundamentally unfair to instruct the jury about the consequences of a verdict of guilty except for insanity when the defendant objects to the instruction. We also concluded that Article I, section 11, of the Oregon Constitution, protects the fundamental fairness of a criminal trial and therefore relied on that provision in reversing defendant’s conviction. State v. Amini, 154 Or App 589 , 963 P2d 65 (1998); see also State v. Kennedy, 295 Or 260, 262-68 , 666 P2d 1316 (1983) (proper procedure is to decide issues under state constitution before reaching those under federal constitution). On review, the Supreme Court held that Article I, section 11, has a more limited reach than we had given it and therefore reversed our decision. It did not question our conclusion that the instruction was fundamentally unfair but instead remanded the case to us so that we could consider defendant’s arguments under the Sixth and Fourteenth Amendments, the federal guaranties of fundamental fairness and due process in criminal trials. State v. Amini, 331 Or 384 , 15 P3d 541 (2000).

*388 The majority now rejects our Supreme Court’s invitation to apply the federal constitution to reach the same conclusion that we previously reached about the legality of giving the instruction over defendant’s objection, see 331 Or at 395-97 (Durham, J., concurring), and instead retracts its previous decision. According to the majority’s recently acquired view, it was neither fundamentally unfair nor otherwise a violation of due process to give the jury, over defendant’s protests, an extensive—indeed, almost endless—instruction on an irrelevant subject even though defendant legitimately feared that doing so would scare the jury into rejecting his insanity defense in order to prevent his early release. In order to achieve its result, the majority grabs onto isolated statements in United States Supreme Court opinions to adopt a unique approach to determining what protections the Due Process Clause provides, one that is different from the approach that the Court uses. Because I believe that we were right before when we held that the instruction was fundamentally unfair, because I would follow the Court’s express due process analysis rather than the majority’s creation, and because I believe that the correct analysis shows that the federal constitution prohibits giving the instruction over defendant’s objection, I dissent.

Despite its numerous citations, the majority opinion almost completely ignores the central issue in the case: the constitutional propriety of this instruction, not of instructions or criminal procedural rules in general. I will begin by summarizing the reasons that we gave to support our original conclusion that giving this instruction over defendant’s objection was fundamentally unfair; I find those reasons to continue to be compelling. 1 We reached our conclusion after discussing a number of decisions concerning consequences *389 instructions in insanity cases, which together led us to believe that the instruction could “influence a jury to disregard the merits of the defense and to find the ‘defendant guilty in order to avoid his early release back into society, thereby depriving him of a fair trial.’ ” Amini, 154 Or App at 601 (quoting State v. Wall, 78 Or App 81, 84 , 715 P2d 96 , rev den 301 Or 241 (1986)).

The most common justification for a consequences instruction is that, without it, the jury may be unwilling to find a defendant insane because of a concern that such a verdict would set a dangerous person free. Lyles v. United States, 254 F2d 725, 728 (DC Cir 1957), provides the classic statement of that position. That justification, of course, assumes that the defendant either requests or, at least, agrees to the instruction. 2 In contrast, part of the reason for our previous decision was our concern that a consequences instruction would be inherently prejudicial to a criminal defendant, because it could indicate to the jury that the defendant might be released sooner than if he or she were convicted. In support of that concern, we cited the discussions in Wall and Shannon v. United States, 512 US 573 , 114 S Ct 2419 , 129 L Ed 2d 459 (1994). 3 In Shannon , the Court pointed out that an accurate consequences instruction would not assure the jury that the defendant would be hospitalized for a lengthy period but, rather, could suggest the possibility that the defendant would be released within a relatively short time. We also noted that Justice Stevens, in his dissent in Shannon , responded to that argument by stating that there was no need to give the instruction unless the defendant requested it. Amini, 154 Or App at 591 (summarizing Shannon, 512 US at 585-86 (opinion of the court), 591 (Stevens, J., dissenting)).

Many state courts have held, consistently with Justice Stevens’ statement, that a consequences instruction is proper only when the defendant either requests it or does not *390 object. At the time of our original opinion, we could not find a case that held that a court should give such an instruction over the defendant’s objection, as the trial court did in this case. Id. at 599-600 . Even though I have now found a few such opinions, 4 our basic point remains valid: Because the only purpose that courts have provided for giving a consequences instruction is to benefit the defendant, there is no legitimate reason for giving such an instruction when the defendant believes that it would be more harmful than helpful.

Finally, in Amini we noted that the problems with a consequences instruction are particularly severe where the instruction is long and exhaustively detailed, which could both suggest to the jury that the question of the consequences of an insanity verdict is for its consideration and give it a multitude of speculative comparisons between the consequences of an insanity finding and what it might assume to be the generally simpler effects of a finding of guilt. 5 We concluded that a consequences instruction is a two-edged sword and that the Oregon statutes require “that criminal defendants submit to the risk of which edge a particular jury might finding more alluring,” although neither edge of the sword is a proper matter for the jury’s consideration. Amini, 154 Or App at 600-01 . The potential of the instruction “for diverting the jury from the question that was properly before it, and leading it to reject the defense on the basis of impermissible considerations unrelated to its merits, deprived defendant of a fair trial.” Id. at 602 .

The essential issue on remand is whether we continue to believe that informing the jury, over defendant’s objection, about the consequences of its verdict deprived defendant of a fair trial. In attempting to explain its change *391 of mind, the majority discusses many things. What it generally ignores is the crucial issue in the case: the fundamental principle that a jury should render its verdict based on the facts and law of the case before it, not on its understanding of the legal consequences that may flow from the verdict. As the United States Supreme Court stated when it explained why a consequences instruction is improper in a federal trial, that principle is universally recognized in American jurisprudence:

“The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion.”

Shannon, 512 US at 579 ; see also Amini, 154 Or App at 595-96 ; Lyles, 254 F2d at 728; People v. Moore, 166 Cal App 3d 540, 211 Cal Rptr 856, 861 (1985); State v. Wood, 208 Conn 125, 545 A2d 1026, 1034-36 , cert den 488 US 895 (1988); State v. Huiett, 271 SC 205, 246 SE2d 862, 864 (1978). 6 The universal recognition of this principle reflects a settled historical understanding of the appropriate process in a criminal case, and it therefore has constitutional significance under the Due Process Clause. 7

*392 The Supreme Court has relied on several approaches to determining the nature of the due process that the Fourteenth Amendment protects. 8 Which approach is appropriate depends in part on the particular situation. In some cases due process may simply require applying to the states the provisions of the Bill of Rights. See, e.g., Mapp v. Ohio, 367 US 643 , 81 S Ct 1684 , 6 L Ed 2d 1081 (1961). In others, the Court follows the balancing test that it established in Mathews v. Eldridge, 424 US 319 , 96 S Ct 893 , 47 L Ed 2d 18 (1976). 9 The approach that is relevant to this case is based on a historical analysis of the process that was generally accepted as “due” at the adoption of the Fourteenth Amendment.

Recognizing that, for those who adopted the Fourteenth Amendment, “due process” was necessarily connected with the procedures that the common law had developed over the centuries, the Court has indicated that a traditional common-law rule that is universally or almost universally understood to be basic to a fair trial is likely to be part of the fundamental fairness that the Due Process Cause protects. 10 *393 Thus, in In re Winship, 397 US 358 , 90 S Ct 1068 , 25 L Ed 2d 368 (1970), the Court relied on the long-established and virtually unanimous requirement of proof beyond a reasonable doubt in criminal cases as the basis for its holding that that burden of proof is a requirement of due process. It pointed out that such unanimous adherence to a procedural standard reflects a profound judgment about the administration of the law. Although universal adherence does not conclusively establish that the standard is part of due process, it plays an important role in determining what due process requires. In re Winship, 397 US at 361-62 .

The Court applied a similar analysis in Medina v. California, 505 US 437 , 112 S Ct 2572 , 120 L Ed 2d 353 (1992), in which it concluded that it did not violate due process to require the defendant to bear the burden of proving that he was incompetent to stand trial. The Court first noted that “[historical practice is probative of whether a procedural rule can be characterized as fundamental.” Medina, 505 US at 446 . Thus, the “rule that a criminal defendant who is incompetent should not be required to stand trial has deep roots in our common-law heritage.” Id. (citing Drope v. Missouri, 420 US 162, 171 , 95 S Ct 896 , 43 L Ed 2d 103 (1975) (“the prohibition is fundamental to an adversary system of justice,” Drope, 420 US at 172 )). The Court then examined historical practice concerning the allocation of the burden of proof of a defendant’s competence and concluded that there was no settled historical practice, either in England or in this country. It then examined contemporary practice, although such practice is of limited relevance to a due process inquiry, and found that it also reflected a variety of approaches to the issue. Id. at 446-48.

Only after determining that neither historical nor contemporary practice answered the question did the Court turn to whether placing the burden on the defendant “transgresses any recognized principle of ‘fundamental fairness’ in operation,” the issue in cases such as Dowling v. United States, 493 US 342 , 110 S Ct 668 , 107 L Ed 2d 708 (1990), and Leland v. Oregon, 343 US 790 , 72 S Ct 1002 , 96 L Ed 1302 (1952). Medina, 505 US at 448 . After examining a number of *394 arguments supporting the defendant’s claim, the Court ultimately concluded that requiring him to prove that he was incompetent to stand trial did not violate due process.

The essential point of Medina for purposes of this case is that the Court treated the historical inquiry as coming before and being separate from the search for some other principle of fundamental fairness. The case shows the seriousness with which the Court looks at historical practices and the care that it takes in examining the relationship between those practices and the requirements of due process. It conducts that examination in order to determine whether a challenged rule “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Medina, 505 US at 446 (quoting Patterson v. New York, 432 US 197, 202 , 97 S Ct 2319 , 53 L Ed 2d 281 (1977)). The purpose of the historical inquiry is to determine how rooted a particular practice is. Although there was no firmly rooted practice in Medina , the Court’s discussion shows that such a practice, if it had existed, would have led to a different result.

The importance of the historical approach is clear from a later decision concerning the relationship between a traditional practice and the requirements of due process. In Honda Motor Co. v. Oberg, 512 US 415, 430 , 114 S Ct 2331 , 129 L Ed 2d 336 (1994), the Court held that a state’s “abrogation of a well-established common-law protection against the arbitrary deprivation of property raises a presumption that its procedures violate the Due Process Clause.” The fact that a defendant could seek a remittitur of excessive punitive damages in every state except Oregon was an essential component of the Court’s holding that Oregon’s procedures fell short of the requirements of due process. The Court emphasized that “traditional practice provides a touchstone for constitutional analysis” and noted that most traditional protections are regarded as so fundamental that there are few cases that involve their denial. Rather, most due process cases involve arguments that the traditional procedures provide too little protection and additional safeguards are necessary. Id. 11

*395 The Court did not hold in Oberg that all deviations from traditional practice are constitutionally infirm; the law must be able to progress. However, it pointed out that cases that permit departures from, rather than additions to, traditional procedural protections generally involve either substituted procedures that provide comparable protection, such as a preliminary hearing before a neutral magistrate instead of indictment by a grand jury. Hurtado v. California, 110 US 516 , 4 S Ct 111 , 28 L Ed 232 (1884), 12 or respond to changed economic and social conditions that the original procedures did not contemplate, such as broader amenability to subject-matter jurisdiction, International Shoe Co. v. Washington, 326 US 310 , 66 S Ct 154 , 90 L Ed 95 (1945). Oberg, 512 US at 430-31 . Thus, in the absence of either an acceptable substitute or significantly changed conditions, unanimously accepted procedural safeguards are likely to establish the floor for due process.

The application of the Court’s historical due process analysis to this case is clear. The basic principle that a jury should reach its verdict based on the facts of the case and the applicable law, not on the consequences of its verdict, is a well-established principle of the common law. In Shannon the Court expressly described it as fundamental; it "is a reflection of the basic division of labor in our legal system between judge and jury.” Shannon, 512 US at 579 . 13 The *396 instruction that defendant challenges, like other consequences instructions, violates that basic principle. It gives the jury irrelevant information that legally should play no role in its decision. As the Court noted in Shannon , and as we agreed in our previous opinion, it is as likely that the jury will use that information against the defendant as that it will use it in his or her favor. The change, thus, is neither an accepted substitute for existing protections nor an appropriate adaptation to changed conditions. I would hold that something this fundamental, and this potentially damaging to a defendant’s right to a jury decision based on the facts of the case rather than extrinsic considerations, is part of the due process that the Fourteenth Amendment secures. It was thus a violation of that amendment to give the instruction over defendant’s objection. 14

My conclusion does not leave ORS 161.313 without meaning. The rule against instructing a jury about the consequences of its decision may benefit the prosecution as well as the defendant. 15 In the absence of the statute, Oregon might well have joined those states that absolutely prohibit giving such an instruction, including at the defendant’s request. In enacting the statute, the legislature determined that Oregon’s public policy does not require that the state adhere to the common-law rule. As a result, that rule no longer provides the basis for the prosecution to object to a defendant’s request for an instruction that complies with the statute. That means that a defendant is free to waive the constitutional protection against the instruction; if the defendant does so, the statute requires the trial court to give an appropriate consequences instruction. The combination of the constitutional protection and the statute, thus, is to place defendants in Oregon in the same position as defendants in *397 those states that require the court to give the instruction at the defendant’s request.

The majority takes a different approach to determining what due process requires. Rather than confronting the analysis by which the Court has determined whether the Fourteenth Amendment requires a particular procedural safeguard, it quotes general hortatory statements about the power of states to regulate procedural matters. 16 Thus, in Patterson , the Court stated that a state’s decision to use a certain procedure does not violate due process “unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Patterson, 432 US at 202 (citations omitted). That statement, of course, indicates that rejection of a procedure that is fundamental will violate due process. The majority also quotes cases in which the Court has stated that it defers to states in matters of criminal procedure because of their expertise in the area, grounded in centuries of common-law tradition, Medina, 505 US at 445-46 , that not every error that might lead to application of the Court’s supervisory powers is a failure of fundamental fairness, Donnelly v. DeChristoforo, 416 US 637, 642 , 94 S Ct 1868 , 40 L Ed 2d 431 (1974), and that judges may not use due process as an excuse for imposing their personal views of fairness. Dowling v. United States, 493 US 342, 353 , 110 S Ct 668 , 107 L Ed 2d 708 (1990). None of those repetitions of the obvious describes either the Court’s analysis in the particular case or the general criteria for determining what is fundamentally fair or what due process otherwise requires.

The majority says that it relies on Medina as providing the analytical framework for determining whether this instruction prevented a fair trial. Despite that statement, it somehow misses the basic point of the historical discussion in Medina , which is that a well-established common-law rule is likely to establish a basic due process requirement. The *398 majority ignores that the defendant was unsuccessful in Medina primarily because he was unable to show that the position that he took was well established. There was simply no historical basis for concluding that requiring the defendant to prove incompetence violated due process.

The majority suggests that under Medina the issue is whether those who wrote and approved the Fourteenth Amendment would have contemplated that a right not to have a court give a consequences instruction was within the limitations that the Due Process Clause placed on the states. What it fails to recognize is that, as the Court’s historical analysis indicates, common-law rules that were well established in 1868 are exactly what those who wrote and approved the Fourteenth Amendment had most clearly in their minds when they thought of the due process of law. The majority appears to accept that in Medina the Court held that a well-established common-law rule—a rule that those involved in adopting the Fourteenth Amendment would have known—is likely to be a requirement of due process. The majority does not, however, take the obvious next step and attempt to determine whether the rule against informing the jury of the consequences of its decision is a well-established common-law rule. If it had, it would not have had to look far for the answer, because in Shannon the Court made it clear that the rule is well established.

The majority refers to a number of cases in which state and federal courts have reached different conclusions about whether a court should give a consequences instruction, at the defendant’s request, when the defendant raises an insanity defense. Those cases do not show a difference of opinion on the basic common-law principle that a court should not tell the jury about the consequences of its decision. Rather, they reflect a disagreement about whether the court should ignore that principle when a defendant asks it to do so. Thus, the majority’s comment that no court has held that giving a consequences instruction implicates the fundamental fairness of a trial is simply irrelevant; that was not the issue in the cases that the majority cites. Aside from a few cases that are devoid of analysis, no court has held that it is acceptable to give a consequences instruction over a defendant’s objection.

*399 The majority also makes a number of statements about the way to analyze due process issues that are either so general as to give no guidance or do not confront the Court’s cases. I do not think that it would be useful to discuss them in any additional detail. 17 None of them affects the basic principle that I have discussed: The prohibition on consequences instructions is so deeply rooted in our common-law traditions that it is part of constitutional due process. As a result, giving the instruction over defendant’s objection violated his federal constitutional rights and deprived him of a fair trial. We should adhere to our original opinion and again reverse defendant’s conviction. Because we do not, I dissent.

Defendant does not challenge the breadth of the instruction. Thus, he does not argue that all that ORS 161.313 requires is that the court tell the jury that a person who is found guilty except for insanity will be committed to the jurisdiction of the Psychiatric Security Review Board (PSRB) for the maximum term for which he or she could have been incarcerated on conviction of the charged crimes, with the possibility of release from custody before then if the court or the PSRB determines that the person no longer suffers from a mental disease or defect or that the release will not present a substantial danger to the public. Because of the limited nature of defendant’s arguments, I will focus more on the propriety of consequences instructions in general rather than on this specific instruction.

One of the curious things about this case is that the only justification that anyone suggests for giving a consequences instruction over defendant’s objection is that the statute requires it. Neither the state nor the majority suggests any legitimate purpose for the instruction or any way in which it could legitimately benefit the state’s case.

In Shannon , the Court expressly rejected the holding of Lyles, which required the trial court to give a consequences instruction at the defendant’s request.

See, e.g., State v. Hamilton, 216 Kan 559, 534 P2d 226, 228-31 (1975) (the defendant did not object to instruction at trial and it was not clearly erroneous as a matter of law; no significant discussion of effect of the defendant’s objection); Kuk v. State, 80 Nev 291, 392 P2d 630, 634-35 (1964) (states, without explanation, that giving the instruction should not depend on whether the defendant wants it). Because of the lack of analysis in those cases, they have little persuasive value.

For a more extensive discussion of this point in the context of a similar instruction, see People v. Goad, 421 Mich 20 , 364 NW2d 584, 589-92 (1994).

My citations to other jurisdictions are exemplary rather than exhaustive. There is a thorough listing and categorization of the relevant cases in Thomas M. Fleming, Instructions in State Criminal Case in which Defendant Pleads Insanity as to Hospital Confinement in Event of Acquittal, 81 ALR4th 659 (1990 and Supp 2000).

The constitutional principle is that the court should not instruct the jury at all about the consequences of its verdict, not merely that it should not instruct the jury about the consequences of an insanity verdict. The instruction in this case violates that principle, but so could many other instructions that have nothing to do with insanity.

Because I base my conclusions on the Fourteenth Amendment’s general requirement of due process, I do not need to consider the extent to which the specific provisions of Sixth Amendment may be relevant to this case.

In Medina v. California, 505 US 437, 442-45 , 112 S Ct 2572 , 120 L Ed 2d 353 (1992), a majority of the Court questioned the applicability of Mathews to a criminal case. But see Medina, 505 US at 453 (O’Connor, J., concurring) and 456, 459 (Blackman, J., dissenting) (both arguing for the applicability of Mathews). Because I do not rely on a Mathews-style balancing approach in this case, I mention that case only to point out the variety of approaches that the Court has taken to determining what due process requires.

The applicable common-law rule, of course, is the rule that existed at the adoption of the Fourteenth Amendment and that those who enacted that amendment therefore believed to be part of the due process of law that they were protecting. For that reason, cases such as Martin v. Ohio, 480 US 228 , 107 S Ct 1098 , 94 L Ed 2d 267 (1987), that refuse to treat the converse of a traditional common-law rule as a part of due process are irrelevant to this point. See below, 175 Or App at 394 nil. The majority takes statements in other cases out of their appropriate context. Thus, in Snyder v. Massachusetts, 291 US 97 , 54 S Ct 330 , 78 L Ed 674 (1934), the issue was whether the defendant had a right to attend a jury view in person rather than simply through counsel. There was no clear common-law rule on the issue; in that context, the Court’s warning against confusing the issues of common-law rights and due process was simply a preliminary to deciding the case. In Gannett Co. v. DePasquale, 443 US 368 , 99 S Ct 2898 , 61 L Ed 2d 608 (1979), the issue was whether the media had a right under the Sixth Amendment to attend a hearing that the court had closed at the defendant’s request. The common-law rules that the Court discussed had nothing to do with a defendant’s right to due process under the Fourteenth Amendment.

That is true, for instance, of Martin , in which the issue was whether Ohio violated due process by adhering to the common-law rule that a defendant must *395 prove self-defense by a preponderance of the evidence. The Court noted that Ohio was one of only two states that had not shifted the burden to the prosecution, but that contemporary change did not affect the due process analysis. Martin. 480 US at 235-36 . In both Martin and Patterson , which took a similar position concerning shifting the burden of proof of other affirmative defenses, the question was whether due process required a change from the common-law rule. In contrast, in this case the question is whether due process requires adhering to the common-law rule. It is much more likely that those who adopted the Fourteenth Amendment contemplated that existing common-law principles were part of due process than that they contemplated giving changes from the common law that status, even when those changes favor the defendant.

The Court‘s references to Hurtado and to other criminal cases, along with the general compatibility between its analysis in Oberg and that in IVinship and Medina , makes it clear that the Oberg approach to the relationship between traditional procedures and due process applies to criminal proceedings as much as to civil.

Although, as the majority notes. Shannon is not itself a constitutional ease, the Court's discussion of the reasons for rejecting consequences instructions has constitutional significance.

To repeat: With a few exceptions, none of which gives any persuasive reason for its conclusion, the cases that permit giving the instruction either implicitly or explicitly provide that the defendant must either request or, at the least, acquiesce in it. In that situation, the defendant can decide whether to run the risk that the jury will use the instruction unfavorably to him or her. Unlike the majority, the cases do not provide for forcing the instruction on an unwilling defendant.

One could speculate, for instance, about the verdict that the jury in State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev allowed 331 Or 598 (2001), might have given if it had known the mandatory sentence that the defendant faced upon conviction.

The majority’s reference to Duncan v. Louisiana, 391 US 145 , 88 S Ct 1444 , 28 L Ed 2d 491 (1968), does not add anything to the analysis. Because the majority does not correctly identify the right in question—to have the jury base its decision on the relevant facts and law, not on the consequences of its decision—the majority also does not determine whether that right is fundamental or whether the instruction interfered with it.

Simmons v. South Carolina, 512 US 154 , 114 S Ct 2187 , 129 L Ed 2d 133 (1994), in which the Court held that the jury was entitled to know that a defendant whom it sentenced to life imprisonment rather than death could be denied release on parole, has nothing to do with this case. When the jury is determining a convicted defendant’s sentence, knowledge of the consequences of its decision is essential to its task. In that respect, sentencing is qualitatively different from the determination of guilt or innocence.