Amicus Brief for the United States — Reed v. Ross
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
* Oh, - supreme Court, U.S.
FILED |
JAN 28 1984
No. 83-218 ALEXANDER L STEVAS,
Z
In the Supreme Cuurt of the United States
OCTOBER TERM, 1983
AMOS REED, ETC. AND THE ATTORNEY GENERAL
OF NORTH CAROLINA, PETITIONERS
V.
DANIEL Ross
ON WRIT OF CERTIORARI TO TIE UNITED STATES
GOURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONERS
Rex E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
JOHN H. GARVEY
Assistant to the Solicitor General
Louis M. FISCHER
Attorney
Department of Justice
Washington, D.C. 20580
(202) 633-2217
QUESTION PRESENTED
Whether respondent, a federal habeas petitioner,
should be excused from his procedural default in state
court on the ground that the constitutional claim he now
wishes to assert—based on Mullaney v. Wilbur, 421 U.S.
684 (1975)—was “novel” at the time his conviction be-
came final in 1969.
Interest of the United States
TABLE OF CONTENTS
Statement 3
Introduction and summary of argument
Argument
I. Respondent’s constitutional claim was not novel
II.
Conclusion
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
... ͤ1m»
A. Respondent's claim that the State had the
burden of proof, though not yet validated by
this court, was frequently litigated and widely
, ̃ .
B. Since respondent’s claims were not novel, he
is bound by his procedural default
The principles governing retroactivity suggest
that novelty can never be “cause” aren a
procedural default
A. Procedural rights made fully retroactive are
by their nature not novel as applied to cases
on collateral review
B. A conviction should not be overturned on col-
lateral attack on the basis of « claim that was
novel at the time of trial .. 3
2a 0 —
12
17
18
Iv
TABLE OF AUTHORITIES
Cases :
Almeida-Sanchez v. United States, 418 U.S. 266
Apodaca v. Oregon, 406 U.S. 404 .0........ccccccceececceeeeee
Argersinger v. Hamlin, 407 U.S. 2ù 22,
Arsenault v. Massachusetts, 398 U.S. ....................
Ashe v. Swenson, 897 U.S. 488
Barber v. Page, 800 U.S. 719 . .
Benton v. Maryland, 895 U.S. 7144ſde
Berger v. California, 898 U.S. 814144 3ũ!ꝶ
Berry v. Cincinnati, 414 U.S. 22ᷣ· ũ ¶2·
Dobie V. Bradley, SIGS UWB. GBB q..ncccrcrcceseicrcccesvesesscicvsccee
D Sg EF, . la,
Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688
Boyd v. Mintz, 681 F.2d 267
Brown v. Louisiana, 447 U.S. 382333
Bruton v. United States, 391 U.S. 12338
Burch v. Louisiana, 441 U.S. 130
Bussey v. State, 147 Tex. Crim. 447, 181 S.W.2d 94..
Chromiak v. Field, 406 F.2d 502, cert. denied, 395
r
5
FERESPESRRARSSERS
5
erer ene 16
AA We oe LA als os a 8a
Commonwealth v. O’ Neal, 441 Pa. 17, 271 A.2d 497.. 2a,
Commonwealth v. York, 50 Mass. 99 10
Cottrell v. State, 458 P.2d 823 5a
Daniel v. Louisiana, 420 U.S. 1ů111 26
Davis v. United States, 160 U.S. 49922 5, 12
Davis v. United States, 417 U.S. 888 ........................ 16
De Groot v. United States, 78 F.2d 244 4a
Delli Paoli v. United States, 852 U.S. 232 22
Dumont y. Estelle, 518 F.2d 79989 17
Duncan v. Louisiana, 391 U.S. 14 5, 11
Edwards v. State, 58 Okla. Crim. 15, 48 P. 2d 1087. 5a
Engle v. Isaac, 456 U.S. 107 .................... passim
9a
26
23
Escamilla v. State, 464 S. W. 2d 840 220.
Escobedo v. Illinois, 878 U.S. 478
Eskridge v. Washington Prison Board, 357 U.S.
214
Cases—Continued : Page
Estelle v. Williams, 425 U.S. 50 13, 14
Evans v. Maggio, 557 F.2d 4300 16
Evans v. State, 28 Md. App. 640, 849 A. 2d 300,
aff d, 278 Md. 197, 862 A. 2d 62099 8a
Ford v. Strickland, 696 F. 2d 804 ..00..........:cccccccceeoeeee 16
Forman v. Smith, 688 F.2d 684, cert. denied, 450
ZI 16
Furman v. Georgia, 408 U.S. 288 18
Gideon v. Wainwright, 372 U.S. 33 22, 23
Goodall v. State, 1 Or. 8898 . 2a
Gosa v. Mayden, 418 U.S. 66 18
Virgin Islands v. Lake, 862 F. 2d 7700 10a
Virgin Islands v. Torres, 161 F. Supp. 699 10a
Gravely v. State, 38 Neb. 871, 57 N. W. 711 11, 5a
Griffin v. California, 880 U.S. 609 26
Griffin v. Illinois, 351 U.S. 1122 23, 24
Hankerson v. North Carolina, 482 U.S. 238 8, 6, 9, 18,
18, 19, 21, 28
Harvey v. Commonwealth, 818 S.W.2d 254 8a
Haswell v. State, 167 Neb. 169, 92 N.W.2d 161........ la
Henderson v. Kibbe, 481 U.S. 145 15
Henderson v. State, 234 Ga. 827, 218 S.E.2d 612.... 8a
Holcomb v. Murphy, 701 F.2d 137 16
Holmes v. State, 224 Ga. 558, 168 S.E.2d 808 8a
Hubbard v. Jeffes, 658 F.2d 999ͤ9ͤ99¶999s 16
Huffman v. Wainwright, 651 F.2d 47 16
Ivan V. v. City of New York, 407 U.S. 208 .............. 21
Jackson v. Denno, 878 U.S. 38888 22
Jackson v. Superior Court, 62 Cal. 2d 521, 399 P.2d
874, 42 Cal. Rptr. 888 . la
Johnson V. Commonwealth, 188 Va. 848, 51 S.E.2d
W An AVAL a VR OO 2a
Johnson v. New Jersey, $84 U.S. 719 6, 18, 20, 26
Jones v. Barnes, No. 81-1794 (July 5, 198 14
Jones v. Commonwealth, 187 Va. 188, 45 S.E.2d
O68 its * 6a
Keith v. State, 218 Tenn. 895, 408 S.W.2d 758 9a
King v. State, 249 Ind. 699, 284 N.E.2d 466 .......... la, 4a
Kitchens v. Smith, 401 U.S. 847 28
Leland v. Oregon, 348 U.S. 790 12
Leonard v. People, 149 Colo. 860, 369 P. 2d 54 .......... 1a, 4a
_
Cases—Continued : Page
Linkletter v. Walker, 881 U.S. 618 ............................ 28, 26
Logan v. United States, 144 U.S. 268 24
Mackey v. United States, 401 U.S. 66 19
int, ... 26
Matias v. Oshiro, 688 F. 2d 312222 16
McConnell v. Rhay, 898 U.S. 2 2 23
MeNerlin v. Denno, 878 U.S. 57 22
Mempa v. Rhay, 889 U.S. 1 23
Michigan v. Payne, 412 U.S. 4c 18
Miranda v. Arizona, 884 U.S. 43333 * 26
Mode v. State, 231 Ark. 447, 830 S. W. 2d 88 7a
Moore v. Illinois, 408 U.S. 78 18
Mullaney v. Wilbur, 421 U.S. 684 passim
Nance v. State, 210 Tenn. 328, 858 S.W.2d 327 9a
Norris v. United States, 687 F.2d 899 1. 16
Palko v. Connecticut, 802 U.S. 31 6, 19, 28
Pedrero v. Wainwright, 590 F.2d 13888 17
People v. Cornett, 38 Cal. 2d 38, 198 P.2d 877 ........ 4a
People v. Hartwick, 8 Mich. App. 198, 154 N.W.2d
P SAIS A AL Fe Bae LA i Ae Ee 5a
People v. Sandgren, 802 N.Y. 881, 98 N.E.2d 460 2a
People v. Warren, 38 III. 2d 168, 210 N.E.2d 507...... la, 4a
Pickelsimer v. Wainwright, 875 U.S. 22 22
Pounders v. State, 282 Ala. 551, 213 So. 2d 394 4a
Reece v. Georgia, 850 U.S. 86 16
Reynolds v. United States, 288 F.2d 40 10a
Roberts v. Russell, 892 U.S. 2988 22
Rose v. Lundy, 455 U.S. 509 00. ..........-ceeceecceceeeeneeee 26
Rose v. Mitchell, 448 U.S. 545 0.0... occccccccceectee 16
Ross v. Reed, 660 F.2d 49222 3
Ross v. Reed, 466 U.S. 9211 3
Sanders v. United States, 878 U.S. 18
State v. Badgett, 167 N.W.2d 6000 4a
State v. Barrett, 128 Vt. 462, 266 A.2d 441 6a
State v. Callihan, 11 Ohio App. 2d 28, 227 N.E.2d
654 neee Za. 8a
State v. Carter, 227 La. 820, 80 So. 2d 420 la, 5a
State v. Cochran, 78 N. M. 292, 480 P.2d 868 5a
States v. Cuevas, 68 Hawaii 110, 488 P. 2d 822 8a
State v. Davis, 342 Mo. 594, 116 S.W.2d 110 5a
vn
Cases Continued: Page
State v. Gardner, 51 N. J. 444, 242 A. 2d 2a, 5a
State v. Haffa, 246 Iowa 1275, 71 N.W.2d 35, cert.
denied, 350 U.S. 914 la
State v. Harlow, 187 W. Ve. 251, 71 S.E.2d 3380 ........ 9a
State v. Hoerner, 55 N. D. 761, 215 N. W. 277 .......... 2a, 5a
State v. Holt, 484 S. W. 2d 576 5a
State v. Jarvi, 3 Ore. App. 391, 474 P. 2d 868 7a
State v. Jur xo, 42 Idaho 319, 245 P. 68 1a
State v. Kroll, 87 Wash. 2d 829, 558 P. 2d 178 3a
State v. Lundhigh, 80 Idaho 365, 164 P. 690 7a
State v. Mays, 65 Wash. 2d 58, 896 P. 2d 758 3a
8a
5a
5a
5a
8a
State v. Mellow, 107 A. 871
State v. Powell, 54 Mont. 217, 169 P. 40
State v. Quinn, 186 Minn. 242, 248 N. W. 70
State v. Reddington, 80 S. D. 390, 125 N. W. 2d 58 .... 2a,
State v. Reid, 8 Ohio App. 2d 215, 210 N. E. 2d 142.
State v. Richburg, 250 S. C. 451, 158 S. E. 2d 769,
appeal after remand, 258 S.C. 458, 171 S. E. 2d
592, cert. denied, 899 U.S. 930 9a
State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, cert.
denied, 379 U.S. 939 la, 4a
State v. Skinner, 32 Nev. 70, 104 P. 22ù23 7a
State v. Turpin, 158 Wash. 103, 290 P. 824 7a
State v. Wilcox, 48 S. D. 289, 204 N. W. 89 11a, 5a
State v. Wilson, 118 Vt. 524, 87 A. 2d 40oo0o0o 6a
State v. Winsett, 205 A.2d 510 8a
Stokes v. People, 58 N.Y. 164 11
Stone v. Powell, 428 U. S. 465 16
Stovall v. Denno, 888 U.S. 298 18-19
Stump v. Bennett, 398 F.2d 111, cert. denied, 398
U.S. 1001 12
Sunal v. Large, 832 U.S. 174 1, 16, 16-17
Taylor v. Louisiana, 41% U.S. 522 88 26
Tehan v. United States ex rel. Shott, 382 U.S. 406.. 20, 26
Thomas v. State, 210 Tenn. 297, 358 S.W.2d 815 3a
Thompson v. State, 865 P. 2d 834 2a
4a
5a
Toomey v. State, 581 P. 2d 1124
Turner v. State, 220 So. 2d 295, cert. denied, 869
U.S. 884
Cases—Continued : Page
United States ex rel. Cruz v. LaVallee, 448 F.2d
671, cert. denied, 406 U.S. 958 18
United States v. Frady, 456 U.S. 152 8,4
United States v. Indiviglio, 352 F.2d 276, cert. de-
e 1
United States v. Johnson, 457 U.S. 5377 18, 20
United States v. Johnson, 476 F.2d 1251, cert. de-
CRS ON i seestetn 10a
United States v. Peltier, 422 U.S. 531 26
United States v. Sobell, 314 F.2d 314 27
Wainwright v. Sykes, 488 U.S. 72 5, 18, 15, 16, 25
Wheeler v. Commonwealth, 472 S.W.2d 254 8, 8a
White v. Estelle, 566 F.2d 50 cece cece ceceeceeneeeee 16
White v. Maryland, 878 U.S. 52989 23
White v. State, 82 Nev. 304, 417 P. 2d 5922 1a
Williams v. United States, 401 U.S. 64 19
Winship, In re, 397 U.S. 3588 4, 5, 8, 11, 12, 21, 3a
Witherspoon v. Illinois, 891 U.S. 5100 21, 24
Wright v. People, 4 Neb. 407 .. 11
Yates v. United States, 316 F.2d 718 10a
Constitution, statute and rules:
U.S. Const. :
Amend. IV 26
Amend. V (Due Process Clause) 5
Amend. XIV (Due Process Clause) 10-11, 28
28 U.S.C. 2254 4, 6, 16
Fed. R. Crim. P.:
Rule 12 1
Rule 30 1
Rule 38 7, 27
Rule 52 (b) 1
Fed. R. Evid. 1038 (a) (1) 1
Miscellaneous:
Friendly, Is Innocence Irrelevant? Collateral At-
tack on Criminal Judgments, 38 U. Chi. L. Rev.
142 (1970) 18
Miscellaneous—Continued : Page
Hill, The Forfeiture of Constitutional Rights in
Criminal Cases, 78 Colum. L. Rev. 1060 (1978).. 17
Model Penal Code (Tent. Draft No. 4, 1955) .......... 12
: Orfield, New Trial in Federal Criminal Cases, 2
., re FF Fy eee eee 4 28
Perkins on Criminal Law (2d ed. 1969) .................. 28
a
In the Supreme Court of the United States
OCTOBER TERM, 1983
No. 83-218
AMOS REED, ETC. AND THE ATTORNEY GENERAL
OF NORTH CAROLINA, PETITIONERS
V.
DANIEL Ross
—
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case raises an important question concerning the
availability of federal habeas corpus relief when a de-
fendant has failed to comply with legitimate procedural
rules requiring that claims be timely raised or forfeited.
The Federal Rules of Criminal Procedure expressly pro-
vide that certain types of claims must be raised before
or at trial. See Fed. R. Crim. P. 12, 30; see also Fed.
R. Evid. 103(a)(1). More generally, a criminal de-
fendant’s failure to make timely objection at trial is
frequently held to bar the claim, although on direct ap-
peal an appellate court may sometimes notice plain error
affecting substantial rights. Fed. R. Crim. P. 52(b).
See, e. g., United States v. Indiviglio, 352 F.2d 276, 279-
281 (2d Cir. 1965) (en banc), cert. denied, 383 U.S.
907 (1966). Failure to take an appeal or preserve a par-
ticular claim on appeal can also bar subsequent litigation
of the claim. Sunal v. Large, 332 U.S. 174 (1947); Nor-
ris v. United States, 687 F. 2d 899 (7th Cir. 1982).
(1)
The standard for determining when an error that was
not duly objected to at trial or raised on direct appeal
can nevertheless support collateral relief is of substan-
tial importance to the administration of justice in the
federal system. The holding of the court of appeals in
this case—that the constitutional infirmity of a jury in-
struction was a “novel” conception six years before this
Court decided the issue, and that such novelty was suf-
ficient cause to excuse a failure to make timely objec-
tion—if sustained by this Court, would substantially in-
crease the susceptibility of otherwise final judgments in
federal criminal cases to collateral attack.
STATEMENT
1. Respondent shot and killed his wife on November
1, 1968. The evidence at trial showed that respondent
was then separated from his wife and living in New
York; his wife was living at her mother’s home in Raleigh,
North Carolina. On November 2, respondent appeared
with his sister at the home in Raleigh. They took re-
spondent’s wife and two children to a shopping center,
and on their return respondent and his wife entered the
house. His wife’s brother, Leon Young, testified that
he was outside at the time, and heard two shots. Young
ran to the house and saw respondent come out, reload
his gun, and shoot his wife again. According to Young,
respondent’s wife did not have a weapon of any kind
. State v. Ross, 275 N.C. 550, 551, 169 S.E.2d
875, 876 (1969). Young testified that respondent then
“‘ran to his sister’s car, said something about the hos-
pital, and they drove away. I did not see any injuries on
{respondent]’” (ibid.). Young’s testimony was corrob-
orated by Charles McAllister, who was in the house at
the time (ibid.).
Respondent himself testified that after returning from
the shopping center he and his wife “had a conversation
about a girl that I used to mess around with” (J.A. 18).
As room, respondent continued, his
back of the neck with “a knife,
fork, or something” that Young had handed to her
(ibid.). He then turned around and shot her twice. As
he was leaving he fired another shot at Young who, he
‘testified, was approaching him “with some object in his
hand” (ibid.). Respondent’s sister corroborated his state-
ment “that he had a profusely bleeding wound on his
nec!’ 169 S. E. 2d at 877).
Tu. crial court instructed the jury that respondent had
the burden of proving self-defense (which would have
exonerated him entirely) and lack of malice (which would
have affected the degree of the offense) (Pet. App. 2;
J.A. 28-24). The jury returned a verdict of guilty of
murder in the first degree, and recommended life im-
prisonment. The North Carolina Supreme Court affirmed
the conviction on October 15, 1969. State v. Ross, supra.
2. Respondent did not object either at trial or on ap-
peal to the court’s instruction on the burden of proof.
Subsequently, in Mullaney v. Wilbur, 421 U.S. 684
(1975), this Court held that in a murder case the prose-
cution must prove beyond a reasonable doubt that the de-
fendant did not act on sudden provocation or in the
heat of passion. In Hankerson v. North Carolina, 482
U.S. 288 (1977), on direct review of a conviction, the
Court held that Mullaney applied retroactively to a trial
that took place in 1974. Respondent then unsuccessfully
sought post-conviction relief in state court, relying on
Mullaney and Hankerson (Pet. Br. App. A3-A8).
Thereafter, respondent began this proceeding under 28
U.S.C. 2254. e raged eee
from considering the petition because the State itself
would not permit post-conviction consideration of claims
not raised either at trial or on appeal (Pet. App. 3). The
ceca eee e. Ross v.
Reed, 660 F.2d 492 (Ath Cir. 1981). This Court vacated
the however, and remanded for further con-
sideration in light of Engle v. Isaac, 456 U.S. 107 ‘ag *
and United States v. Fraiy, 456 U.S. 152 (1982).
v. 456 U.S. 921 (198 )).
4
On remand the court of appeals reversed and directed
that a writ of habeas corpus issue unless respondent was
retried. within a reasonable time (Pet. App. 9). The
court found that respondent’s failure to object to the bur-
den of proof instruction either at trial or on direct ap-
peal was excused under the “cause and prejudice” rule
applied in Isaac and Frady. The State itself conceded
that the prejudice requirement was satisfied, since both
respondent and his sister gave testimony suggesting that
respondent had reacted to an attack on him by his wife.
Under those circumstances, imposing the burden of per-
suasion on respondent could have influenced the jury’s
verdict (Pet. App. 5).
The court also held that respondent had shown cause for
his failure to object, because the claim that he now asserts
was too novel in 1969 for him to have anticipated.
Mullaney was not decided until 1975; and even In re
Winship, 397 U.S. 358 (1970) (prosecution must prove
every element of the offense beyond a reasonable doubt),
was not decided until five months after respondent’s con-
viction had been affirmed by the state supreme court (Pet.
App. 2, 6). In 1969, the court stated, those decisions were
only “foreshadowed by straws in the wind” (id. at 7).
To require objection on direct appeal under those circum-
stances,’ it concluded, would oblige counsel “to raise and
argue every conceivable constitutional claim, no matter
how far fetched, in order to preserve a right for post
conviction relief upon some future, unforeseen develop-
ment in the law” (id. at 7-8).
INTRODUCTION AND SUMMARY OF ARGUMENT
This case presents the question whether a Section 2254
petitioner who has failed to raise.a constitutional claim
at trial or on direct appeal, and who therefore is barred
from presenting the claim in state court, has shown cause
5
for his procedural default (see Wainwright v. Sykes, 433
U.S. 72, 87 (1977) ) on the basis that the claim was novel
at the time of his trial and direct appeal (see Engle v.
Isaac, 456 U.S. at 131). As a preliminary matter, we
note several aspects of the case that we do not address.
First, although the orders dismissing respondent's state
petition for post-conviction review (Pet. Br. App. A3-
A4) and subsequent petition for a writ of certiorari (id.
at A8) do not reveal the basis for denial, we assume for
the reasons given by petitioner (Pet. Br. 10-12) that the
State enforced its procedural default rule in this case.
Second, we doubt that there is merit to respondent’s
suggestion (Br. in Opp. 3) that the state supreme court
abandoned its right to rely on the state default rule by
examining the charge to the jury for plain error on its
own initiative. See State v. Ross, 275 N.C. at 554, 169
S. E. 2d at 878. The fact that an appellate court is willing
to engage in the commendable practice of examining a
record for plain error should not carry with it the penalty
of opening the case up to collateral attack on any issue
the court may have overlooked. See also McLaughlin v.
Gabriel, No. 83-1413 (Ist Cir. Jan. 27, 1984), slip op.
4-6.
I
A. Respondent’s claim that the state has the burden of
persuasion on the issues of malice and self-defense was
not novel in 1969. The great majority of state courts ad-
dressing those issues by 1969 had already imposed that
burden on the prosecution. Though their decisions were
not explicity based on the Due Process Clause, their views
and reasons “reflect a profound judgment about the way
in which law should be enforced and justice administered.”
In re Winship, 397 U.S. at 361-362 {quoting Duncan v.
Louisiana, 391 U.S. 145, 155 (1968) ). Federal cases dur-
ing the same period, following the burden of proof rule
announced in Davis v. United States, 160 U.S. 469
(1895), regarded the government’s burden of proof be-
yond a reasonable doubt as so fundamental that it was a
tenet of due process, Considered collectively, these cases
provided “the tools to construct the I] constitutional claim.”
Engle v. Isaac, 456 U.S. at 133.
B. Given the weight of authority on the allocation of
the burden of proof by 1969, it is entirely proper that
respondent should be bound by his procedural default.
Engle holds that a habeas petitioner does not establish
cause simply by showing that the state court would in all
probability. have rejected the claim. 456 U.S. at 180. It
also holds that the inadvertence or neglect of counsel—at
least in cases falling short of constitutionally ineffective
assistance—cannot excuse a procedural default.
These principles are applicable to a default on direct
appeal (the situation here) just as they are to defaults
at trial. A rule requiring that issues be raised on direct
appeal furthers the state’s interest in avoiding piecemeal
review of convictions. More important, such a rule makes
it possible to correct trial court errors promptly enough
to permit effective retrial. Filing a Section 2254 action
after neglecting to present an important issue on direct
appeal also deprives the federal court of the benefit of the
state court’s views on the record and issues of state law.
A. It is no accident that the issue decided in Mullaney
and made fully retroactive in Hankerson should not have
been novel at the time of respondent’s trial and appeal.
In fact, the principles governing retroactivity in them-
rn Such rights, re gp ee! ge
must be to the truth-finding process at trial, are read into
the Constitution precisely because they are “implicit in
the concept of ordered liberty,” and can therefore “be
traced in our history, political and legal.” . Palko v. Con-
necticut, 302 U.S. 319, 325, 327 (1937). Retroactive ap-
plication thus has “the justifiable effect of curing errors
committed in disregard of constitutional rulings already
clearly foreshadowed.” Johnson v. New Jersey, 384 US.
719, 781 (1966).
7
B. The unlikelihood that novelty can be demonstrated
for any rights made fully retroactive suggests that an
inquiry into that issue will be unproductive. Moreover,
the mass of materials relevant to a decision, and the lack
of any definite standard for deciding exactly when a claim
can last have been considered novel, provide further
reasons for avoiding such a burdensome and speculative
inquiry unless justice demands it.
If one were to conclude that a habeas petitioner’s claim
was novel at the time of his conviction, then it is difficult
to see how its violation could have rendered his trial
“fundamentally unfair.” Engle v. Isaac, 456 U.S. at 181.
After all, the very idea of novelty implies that the entire
legal system at the time viewed the procedures used to
convict as constitutionally proper. The rule adopted by
the court of appeals has the ironic effect of overturning
convictions obtained in compliance with contemporary.
standards at the time of trial, while leaving intact those
(later obtained) which violate the standards applicable to
the later trials. This rather perverse willingness to undo
more ancient, rather than more recent, convictions is
precisely the opposite of the approach our legal system
takes toward newly discovered evidence. Fed. R. Crim.
P. 33.
ARGUMENT
The issue in this case is similar to that decided in Engle
v. Isaac, 456 U.S. 107 (1982). There the respondents,
two of whom had been convicted before this Court’s de-
cision in Mullaney v. Wilbur, argued that they had shown
cause for their failure to object to jury instructions im-
posing on them the burden of proving self-defense, because
the constitutional objection validated in Mullaney was
“unknown at the time of trial.” 456 U.S. at 131. This
Court stated (456 U.S. at 181) (footnotes omitted) :
We need not decide whether the novelty of a con-
stitutional claim ever establishes cause for a failure
to object. We might hesitate to adopt a rule that
would require trial counsel either to exercise extraor-
8
dinary vision or to object to every aspect of the pro-
ceedings in the hope that some aspect might mask a
latent constitutional claim. On the other hand, later
discovery of a constitutional defect unknown at the
time of trial does not invariably render the original
trial fundamentally unfair. These concerns, how-
ever, need not detain us here since respondents’
claims were far from unknown at the time of their
trials.
Where the basis of a consiitutional claim is available,
and other defense counsel have perceived and liti-
gated that claim, the demands of comity and finality
counsel against labeling alleged unawareness of the
objection as cause for a procedural default.
The respondents in Isaac were tried in 1975, and this
Court held (456 U.S. at 181) that by that date In re
Winship, 897 U.S. 358 (1970), provided a “basis for their
constitutional claim.” Respondent here was convicted, and
his conviction was affirmed by the state supreme court, in
1969. The issues are thus: (i) whether an issue that was
not novel in 1975 was so in 1969; and if it was, (ii)
whether novelty establishes cause for respondent’s failure
to object to the jury instructions on self-defense and
malice.
We view these issues of novelty and procedural default,
as we must, against the background of evolving substan-
tive law and principles of ‘retroactivity. For it is inevit-
able that this Court’s willingness to accept changes in
constitutional doctrine concerning the rights of criminal
defendants, and its willingness to make new doctrine
retroactive, must both be affected by the perceived sys-
the lower courts, as Hankerson states should be done,
widens somewhat the circle of cases affected. But the
consequences of enlarging that circle further to encompass
past cases in which the issue was not even preserved are
likely to be a great deal more serious than this Court
envisioned in Hankerson. The Court there noted, address-
ing this very issue (432 U.S. at 244 n.8):
[W]e are not persuaded that the impact on the ad-
ministration of justice in those States that utilize
the sort of burden-shifting presumptions involved in
this case will be as devastating as [North Carolina]
asserts. If the validity of such burden-shifting pre-
sumptions were as well settled in the States that have
them as [North Carolina] asserts, then it is unlikely
that prior to Mullaney many defense lawyers made
appropriate objections to jury instructions incorporat-
ing those presumptions. Petitioner made none here.
The North Carolina Supreme Court passed on the
validity of the instructions anyway. The States, if
they wish, may be able to insulate past convictions
by enforcing the normal and valid rule that failure
to object to a jury instruction is a waiver of any
claim of error. See, e. g., Fed. Rule Crim. Proc. 30.
If the Court should conclude in this case that such
“normal and valid rule[s]” insulate only the most recent
convictions, it will have expanded greatly the impact that
fully retroactive decisions have on the administration of
criminal justice.
I. RESPONDENT'S CONSTITUTIONAL CLAIM WAS
NOT NOVEL IN 1969
A. Respondent’s Claim That The State Had The
Burden Of Proof, Though Not Yet Validated By
This Court, Was Frequently Litigated And Widely
Accepted In 1969
The court of appeals excused respondent’s procedural
default because it concluded that in 1969 a claim that the
prosecution had the burden of proving malice and dis-
proving self-defense was “novel,” foreshadowed only by a
10
“hint here and there voiced in other contexts” (Pet. App.
7). In fact, however, such claims were frequently liti-
gated in both state and federal courts, and by the time
of respondent’s trial the majority of courts reaching the
issue had held instructions imposing the burden of per-
suasion on the defendant to be improper.
This Court recognized as much in Mullaney (421 U.S.
at 693-696), noting that the clear trend in the states since
early in this century had been away from the rule of
Commonwealth v. York, 50 Mass. 98 (1845), which im-
posed on a defendant the burder of persuasion to negate
malice aforethought. Our resesrch reveals that as of
1969, at least 19 states impused the burden of persuasion
on the prosecution to establish malice;* only eight
agreed with North Carolina’s requirement that a defend-
ant shoulder the persuasion burden.* The same is true
with respect the burden of persuasion on self-defense.‘
At the time of respondent's trial no fewer than 23 states
agreed that the burden of persuasion rested on the state,
and that a defendant had at most the hurden of producing
some evidence on that defense.“ Five more required the
defendant simply to raise a reasonable doubt on that
issue—a requirement that differs in little more than form
from the majority rule.* Only 12 states (including North
Carolina) placed the persuasion burden on a defendant.’
To be sure, these state cases do not hold that alloca-
tion of the persuasion burden to the prosecution is re-
quired by the Due Process Clause of the Fourteenth
2 See App. infra, la-2a.
See App. infra, ga.
* Though this Court has not held that the Constitution requires
the prosecution to negate a claim of self-defense, Mullaney also
recognized that the “majority rule” in the states imposed the
burden of persuasion on the prosecution (421 U.S. at 702 n.30).
5 See App. infra, 4a-6a.
* See App. infra, Ta.
1 See App. infra, Ba- Ha.
£4 >
11
Amendment. But individually and collectively they go far
toward establishing that conclusion. Considered singly,
many of them indicate that imposing the burden of prov-
ing malice and disproving self-defense on the prosecution
is demanded by considerations of fairness fundamental to
our system of justice — the very standard Mullaney ap-
plied in deciding the constitutional issue. See 421 U.S.
at 701 (“the traditional burden which our system of
criminal, justice deems essential”). Taken together, the
weight of opinion expressed in these cases reflect [s] a
profound judgment about the way in which law should be
enforced and justice administered.’” In re Winship, 397
U.S. at 361-362, quoting Duncan v. Louisiana, 391 U.S.
at 155.“
See, e. g., State v. Wilcoz, 48 8. D. 289, 204 N. W. 360, 872 (1925),
where, in overruling the former state practice requiring a defendant
to prove self-defense by a preponderance of the evidence, the court
observed that allocating only a production burden to a defendant
and requiring the prosecution to retain the burden of persuasion
“seems to us to be a more humane and reasonable rule.” And in
Wright v. People, 4 Neb. 407, 409 (1876), the court said, in adopting
a rule requiring the prosecution to prove a defendant’s sanity:
[Wie feel at liberty to adopt that rule which to our mind seems,
not only to be founded in reason, but, to conform to those humane
principles which underlie our system of criminal laws.” The rule in
Wright was later relied on to allocate the burden of persuasion
concerning a claim of self-defense to the prosecution. Gravely v.
State, 38 Neb. 871, 57 N.W. 761, 752 (1894). And an opinion
that was frequently cited in the late 19th and early 20th centuries
stated that “[i]t is a cardinal rule in criminal prosecutions that
the burden of proof rests upon the prosecutor.” Stokes v. People,
58 N.Y. 164, 181 (1878) (Rapallo, J., concurring). In fact, the
author viewed that rule to be so fundamental that he believed
an instruction shifting the burden of proof to a defendant cOuld
never be harmless, because it was “so vital” (id. at 183).
» This is not to suggest that the potential connection between
these cases and the demands of the Constitution was not perceived.
For example, the initial draft of the ALI’s Model Penal Code
dealing with the burden of proof required-the prosecution to prove
“each element of [an] offense * * * beyond a reasonable doubt,”
save for certain exceptional defenses “plainly require[d]” by
12
The treatment of these issues in the federal courts
lends still more support to the conclusion that the point
was far from novel by the date of respondent’s trial and
appeal. Several federal courts, following the rule an-
nounced in Davis v. United States, 160 U.S. 469 (1895),
regarded the requirement that the government prove all
elements of an offense beyond a reasonable doubt as so
fundamental that it was a tenet of due process.“ And
as this Court has already recognized (Engle v. Isaac, 456
U.S. at 181-182 n.39), even before Winship the Eighth
Circuit had held that the Iowa practice of requiring a
defendant to prove the defense of alibi violated due proc-
ess. Stump v. Bennett, 398 F.2d 111 (en banc), cert.
denied, 393 U.S. 1001 (1968). The court in Stump cor-
rectly observed: “That an oppressive shifting of the
burden of proof to a criminal defendant violates due
process is not a new doctrine within constitutional law”
(398 F.2d at 122). See also McLaughlin v. Gabriel,
supra, slip op. 6-7.
B. Since Respondent’s Claims Were Not Novel, He Is
Bound By His Procedural Default
Given the voluminous litigation prior to 1969 concesn-
ing the placement of the burden of proof, novelty affords
no just cause to excuse respondent from his failure to
statute. Model Penal Code § 1.18 (1) and (2) (b) (Tent. Draft No. 4,
1955). And the comments on that section state that “to impose a
burden of persuasion on defendants as to matters involved in their
guilt or innocence of an offense ought to be viewed as raising a more
serious issue of constitutionality than the mere imposition of a
burden of adducing evidence.” Id. at page 118. Though the draft
went on to say that “due process poses no impenetrable barrier to
shifting the burden of persuasion” if done under “conservative”
limitations (ibid.), it suffices for purposes of the question here that
the issue was recognized many years before respondent's trial, not
that the result in Mullaney was accepted.
10 See Appendix infra, 10a. Indeed, Winship itself expressed
the view that Davis’s burden of proof rule had constitutional roots.
897 U.S. at 362-868. But see Leland v. Oregon, 343 U.S. 790, 797
(1962).
13
raise the issue at trial or on direct appeal. We note, as
an initial matter, the irrelevance of the fact that re-
spondent’s attorney (rather than he himself) may have
borne the responsibility for recognizing and raising the
point. For “the decision to assert or not to assert consti-
tutional rights or constitutionally based objections at
trial is necessarily entrusted to the defendant’s attorney,
who must make on-the-spot decisions at virtually all stages
of a criminal trial.” Wainwright v. Sykes, 483 U.S. at
93 (Burger, C.J., concurring). See also id. at 95 n.2
(Stevens, J., concurring) .™
Neither can the decision about “cause” for respondent’s
procedural default turn on the reasons (or lack of them)
behind his counsel’s failure to raise the issue. It can no
longer be argued, after this Court’s decision in Engle v.
Isaac, that the default is excused simply because the state
supreme court in all likelihood would have rejected the
claim—as, indeed, it rejected a few years later the claim
of the defendant in Hankerson. “(T]he futility of pre-
senting an objection to the state courts cannot alone con-
stitute cause for a failure to object at trial. If a defend-
ant perceives a constitutional claim and believes it may
find favor in the federal courts, he may not bypass the
state courts simply because he thinks they will be un-
sympathetic to the claim.” 456 U.S. at 130 (footnote
omitted). The decision not to argue an issue under those
circumstances is no different from litigation judgments
that counsel must make in every case. If a lawyer has
several points to make at trial or on appeal, any one of
:
i
3
1
is
14
raising a borderline claim may divert attention from or
dilute the force of other arguments he deems more likely
to succeed. See Jones v. Barnes, No. 81-1794 (July 5,
1983), slip op. 6-9."
Indeed, even if one assumes that counsel’s inaction re-
sulted from inadvertence or negligence, there is not suf-
ficient cause to excuse a procedural default—at least in
situations falling short of constitutionally ineffective as-
sistance of counsel. The possibility that an attorney may
make an error of judgment or overlook a potentially meri-
torious claim is inherent in an adversary system, and
ordinarily even “erroneous” decisions by counsel must be
deemed binding. See Estelle v. Williams, 425 U.S. 501,
508 n.3, 512 (1976); id. at 514-515 & nn.3, 4 (Powell,
J., concurring). Addressing this very contention in Engle
v. Isaac, 456 U.S. at 134, the Court observed:
We have long recognized * * * that the Constitution
guarantees criminal defendants only a fair trial and
a competent attorney. It does not insure that defense
counsel will recognize and raise every conceivable
constitutional claim. Where the basis of a constitu-
tional claim is available, and other defense counsel
have perceived and litigated that claim, the de-
mands of comity and finality counsel against label-
ing alleged unawareness of the objection» as cause
for a procedural default.
These principles are not only inherent in an adversary
system, but warranted by “the demands of comity and
finality” recognized in Engle v. Isaac. Enforcement of a
15
ference or immediately after the jury is instructed), the
court is afforded a chance to determine whether to give
(or if necessary to correct) a potentially erroneous
charge. If the defendant objects to the admission of evi-
dence he may succeed in getting it excluded, or the
prosecutor may reconsider his proffer rather than risk
reversal by either a state appellate court or a federal
habeas court. If a questionable statement is made dur-
ing summation, a contemporaneous objection gives the
trial court an opportunity to cure any possible error by
appropriately cautioning the jury.
If a defendant prevails on his objections, he may suc-
ceed as well in securing an acquittal from the jury. If
he prevails and is convicted, the timely objection will at
least have reduced the number of points to be reviewed on
appeal. And even if the objection is denied, it will often
serve the purpose of enabling the trial judge to make a
record on a claim when the recollection of the witnesses
and parties is freshest. A reviewing court will thus have
a better opportunity to weigh the merits of a claim of
error. See Wainwright v. Sykes, 433 U.S. at 88-89;
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). “Any
procedural rule which encourages the result that [trial]
proceedings be as free of error as possible is thoroughly
desirable, and the contemporaneous-objection rule surely
falls within this classification.” Wainwright v. Sykes,
443 U.S. at 90.
Nor do we think that there is any reason for giving
such respect to state contemporaneous objection rules but
ignoring this State’s “equivalent interests in discouraging
procedural defaults during appellate proceedings” (Pet.
App. 4). See note 1, supra. In the latter case the state
has an obvious interest in avoiding piecemeal review of
convictions—first on direct appeal, then later in a state-
that
16
months of respondent’s conviction. It was not until 1977
that a collateral attack raising this issue was first brought
in state court. Moreover, one who files a Section 2254
action after neglecting to present an important issue on
direct appeal deprives the federal court of the benefit of
the state court’s views on the record and issues of state
law. What the State in this case has done by excusing a
default at the trial level but enforcing it if the claim is
not raised on appeal is simply to adopt a more lenient pro-
cedural default rule than it might have chosen. That cir-
cumstance should hardly entitle a federal habeas court
to ignore the core interests that the State does insist on
protecting. For these reasons the courts of appeals have
generally found little reason to distinguish between de-
faults at trial and those on direct appeal.“ This Court
too has found the preservation of a claim on direct appeal
critical to its availability on collateral attack. Compare
Sunal v. Large, 332 U.S. 174 (1947), with Davis v.
United States, 417 U.S. 333, 345 (1974).
There are, of course, cases where the “cause” require-
ment of Wainwright v. Sykes will be satisfied. If, for
example, a defendant is denied a fair opportunity to raise
his claim in accordance with applicable procedural rules
(e.g., if the trial court refuses to entertain objections to
jury instructions) , that contention would still be available
on collateral review, if preserved on direct appeal.“ In
18 Forman v. Smith, 683 F.2d 634, 686-640 (2d Cir.), cert.
denied, 450 U.S. 1001 (1981); Cole v. Stevenson, 620 F.2d 1055
(4th Cir.), cert. denied, 449 U.S. 1004 (1980); Huffman v. Wain-
wright, 651 F.2d 347, 850 (5th Cir. 1981); Hvans v. Maggio, 557
F.2d 480, 483-434 (5th Cir. 1977); Ford v. Strickland, 696 F.2d
804, 816-817 (11th Cir. 1988). Cf. Hubbard v. Jeffes, 6583 F.2d 99,
101 n.2 (8d Cir. 1981); Matias v. Oshiro, 683 F.2d 318, 821 & n3
17
those circumstances the possibility of injustice is plain,
and the state’s interest, if any, in generally enforcing
unfair or unreasonable procedural rules is plainly out-
weighed by the defendant’s right to a fair opportunity
to raise his claims. There may weil be other “exceptional
circumstances” (Wainwright v. Sykes, 433 U.S. at 91 &
n.14) that would satisfy the “cause” requirement. But
it is unnecessary to speculate as to what they might be,
since it is clear that this case, like Englé v. Isaac, is not
such an instance.
II. THE PRINCIPLES GOVERNING RETROACTIVITY
SUGGEST THAT NOVELTY CAN NEVER BE
“CAUSE” JUSTIFYING A PROCEDURAL DEFAULT
In Part I we have argued that respondent’s claim was
not novel at the time of his trial and direct appeal—a
point sufficient to dispose of this case. We believe, how-
ever, that it is possible to state a clearer rule resolving
not only this case, but also similar problems that may
arise in the future. We argue below that the principles
governing retroactivity, which reflect the gradual char-
acter of evolution of legal doctrine, assure that there will
be few, if any, constitutional claims that are novel“ as
applied to cases on collateral review. Moreover, even if
that is not so, we further argue that novelty should
never qualify as “cause” for a procedural default.
Whether the novelty of a constitutional claim can be
cause for a procedural default is an issue that arises
only when this Court has both upheld the claim on the
merits and made it fully retroactive to cases on col-
lateral review. The court of appeals here noted that
Mullaney v. Wilbur applied retroactively to cases tried in
1969, but then held that the claim validated in Mullaney
was too novel to be perceived and litigated in such cases
882 U.S. 174, 182-183 (1947); Boyd v. Mintz, 681 F.2d 247 (8d Cir.
1980). See generally Dumont v. Estelle, 518 F.2d 793, 797 (5th Cir.
1975). See also Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.
1979); Hill, The Forfeiture of Constitutional Rights in Criminal
Cases, 78 Colum. L. Rev. 1050 (1978).
18
(Pet. App. 3, 5-7). These two conclusions are incon-
sistent. Implicit in the notion of full retroactivity is the
idea that trials conducted in violation of the retroactive
rule were so defective when held that they must be done
over again (or simply nullified and not rerun). But it is
difficult to imagine how a proceeding could be fatally
flawed for a reason so novel that it was inconceivable to
the participants.
A. Procedural Rights Made Fully Retroactive Are By
Their Nature Not Novel As Applied To Cases On
Collateral Review
1. Those newly recognized criminal procedural rights
which this Court has made fully retroactive have all been
designed “to overcome an aspect of the criminal trial
that substantially impairs its truth-finding function and
so raises serious questions about the accuracy of guilty
verdicts in past trials * * *.” Hankerson v. North Caro-
lina, 432 U.S. at 243.“ Of course “whether a consti-
tutional rule of criminal procedure does or does not en-
hance the reliability of the fact-finding process at trial is
necessarily a matter of degree.” Johnson v. New Jersey,
384 U.S. 719, 728-729 (1966) ; Stovall v. Denno, 388 U.S.
293, 297-299 (1967). And where the effect of the old
rule has not been serious and substantial enough, a de-
145 The other class of decisions that have been made fully retro-
active embraces cases “ruling that a trial court lacked authority to
convict or punish a criminal defendant in the first place. * * * In
such cases, the Court has relied less on the technique of retro-
active application than on the notion that the prior inconsistent
judgments or sentences were void ab initio.” United States v.
Johnson, 457 U.S. 537, 550 (1982). Examples are Ashe v. Swenson,
397 U.S. 436, 487 n.1 (1970) (retroactive application of double
jeopardy ruling in Benton v. Maryland, 395 U.S. 784 (1969));
Moore v. Illinois, 408 U.S. 786, 800 (1972) (retroactive application
of Eighth Amendment ruling in Furman v. Georgia, 408 U.S. 238
(1972)). See also Michigan v. Payne, 412 U.S. 47, 61-62 (1973).
But cf. Gosa v. Mayden, 413 U.S. 665 (1973).
335
19
cision supplanting it will not be made fully retroactive
(ibid.). But rights that do have a sufficient impact on
the determination of guilt are not cut by this Court
from whole cloth. The allocation of the burden of proof,
for example (as we have shown above), is a matter that
courts trying and reviewing criminal cases had to consider
on innumerable occasions. And though their decisions
were not unanimous, many reached the same conclusion
ultimately validated by this Court.
This inverse relationship between retroactivity and
novelty is well recognized. It is typically expressed by
noting that rights made fully retroactive, because of their
importance to truth-finding, have had the sanction of
history and tradition. Rules that make a clear break with
precedent, on the other hand, however important they
may be for reasons unrelated to the determination of
guilt, are limited to prospective application or are retro-
active only to cases pending on direct review. Thus,
if the purposes of a new rule implicate decisively
the basic truth-determining function of the criminal
trial, then * * * the rule should be given full retro-
active application, for the required constitutional pro-
cedure itself would then stand as a concrete em-
bodiment of “the concept of ordered liberty.” Palko
v. Connecticut, 302 U.S. 319, 325 (1937).
Williams v. United States, 401 U.S. 646, 666 (1971)
(Marshall, J., concurring in part and dissenting in part).
Justice Harlan came to a similar conclusion. He would
have denied full retroactivity to rules of constitutional
criminal procedure, with the exception of “those pro-
cedures that * * * are ‘implicit in the concept of ordered
liberty.’” Mackey v. United States, 401 U.S. 667, 693
(1971) (Harlan, J., concurring and dissenting) (quoting
Palko v. Connecticut, 302 U.S. at 325). See also Hanker-
son V. North Carolina, 482 U.S. at 248 n.2 (Powell, J.
concurring). But as Palko itself noted, rights “implicit
20
in the concept of ordered liberty” are “ ‘rooted in the
traditions and conscience of our people’” and “can be
traced in our history, political and legal.” 302 U.S. at
325, 327. In short, retroactive application has “the justi-
fiable effect of curing errors committed in disregard of
constitutional rulings already clearly foreshadowed.”
Johnson v. New Jersey, 384 U.S. at 731.
By contrast, the Court’s most recent treatment of retro-
activity in the criminal] context notes that
where the Court has expressly declared a rule of
criminal procedure to be “a clear break with the
past,” * * * it almost invariably has gone on to find
such a newly minted principle nonretroactive. See
United States v. Peltier, 422 U.S. 531, 547, n.5
(1975) (Brennan, J., dissenting) (collecting cases).
In this * * * type of case, the traits of the particular
constitutional rule have been less critical than the
Court’s express threshold determination that =
“‘new’ constitutional interpretatioln] 8
change [s] the law that prospectivity is arguably the
proper course” * * .
United States v. Johnson, 457 U.S. 587, 549 (1982). See
also Tehan v. United States ex. rel. Shott, 382 U.S. 406,
410-412, 417 (1966). That observation, the Court held,
“is not inconsistent with our precedents giving complete
retroactive effect to constitutional rules whose purpose is
to overcome an aspect of the criminal trial that substan-
tially impairs its truth-finding function” (457 U.S. at
562 n.21). The reason, of course, is that those prece-
dents were not “newly minted” (id. at 549), but antici-
pated far in advance of this Court’s decisions.
2. A brief review of the procedural rights this Court
has held fully retroactive substantiates these conclusions.
Such rights have been essential to the integrity of the
truth-finding process, have been deemed implicit in the
concepts of ordered liberty and fundamental fairness, and
have been clearly foreshadowed in the law’s earlier devel-
opment.
21
One class of such rights concerns the allocation and
standard of proof. The former is the issue here and in
Hankerson v. North Carolina (holding Mullaney v. Wilbur
retroactive). The latter was at issue in Ivan V. v. City
of New York, 407 U.S. 203 (1972) (holding In re Win-
ship retroactive). Each procedure is “a prime instru-
ment for reducing the risk of convictions resting on fac-
tual error.“ Each is also considered“ ‘essential for the
protection of life and liberty’” and required by notions
of “ ‘fundamental fairness.“ And for that reason it is
not surprising that each was clearly foreshadowed by
earlier decisions of this and other courts.'*
A second group of rights concerns the composition and
unanimity of juries.“ The selection of a jury partial to
capital punishment “undermine[s] the very integrity of
the . . . process’ that decides [a defendant’s] fate[.]” *
Similarly, a nonunanimous six-person jury “poses aa
threat to the truth-determining process itself.“ * The
former practice, the Court noted, ignores “basic require-
ments of procedural fairness.” The latter was a dis-
tinetly idiosyncratic innovation whose invalidity “was
distinctly foreshadowed” by this Court’s earlier decisions.”
A, third class of rights made fully retroactive includes
matters crucial to the correct functioning of the trial
16 Jn re Winship, 897 U.S. at 868; Hankerson, 482 U.S. at 241.
* In re Winship, 397 U.S. at 362, 368; see also id. at 878 n.5
(Harlan, J., concurring) ; Hankerson, 482 U.S. at 241.
18 See In re Winship, 397 U.S. at 862-363; see pages 9-12, supra.
19 The former was the issue in Witherspoon v. Illinois, 391 U.S.
510 (1968) (declaring its own holding fully retroactive, id. at 523
n.22). The latter was in question in Brown v. Louisiana, 447 U.S.
323 (1980) (holding Burch v. Louisiana, 441 U.S. 130 (1979), retro-
active to a case pending on direct review).
20 Witherspoon, 891 U.S. at 523 n.22.
21 Brown v. Louisiana, 447 U.S. at 884 (opinion of Brennan, J.).
22 Witherspoon, 891 U.S. at 521 n.20.
23 Brown v. Louisiana, 447 U.S. at 335-886 (opinion of Brennan,
J.); see Burch v. Louisiana, 441 U.S. at 134-138.
22
process—the right of confrontation and the exclusion of
involuntary confessions. The former right is denied when
the prosecution introduces preliminary hearing testimony
of a witness it has not subpoenaed, or a co-defendant’s
confession implicating the defendant—practices that “pre-
sent[] a serious risk that the issue of guilt or innocence
may not [be] reliably determined.” ™* The latter is ig-
nored when the voluntariness of confessions is left solely
for the jury’s determination—a practice that may “infect
the jury’s findings of fact” concerning both voluntariness
and guilt.* Both rights have been characterized as among
the ‘fundamental principles of constitutional liberty.’ ” “
And the Court’s condemnations of these practices applied
retroactively because the decisions were “clearly fore-
shadowed,” * or at least in conformity with the “orthodox
rule.” **
The fourth class of rights made fully retroactive by this
Court concerns the right to counsel, not only at trial,”
2 Roberts v. Russell, 892 U.S. 298, 295 (1968) (holding Bruton v.
United States, 391 U.S. 128 (1968), retroactive); Berger v. Cali-
fornia, 393 U.S. 814 (1969) (holding Barber v. Page, 890 U.S. 719
(1968), retroactive to a case on direct appeal).
25 Jackson v. Denno, 878 U.S. 368, 888 (1964), held retroactive
in McNerlin v. Denno, 878 U.S. 575 (1964).
2¢ Bruton v. United States, 891 U.S. at 185; Barber v. Page, 390
U.S. at 721 (“essential and fundamental requirement for * * * [a]
fair trial”). See Jackson v. Denno, 878 U.S. at 876-891.
N Berger v. California, 393 U.S. at 315.
28 Jackson v. Denno, 878 U.S. at 878; see id. at 411-423 (Appendix
A to opinion of Black, J., dissenting in part and concurring in part).
Bruton v. United States overruled the decision of this Court in
Delli Paoli v. United States, 852 U.S. 282 (1957). But Delli
Paoli [was] under attack from its inception and many courts * * *
in fact rejected it.” Roberts v. Russell, 392 U.S. at 295; see also
Bruton v. United States, 891 U.S. at 128-185 & nn.4, 8, 10.
29 Gideon v. Wainwright, 872 U.S. 885 (1963), applied retro-
actively in Pickelsimer v. Wainwright, 875 U.S. 2 (1968) ; Berry v.
City of Cincinnati, 414 U.S. 29 (1978) (holding Argersinger v.
Hamlin, 407 U.S. 25 (1972), retroactive).
23
but also at the pleading™® and sentencing stages.“ It
hardly needs to be said that the right “relates to ‘the
very integrity of the fact-finding process.“ And this
Court’s incorporation of it in the Fourteenth Amendment
‘rested on the recognition that it is “ ‘implicit in the con-
cept of ordered liberty.’”™ It is true that Gideon v.
Wainwright, 372 U.S. 335 (1963), overruled a directly
contrary decision in Betts v. Brady, 316 U.S. 455 (1942).
But that is hardly tantamount to an indication that the
rule announced in Gideon was “novel” in the sense rele-
vant here, for as Gideon noted, “Betts was ‘an anachron-
ism when handed down’ ” (372 U.S. at 345) .™
% Arsenault v. Massachusetts, 393 U.S. 5 (1968) (holding White
v. Maryland, 373 U.S. 59 (1968), retroactive).
31 McConnell v. Rhay, 898 U.S. 2 (1968) (holding Mempa v. Rhay,
889 U.S. 128 (1967), retroactive).
82 McConnell v. Rhay, 898 U.S. at 8 (quoting Linkletter v. Walker,
381 U.S. 618, 689 (1965) ).
33 Gideon v. Wainwright, 872 U.S. at 342 (quoting Palko v. Con-
necticut, 302 U.S. at 325).
See also Argersinger v. Hamlin, 407 U.S. at 27 n.1 (noting
that 31 states already provided counsel to defendants charged
with crimes less serious than felonies).
We note that deprivation of the right to counsel at trial, though
it would not have presented a novel issue even in pre-Gideon cases,
satisfies the “cause” prong of the cause-and-prejudice rule for a
different, and obvious, reason: it makes little sense to hold an
unrepresented defendant bound by procedural default rules designed
with lawyers in mind. See Kitchens v. Smith, 401 U.S. 847, 848
(1971) (“the right to be furnished counsel does not depend on a
request). 0
One other right which this Court has held fully retroactive, but
which fits none of the classes mentioned above, is the equal pro-
tection guarantee of a right to appeal, including the provision
of a free transcript where that is a necessary condition to appeal.
Eskridge v. Washington Prison Board, 357 U.S. 214 (1958) (hold-
ing Griffin v. Illinois, 351 U.S. 12 (1956), retroactive). That is
obviously something that goes to the integrity of the guilt-
determination process, which is otherwise insulated from appellate
scrutiny. See Linkletter v. Walker, 881 U.S. at 639 n.20. Moreover,
24
B. A Conviction Should Not Be Overturned On Col-
lateral Attack On The Basis Of A Claim That Was
Novel At The Time Of Trial
The procedural rights this Court has made fully retro-
active have not always been clearly foreshadowed since
the time the Constitution was adopted. Compare Wither-
spoon V. Illinois, 391 U.S. 510 (1968), with Logan v.
United States, 144 U.S. 268, 298 (1892). But a demon-
stration to that effect is unnecessary, since the issue is
only whether a claim has been “perceived and litigated”
(Engle v. Isaac, 456 U.S. at 134) as recently as the
earliest conviction still subject to collateral attack. We
have argued above that that standard will almost always
be satisfied in cases involving the various rights this
Court has held fully retroactive.
There are, nevertheless, two further aspects of the
issue which strongly suggest that an inquiry into the
novelty of constitutional claims is not even worth under-
taking. The first is that such an inquiry is both very
time-consuming and standardless. The second is that its
outcome may be irrelevant, since it is difficult to see how
a conviction can be “fundamentally unfair“ (Engle v.
Isaac, 456 U.S. at 131) for reasons so novel that the de-
fendant could not have perceived them at trial or on
appeal.
1. As the survey we present above (pages 9-12)
indicates, determining when a particular claim may last
have been considered novel can be an enormously time-
consuming venture. The kind of evidence we have pre-
sented—though quite sufficient for purposes of resolving
the question here—is only a fragment of the materials
one might have to canvas for years earlier than 1969, or
for rights less frequently litigated than the burden of
proving self-defense and malice. Relevant sources would
include not only judicial decisions directly in point, but
the practice required by Griffin was one already followed in many
states. Griffin v. Illinois, 351 U.S. at 19.
25
also statutory materials from all the states, views of com-
mentators, and judicial and legislative determinations of
questions sufficiently analogous to afford “the tools to
construct [the] constitutional claim.” Engle v. Isaac, 456
U.S. at 133.
Moreover, even after all the relevant materials are col-
lected, it is still necessary to measure the novelty of a
claim at any given date against a standard that may be
quite indefinite. The only certain standard would be to
say that a claim is no longer novel once it has been per-
ceived and litigated” (Engle v. Isaac, 456 U.S. at 134) in
any reported case. If more widespread ferment is de-
manded, it will be difficult to devise a verbal formula ex-
pressing the required quantum of precedent, and impos-
sible to assure that the minimum is consistently applied
to the various rights made fully retroactive. The best that
can be hoped for is that this Court will eventually choose
(for each right held fully retroactive) a certain year be-
fore which such claims would have been considered novel.
Claimants convicted prior to that year would then be
assumed to have “cause” for their procedural default,
while those convicted later would not.
We hardly need say that an inquiry so complex and un-
defined affords only uncertain protection to the procedural
default rules the “cause and prejudice” requirement is
designed to serve. Wainwright v. Sykes, 433 U.S. at 86-
91. An undertaking so unproductive from the point of
view of the judicial system should not be launched unless
there is good reason to believe it necessary in justice to
the convicted defendants. We have argued (pages 18-23)
that it is not, because the very notion of full retroactivity
implies that a right is exceedingly unlikely to have been
truly novel when any cases now on collateral review were
tried. But even if that were not so, we would still see
little point in deciding when a particular claim could last
have been considered novel, as we now explain.
2. This Court noted in Engle v. Isaac, 456 U.S. at 181,
that “later discovery of a constitutional defect unknown
26
at the time of trial does not invariably render the original
trial fundamentally unfair.” The relation between the
fairness of a conviction and later-discovered rights is gen-
erally accommodated by the principles of retroactivity.”
Even in the case of rights held fully retroactive, however,
„It jhe failure of otherwise competent defense counsel to
raise an objection at trial is often a reliable indication
that the defendant was not denied fundamental fairness
in the * * * proceedings.” Rose v. Lundy, 455 U.S. 509,
547 n.17 (1982) (Stevens, J., dissenting). This indica-
tion is no less reliable—indeed it becomes compelling—
when the reason for counsel’s failure to object is not that
he has overlooked a visible flaw, but that he, the defend-
ant, the prosecution, and every court and legislature in
the country view the practice later held defective as in
fact constitutionally proper. Any theory that would
equate novelty with cause justifying a procedural default
must, in the end, explain why such a trial—universally
viewed as fair at the time—should be conducted anew.”
35 Those rights essential to the fairness of a conviction are
made fully retroactive. Those that are not essential are not. Com-
pare the cases cited at pages 20-23, supra, with United States
v. Peltier, 422 U.S. 581 (1975) (Fourth Amendment rule of
Almeida-Sanchez v. United States, 413 U.S. 266 (1978), not to be
applied retroactively); Daniel v. Louisiana, 420 U.S. 81 (1975)
(fair-cross-section rule for petit juries announced in Taylor v.
Louisiana, 419 U.S. 522 (1975), not to be applied retroactively) ;
Johnson v. New Jersey, 8384 U.S. 719 (1966) (guidelines for cus-
todial interrogation established in Escobedo v. Illinois, 878 U.S.
478 (1964), and Miranda v. Arizona, 384 U.S. 486 (1966), not
to be applied retroactively) ; Tehan v. United States ex rel. Shott,
382 U.S. 406 (1966) (rule forbidding adverse comment on defend-
ant’s failure to testify, announced in Griffin v. California, 380 U.S.
609 (1965), not to be applied retroactively) ; Linkletter v. Walker,
supra, (exclusionary rule of Mapp v. Ohio, 367 U.S. 648 (1961), not
to be applied retroactively).
%¢ Such a theory would also have to take account of the counter-
vailing considerations that weigh against a new trial. As Judge
Friendly has pointed out:
There is an inevitable attraction in the position that a person
convicted of a serious crime should receive d new trial when
27
Nor is that the only conundrum posed by equating nov-
elty with cause. Our adversary system assumes, and quite
properly, that a defendant is bound by the tactical deci-
sions made by his counsel. That principle affords a con-
vineing reason why collateral attack is precluded by the
failure to make a timely objection after a new procedural
right is recognized. Yet the rule of novelty accepted by
the court of appeals has the ironic consequence of allow-
ing collateral review to one whose conviction was con-
sidered fair by contemporary standards, yet denying it to
one (later convicted) whose conviction violated contempo-
rary standards, though neither objected at trial or on
direct review.
It would be odd to assert that such a difference in treat-
ment is required in the name of fairness. And the irony
is intensified by several other considerations. For ex-
ample, Fed. R. Crim. P. 33 provides that “[a] motion for
a new trial based on the ground of newly discovered evi-
dence may be made only before or within two years after
final judgment * * *.” Newly discovered evidence will
often be more suggestive of innocence than faulty pro-
cedures, later found to affect the accuracy of fact-finding.
Yet the Rules show a greater willingness to reopen more
recent, rather than more ancient, trials. Their approach
ever a later decision of the highest court indicates that, with
the benefit of hindsight, a different course should have been
followed at his trial in any consequential respect. Yet for
courts to yield broadly to that attraction not only would cause
“litigation in these criminal cases [to] be interminable” [Sunal
United States v. Sobell, 814 F.2d 814, 824-825 (2d Cir. 1968).
28
rests on an awareness that after a certain time retrial
becomes practically impossible, and on a judgment that
the slight chance of finding a truly meritorious claim does
not justify perpetual reexamination of final convictions.
See Orfield, New Trial in Federal Criminal Cases, 2 Vill.
L. Rev. 293, 299-304 (1957). Those considerations are
equally relevant here.
Indeed, there may be even less reason to reopen con-
victions in cases like this than there is where the evidence
is false or incomplete. There is, after all, an anachronism
about picking out a particular procedure subsequently
abandoned, and asserting that its use tainted prior con-
victions. That ignores the fact that the legal process as a
whole may also have changed in a number of other ways,
some of them offsetting. For example, although the bur-
den of disproving self-defense may now be imposed on
the prosecution, the substantive law of self-defense may
also have changed in ways less favorable to the defendant.
See Perkins on Criminal Law 1009-1012 (2d ed. 1969).
At the same time, a state may have adopted a rule per-
mitting conviction by a nonunanimous jury, see Apodaca V.
Oregon, 406 U.S. 404 (1972), thereby cancelling some of
the defendant’s advantage from a shift in the burden of
proof,
As we made clear above (pages 18-23), we do not
believe that any of the various rights this Court has made
fully retroactive were in fact novel at the time of any
conviction still open to collateral attack. But if we are
mistaken in that belief we think, for the reasons just
reviewed, that an inquiry into novelty is nevertheless un-
warranted. As this Court stated in Hankerson v. North
Carolina, 432 U.S. at 244 n.8, “The States, if they wish,
may be able to insulate past convictions by enforcing the
norma] and valid rule that failure to object to a jury
instruction is a waiver of any claim of error.” And this
should be true even “[i]f the validity of * * * burden-
shifting presumptions were as well settled * * * as [North
Carolina] asserts[.]”
29
CONCLUSION
The judgment of the court of appeals should be re-
versed.
Respectfully submitted.
Rex E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
JOHN H. GARVEY
Assistant to the Solicitor General
Louis M. FIscHER
Attorney
FEBRUARY 1984
la
APPENDIX A
Those ‘states imposing on the prosecution the burden
of persuasion on the issue of malice include:
Arizona
State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, cert.
denied, 379 U.S. 989 (1964)
California
Jackson v. Superior Court, 62 Cal. 2d 521, 399 P.2d
374, 42 Cal. Rptr. 838 (1965)
Colorado
Leonard v. People, 149 Colo. 360, 369 P.2d 54
(1962)
Florida
Bolin v. State, 297 So. 2d 317 (Fla. App. 1974) (cit-
ing long-settled law)
Idaho
State v. Jurko, 42 Idaho 319, 245 P. 685 (1926)
Illinois
People v. Warren, 33 III. 2d 168, 210 N.E.2d 507
(1965)
Indiana
King v. State, 249 Ind. 699, 234 N.E.2d 465 (1968)
(settled law)
Iowa
State v. Haffa, 246 Iowa 1275, 71 N.W.2d 35, cert.
denied, 350 U.S. 914 (1955)
Louisiana
State v. Carter, 227 La. 820, 80 So. 2d 420 (1955)
Nebraska
Haswell v. State, 167 Neb. 169, 92 N.W.2d 161
(1958)
Nevada
White v. State, 82 Nev. 304, 417 P.2d 592 (1966)
2a
New Jersey
State v. Gardner, 51 N.J. 444, 242 A.2d 1 (1968)
New York
People v. Sandgren, 302 N.Y. 331, 98 N.E.2d 460
(1951)
North Dakota
State v. Hoerner, 55 N.D. 761, 215 N.W. 277 (1927)
Oklahoma
Thompson v. State, 365 P.2d 834 (Okla. Crim. 1961)
Oregon
Goodall v. State, 1 Or. 333 (1861)
Pennsylvania
Commonwealth v. O’Neal, 441 Pa. 17, 271 A.2d 497
(1970) (noting that state law since 1961 has im-
posed production burden only)
South Dakota
State v. Reddington, 80 S.D. 390, 125 N.W.2d 58
(1963)
Virginia
Johnson v. Commonwealth, 188 Va. 848, 51 S.E.2d
152 (1949).
3a
APPENDIX B
Those states agreeing with North Carolina that the
defendant bears the burden of persuasion concerning ab-
sence of malice inelude:
Arkansas
Bosnick v. State, 248 Ark. 1289, 455 S. W. 2d 688
(1970) (approving statutory burden on defendant)
Georgia
Holmes v. State, 224 Ga. 553, 163 S. E. 2d 803 (1968)
Hawaii
State v. Cuevas, 53 Hawaii 110, 488 P. 2d 322 (1971)
(invalidating, on basis of Winship, state statute
permitting such a burden of proof)
Kentucky
Wheeler v. Commonwealth, 472 S.W.2d 254 (Ky.
1971)
Ohio
State v. Callihan, 11 Ohio App. 2d 23, 227 N.E.2d
654 (1967)
Tennessee
Thomas v. State, 210 Tenn. 297, 358 S.W.2d 315
(1962)
Texas
Bussey v. State, 147 Tex. Crim. 447, 181 S.W.2d 94
(1944)
Washington
State v. Mays, 65 Wash. 2d 58, 395 P.2d 758 (1964);
see State v. Kroll, 87 Wash. 2d 829, 558 P.2d 173,
181-182 (1976) (overruling, on basis of Mullaney,
practice of putting burden of mitigation on defend-
ant).
4a
APPENDIX C
Those states imposing on the prosecution the burden
of persuasion on the issue of self-defense include:
Alabama
Pounders v. State, 282 Ala. 551, 213 So. 2d 394, 395
1968)
Alaska
De Groot v. United States, 78 F.2d 244 (9th Cir.
1935); see also Toomey v. State, 581 P.2d 1124
(Alaska 1978)
Arizona
State v. Schroeder, 95 Ariz. 255, 389 P.2d 255, cert.
denied, 379 U.S. 939 (1964)
California
People v. Cornett, 33 Cal. 2d 33, 198 P.2d 877 (1948)
Colorado
Leonard v. People, 149 Colo. 360, 369 P.2d 54
(1962)
Florida
Bolin v. State, 297 So. 2d 317, 318-319 (Fla. App.
1974) (citing settled law)
Illinois
People v. Warren, 33 Ill. 2d 168, 210 N.E.2d 507
(1965)
Indiana
King v. State, 249 Ind. 699, 234 N.E.2d 465, 468
(1968) (settled law)
Iowa
State v. Badgett, 167 N.W.2d 680 (Iowa 1969)
5a
Louisiana
State v. Carter, 227 La. 820, 80 So. 2d 420 (1955)
Michigan
People v. Hartwick, 8 Mich. App. 198, 154 N.W.2d
24, 26 (1967) (settled law)
Minnesota
State v. Quinn, 186 Minn. 242, 248 N. W. 70 (1932)
Mississippi
Turner v. State, 220 So. 2d 295, 298 (Miss.), cert.
denied, 396 U.S. 834 (1969) (citing settled law)
Missouri
State v. Holt, 484 S.W.2d 576, 579 (Mo. 1968);
State v. Davis, 342 Mo. 594, 116 S.W.2d 110, 112
(1938)
Montana
State v. Powell, 54 Mont. 217, 169 P. 46 (1917)
Nebraska
Gravely v. State, 88 Neb. 871, 57 N. W. 751 (1894)
New Jersey
State v. Gardner, 51 N.J. 444, 242 A.2d 1, 6 (1968)
New Mexico
State v. Cochran, 78 N.M. 292, 480 P.2d 868 (1967)
North Dakota
State v. Hoerner, 55 N.D. 761, 215 N. W. 277 (1927)
Oklahoma
Edwards v. State, 58 Okla. Crim, 15, 48 P.2d 1087
(1985) ; Cottrell v. State, 458 P.2d 328 (Okla. Crim.
1969)
South Dakota
State v. Wilcox, 48 8.D. 289, 204 N. W. 869 (1925);
State v. Reddington, 80 S.D. 390, 125 N.W.2d 58
(1963)
7 6a
Vermont
State v. Barrett, 128 Vt. 462, 266 A. 2d 441, 443
(1970); State v. Wilson, 118 Vt. 524, 527, 37 A. 2d
400 (1944)
Virginia
Jones v. Commonwealth, 187 Va. 133, 45 S. E. 2d 908
(1948)
7a
APPENDIX D
Those states requiring the defendant to raise a reason-
able doubt on the issue of self-defense include:
Arkansas
Mode v. State, 281 Ark. 477, 880 S.W.2d 88 (1959)
Idaho
State v. Lundhigh, 30 Idaho 365, 164 P. 690 (1917)
Nevada
State v. Skinner, 32 Nev. 70, 104 P. 223 (1909)
Oregon
State v. Jarvi, 3 Or. App. 391, 474 P.2d 868 (1970)
(citing 1920 precedent)
Washington
State v. Turpin, 158 Wash. 108, 290 P. 824 (1930)
8a
APPENDIX E
Those states agreeing with North Carolina that the
defendant bears the burden of persuasion on the issue
of self-defense include:
—
Delaware
State v. Winsett, 205 A. 2d 510 (Del. 1964) (by pre-
ponderance)
Georgia
Henderson v. State, 234 Ga. 827, 218 S. E. 2d 612,
617 (1975) (relying on Mullaney to overrule state
practice of placing burden on defendant to prove
defense to satisfaction of jury)
Kentucky
Harvey v. Commonwealth, 318 S.W.2d 868 (Ky.
1958) ; Wheeler v. Commonwealth, 472 S.W.2d 254,
256 (Ky. 1971) (by convincing evidence)
Maryland
Evans v. State, 28 Md. App. 640, 349 A.2d 300
(1975) (following Mullaney in overruling state rule
requiring defendant to prove self-defense by pre-
ponderance of evidence), aff'd, 278 Md. 197, 362
A.2d 629 (1976)
Ohio
State v. Reid, 3 Ohio App. 2d 215, 210 N.E.2d 142
(1965) ; State v. Callihan, 11 Ohio App. 2d 23, 227
N.E.2d 654 (1967) (preponderance of evidence)
Pennsylvania
Commonwealth v. Commander, 436 Pa. 532, 260
A.2d 778, 778 (1970) (citing established require-
ment of proof by preponderance of evidence)
Rhode Island
State v. Mellow, 107 A. 871 (R.I. 1919) (preponder-
ance of evidence)
14
9a
South Carolina
State v. Richburg, 250 S. C. 451, 158 S.E.2d 769, 772
(1968), appeal after remand, 253 S.C. 458, 171 S.E.
2d 592 (1969), cert. denied, 399 U.S. 930 (1970)
(by greater weight of evidence)
Tennessee
Nance v. State, 210 Tenn. 328, 358 S.W.2d 327
(1962) ; Keith v. State, 218 Tenn. 395, 403 S.W.2d
758 (1966) (no standard)
Texas
Escamilla v. State, 464 S.W.2d 840, 841 (Crim. App.
1971) (no standard)
West Virginia
State v. Harlow, 187 W.Va. 251, 71 S.E.2d 330
(1952) (by preponderance of evidence)
Oy
nn
10a
APPENDIX F
Federal cases treating the standard and allocation of
proof as constitutional requirements include:
Government of Virgin Islands v. Lake, 362 F.2d
770, 774 (8d Cir. 1966) (presumption of innocence
and requirement that prosecution prove guilt beyond
a reasonable doubt are elements of due process)
Government of Virgin Islands v. Torres, 161 F.
Supp. 699, 700 (D.V.I. 1958) (same)
United States v. Johnson, 476 F.2d 1251, 1255 (5th
Cir.), cert. denied, 414 U.S. 852 (1973) (citing pre-
Winship law for proposition that prosecution’s re-
quirement to prove every element of offense beyond
a reasonable doubt is an “obvious rudiment of due
process“)
Chromiak v. Field, 406 F.2d 502, 504 (9th Cir.),
cert. denied, 395 U.S. 1017 (1969) (recognizing that
shifting burden of proof to defendant on elements
of offense would violate due process)
Reynolds v. United States, 238 F.2d 460, 463 (9th
Cir. 1956) (observing that the presumption of inno-
cence rests on fundamental concepts)
Yates v. United States, 316 F.2d 718, 725 (10th
Cir. 1968) (treating presumption of innocence and
burden of proof as elements of due process)
„. e. covnenmant primrine orrica, 1904 4saiie 251
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.