Amicus Curiae Brief — Estelle v. McGuire

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Supreme Court, U.S.

Gj) FILE Lal

No. 90-1074 APR 11 199)

OBFICE OF FHE CLERK

OCTOBER TERM, 1990

WAYNE ESTELLE, WARDEN, PETITIONER

Vv.

MARK OWEN MCGUIRE

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

CLIFFORD M. SLOAN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

REST AVAILABLE COPY”

QUESTION PRESENTED

Whether the introduction of medical evidence of a

child’s prior injuries in a child abuse case violates

due process in the absence of direct evidence that the

defendant inflicted the prior injuries.

(1)

TABLE OF CONTENTS

Summary of argument .................................

Argument:

Respondent was not denied Due Process as a re-

sult of the introduction of evidence of his child’s

EEE ee

The introduction of medical evidence of a child’s

prior injuries in a child abuse case does not re-

quire evidence that the defendant inflicted the

EEE EES

. To the extent that a connection between the de-

fendant and the prior injuries is necessary, cir-

cumstantial evidence can provide that connec-

ESSA

. The purported misapplication of State law does

not establish a Due Process violation...

. The purported lack of an accident defense in

this case does not render the admission of evi-

dence of prior injuries a violation of the Due

LS ES

The trial court’s instruction to the jury did net

violate the Due Process Clause ........000.......

Cee ancccceuusesece

Cases:

TABLE OF AUTHORITIES

Ashford v. State, 603 P.2d 1162 (Okla. Crim. App.

ELLE

Bludsworth vy. State, 98 Nev. 289, 646 P.2d 558

TE ssallieladiemnesiasdsescsnecsenenconescesensee hieeesihiene

Brooks v. Tennessee, 406 U.S. 605 (1972) ii

Buchalter v. New York, 319 U.S. 427 (1943)...

Burgett v. Texas, 389 U.S. 109 (1967) ............. ae

(111)

Cases—Continued : Page

Carrizales V. Wainwright, 699 F.2d 1053 (11th

RCRD ESS RR an Res AE eRe = 21

Commonwealth v. Labbe, 6 Mass. App. 73, 373

N.B.24 237 (App. Ct. 1978) ................................. 15

Commonwealth v. Rogers, 364 Pa. Super. 477, 528

Pre nn 15

Cupp V. Naughten, 414 U.S. 141 (19738) 0 27

Dowling v. United States, 110 S. Ct. 668 (1990)... 12

Edgington v. United States, 164 U.S. 361 (1896)... 27

Henderson V. Kibbe, 431 U.S. 145 (1977) _........... 25

Holland v. United States, 348 U.S. 121 (1954)... 19

Huddleston v. United States, 485 U.S. 681 (1988).. 18, 20

Llamas-Almaguer V. Wainwright, 666 F.2d 191

gE eee se eae te ae 21

Lewis Vv. Jeffers, 110 S. Ct. 3092 (1990) 21

Lisenba vV. California, 314 U.S. 219 (1941) ....... 12, 13, 14

Marshall v. Lonberger, 459 U.S. 422 (19838)... 12

Mathews Vv. United States, 485 U.S. 58 (1988)... 22

Michelson v. United States, 335 U.S. 469 (1948)... 27

Ohio V. Roberts, 448 U.S. 56 (1990) 0000 12

Passman Vv. Blackburn, 652 F.2d 559 (5th Cir.

een een aoa ne Or ee Eee SN Er 21

People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657,

re I I ie 15

People Vv. Jackson, 18 Cal. App. 3d 504, 95 Cal.

4 Eee Sen 15

People Vv. DeJesus, 71 Ill. App. 3d 235, 389 N.E.2d

By CIE ccctisenincntmrnntiendanniniatialntiemaierendinaiintenieninasens 15

Pulley v. Harris, 465 U.S. 37 (1984) ..... — ES ease 21

Rose V. Hodges, 423 U.S. 19 (1975) ..000000000000....... 21

Snyder Vv. Massachusetts, 291 U.S. 97 (1934)... 13

Spencer V. Texas, 385 U.S. 554 (1967) 0. 12

State v. Best, 89 S.D. 227, 232 N.W.2d 447 (1975) .. 15

State v. Dumlao, 3 Conn. App. 607, 491 A.2d 404

he a 15

State v. Goblirsch, 309 Minn. 401, 246 N.W. 2d 12

I ccieeaniette al a at iieiataiaes 15

State v. Lapage, 57 N.H. 245 (1876) 0000. 14

State v. Moyer, 151 Ariz. 253, 727 P.2d 31 (1986) .. 15

State v. Tanner, 675 P.2d 589 (Utah 1983) ............ 15, 16

Cases—Continued : Page

State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905

CEI ccccccttiiititanmastiiitiamescaittpscmnciammtmennteatititiaiiocmmmnncmetes 15

United States v. Bowers, 660 F.2d 527 (5th Cir.

IID <n sssissstins tatiaiinianiadaieteiallbmaiitabiemamiecsiannisnianidatecennneie 15

United States v. Brown, 608 F.2d 551 (5th Cir.

1979) .. 18

United States v. “Colvin, 614 F.2d 44 ( sth Cir. ),

cert. denied, 446 U.S. 945 (1980) _.. ee 18

United States v. Corpus, 882 F.2d 546 (ist Cir.

1989) .. 19

United States v. “Ellison, 793 F. 2a 942, ( 8th Cir.

a 23

United States ex rel. Burnett v. Illinois, 619 F.2d

cf | fF 21

United States v. Harris, 661 F.2d 138 (10th Cir.

A SS weno 18

United States v. Maggitt, 784 F.2d 590 (5th Cir

claret 19

United States v. Rodriguez, 812 F.2d 414 (8th Cir

TITTTT csiiciainnisnihiaielenianiidiaaeespeemnaemeieneennabediennnimnneatinéidind 19

Constitution, statute and rule:

U.S. Const. :

Amend. VI (Confrontation Clause) _............... 12

Amend. XIV (Due Process Clause) 1, 2, 5, 9, 12, 13

I aa seidedaelinntianbdetdbiniliciadeinintiiod 22

Fed. R. Evid. :

III ns insinisicasiadiieabihaastabatidiaiaidiiais siiaedinain 17

Miscellaneous:

E. Imwinkelried, Uncharged Misconduct Evidence

REESE RE ee ee 13, 14

Kempe, Silverman, Steele, Droegemueller, & H. Sil-

ver, The Battered-Child Syndrome, 181 J.A.M.A.

ff ___ 15

McCoid, The Battered Child and Other Assaults

Upon The Family: Part One, 50 Minn. L. Rev.

FO a eae 14

Myers & Carter, Proof of Physical Child Abuse,

I , G( __—lyx_——EE 16

Misce!laneous—Continued : Page

Myers, Uncharged Misconduct in Child Abuse Liti-

gation 1988 Utah L. Rev. 479... a. ae 15, 16

2 J. Wigmore, Wigmore on Evidence (Chadbourn

De CN eile ictieatcenetieticiniacterpeitcirtencenteiceetineteciniecee ee 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1074

WAYNE ESTELLE, WARDEN, PETITIONER

Vv.

MARK OWEN MCGUIRE

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents issues concerning the scope of

federal habeas corpus, the extent to which proof of

past injuries to a child can constitutionally be ad-

mitted in a case involving child abuse, and, more

generally, the extent to which evidentiary rulings

are subject to constitutional scrutiny under the Due

Process Clause. The United States has a substantial

interest in all three issues. ,First, the proper admin-

istration of habeas corpus has been the subject of sus-

tained congressional and Executive Branch attention.

Second, the issue of the admissibility of evidence of

prior injuries arises frequently in child abuse case

that the United States prosecutes because of its law

(1)

enforcement responsibilities in connection with the

District of Columbia, federal reservations, and the

military. Finally, because of its involvement in liti-

gation and its concern with the continuing develop-

ment of enlightened rules of evidence, the United

States has an interest in ensuring that the Due

Process Clause is not applied to impose on the States

and the federal government an inflexible code of evi-

dence as a matter of constitutional compulsion.

STATEMENT

1. On the evening of July 7, 1981, respondent and

his wife, Daisy McGuire, brought their six-month-

old daughter, Tori, to a hospital in Hayward, Cali-

fornia. The baby was bluish and not breathing. The

screening nurse immediately rushed Tori to an emer-

gency treatment room to receive medical treatment

and then returned to obtain a medical history. Re-

spondent told the nurse that Tori had had a cold re-

cently and had hit her head that morning when she

had fallen from a couch. Pet. App. A28, A61, A62.

As she attempted to treat Tori, the attending phy-

sician noticed a large and relatively recent bruise on

the infant’s chest with multiple bruises around it, She

also noticed black and blue marks on Tori’s ears, and

scar tissue indicating tearing around her rectum.

Pet. App. A28.

Efforts to revive the baby were unsuccessful. She

died 45 minutes after being brought to the hospital.

Pet. App. A28.

Questioned by police that night and the following

day, respondent said he believed the baby had fallen

off the couch and struck her walker. He said that

Daisy went out to make a phone call and that he went

upstairs, leaving the baby lying on the couch. He

said he heard the baby ery, and when he came back

downstairs, he found the baby lying on the floor.

When an officer expressed skepticism that the child’s

injuries could have resulted from a fall off the couch,

respondent replied, “Maybe some Mexicans came

through the door” while he was upstairs. Pet. App.

A4, A29-A30, 463; Tr. 209. Questioned separately

by police officérs, Daisy McGuire stated that she had

not hit the baby and that she did not know whether

her husband had done so. Pet. App. A29.

An autopsy was subsequently performed. It re-

vealed 17 contusions on the baby’s chest, 29 contu-

sions in her abdominal area, a split liver, a split and

lacerated pancreas, a lacerated large intestine, and

a damaged lung and heart vein. The autopsy also

revealed evidence of rectal tearing, which was at

least six weeks old, and evidence of partially healed

rib fractures, which were approximately seven weeks

old. Pet. App. A28-A29, A62-A63.

2. Respondent was charged with second degree

murder. At trial, the attending physician testified

about the bruises on Tori’s chest and ears and the

scar tissue on her rectum. Another doctor testified

about the autopsy results, including the evidence of

rectal tearing and partially healed rib fractures.

Both physicians testified that the injuries, including

the prior rib and rectal injuries, were indicative of

what they referred to as “battered child’ syndrome.

Pet. App. A28-A29, A31, A63.

In addition to introducing the medical evidence and

the statements respondent had made to the police, the

State called a witness who overheard a conversation

between respondent and his wife in the hospital emer-

gency room. According to the witness, Daisy re-

peatedly asked respondent “what really happened.”

Respondent replied that he “guessed” the baby fell

off the couch. Daisy continued to press for an an-

swer. At one point she said, “I am very patient. I

can wait a long time. I want to know what really

happened.” Tr. 178. Finally, Daisy told respondent

that “the baby was alright when I left. You are

responsible.” Tr. 179.

A neighbor of respondent’s testified that she had

seen respondent physically abuse Daisy and that she

had seen respondent pick up Tori by one of her

arms and roughly pinch the infant’s cheeks together.

She further testified that she had never seen Daisy

abuse the child in any way. The neighbor added that

Daisy had told her she was afraid to leave Tori with

respondent because he had been rough with the baby

and “did bad things” to her. Tr. 462-472, 488-489.

Daisy McGuire testified at trial under a grant of

transactional immunity. In contrast to her prior

statement to the police, she testified at trial that she

had beaten the child on the day of the injuries before

her husband came home. Pet. App. A4-A5, A63.

On March 19, 1982, the jury convicted respondent

of second degree murder. Pet. App. A5.

3. In January 1985, the California Court of Appeal

affirmed respondent’s conviction. Pet. App. A61-A71.

As one of his arguments, respondent maintained that

“t]he trial court erred in admitting evidence of

prior injuries which were in no way tied to [him].”

Id. at A64. The Court of Appeal responded that

the evidence had been introduced to establish “bat-

tered child syndrome,” and it explained the nature

and purpose of evidence of “battered child syndrome”

under California law:

[T]}his syndrome means that a child has re-

ceived repeated and/or serious injuries by non-

accidental means. * * * [T]he criteria for the

‘battered child syndrome’ * * * are (1) the child

is usually under three years of age; (2) there is

evidence of bone injury at different times; (3)

there are subdural hematomas with or without

skull fractures; (4) there is a seriously injured

child who does not have a history given that fits

the injuries; (5) there is evidence of soft tissue

injury; (6) there is evidence of neglect * * *.

A finding . . . of the ‘battered child syndrome’

* * * simply indicates that a child found with

the injuries outlined above has not suffered those

injuries by accidental means.

Id. at A65-A66 (internal quotation marks omitted).

The court then concluded that, under state law, the

introduction of the medical evidence of the infant’s

prior injuries to establish “battered child syndrome”

was “patently proper.” Jd. at A66.

Respondent sought further review from the Cali-

fornia Supreme Court. In March 1985, that court

denied the request to review respondent’s conviction.

Pet. App. A5.

4. Respondent filed a petition for a writ of habeas

corpus in the United States District Court for the

Northern District of California. In July 1987, the

district court denied the petition. Pet. App. A27-

A42. Among other issues, the court rejected respond-

ent’s contentions that the admission of the evidence

of prior injuries—the rib fractures and rectal tear-

ing—was impermissible, and the trial court’s instruc-

tion on the use of prior act evidence was improper.

Id. at A31-A36.

With respect to the evidence of the prior injuries,

the court found that the use of that evidence to estab-

lish “battered child syndrome” was proper under

California law and that the introduction of that evi-

dence did not violate the Due Process Clause. Pet.

App. A31-A32. The court rejected respondent’s

claims that “the prior act evidence was irrelevant,

because no defense of accident was ever presented,

and cumulative, because testimony of doctors at trial

already established that death was not the result of

accident without resort to prior act evidence.” /d.

at A32. The court held that the evidence was rele-

vant to the State’s case-in-chief to show that Tori’s

death was the result of criminal conduct and to rebut

respondent’s prior statement that the baby may have

died as the result of a fall from a couch. Jbid. More-

over, the court noted, “even if admission of prior act.

evidence was irrelevant and/or cumulative, [respond-

ent] has not shown that it was so prejudicial as to

amount to a denial of fundamental fairness.” J/bid.

With respect to the jury instruction, respondent

claimed that one portion of the instruction “improp-

erly allowed the jury to base its verdict on acts for

which [respondent] was not on trial and to which he

was not connected, instead of limiting the use of the

prior act evidence to show absence of accident.” Pet.

App. A34." The court found that it was a close ques-

! The court instructed the jury:

Evidence has been introduced for the purpose of show-

ing that the Defendant committed acts similar to those

constituting a crime other than that for which he is on

trial. Such evidence, if believed, was not received, and

may not be considered by you[,] to prove that he is a

person of bad character or that he had a disposition to

commit crimes. Such evidence was received and may be

considered by you only for the limited purpose of deter-

mining if it tends to show three things:

1. The impeachment of Daisy McGuire’s testimony

that she had no cause to be afraid of the Defendant.

2. To establish the battered child syndrome, and

3. Also a clear connection between the other two of-

fense[s] and the one of which the Defendant is accused,

tion whether Part 3 of the instruction violated the

California Evidence Code on the use of prior act

evidence. But the court found it unnecessary to reach

that issue, because respondent had not demonstrated

that “any possible error rendered his trial so funda-

mentally unfair that he was denied due process.”

Pet. App. A35. The court emphasized that “there

was substantial evidence, however circumstantial, to

support the jury’s finding that the baby’s death was

the result of a murder and that petitioner was re-

sponsible.” Id. at A36.

5. The court of appeals reversed and granted

habeas corpus relief because it concluded that the

evidence of Tori’s prior injuries had been improp-

erly introduced and that the jury instruction had

exacerbated the error. The court held that “the ag-

gregate effect of the admittance of irrelevant, highly

prejudicial evidence, compounded by the trial court’s

instruction to use that evidence in the most preju-

dicial manner possible, rendered [respondent’s] trial

arbitrary and fundamentally unfair.” Pet. App. A8-

AY.

so that it may be logically concluded that if the defendant

committed other offenses, he also committed the crime

charged in the case.

You are not permitted to consider evidence for any

other purpose.

Tr. 756-757. (Both the district court and the court of appeals

omitted the word “clear” from Part 3 of the instruction

quoted above. Pet. App. A12-A13, A33-A34). Respondent

claimed that the reference to “the other two offenses” in Part

3 was a reference to his rough treatment of his wife and baby,

but the district court held that, in context, it was a reference

to “the two prior injuries to the baby” (the fractured ribs

and rectal tearing). Jd. at A34 n.1.

With regard to the introduction of the evidence, the

court first concluded that the “extensive evidence of

prior physical abuse the baby had suffered * * * has

no relevance to [respondent] because the prosecution

did not establish that [respondent] inflicted those in-

juries.” Pet. App. A9. Emphasizing that “[e]vi-

dence cannot have probative value unless a party con-

nects it to the defendant in some meaningful way,”

the court found that “the prosecution made no such

connection” to respondent, and that “acts which the

prosecution did not connect to [respondent] cannot be

characterized as his prior acts.” Id. at A9-A10. The

court then proceeded to find the introduction of the

evidence prejudicial. The court of appeals concluded

that the evidence was admitted erroneously, as a mat-

ter of state law, because no claim had heen made at

trial that the baby died accidentally. Jd. at All. The

court thus found that the evidence of prior injuries

had been introduced “to establish that [respondent]

was a child abuser, and for no other purpose.” /d.

at A10-A11.

With regard to the jury instruction, the court

found that “[t]he trial court did not merely admit

irrelevant, highly prejudicial evidence without com-

ment. The trial court instructed the jury to use that

evidence in the most improper way possible.” Pet.

App. Al2. In the court’s view, the instruction im-

permissibly permitted the jury “to make a direct de-

termination of guilt by concluding that [respondent]

committed prior bad acts.” /d. at Al3.* The court

concluded that this instruction, “considered along

with the admittance of the prejudicial evidence,” in-

2 The court also observed that the trial court’s instruction

“appears” to have been “an incorrect reading” of California’s

standard jury instructions. Pet. App. Al3 n.2.

fected the entire trial, and that the combined error

was not harmless because,\{a]lthough there was evi-

dence suggesting [respondent’s] guilt, this evidence

was certainly not overwhelming.” /d. at Al2-Al4

& n.2.*

6. Judge Kozinski, in an opinion joined by Judge

Trott, dissented from the denial of rehearing en banc.

The dissent made four points: (1) the panel improp-

erly second-guessed the state courts on questions of

state law; (2) the evidence of prior injuries was

relevant to establish intent and to foreclose a conclu-

sion that the death was accidental; (3) the panel’s

harmless error analysis was flawed; and (4) the

panel’s decision might preclude a retrial because it

included comments about the lack of proof, which

might be taken as a finding that the evidence at trial

was insufficient to support the verdict. Pet. App.

A43-A60.

SUMMARY OF ARGUMENT

In reaching its conclusion that respondent was en-

titled to habeas corpus relief, the court of appeals

committed a series of related errors that reflect a mis-

apprehension of a federal court’s authority to review

state court evidentiary rulings that are challenged

under the Due Process Clause.

First, the court of appeals was incorrect in holding

that due process prohibits the introduction, in a child

abuse case, of medical evidence of the child’s prior

injuries unless there is evidence showing that the de-

8 The opinion on which the final judgment was based was

the court of appeals’ second opinion in this case. The panel

issued an initial opinion on May 8, 1989 (Pet. App. A16-A26),

reaching the same result. It withdrew that opinion on April

23, 1990, and filed its second opinion on May 4, 1990. Jd. at

Al.

fendant caused the injuries. It has long been recog-

nized that anonymous similar act evidence may be

highly probative on material issues such as whether

a particular injury was part of a pattern that sug-

gests a non-accidental cause. There is a particularly

sound basis for admitting evidence of a pattern of

prior injuries suffered by a young child, because

medical evidence of such injuries is an important

element of the accepted medical diagnosis of “battered

child syndrome,” which justifies the conclusion that

the child did not receive her injuries accidentally.

Second, to the extent that a connection to the de-

fendant is necessary, it may be proved by circumstan-

tial evidence. Here, there was abundant circumstan-

tial evidence of such a connection, including testi-

mony that respondent and his wife were the caretak-

ers of the infant and that respondent, but not his

wife, had been seen treating the baby roughly.

Third, the court of appeals improperly rejected

the state court’s interpretation of California law and

based its decision to grant habeas corpus relief at

least in part on its own interpretation of the State’s

rules of evidence. Federal habeas corpus jurisdic-

tion provides no warrant for a federal court to re-

view the application of state rules of evidence and to

grant a writ of habeas corpus if it finds that the

state courts committed a violation of state law.

Fourth, the court of appeals mistakenly suggested

that, at least in this context, a defendant’s failure to

put a particular element in issue precludes the gov-

ernment from introducing evidence on that issue.

Because the burden of proof rests on the govern-

ment to prove every element of the offense, regardless

of whether the defendant offers evidence or argument

on each element, it is unrealistic to say that when a

defendant fails to challenge the sufficiency of the

prosecution’s evidence on a particular element, that

element has not been “put in issue.” For that rea-

son, the government should not, as a matter of con-

stitutional command, be precluded from introducing

evidence relating to a particular element simply be-

cause a defendant does not affirmatively contest that

element during the trial. In any event, in this case

it was clear from all the evidence at trial that re-

spondent effectively put both the question of acci-

dent and the question of intent into issue. The prin-

cipal theory of his defense was that Tori died as the

result of mistreatment by Daisy McGuire and that

respondent did not harm the child. But the jury

obviously could have rejected Daisy McGuire’s testi-

mony as a fabrication intended to protect respond-

ent. In that event, the jury would have to decide

whether the child died as a result of an accident or

as a result of an intentional assault. The challenged

evidence was highly pertinent to the latter issue.

Finally, the court of appeals was wrong in holding

that the trial court’s instruction to the jury regarding

the prior injury evidence justified granting the writ

of habeas corpus. Viewed in the context of the other

instructions and the trial as a whole, the instruc-

tion simply permitted the jury to take account of

Tori’s prior injuries, in connection with the evidence

of respondent’s past mistreatment of the child, in de-

termining whether respondent was responsible for

inflicting the iniuries that led to her death. That

use of the evide..ce was entirely proper and did not

deny respondent a fair trial.

ARGUMENT

RESPONDENT WAS NOT DENIED DUE PROCESS AS

A RESULT OF THE INTRODUCTION OF EVIDENCE

OF HIS CHILD’S PRIOR INJURIES

A. The Introduction Of Medical Evidence Of A Child’s

Prior Injuries In A Child Abuse Case Does Not Re-

quire Evidence That The Defendant Inflicted The

Injuries

Federal courts “do not sit to review state court

actions on the propriety of [a] trial judge’s actions

in the admissibility of evidence.” Lisenbe v. Califor-

nia, 314 U.S. 219, 228 (1941). This Court has re-

peatedly stated that “[b]eyond the specific guar-

antees in the Bill of Rights, the Due Process Clause

has limited operation.” Dowling v. United States,

110 S. Ct. 668, 674 (1990). Thus, “the Due Process

Clause does not permit the federal courts to engage

in a finely tuned review of the wisdom of state evi-

dentiary rules.” Marshall v. Lonberger, 459 U.S.

422, 438 n.6 (1983). See Burgett v. Texas, 389

U.S. 109, 113-114 (1967) (“We do not sit as a court

of criminal appeals to review state cases. The States

are free to provide such procedures as they choose,

including rules of evidence, provided that none of

them infringes a guarantee in the Federal Constitu-

tion.”) ; Spencer v. Texas, 385 U.S. 554, 564 (1967)

(“[{I]t has never been thought that [prior] cases es-

tablish this Court as a rule-making organ for the

promulgation of state rules of criminal procedure.

And none of the specific provisions of the Constitu-

tion ordains this Court with such authority.’’).

In the absence of a claim that evidence violates a

specific constitutional guarantee (such as the Con-

frontation Clause, see, e.g., Ohio v. Roberts, 448 U.S.

56 (1980)), a particular evidentiary ruling violates

the Constitution only if it “so infuse[s] the trial

with unfairness as to deny due process of law.”

Lisenba, 314 U.S. at 228. See Buchalter v. New

York, 319 U.S. 427, 429-430 (1943) (Due Process

Clause addresses “fundamental principles of liberty

‘and justice” and otherwise “leaves the states free to

enforce their criminal laws under such statutory pro-

visions and common law doctrines as they deem ap-

propriate”; it “does not permit a party to bring to

the test of a decision in this court every ruling made

in the course of a trial in a state court”) ; Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934) (“The Com-

monwealth of Massachusetts is free to regulate the

procedure of its courts in accordance with its own

conception of policy and fairness unless in so doing it

offends some principle of justice so rooted in the tra-

ditions and conscience of our people as to be ranked

as fundamental. * * * Its procedure does not run

foul of the Fourteenth Amendment because another

method may seem to our thinking to be fairer or

wiser or to give a surer promise of protection to the

prisoner at the bar.”). Far from infusing the trial

with unfairness, the introduction of medical evidence

of a child’s prior injuries, even without evidence that

the defendant inflicted the injuries, is often highly

relevant and is widely regarded as admissible for

that reason.

It has long been recognized that similar act evi-

dence may have probative value even if it is not

shown that the defendant committed the similar acts.

As one leading commentator has observed, “in prin-

ciple, anonymous acts can be admitted either to

prove the actus reus (the commission of a criminal

or tortious act by someone) or to negative innocent

intent.” E. Imwinkelried, Uncharged Misconduct

Evidence § 2:05, at 8 (1984). He explains:

The probative value of the acts for these pur-

poses rests on the doctrine of chances. For in-

stance, as a matter of common human experi-

ence, it is objectively improbable that several

accidental fires will occur at buildings owned by

the same person within a short period of time.

In an arson prosecution or an insurance case in

which the insurer defends on the ground of the

insured’s arson, evidence of other fires is rele-

vant to prove the incendiary origin of the fire

giving rise to the suit. The evidence has a ten-

dency in reason to increase the possibility of hu-

man intervention and to disprove natural causa-

tion. The other fires are admissible to prove the

actus reus of arson even if the proponent of the

evidence cannot link the defendant to the fires.

Ibid. (footnotes omitted). See also Lisenba, 314 U.S.

at 227-228; State v. Lapage, 57 N.H. 245, 294

(1876); 2 J. Wigmore, Wigmore on Evidence §§ 302,

303, 363 (Chadbourn rev. 1979). Thus, the court of

appeals’ suggestion that evidence of prior injuries

has “no relevance” without proof that the defendant

inflicted the injuries (Pet. App. A9) is incorrect.’

The admissibility of evidence of prior injury is es-

pecially justified in a child abuse case, because the

evidence of prior injuries is an aspect of the medical

diagnosis of “battered child syndrome,” a diagnosis

developed in the early 1960’s,° and accepted as evi-

* States may, of course, take different views of the relevance

of anonymous act evidence. See, e.g., E. Imwinkelreid, supra,

at § 2:05 (discussing different approaches). The discussion

above is not te suggest that only one view of such evidence is

appropriate; rather, it is to suggest that a view that such

evidence is probative is not arbitrary or bizarre, and thus does

not violate fundamental fairness.

5 See McCoid, The Battered Child and Other Assaults Upon

The Family: Part One, 50 Minn. L. Rev. 1 (1965) ; Kempe,

dence of child abuse in a number of jurisdictions.’

When offered to show that a child’s injuries are the

product of child abuse, rather than accident, evidence

of prior injuries is relevant without regard to the

identity of the person who inflicted those injuries.’

Such evidence is especially important in child abuse

Silverman, Steele, Droegemueller & Silver, The Battered-

Child Syndrome, 181 J.A.M.A. 17 (1962).

* See, e.g., State v. Moyer, 151 Ariz. 253, 727 P.2d 31 (Ct.

App. 1986) ; People v. Jackson, 18 Cal. App. 3d 504, 95 Cal.

Rptr. 919 (1971); State v. Dumlao, 3 Conn. App. 607, 609-

610, 491 A.2d 404, 409 (App. Ct. 1985); People v. DeJesus,

71 Ill. App. 3d 235, 389 N.E.2d 260 (1979) ; Commonwealth

v. Labbe, 6 Mass. App. 73, 373 N.E.2d 227 (App. Ct. 1978) :

State v. Goblirsch, 309 Minn. 401, 246 N.W.2d 12 (1976);

Bludsworth v. State, 98 Nev. 289, 646 P.2d 558 (1982) ; People

v. Henson, 33 N.Y.2d 63, 349, N.Y.S.2d 657, 304 N.E.2d 358

(1973) ; State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905

(1978) ; Ashford v. State, 603 P.2d 1162 (Okla. Crim. App.

1979) ; Commonwealth v. Rogers, 364 Pa. Super. 477, 528

A.2d 610 (1987) ; State v. Best, 89 S.D. 227, 232 N.W.2d 447

(1975) ; State v. Tanner, 675 P.2d 589 (Utah 1983). See also

United States v. Bowers, 660 F.2d 527 (5th Cir. 1981).

* See, e.g., Bludsworth v. State, 98 Nev. at 291-292, 646 P.2d

at 559 (“Appellants also erroneously argue that the bite mark

evidence and evidence of other bruises were incompetent be-

cause there was no prior establishment, by clear and convinc-

ing evidence, that either [defendant] was responsible for each

of the prior injuries. Admissibility of the bite mark and other

bruise evidence does not depend on connecting either defend-

ant to the infliction of the injury. It is independent, relevant

circumstantial evidence tending to show that the child was

intentionally, rather than accidentally injured on the day in

question. Proof that a child has experienced injuries in many

purported accidents is evidence that the most recent evidence

may not have resulted from yet another accident.”) (foot-

note omitted). See also Myers, Uncharged Misconduct in

Child Abuse Litigation, 1988 Utah L. Rev. 479, 518-519.

cases because proof of such crimes, which frequently

occur without third-party eyewitnesses and in a con-

text of victim helplessness, is notoriously difficult."

Evidence of a child’s prior injuries may therefore

provide support for a medical diagnosis indicating

the cause of the victim’s death. For that reason, the

evidence of injuries, as an element of that diagnosis,

should be viewed primarily as medical evidence re-

garding the victim’s condition, rather than as so-

called “character evidence” pertaining to the defen-

dant. As one pair of commentators has observed:

“(Battered child syndrome” is a medical diag-

nosis based on expert observation of a child’s

damaged body. The diagnosis does not depend

on evidence of defendant’s conduct toward the

child. Nor does it hinge on proof of defendant’s

character or propensity to abuse children. In

other words, testimony on the battered child syn-

drome is not character evidence. Thus, testimony

on the battered child syndrome is not barred by

the rule prohibiting evidence of a person’s char-

acter to prove that the person acted in conform-

ity therewith on a particular occasion.

Myers & Carter, Proof of Physical Child Abuse, 53

Mo. L. Rev. 189, 193 (1988) (footnote omitted).

The court of appeals’ ruling creates a curious

anomaly that illustrates the flaw in the court’s anal-

ysis. Under the court of appeals’ ruling, the attend-

ing physician’s testimony regarding the bruises on

Tori’s chest and ears was admissible to show the

® See, e.g., Myers, supra, 1988 Utah L. Rev. at 479 (“Child

abuse is maddeningly difficult to prove.”). See also State

v. Tanner, 675 P.2d at 541 (“The key evidence in this case is

the mute testimony of the body of three-year-old Tawnya

Tanner.”).

cause of death. But when the physician also testi-

fied about the evidence of rectal tearing that she dis-

cerned, and about the evidence of rib injuries from

the autopsy results, she crossed into the zone of ir-

relevance and prejudice (and constitutional prohibi-

tion). Similarly, the pathologist’s testimony regard-

ing the autopsy evidence of 46 contusions on the in-

fant’s body and massive injuries to her liver, pan-

creas, intestine, lung, and heart was relevant and ad-

missible. But when he testified about the autopsy

evidence of rib and rectal injuries, he, too, crossed

into the zone of the impermissible.

The distinction between the two types of evidence

does not hold up. The evidence of the recent injuries

was admissible because it tended to show that the in-

fant had died as the result of a number of separate

wounds. That was an important fact in the case,

because it tended to show that the infant’s death

could not have been the product of an accident, such

as a fall from a couch. The evidence that the infant

had suffered a whole series of wounds made it vir-

tually certain that the injuries were intentionally in-

flicted. That is a powerful basis for admitting the

evidence. Yet it is for precisely that reason that the

evidence of Tori’s prior injuries was admissible:

they tended to show that the infant had suffered

abuse over a long period of time and that the in-

fant’s injuries were therefore not likely to have been

the result of an accident suffered on the day of her

death. Instead, they were part of a pattern—indeed,

a medically recognized pattern—that speaks power-

fully to the cause of death.

To be sure, one federal child abuse decision, in the

course of analyzing child abuse evidence under Fed.

R. Evid. 404(b), has held that evidence of prior in-

juries to a child should not have been introduced be-

cause there was no proof that the defendant inflicted

the prior injuries. See United States v. Brown, 608

F.2d 551 (5th Cir. 1979). See also United States v.

Colvin, 614 F.2d 44, 45 (5th Cir.) (distinguishing

Brown because there was sufficient evidence to

conclude that the defendant inflicted the prior injur-

ies), cert. denied, 446 U.S. 945 (1980); United

States v. Harris, 661 F.2d 138, 143 (10th Cir. 1981)

(same). Obviously, evidence connecting the defen-

dant to prior injuries inflicted on the victim or others

adds to the probative value of the “other injury” evi-

dence. But that is not to say that that evidence is

irrelevant in the absence of proof that the defendant

caused those other injuries. To the extent the Brown

decision suggests that proof of prior injuries suffered

by a child is not probative of the cause of death or

subsequent injuries, we believe it was wrongly de-

cided.

The Brown court fell into error, we submit, by

characterizing the proffered evidence as a form of

“similar act” evidence offered to show that a defen-

dant who acted in a partic.lar manner in the past

may have acted that way in connection with the

events at issue in the trial. The “similar act” evi-

dence in the Brown case failed the test of relevance,

the court concluded, because the evidence of prior

misconduct was not sufficiently tied to the defendant

It is, of course, often the case that “similar act” evi-

dence is not relevant if the jury cannot reasonably

conclude both “that the act occurred and that the

defendant was the actor.” Huddleston v. United

States, 485 U.S. 681, 689 (1988). For example, evi-

dence in a bank robbery prosecution that a number of

highly similar bank robberies were committed in the

same period of time is irrelevant unless there is some

basis to believe that the defendant was involved in

the uncharged robberies. But that does not mean

that all evidence of similar events in the past is ad-

missible only if the prior events can be tied to the

defendant. The prior events may be relevant for

purposes quite independent of the direct inference

that the person who committed those acts is likely to

have committed the ones charged in the indictment.

The requirement of some independent basis for rele-

vance is satisfied in this case, because medical evi-

dence of battered child syndrome is highly probative

in showing that death was not caused by accident,

but by the intentional act of someone with access to

the victim. Particularly where, as here, the number

of persons with access to the victim is very small,

evidence that the homicide was intentional is a very

important part of the State’s case.

B. To The Extent That A Connection Between The De-

fendant And The Prior Injuries Is Necessary, Circum-

stantial Evidence Can Provide That Connection

If, contrary to our submission, the Constitution

requires that the government show a connection be-

tween the defendant and the victim’s prior injuries

before evidence of those injuries may be admitted,

even in a case involving battered child syndrome,

that connection was provided by the circumstantial

evidence in this case. Circumstantial evidence is, of

course, fully admissible, and it may support a convic-

tion even if it is unaccompanied by any direct evi-

dence.°

* See, e.g., Holland v. United States, 348 U.S. 121, 140

(1954). See also United States v. Corpus, 882 F.2d 546, 550

(1st Cir. 1989); United States v. Rodriguez, 812 F.2d 414,

416 (8th Cir. 1987) ; United States v. Maggitt, 784 F.2d 590,

593 (5th Cir. 1986).

In holding that the evidence in this case did not

support a connection between respondent and Tori’s

prior injuries, the court of appeals ignored strong

circumstantial evidence pointing to respondent as the

party responsible for those injuries. Respondent and

Daisy had custody of Tori for the entire six months

of her life. Pet. App. A63. There was evidence at

trial indicating that respondent had been rough with

the child. Jd. at A63-A64. In addition, a neighbor

testified that Daisy had said she feared leaving the

baby with respondent, because he “did bad things” to

the child. 7d. at Al0; Tr. 470. At the time of the

infant’s death, moreover, respondent gave the police

two highly implausible explanations for her injuries

(the fall from the couch and the possible intercession

of “some Mexicans’). Pet. App. A29-A30. In addi-

tion, respondent’s hospital conversation with Daisy

strongly supports the conclusion that he, and not

Daisy, inflicted the injuries on Tori. Jd. at A55-A56,

A63.

From all of that evidence, the jury could conclude

(1) that the only two people with sufficient access to

the child to administer repeated physical abuse were

respondent and his wife; and (2) that respondent

was far more likely than his wife to have been the

person who abused the child. Although some of the

circumstantial evidence cited above related to the in-

cident that led to Tori’s death, the jury could prop-

erly use that evidence to assist it in determining

whether respondent was also involved in the prior

acts of abuse. See Huddleston, 485 U.S. at 691.

Thus, even if the court of appeals were correct that

due process requires a connection between the defend-

ant and the medical evidence of prior injuries, the

court of appeals’ conclusion that there was no such

connection here was incorrect.

C. The Purported Misapplication Of State Law Does Not

Establish A Due Process Violation

The court of appeals emphasized that, in its view

and despite the ruling of the California Court of Ap-

peal to the contrary, the admission of the medical

evidence of prior injuries violated state law because

respondent had not explicitly raised accident as a de-

fense. Pet. App. All. To the extent that the court

granted habeas relief because of this perceived mis-

application of state law, it was in error “A federal

court may not issue the writ on the basis of a per-

ceived error of state law.” Pulley v. Harris, 465 U.S.

37, 41 (1984). See also Lewis vy. Jeffers, 110 S. Ct.

3092, 3102 (1990) (“[F]ederal habeas corpus relief

does not lie for errors of state law.”); Rose v.

Hodges, 423 U.S. 19, 22 (1975) (“It was not the

province of a federal habeas court to re-examine

these [state law] questions.”’).’°

The habeas corpus jurisdicition of federal courts is

defined by statute. Federal habeas corpus relief is

10 Many court of appeals decisions have recognized this set-

tled principle. See, e.g., Llamas-Almaguer v. Wainwright, 666

F.2d 191, 193 (5th Cir. 1982) (“[I]t is elementary that ques-

tions of state law cannot be raised on federal habeas.”’) ;

Carrizales Vv. Wainwright, 699 F.2d 1053, 1055 (11th Cir.

1983) (“A state’s interpretation of its own laws or rules pro-

vides no basis for federal habeas corpus relief, since no ques-

tion of a constitutional nature is involved.”); Passman Vv.

Blackburn, 652 F.2d 559, 567 (5th Cir. 1981) (“This court

does not sit as a super state supreme court to review errors

under state law * * *.”) ; United States ex rel. Burnett v. IIli-

nois, 619 F.2d 668, 671 (7th Cir. 1980) (“Errors in the inter-

pretation of state authority are for the state supreme court to

correct. This court will not take the extraordinarily intrusive

action of setting aside a criminal conviction in the guise of

due process review, simply because we disagree with the state

court’s interpretation of state law.’’).

available for a person who “is in custody in viola-

tion of the Constitution or laws or treaties of the

United States.” 28 U.S.C. 2254(a). The federal

habeas corpus statute gives federal courts no author-

ity to grant relief based on a violation of state law.

A federal court therefore exceeds its jurisdiction

under the statute if it bases its judgment on a per-

ceived violation of state law that is not also a viola-

tion of the law of the United States.

D. The Purported Absence Of An Accident Defense In

This Case Does Not Render the Admission of Evidence

of Prior Injuries a Violation of the Due Process Clause

Perhaps the most indefensible feature of the court

of appeals’ decision is its holding that the absence of

a defense of accident in this case rendered the admis-

sion of the prior injury evidence a violation of due

process.

The State in a criminal case must prove all the

elements of the offense beyond a reasonable doubt.

Moreover, “[a] simple plea of not guilty * * * puts

the prosecution to its proof as to all elements of the

crime charged.” Mathews v. United States, 485 U.S.

58, 64-65 (1988). A defendant’s tactical decision

about what issues to focus on at trial and what is-

sues to ignore should not have the effect of disabling

the government from presenting evidence on every

point that the government is required to prove. Put

another way, it does not violate due process for the

government to prove its case.

In this case, the State was required to prove all

the elements of second degree murder in order to ob-

tain a conviction. To do so, the State had to prove

that respondent’s acts resulted in Tori’s death and

that respondent intended to kill Tori. The evidence

that Tori suffered from battered child syndrome,

which was established in part by proof of her prior

injuries, tended to show that someone intended to in-

jure her, which was probative of both causation and

intent.

By eliminating the possibility of accident, the

State made it clear to the jury that the death was a

homicide and effectively narrowed to two the num-

ber of persons who could have committed the of-

fense. To exclude evidence showing the absence of

accident simply because respondent did not princi-

pally rely on the “defense” of accident would there-

fore deny the State a highly probative piece of evi-

dence going to both of the critical issues in its case.

Even if respondent had agreed to stipulate that the

killing was not accidental, the State would not have

been required to accept that stipulation in lieu of evi-

dence that would make the point more forcefully for

the jury. See United States v. Ellison, 793 F.2d 942,

949 (8th Cir. 1986) (“Generally, the government is

not bound by a defendant’s offer to stipulate to an

element of a crime. * * * The rationale for the rule

is to enable the government to present to the jury a

complete picture of the events constituting the crime

charged. ‘To substitute for such a picture a naked

admission might .. . rob the evidence of much of its

fair and legitimate weight.’”). It follows, a fortiori,

that in the absence of an offer to stipulate, the State

should not suffer the exclusion of highly relevant

evidence simply because respondent did not indicate

an intention to contest that evidence directly.

As the judges who dissented from denial of rehear-

ing en banc in this case pointed out, a holding that

the State may not introduce evidence on an element

uncontested by a defendant would sow confusion, be-

cause the government and the court (and perhaps

even the defendant) may not know until well into

trial what issues will be contested. Pet. App. A50-

A52. See, e.g., Brooks v. Tennessee, 406 U.S. 605,

609-610 (1972) (emphasizing that the defense strat-

egy may evolve as the case progresses). In fact, a

defendant may not reveal his theory of defense un-

til closing argument, when he attacks some perceived

insufficiency or inconsistency in the government’s

case. It would therefore be unworkable to limit the

government’s proof based on what appears to be the

theory of defense at the outset of the trial, when the

defense theory may shift during the trial and may be

quite eclectic by the end.

Even if it were necessary, as a constitutional mat-

ter, for there to be a specific predicate for the intro-

duction of evidence of battered child syndrome, the

issue of accident was sufficiently presented in this

case that the prior injury evidence was needed to an-

swer it. Respondent initially claimed, both to the

police and to his wife, that Tori had fallen off the

couch. Pet. App. A4, A29, 363. Although Daisy

McGuire testified that it was she who had struck the

child, respondent did not rely entirely on the theory

that Daisy had committed the murder. Rather,

throughout the ease and even in closing argument,

respondent’s counsel maintained that either Daisy

committed the homicide or there was no homicide at

all in this case. See Tr. 689-690 (“‘The Prosecution

has failed * * * to prove beyond a reasonable doubt

that there was a murder and has failed to prove be-

yond a reasonable doubt that [respondent] had any[]

criminal responsibility for the death of his daugh-

ter.”). Counsel ultimately argued that Daisy had

hit the baby, but that the baby had suffered addi-

tional injuries when she accidentally fell off the couch.

Tr. 713. In light of respondent’s partial reliance on

the “accident” evidence, it was particularly appropri-

ate for the State to rebut that evidence by showing

that Tori’s injuries were part of a pattern that made

it highly unlikely that her death was accidental.

E. The Trial Court’s Instruction To The Jury Did Not

Violate The Due Process Clause

The court of appeals found that the trial court’s

instruction regarding the use that the jury could

make of the medical evidence of prior injuries was

improper and contributed to the due process viola-

tion that the court found in this case."' For the rea-

sons we have discussed, the court’s conclusion that

the evidence was improperly introduced was flawed

and the court’s reliance on that supposed error in

analyzing the instruction was equally flawed. In ad-

dition, the instruction must be considered in the con-

text of the instructions and the trial record as a

whole to determine whether fundamental fairness

was violated. See, e.g., Henderson vy. Kibbe, 431 U.S.

145, 146-147 (1977). Viewed without the distortion

of the court’s erroneous assessment of the admissibil-

ity of the evidence in question, the instruction regard-

ing its permissible uses did not deprive respondent of

due process.

1! See Pet. App. A8-A9 (“[Wle find that the aggregate ef-

fect of the admittance of irrelevant, highly prejudicial evi-

dence, compounded by the trial court’s instruction to use that

evidence in the most prejudicial manner possible, rendered

[respondent’s] trial arbitrary and fundamentally unfair.”’) ;

id. at Al4 (“[T]he faulty instruction considered along with

the admittance of the prejudicial evidence ‘so infected the

entire trial that the resulting conviction violate[d] due proc-

ess.’”); id. at Al5 (“[T])he prejudicial effect of the errors

* * * amount(s] to a denial of due process.”).

The challenged portion of the instruction advised

the jury that, in addition to establishing battered

child syndrome and impeaching Daisy McGuire’s

testimony that she had no reason to be afraid of re-

spondent, the prior injury evidence could be used,

if certain conditions were met, to support the infer-

ence that respondent had beaten Tori. In particular,

the court told the jury that, if it found a sufficiently

“clear connection” between the prior injuries and the

injuries that resulted in Tori’s death, the jury could

conclude that if respondent “committed other offenses,

he committed the crime charged in the case.” Tr.

756-757; see note 1, supra. While the language of

that instruction is not as clear as it might have been,

the point of the instruction is apparent. The court

was advising the jury, in effect, that if it found

a “clear connection” between the prior injuries and

the instant injuries, and if it found that respondent

had committed the prior injuries, the jury could find

that he also committed the injuries that led to Tori’s

death.

That instruction states, in a general way, the prin-

ciple that underlies much “similar act” evidence: if

there is some clear connection between one act and

another, evidence that a person committed the first

act may help prove that he committed the second.

As applied to this case, moreover, that instruction

could not have misled the jury.

Other than Daisy McGuire’s testimony, given under

a grant of transactional immunity and impeached by

prior inconsistent statements, the evidence in this

case indicated that it was respondent, and not his

wife, who had mistreated Tori in the past. It was

perfectly permissible for the jury to consider the cir-

cumstantial evidence of respondent’s responsibility

for the prior assaults as bearing on the likelihood

that it was respondent, and not his wife, who ad-

ministered the blows that resulted in Tori’s death.

Furthermore, the trial court guarded against pos-

sible misuse of the instruction by specifically advising

the jury that the evidence “may not be considered

* * * to prove that [respondent] is a person of bad

character or that he has a disposition to commit

crimes.” Tr. 756-757. The instructions as a whole,

moreover, repeatedly emphasized that the jury must

find respondent guilty of the charged offense beyond

a reasonable doubt. Tr. 751, 761, 762, 765. The

court’s instruction to the jury regarding the possible

logical relationship between Tori’s prior injuries and

the injuries that led to her death was therefore not

erroneous even under conventional principles of evi-

dence law, and it was certainly not so unfair as to

deprive respondent of due process.”

Finally, even an erroneous jury instruction rises to

the level of a due process violation only if there is

prejudice. Cupp v. Naughten, 414 U.S. at 147. Here,

in view of the evidence of the extensive injuries im-

Indeed, although it is not necessary to reach the issue in

this case, it is far from clear that a state law would violate the

Due Process Clause if it permetted the use of “prior crimes”

evidence to show propensity te commit a charged offense. As

this Court has noted, “such facts might logically be persuasive

that [a defendant] is by propensity a probable perpetrator of

the crime.” Michelson v. United States, 335 U.S. 469, 475

(1948). The law of character evidence acknowledges the

force of that proposition. Edgington v. United States, 164

U.S. 361, 366 (1896). Such evidence is typically excluded not

because it lacks relevance, but because of concern that the

finder of fact may give it undue weight. It has never been

established, however, that a State is constitutionally barred

from deciding that the “admitted probative value” of such

evidence, Michelson, 335 U.S. at 476, outweighs the possibili-

ties of jury prejudice and confusion.

mediately prior to the death and the circumstantial

evidence pointing to respondent (including the over-

heard hospital conversatior, the evidence that re-

spondent was alone with the baby shortly before the

trip to the hospital, and respondent’s extremely im-

plausible attempts to explain the injuries), any claim

of prejudice is especially weak.

In sum, neither the admission of the medical evi-

dence of Tori McGuire’s prior injuries nor the in-

struction given to the jury regarding the use of that

evidence constituted a violation of respondent’s right

to due process. In deciding to invalidate the result of

the state court proceeding, the court of appeals mis-

applied ordinary principles of relevance, miscon-

ceived its authority under the federal habeas corpus

statute, and misinterpreted the role assigned to the

Due Process Clause in reviewing ordinary eviden-

tiary rulings made in state court proceedings.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.