Amicus Curiae Brief — Carmell v. Texas

(2)

No. 98-7540

In the Supreme Court of the United States

ScoTT LESLIE CARMELL, PETITIONER

U.

THE STATE OF TEXAS

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS, SECOND DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

BETH S. BRINKMANN

Assistant to the Solicitor

General

VICKI S. MARANI

Attorney

Department of Justice

Washington, DC. 20530-0001

202) 514-2217

9

QUESTION PRESENTED

Whether the application of a Texas statute at peti-

tioner’s trial, which was amended after his crime to

permit a conviction of sexual assault to be supported by

the uncorroborated testimony of a child-victim (and

thus eliminated the prior requirement of corroboration

or outcry within six months of the offense), violates

the Constitution’s Ex Post Facto Clause in Art. I, § 10,

Cl. 1.

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument

A law eliminating a requirement of victim corrobora-

tion, without changing the nature of the prohibited

conduct or the punishment for the crime, does not

implicate the prohibitions of the Ex Post Facto

Clause

A. Procedural changes that do not retroactively

change the definition of a crime or increase the

punishment for a criminal act are not ex post

facto laws

B. Application of Article 38.07 at petitioner’s trial

did not violate the Ex Post Facto Clause

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

aS

Beazell v. Ohio, 269 U.S. 167 (1925) . 6, 9, 10,11, 22

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ... 7.9, 10, 14, 15, 16

California Dep't of Corrections v. Morales, 514

U.S. 499 (1995) 12, 25

Collins v. Youngblood, 497 U.S. 37 (1990) ............. 6, 8, 9, 10,

. 11, 17, 19, 22, 23

Commonwealth v. Edgerly, 435 N.E.2d 641 (Mass.

App. Ct. 1982) 21

Cummings v. Missouri, 71 U.S. (4 Wall.) 277

(1866) 11

Finney v. State, 385 N. E. 2d 477 (Ind. Ct. App.

1979)

(IID

21

IV

Cases—Continued: Page

Hammer v. United States, 271 U.S. 620 (19265 19

Hopt v. Utah, 110 U.S. 574 (1884) 5, 12, 19-20, 21

Kring v. Missouri, 107 U.S, 221 (1883) 11

Landgraf v. USI Film Prods., 511 244

(1994) 13, 23

Lindquist v. State, 922 S.W.2d 233 (Tex. App.

1996, pet. ref d) 6

Lynce v. Mathis, 519 U.S. 433 (1997) 12. 13

Miller v. Florida, 482 U.S. 423 (1987) 23

Mitchell v. State, 884 P.2d 1186 (Okla. Crim. App.

1994) 21

People v. Dorff, 396 N.E.2d 827 (Ill. App. Ct. 1979) 21

People v. Kotecki, 666 N.E.2d 37 (Ill. App. Ct. 1996) ...... 21

People v. Mandel, 61 A.D.2d 563 (N.Y. App. Div.

1978), rev'd on other grounds, 401 N.E.2d 185 (N.Y.

1979) 21

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995) 16

Splawn v. California, 431 U.S. 595 (1977) 21

State v. Hudy, 535 N.E.2d 250 (N.Y. 1988) 11

Thompson v. Missouri, 171 U.S. 380 (1898) ...... 11, 12, 20, 21

Turley v. State, 356 So.2d 1238 (1978) 21

United States v. Alexander, 805 F.2d 1458 (11th

Cir. 1986) 22

United States v. Bartlett, 856 F.2d 1071 (8th Cir.

1988) 22

United States v. Mest, 789 F.2d 1069 (4th Cir.), cert.

denied, 479 U.S. 846 (1986) 22

United States v. Prickett, 790 F.2d 35 (6th Cir.

1986) 22

Weaver v. Graham, 450 U.S. 24 (1981) 23

Zimmerman v. State, 750 S.W.2d 194 (Tex. Crim.

App. 1988, pet. ref d) 5

Zule v. State, 802 S. W. 2d 28 (Tex. App. 1990, pet.

ref d) 19

— . 8 —

Constitution, statutes, and rule: Page

U.S. Const.

Art. I:

§ 10, Cl. 1 (Ex Post Facto Clause)

Act of May 29, 1993, ch. 900, § 1201, 1993 Tex. Gen. Laws

3765-3766 5

Tex. Code Crim. P. Ann. art. 38.07 (West 1992). passim

Tex. Code Crim. P. Ann. art. 38.07 (West Supp. 1999) ...._ passim

Tex. Penal Code Ann. (West 1994):

§ 21.11 2

§ 22.011 4, 23

§ 22.011(aX(2) 23

§ 22.011(aX2XC) 2,3

§ 22.011(d) 23

§ 22.011(e) 23

§ 22.021(a\(1)(B)(iii) 2

§ 22.021(a\2\B) 2

Fed. R. Evid. 704(b) 22

Miscellaneous:

Derek J.T. Adler, Note, Ex Post Facto Limitations on

Changes in Evidentiary Law: Repeal of Accomplice

Corroboration Requirements, 55 Fordham L. Rev.

(1987) 11

1 William Blackstone, Commentaries on the Laws of

England (1765) 16

Zechariah Chafee, Three Human Rights in the

Constitution (1956) 15

The Federalist (Jacob Cooke ed. 1961): 17-18

No. 44 (James Madison) 18

No. 84 (Alexander Hamilton) 18

House Research Org., Bill Analysis (Mar. 15, 1993) .......... 24

4 Thomas Macaulay, History of England

(1860) 15

13

13

Order Amending Federal Rules of Criminal Procedure:

520 U.S. 1315 (1997)

523 U.S. 1229 (1998)

In the Supreme Court of the United States

Miscellaneous—Contined: Page

Order Amending Federal Rules of Evidence: No. 98-7540

520U.S8. 1325 (1997) 13

523 U.S. 1237 (1998) 13 Scott LESLIE CARMELL, PETITIONER

2 The Records of the Federal Convention of 1787 (Max

Farrand ed., Yale Univ. Press 1966) 17 v

THE STATE OF TEXAS

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS, SECOND DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a state

criminal procedure statute, which was amended to

remove a requirement that testimony by certain child-

victims be corroborated in sex crime prosecutions when

the victim had not informed any other person of the

offense within six months, can be applied in trials of

offenses that were committed before the statute was

enacted, consistent with the Ex Post Facto Clause in

Art. I, § 10, Cl. 1, of the Constitution. The Constitution

also prohibits Congress from passing ex post facto laws,

see U.S. Const. Art. I, § 9, Cl. 3. The United States

(1)

2

therefore has a significant interest in the resolution of

this case.

STATEMENT

On January 9, 1997, after a jury trial in Texas state

court, petitioner was found guilty on two counts of

aggravated sexual assault, in violation of Tex. Penal

Code Ann. § 22.021(a)(1)(B (iii) and (2)(B); five counts of

sexual assault, in violation of Tex. Penal Code Ann.

§ 22.0110“ C); and eight counts of indecency with a

child, in violation of Tex. Penal Code Ann. § 21.11 (West

1994). J.A. 2, 22-104; see State C.A. Br. 38-46. Peti-

tioner was sentenced to life imprisonment on the

aggravated sexual assault convictions and to concurrent

20-year terms of imprisonment on the remaining

convictions. J.A. 2, 3.

1. Petitioner worked as a counselor and represented

himself as an expert in counseling victims of incest.

J.A. 4. He counseled a woman named Eleanor, an incest

survivor, and eventually married her in 1988, becoming

stepfather to Eleanor’s daughter, K. M. Ibid.” The

evidence at petitioner’s trial established that, beginning

in 1991, petitioner engaged in various incidents of sex-

ual contact, eventually including sexual intercourse,

with K.M. over the course of four years. The first in-

cident occurred in February 1991, when K.M. was 12

years old and in sixth grade. J.A. 10-11; State C.A. Br.

7. The last incident occurred in March 1995, when K.M.

We refer in this brief to the Ex Post Facto Clause applicable

to the States. The same principles apply to the counterpart pro-

vision applicable to Congress.

2 We follow the practice of the Court of Appeals and peti-

tioner’s counsel (Pet. Br. 3 n.2) of protecting the identity of the

victim by referring to her as “K.M.” and by not using her mother’s

surname.

3

was 15 years old and in tenth grade. Petitioner’s

criminal conduct ceased at that time because, after the

March 1995 incident, K.M. told a friend and then her

mother about what petitioner had been doing to her and

her mother reported it to the police. J.A. 5; State C.A.

Br. 18-19.

Petitioner was charged in a fifteen-count indictment.

Each count alleged a separate incident of unlawful

sexual contact with K.M. J.A. 13-21. The count directly

at issue here is Count VII, which charged that peti-

tioner “on or about the Ist day of June, 1992, * * did

then and there and knowingly cause the sexual organ of

[K. M.], a child younger than 17 years of age and not the

spouse of the defendant, to contact the sexual organ of

the defendant.” J.A. 16. K.M. testified at trial that, one

day during the summer after seventh grade when her

mother was at work, petitioner took her into his bed-

room, had both of them undress, pulled K.M. on top of

him, and touched her genitals with his erect penis. Jan.

7, 1997 Tr., Vol. 9, at 111-112. That testimony estab-

lished the elements of sexual assault, in violation of

Tex. Penal Code Ann. § 22.011(a)(2)(C) (West 1994),

which makes it a crime for a person to “intentionally or

knowingly * * * cause[ | the sexual organ of a child to

contact or penetrate the mouth, anus, or sexual organ of

The Court’s grant of certiorari in this case was “limited to

Question 1 presented by the petition.” 119 S. Ct. 2336. The pro se

petition asserted the argument identified by the first question

presented as grounds for invalidating only Count VII. See Pet. i,

4-7. Other of petitioner’s convictions are also susceptible to the

same legal challenge, however. See Br. in Opp. 4 n.3; Carmell C.A.

Supp. Br. 1-4; Pet. Br. 4-7 (contending that Counts VIII, IX, and X

are invalid for same reasons as Count VII). The court of appeals

summarily rejected the claims based on other counts because of its

rejection of the claim involving Count VII. J.A. 8-9 n.5.

4

another person, including the actor.” Petitioner was

convicted on Count VII as well as the other counts.

JA. 22-104.

2. a. The Texas Court of Appeals affirmed. J. A. 1-

12. The court rejected petitioner’s claim that the evi-

dence was “legally insufficient” to support his con-

viction on Count VII, because the law in effect at the

time of petitioner’s offense required that the victim’s

testimony be corroborated if she had not told anyone

about the offense within six months, and (in his view)

there was no such corroboration. J.A. 7-8. The court of

appeals rejected that claim, finding that the statute had

been amended to eliminate the corroboration require-

ment and that, because the statute was a “rule of pro-

cedure,” it applied to petitioner’s trial.

Under the version of Texas Code of Criminal Pro-

cedure Article 38.07 in effect at the time of the June

1992 sexual assault, a conviction for sexual assault

under Texas Penal Code Section 22.011 was support-

able on the uncorroborated testimony of the victim if

the victim was younger than 14 years of age at the time

of the offense. If the victim was 14 years old or older,

however, the victim’s uncorroborated testimony could

support a conviction only if he or she had informed

another person, other than the defendant, about the

offense within six months of the date on which the

offense was alleged to have occurred (the outcry pro-

In his brief in the court of appeals, petitioner argued that the

trial court had erred in denying his motion for an instructed

verdict on Count VII. Carmell C.A. Br. 11-12 (citing Jan. 8, 1997

Tr., Vol. 10, at 373). Respondent explained to the court of appeals,

however, that the referenced motion by petitioner had been

limited to Counts I through IV, but that such a motion was not a

necessary prerequisite to petitioner’s claim on appeal. State C.A.

Br. 46 n.6.

5

vision). J.A. 7-8; Tex. Code Crim. P. Ann. art. 38.07

(West 1992) (reprinted at App., infra, la). The version

of Article 38.07 in effect at the time of petitioner’s

trial’ enlarged the group of sexual assault victims

whose uncorroborated testimony could support a

conviction to include all victims who were under 18

years old at the time of the offense. Tex. Code Crim. P.

Ann. art. 38.07 (West Supp. 1999) (reprinted at App.,

infra, la).“ Thus, under the version of Article 38.07 in

effect at the time of petitioner’s trial, petitioner’s

conviction was supportable by the uncorroborated

testimony of K.M.

The court of appeals upheld the application of the

version of Article 38.07 in effect at the time of peti-

tioner’s trial, explaining that it is a rule of procedure

and, as such, applies to pending and future prosecu-

tions. J. A. 8 (citing Zimmerman v. State, 750 S.W.2d

194, 202-202 (Tex. Crim. App. 1988, pet. ref’d)). The

court observed that the amended statute “does not

increase the punishment nor change the elements of the

offense that the State must prove.” J.A. 8. Rather,

the court stated, Article 38.07, as amended, merely

“remove(s] existing restrictions upon the competency of

certain classes of persons as witnesses.” J.A. 8 (quoting

Hopt v. Utah, 110 U.S. 574, 590 (1884)). The court also

noted that there was no showing that the legislature

had intended that Article 38.07 not be a rule of pro-

5 Article 38.07 was amended in 1993. See Act of May 29, 1993,

ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765-3766.

6 Under the amendment, uncorroborated testimony by victims

18 years of age or older at the time of the offense can support a

conviction only if the victim informed another person of the offense

within one year of the date the offense was committed. See Tex.

Code Crim. P. Ann. art. 38.07 (West Supp. 1999); App., infra, Ia.

6

cedure and apply as of the date of the offense. J.A. 8

(citing Lindquist v. State, 922 S.W.2d 223, 227 n.4 (Tex.

App. 1996, pet. ref d)).

b. On March 26, 1998, the Court of Appeals of Texas

denied rehearing. J.A. 3; Pet. App. B. On September

16, 1998, the Court of Criminal Appeals of Texas denied

discretionary review. Pet. App. C.

3. On June 14, 1999, this Court granted certiorari

“limited to Question 1 presented by the petition.” 119

S. Ct. 2336.

SUMMARY OF ARGUMENT

The Ex Post Facto Clause of the Constitution pro-

hibits the enactment of laws that “retroactively alter

the definition of crimes or increase the punishment for

criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43

(1990). The authoritative definition of an ex post facto

law articulated in Collins builds on the standard that

this Court adopted in Beazell v. Ohio, 269 U.S. 167

(1925), and is supported by the Court’s modern juris-

prudence and by the historical origins of the Ex Post

Facto Clause.

Measured against that definition, the application of

Article 38.07 of the Texas Code of Criminal Procedure,

as amended, does not violate petitioner’s rights under

The court of appeals also rejected petitioner’s claim that the

trial court erred in denying his motion for a new trial based on the

State’s failure to disclose allegedly impeaching evidence, because

the court of appeals ruled that the evidence would not have been

admissible as impeachment. J.A. 11-12. And the court of appeals

rejected petitioner’s claim that the evidence was legally insuffi-

cient to support several of the convictions because K.M.’s testi-

mony about petitioner touching her genital area was not specific

enough. The court held that K.M.’s testimony was sufficiently

specific in each instance to prove conduct that violated the appli-

cable statutory prohibition. J.A. 9-11.

7

the Ex Post Facto Clause. The statute does not alter

the definition of any crime or increase the punishment

for any criminal act. Nor does it deprive petitioner of a

defense that was available at the time of his crime or

prevent him from pleading any excuse or justification

for his criminal conduct that was available at the time

he engaged in that conduct. Rather, Article 38.07

simply permits the jury to conclude that petitioner en-

gaged in the prohibited conduct on the basis of the

testimony of the victim, without additional corroborat-

ing evidence. Its effect is thus comparable to many

changes in the rules of evidence that affect the nature

of the proof from which the jury may conclude that the

defendant committed the charged offense.

Petitioner relies heavily on a category of ex post

facto analysis described in Justice Chase’s opinion in

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798): that the

Clause applies to “[e]very law that alters the legal rules

of evidence, and receives less, or different, testimony,

than the law required at the time of the commission of

the offence, in order to convict the offender.” That

cescription, however, does not conform either to the

historic meaning of an ex post facto law or to the de-

finition of such a law that the Court adopted in Collins

and other cases. Nor are petitioner’s policy arguments

persuasive. Rather than singling out a particular class

of unpopular defendants, the revision of Texas law at

issue in this case simply moves the rules governing

certain victim testimony back toward conformity with

state law governing witness testimony generally. As

such, the amended law cannot be denounced as vin-

dictive or arbitrary legislation.

ARGUMENT

A LAW ELIMINATING A REQUIREMENT OF VIC-

TIM CORROBORATION, WITHOUT CHANGING

THE NATURE OF THE PROHIBITED CONDUCT OR

THE PUNISHMENT FOR THE CRIME, DOES NOT

IMPLICATE THE PROHIBITIONS OF THE EX POST

FACTO CLAUSE

A. Procedural Changes That Do Not Retroactively

Change The Definition Of A Crime Or Increase The

Punishment For A Criminal Act Are Not Ex Post

Facto Laws

1. a. The Ex Post Facto Clause of the Constitution

prohibits the enactment of laws that “retroactively

alter the definition of crimes or increase the punish-

ment for criminal acts.” Collins v. Youngblood, 497

U.S. 37, 43 (1990). In Collins, this Court examined its

cases construing the Clause and expressly disavowed

language in some earlier precedents indicating that the

constitutional restriction extended to any retroactive

law that deprives an accused of a “substantial pro-

tection” under the law existing at the time of his crime.

See Id. at 44-46. The Court explained that, while a law

does not escape ex post facto scrutiny simply by virtue

of being labeled “procedural,” id. at 46, procedural

changes that do not make innocent acts criminal or

increase punishment do not offend the Clause even

when they disadvantage a defendant in other ways. /d.

at 49-52.

The Court in Collins began its analysis by quoting

language from Justice Chase’s “now familiar opinion” in

8 Petitioner is, therefore, in error when he argues that “(t]he

touclistone for ex post facto purposes is whether the change affects

substantive rights.” Pet. Br. 11.

9

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), that “ex-

pounded those legislative Acts which in his view impli-

cated the core concern of the Ex Post Facto Clause.”

Collins, 497 U.S. at 41-42:

Ist. Every law that makes an action done before the

passing of the law, and which was innocent when

done, criminal; and punishes such action. 2d. Every

law that aggravates a crime, or makes it greater

than it was, when committed. 3d. Every law that

changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime,

when committed. 4th. Every law that alters the

legal rules of evidence, and receives less, or differ-

ent, testimony, than the law required at the time of

the commission of the offence, in order to convict the

offender.

3 U.S. (3 Dall.) at 390 (opinion of Chase, J.). While the

Collins Court noted that early opinions of this Court

described Justice Chase’s formulation as the “exclusive

definition of ex post facto laws,” id. at 42, the definitive

modern summary of the scope of the Ex Post Facto

Clause was announced in Beazell v. Ohio, 269 U.S. 167

(1925):

It is settled, by decisions of this Court so well

known that their citation may be dispensed with,

that any statute which punishes as a crime an act

previously committed, which was innocent when

done; which makes more burdensome the punish-

ment for a crime, after its commission, or which

deprives one charged with crime of any defense

10

available according to law at the time when the act

was committed, is prohibited as ex post facto.

Collins, 497 U.S. at 42 (quoting Beazell, 269 U.S. at 169-

170)). Collins added that the Beazell formulation was

“faithful to the use of the term ‘ex post facto law’ at the

time the Constitution was adopted” and conforms “to

our best knowledge of the original understanding of the

Ex Post Facto Clause.” 497 U.S. at 43, 44.

The Beazell definition, announced by Justice Stone

for a unanimous Court, differs from Justice Chases’s list

in two important respects. First, the Court in Beazell

specifically included within the sweep of the Ex Post

Facto Clause statutes that “deprive[] one charged with

crime of any defense available according to law at the

time when the act was committed.” As the Court

explained in Collins, Justice Stone’s inclusion of that

eategory did not expand the historic scope of the ex

post facto prohibition, but rather is consistent with the

focus of the Clause on retroactive changes in the

definition and punishment of crimes. The Collins Court

explained that “[a] law that abolishes an affirmative

defense of justification or excuse contravenes Art. I,

§ 10, because it expands the scope of a criminal pro-

hibition after the act is done,” thus altering the de-

finition of a crime or increasing a punishment. 497 U.S.

at 49.

Second, the Court in Beazell omitted Justice Chase’s

fourth category pertaining to laws that “alter[] the

legal rules of evidence.” The Beazell Court acknowl-

edged that its omission was deliberate: expressions

are to be found in earlier judicial opinions to the effect

that the constitutional limitation may be transgressed

by alterations in the rules of evidence or procedure.”

269 U.S. at 170 (citing Calder, 3 U.S. (3 Dall.) at 390;

11

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 326

(1866); and Kring v. Missouri, 107 U.S. 221, 228, 232

(1883)). But, the Court in Beazell observed, it was

“well settled that statutory changes in the mode of trial

or the rules of evidence, which do not deprive the

accused of a defense and which operate only in a limited

and unsubstantial manner to his disadvantage, are not

prohibited.” 269 U.S. at 170.“

The Court in Collins expressly recognized that It he

Beazell definition omits the reference by Justice Chase

in Calder * * * to alterations in the ‘legal rules of

evidence.“ 497 U.S. at 43 n.3. The Court approved of

that omission, however, explaining that “cases sub-

sequent to Calder make clear” that “this language was

The Court's observation that Justice Chase’s fourth category

did not represent an accurate portrayal of the scope of the ex post

facto prohibition was foreshadowed in the Court’s opinion in

Thompson v. Missouri, 171 U.S. 380 (1898). There, the Court

acknowledged that there was “apparent support” “in the general

language used in some opinions,” including Justice Chase’s fourth

category, for the defendant's position. 171 U.S. at 382. The de-

fendant there challenged, as ex post facto, application at his retrial

of a newly enacted law rendering admissible certain writings

which the Missouri Supreme Court, on direct appeal from the

defendant’s first trial, had ruled inadmissible. See id. at 381-382.

The Court ultimately upheld application of the new law, how-

ever, emphasizing that the Court had “{a)ppl[ied] the principles

announced in former cases—without attaching undue weight to

general expressions in them that go beyond the questions neces-

sary to be determined.” Id. at 382, 386. And, as one court has

noted, although this Court has cited the Calder dictum about

altering the “legal rules of evidence” in various opinions, the Court

“has never actually applied it to invalidate a retrospective change

in an evidentiary rule.” State v. Hudy, 535 N.E.2d 250, 256 (N.Y.

1988) (citing Derek J.T. Adler, Note, Ex Post Facto Limitations on

Changes in Evidentiary Law: Repeal of Accomplice Corrobora-

tion Requirements, 55 Fordham L. Rev. 1191 (1987)).

12

not intended to prohibit the application of new eviden-

tiary rules in trials for crimes committed before the

changes.” /bid. (citing Thompson v. Missouri, 171 U.S.

380, 386-387 (1898); Hopt v. Utah, 110 U.S. 574, 588-590

(1884)).

Thus, far from endorsing Justice Chase’s original

fourth category (see Pet. Br. 10, 19-20, 22, 23, 28-29;

see also Br. Amicus Curiae for Nat’l Ass’n of Criminal

Defense Lawyers 2-10), this Court in Collins re-

cognized, consistent with the holdings and analysis of

later cases, that Justice Chase’s language was over-

broad. A correct understanding of ex post facto prin-

ciples protects against retroactive changes in the scope

of the prohibited conduct, and retroactive increases in

punishment. It does not apply to evidentiary changes

that affect procedural matters, such as how a crime is

proved.

b. Subsequent decisions of this Court have adhered

to Collins’ holding that the Ex Post Facto Clause bars

the application of new evidentiary or procedural rules

only if they redefine a crime or increase a penalty. In

California Dep't of Corrections v. Morales, 514 U.S. 499

(1995), the Court declined to rely on earlier precedent

suggesting that the ex post facto prohibition extended

to legislative changes that produced “some ambiguous

sort of ‘disadvantage.’” Jd. at 506 n.3. The Court

declared that, instead, “[a}fter Collins, the focus of the

ex post facto inquiry is * * * on whether any such

change alters the definition of criminal conduct or

increases the penalty by which a crime is punishable.”

Ibid. In Lynce v. Mathis, 519 U.S. 433 (1997), the Court

cited earlier ex post facto cases, including Calder, but

similarly recognized that, It jo fall within the ex post

facto prohibition,” a law must disadvantage a criminal

defendant “by altering the definition of criminal con-

——ũ——mU — or ee

— —

13

duct or increasing the punishment for the crime.” Id. at

441 (citing Collins); see also Landgraf v. USI Film

Prods., 511 U.S. 244, 275 n.28 (1994) (“While we have

strictly construed the Ex Post Facto Clause to prohibit

application of new statutes creating or increasing

punishments after the fact, we have upheld intervening

procedural changes even if application of the new rule

operated to a defendant’s disadvantage in the particular

case.” (citing, inter alia, Collins and Beazell))."

2. The Court’s conclusion in Collins that the ex post

facto prohibition does not apply to evidentiary rules

unless they alter the definition of a crime or increase a

penalty is strongly supported by a re-examination of

Justice Chase’s opinion in Calder and consideration of

the original intent of the Framers.

a. Calder was a civil case. The issue was whether a

statute that granted a new hearing in a probate case,

after the case had become final on direct appeal and

where there was no statutory mechanism for securing a

new hearing before the Court of Probate, constituted

an impermissible ex post facto law. The Court held that

the constitutional prohibition against ex post facto laws

Consistent with the view that Calder does not bar the appli-

cation of a change in an evidentiary or procedural rule to the trial

of crimes committed before the change, this Court regularly in-

cludes in its orders amending the Federal Rules, including the

Federal Rules of Evidence and the Federal Rules of Criminal

Procedure, a directive that the amendment is to take effect on a

particular day “and shall govern in all proceedings thereafter com-

menced and, insofar as just and practicable, all proceedings then

pending.” See, e.g., Order Amending Federal Rules of Evidence,

523 U.S. 1237 (1998); Order Amending Federal Rules of Evidence,

520 U.S. 1325 (1997); Order Amending Federal Rules of Criminal

Procedure, 523 U.S. 1229 (1998); Order Amending Federal Rules of

Criminal Procedure, 520 U.S. 1315 (1997).

14

applies only to criminal legislation, not to civil statutes.

There was no opinion for the Court; rather, the Justices

issued separate opinions seriatim, each expressing a dif-

ferent rationale.

Justice Chase grounded his understanding of an ex

post facto law in history. He explained that the

Constitution’s prohibition of such laws “very probably

arose from the knowledge, that the Parliament of Great

Britain claimed and exercised a power to pass such

laws, under the denomination of bills of attainder, or

bills of pains and penalties; the first inflicting capital,

the other less, punishment.” 3 U.S. (3 Dall.) at 389. He

then described the varieties of such laws and their

origin in “ambition [of their proponents], or personal

resentment, and vindictive malice,” and concluded that

At jo prevent such, and similar acts of violence and

injustice, I believe, the Federal and State legislatures,

were prohibited from passing any bill of attainder; or

any ex post facto law.” Ibid.

That background, and the historical examples that

Justice Chase gave of the practices intended to be

prohibited, forms the basis for understanding the fourth

category of ex post facto laws the Justice described.

Each of the categories of laws listed by Justice Chase as

a type of ex post facto law responded directly to pro-

blems caused by unjust British laws that he had

discussed earlier in his opinion. See 3 U.S. (3 Dall.) at

389. His fourth category, covering any law that “alters

the legal rules of evidence, and receives less, or

"! Justices Chase (3 U.S. (3 Dall.) at 386-395), Paterson (id. at

395-397) and Iredell (id. at 397-400) filed separate opinions

analyzing the relevant issues; Justice Cushing filed a two-sentence

opinion agreeing that the judgment should be affirmed (id. at 400-

401). The Chief Justice did not participate. /d. at 386.

15

different, testimony, than the law required at the time

of the commission of the offence, in order to convict the

offender,” recalled his condemnation of laws passed by

the British Parliament that “violated the rules of

evidence (to supply a deficiency of legal proof) by

admitting one witness, when the existing law required

two.” Ibid. The footnote accompanying that discussion

cited the “case of Sir John Fenwick, in 1696.” Id. at 389

n. F.

Fenwick’s case involved a bill of attainder that Par-

liament passed to summarily convict Fenwick of high

treason, without a trial and without a second witness as

would have been required at a trial under the then-

existing law.” The bill of attainder thus “altere{d] the

legal rules of evidence” only “to convict the offender,”

Fenwick. See Calder, 3 U.S. (3 Dall.) at 390; see also

id. at 391 (deeming ex post facto, inter alia, laws that.

“change the rules of evidence, for the purpose of con-

viction”). The law did not alter the rules of evidence

generally to apply thenceforth to any other offender,

nor did it respond to a general legislative determination

about the weight juries should be permitted to give

to the testimony of a class of victims. Thus, Justice

Chase’s fourth category appears to have been intended

to apply only to laws that alter the rules of evidence to

convict a particular, named offender—a legislative act

that may appear implausible today, but that was still

considered a threat at the time of Calder.”

Fenwick had been indicted on the testimony of two wit-

nesses but, after indictment, he managed to bribe one of the wit-

nesses to abscond. See Zechariah Chafee, Three Human Rights in

the Constitution 133-135 (1956); see generally 4 Thomas Macaulay,

History of England 663-694 (1860), Adler, supra, at 1211 n.113.

lt was not until 1798 that the last bill of attainder was

enacted by the British Parliament. Chafee, supra, at 98.

16

That interpretation of Justice Chase’s opinion is

consistent with his statement that he viewed ex post

facto laws “precisely in the same light” as Sir William

Blackstone. 3 U.S. (3 Dall.) at 391. Blackstone’s defini-

tion of ex post facto laws was limited, along the lines of

Collins, to laws that are enacted “after an action is com-

mitted,” where “the legislator then for the first time

declares it to have been a crime, and inflicts a punish-

ment upon the person who has committed it.” 1 William

Blackstone, Commentaries on the Laws of England 46

(1765). Therefore, Justice Chase apparently did not

intend to extend the scope of the Ex Post Facto Clause

to evidentiary rules generally.

The opinions by the other Members of the Court in

Calder further support that narrow interpretation of

Justice Chase’s fourth category. Justice Paterson

relied on Blackstone's definition, 3 U.S. (3 Dall.) at 396,

and emphasized that ex post facto laws “are restricted

in legal estimation to the creation, and, perhaps, en-

hancement of crimes, pains and penalties.” Id. at 397.

Justice Paterson also cited the ex post facto clauses

that had been included in early state constitutions, as

did Justice Chase. Those clauses were limited to laws

that change definitions of crimes or alter punishments.

See id. at 391-392. In another separate opinion, Justice

Iredell, a “leading Federalist who had guided the Con-

stitution to ratification in North Carolina,” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 223 (1995), simi-

larly limited his interpretation of the Ex Post Facto

Clause to a prohibition that legislatures “not inflict a

punishment for any act, which was innocent at the time

it was committed; nor increase the degree of punish-

ment previously denounced for any specific offence.” 3

U.S. (3 Dall.) at 400.

17

Thus, read in light of the historical backdrop of

Justice Chase’s opinion and the separate views of the

other Justices, the list of ex post facto laws described in

Justice Chase’s opinion in Calder was accurately under-

stood by Collins not to bar application of evidentiary

rule changes unless they change the definition of a

crime or increase the punishment.

b. That conclusion also best reflects the Framers’

intent. In the course of their discussion of the Ex Post

Facto Clauses, the Framers specifically referred to

Blackstone’s Commentaries, see 2 The Records of the

Federal Convention of 1787, at 448 (Max Farrand ed.,

Yale Univ. Press 1966) (Federal Convention), as well as

the ex post facto clauses contained in early state

constitutions, see 2 Federal Convention 376. See also

Collins, 497 U.S. at 43-44 (ex post facto clauses in early

state constitutions “appear to have been a basis for

the Framers’ understanding of the provision”). As

discussed above, those authorities support Collins’ re-

striction of the ex post facto prohibition to laws redefin-

ing crimes or increasing punishments.

The debates on the Constitution included some op-

position to the Ex Post Facto Clauses, based on the

view that they were superfluous because such laws are

so obviously invalid. See 2 Federal Convention 376; 3

Federal Convention 165; see generally Chafee, supra,

at 94-95. Even opponents, however, expressed the

same narrow interpretation of the scope of the Clause:

“To say that the legis. shall not pass an ex post facto

law is the same as to declare they shall not do a thing

contrary to common sense—that they shall not cause

that to be a crime which is no crime.” 2 Federal Con-

vention 379.

The Federalist Papers also defined the Ex Post

Facto Clauses in a similar manner. Alexander Hamil-

18

ton indicated that the prohibition was intended to

prevent “(t]he creation of crimes after the commission

of the fact, or in other words, the subjecting of men to

punishment for things which, when they were done,

were breaches of no law.” The Federalist No. 84, at

577 (Jacob Cooke ed. 1961); see also The Federalist No.

44, at 301 (James Madison) (Jacob Cooke ed. 1961)

(referencing ex post facto clauses in early state

constitutions).

Thus, petitioner’s effort to revive Justice Chase’s

fourth ex post facto category—and to apply it to pro-

cedural rules lifting corroboration requirements that

had prevented the jury from relying on victim testi-

mony found to be credible—should be rejected as incon-

sistent with both the Court’s modern jurisprudence and

the historical origins of the Ex Post Facto Clause.

B. Application Of Article 38.07 At Petitioner's Trial Did

Not Violate The Ex Post Facto Clause

The state law at issue in this case rendered inappli-

cable a requirement in prior law that a conviction for a

sex offense was not supportable based on the testimony

by certain child-victims, unless the victim had either

told another person about the offense within six months

of its commission or unless there was corrovorating

evidence. The change in the law, allowing the jury to

give effect to the victim’s testimony alone, neither

altered the rules governing petitioner’s conduct nor

increased the penalty for his offense, but instead regu-

lated procedures governing his trial. As such, appli-

cation of the law to petitioner’s pre-amendment conduct

did not violate the Ex Post Facto Clause.

1. . Article 38.07 of the Texas Code of Criminal

Procedure, as amended in 1993, does not “retroactively

alter the definition of crimes or increase the punish-

19

ment for criminal acts.” Collins, 497 U.S. at 43. Both

before and after the amendment, Texas law proscribed

the same conduct by petitioner and set the same

punishment for it; the amendment does not change the

standards for determining whether petitioner’s conduct

was prohibited or what punishment could be imposed.

Hence, Article 38.07 it is not an invalid ex post facto law

under Collins.

The amendment to Article 38.07 eliminates the re-

quirement of corroboration in certain cases, but the

effect of that law is in many ways comparable to a law

enabling the jury to rely on, and give probative effect

to, evidence that previously it could not have con-

sidered in determining whether the defendant com-

mitted the charged crime.’ Laws that enable a jury to

consider evidence that had previously been inadmis-

sible have long been understood not to violate the ex

post facto prohibition. As the Court explained in Hopt:

Statutes which simply enlarge the class of persons

who may be competent to testify in criminal cases

4 Petitioner’s characterization (Pet. Br. i, 8, 9, 11, 13, 16, 24, 34)

of Article 38.07 as a “two-witness” rule is inaccurate. The statute

requires corroboration, whieh means that there must be some

other evidence that tendls] to connect the defendant with the

commission of the offense.” Zule v. State, 802 S.W.2d 28, 32 (Tex.

App. 1990, pet. ref'd). Contrary to petitioner’s claim (Pet. Br. 5-6

n.5), the corroboration need not be in the form of eyewitness

testimony. “It is not necessary that the corroborative evidence

provide independent evidence of guilt sufficient to support the

conviction.” Jbid. Circumstantial evidence may suffice. Ibid. In

any event, even traditional “two-witness” rules have been inter-

preted to allow proof in a form other than a second witness. See

Hammer v. United States, 271 U.S. 620, 627 (1926) (two-witness

rule for perjury prosecution may be satisfied by single witness and

sufficient corroboration in the form of documentary proof and

circumstantial evidence).

20

are not ex post facto in their application to pro-

secutions for crimes committed prior ta their

passage; for they do not attach criminality to any act

previously done, and which was innocent when done;

nor aggravate any crime theretofore committed; nor

provide a greater punishment therefor than was

prescribed at the time of its commission; nor do they

alter the degree, or lessen the amount or measure,

of the proof which was made necessary to conviction

when the crime was committed.

110 U.S. at 589.

Contrary to petitioner’s repeated assertions (Pet. Br.

9, 12, 13, 18, 25, 26-28, 31, 33), Article 38.07 does not

reduce the amount of proof necessary to support a con-

viction, nor did it “change [] the substantive criminal

law of Texas” (id. at 31). Both before and after the

amendment to Article 38.07, the State of Texas bore the

burden of establishing petitioner’s guilt of the charged

offense by proving each of the elements of the offense

beyond a reasonable doubt. Article 38.07 affects only

the manner of proving facts that are already elements

of the crime.

Moreover, Article 38.07 leaves “unimpaired the right

of the jury to determine the sufficiency or effect of the

evidence declared to be admissible.” Thompson v.

Missouri, 171 U.S. at 387. The defendant remains free

to challenge the credibility of the witness on cross-

examination and through other evidence, and the jury

remains chay ged with the responsibility to assess the

witness’s credibility. The amendment is thus similar in

effect to a law that does “nothing more than remove an

obstacle arising out of a rule of evidence that withdrew

from the consideration of the jury testimony which, in

the opinion of the legislature, tended to elucidate the

21

ultimate, essential fact to be established, namely, the

guilt of the accused.” Ibid. A law such as that, which

“only removels] existing restrictions upon the compe-

tency of certain classes of persons as witnesses, relates

to modes of procedures only, in which no one can be said

to have a vested right, and which the State, upon

grounds of public policy, may regulate at pleasure.

Such regulations of the mode in which the facts con-

stituting guilt may be placed before the jury, can be

made applicable to prosecutions or trials thereafter had,

without reference to the date of the commission of the

offense charged.” Hopt, 110 U.S. at 590. See also

Splawn v. California, 431 U.S. 595, 600-601 (1977) (find-

ing it unnecessary to adjudicate ex post facto challenge

to retroactively applied instruction claimed to permit

consideration of previously inadmissible evidence, but

noting that instruction statute “does not create any new

substantive offense, but merely declares what type of

evidence may be received and considered”)."

‘6 Lower courts have rejected other ex post facto challenges to

new rules disadvantaging defendants by rendering admissible

previously inadmissible evidence including, for example, victim

impact evidence in capital sentencing proceedings (see Mitchell v.

State, 884 P.2d 1186, 1203-1204 (Okla. Crim. App. 1994), and certain

blood alcohol readings (see People v. Kotecki, 666 N.E.2d 37 (Ill.

App. Ct. 1996)). Lower courts have also rejected ex post

facto challenges to new rules disadvantaging defendants by

rendering inadmissible previously admissible evidence including,

for example, evidence of a rape victim’s past sexual conduct

(see People v. Dorff, 396 N.E.2d 827, 830 (Ill. App. Ct. 1979)

(rejecting ex post facto challenge to rape shield law); Finney v.

State, 385 N.E.2d 477, 480-481 (Ind. Ct. App. 1979) (same); Turley

v. State, 356 So.2d 1238, 1243-1244 (1978) (same); People v. Mandel,

61 A.D.2d 563 (N.Y. App. Div. 1978), rev’d on other grounds,

401 N.E.2d 185 (N.Y. 1979) (same); see also Commonwealth v.

Edgerly, 435 N.E.2d 641, 644-645 & n.3 (Mass. App. Ct. 1982)

22

b. Article 38.07 does not deprive petitioner of an

“absolute defense available at the time of his conduct,”

as he claims. Pet. Br. 10; see also id. at 11, 13, 29-30, 31-

32. At the time of petitioner’s crime, he did not have a

defense based on Article 38.07. Petitioner could not

have known whether K.M. would report the sexual

assault to someone else within six months. If K.M. had

met the 6-month statutory outcry provision, her uncor-

roborated testimony would have been sufficient even

under the version of Article 38.07 in effect at the time of

petitioner’s crime.

The Court should reject petitioner’s reliance on

Beazell’s statement that a law that “deprives one

charged with crime of any defense available according

to law at the time when the act was committed, is

prohibited as ex post facto.” 269 U.S. at 169-170. The

Court made clear in Collins that the term “defense,” as

used in Beazell’s ex post factc definition, “was linked to

the prohibition on alterations in ‘the legal definition of

the offense’ or ‘the nature or amount of the punishment

imposed for its commission.’” Collins, 497 U.S. at 50

(quoting Beazell, 269 U.S. at 169-170); see also 497 U.S.

at 49 (“[a] law that abolishes an affirmative defense of

justification or excuse contravenes Art. I, § 10, because

it expands the scope of a criminal prohibition after the

(noting that no cases were found in which a court had held any

rape-shield law unconstitutional under Ex Post Facto Clause)), and

evidence of an expert witness's opinion that a defendant did not

have the mental state that er nstituted an element of the charged

offense (see United States v. Vartlett, 856 F.2d 1071, 1077 n.7 (8th

Cir. 1988) (rejecting ex post facto challenge to change in Federal

Rule of Evidence 704(b)); United States v. Alexander, 805 F.2d

1458, 1462 (11th Cir. 1986) (same); United States v. Mest, 789 F. 2d

1069, 1071-1073 (4th Cir.), cert. denied, 479 U.S. 846 (1986) (same);

United States v. Prickett, 790 F. 2d 35, 37 (6th Cir. 1986) (same)).

—

— — —[—[—m8—6 —

—— —„—„-

a

23

act is done.“). Where, as here, the law hals] not

changed * * the matters which might be pleaded as

an excuse or justification for the conduct underlying

the] charge,” id. at 50, it has not deprived petitioner of

a defense within the meaning of Beazell or Collins.“

2. Article 38.07 is not invalid under the Ex Post Facto

Clause as a vindictive or arbitrary law enacted “to

convict a class of unpopular defendants,” as petitioner

contends. Pet. Br. 9, 14; see also id. at 17, 18, 20."

‘6 The Texas Penal Code clearly identifies the affirmative de-

fenses to a charge of sexual assault in violation of Section 22.011.

See Tex. Penal Code Ann. F 22.011(d) (West 1994) (“[i]t is a defense

to prosecution under Subsection (a)(2) that the conduct consisted

of medical care for the child and did not include any contact be-

tween the anus or sexual organ of the child and the mouth, anus, or

sexual organ of the actor or a third party”); id. § 22.011(e) (West

1994) (Hit is an affirmative defense to prosecution under Sub-

section (a)(2) that the actor was not more than three years older

than the victim, and the victim was a child of 14 years of age or

older”).

7 Petitioner notes (Br. 17 n.9) that prevention of arbitrary and

vindictive legislation is not the only purpose served by the ex post

facto prohibition. The prohibition is also “aimed at a second con-

cern, namely, that legislative enactments ‘give fair warning of

their effect and permit individuals to rely on their meaning until

explicitly changed. bid: (quoting Miller v. Florida, 482 U.S. 423.

430 (1987), and Weaver v. Graham, 450 U.S. 24, 28-29 (1981)).

Here, petitioner was given fair warning by Texas law that his

conduct was criminal and subject to the punishment that he

received. As noted above, because petitioner could not have

known, at the time of his crime, whether K.M. would meet the

statutory outcry provision, petitioner could not have known

whether admission of K.M.’s testimony would be conditioned on

corroboration. Thus, there could have been no reliance interest in

the procedural rule of Article 38.07. See also Landgraf, 511 U.S. at

275 (“Because rules of procedure regulate secondary rather than

primary conduct, the fact that a new procedural rule was instituted

24

First, Article 38.07 was not enacted “to convict” any-

one. Unlike the law that was enacted to convict John

Fenwick, which concerned Justice Chase and which

changed the rules of evidence only in that particular

case to achieve that express purpose, Article 38.07

changes a generally applicable rule of criminal pro-

cedure bearing on the sufficiency of uncorroborated

testimony by certain witnesses. Second, one of the

express purposes of the amendment to Article 38.07

was to bring the law governing minor-age sexual

assault victims such as K.M. into line with the generally

applicable state law. See House Research Org., Bill

Analysis 14 (Mar. 15, 1993) (explaining that amendment

to Article 38.07 would eliminate an “artificial barrier,”

because “[v]ictims in sexual assault cases are no more

likely to fantasize or misconstrue the truth than the

victims of most other crimes, which do not require

corroboration of testimony or previous ‘outery.’”); ibid.

(“Sexual assault and other sexual offenses are more

comparable to crimes such as theft, arson and robbery

—none of which require corroboration of the victim’s

testimony for convietion.“).“ Petitioner’s attempt to

differentiate Article 38.07 from “neutral rules of gen-

eral application” (see Pet. Br. 10, 20, 25-26, 32) over-

looks that fact.

The reason that Article 38.07’s enlargement of the

class of victims allowed to testify at trial without cor-

roboration adversely affects only certain defendants is

that their cases are the only ones in which former

Article 38.07 had altered state law in this manner to

after the conduct giving rise to the suit does not make application

of the rule at trial retroactive.”)

18 Petitioner lodged a copy of this document with the Clerk of

the Court, see Pet. Br. 18.

condition certain victim evidence on corroboration or

outcry. That does not render the law invalid. Article

38.07 can hardly be deemed arbitrary or vindictive

when it simply is an effort to move the rules governing

certain witness testimony toward conformity with state

law governing witness testimony generally.

Admittedly, persons convicted of sexual offenses

against minor-age children are an unpopular group.

But so was the group of persons affected by the law

challenged in California Department of Corrections v.

Morales, 514 U.S. 499 (1995)—persons who had been

convicted of offenses involving the killing of more than

one person. As Morales made clear, however, the ex

post facto standard does not vary “on the basis of

societal animosity.” Id. at 510-511 n.7. Because Article

38.07 does not alter the definition of a crime or increase

a punishment, it does not violate the constitutional

prohibition against ex post facto laws.

CONCLUSION

The judgment of the Court of Appeals of Texas

should be affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

BETH S. BRINKMANN

Assistant to the Solicitor

General

Vick! S. MARANI

Attorney

OCTOBER 1999

1. In June 1992, Article 38.07 of the Texas Code of

Criminal Procedure provided:

A conviction under Chapter 21, Section 22.011, or

Section 22.021, Penal Code, is supportable on the

uncorroborated testimony of the victim of the sex-

ual offense if the victim informed any person, other

than the defendant, of the alleged offense within six

months after the date on which the offense is

alleged to have occurred. The requirement that the

victim inform another person of an alleged offense

does not apply if the victim was younger than 14

years of age at the time of the alleged offense. The

court shall instruct the jury that the time which

lapsed between the alleged offense and the time it

was reported shall be considered by the jury only

for the purpose of assessing the weight to be given

to the testimony of the victim.

Tex. Code Crim. P. Ann. art. 38.07 (West 1992).

2. As amended, effective September 1, 1993, Article

38.07, provides:

A conviction under Chapter 21, Section 22.011, or

Section 22.021, Penal Code, is supportable on the

uncorroborated testimony of the victim of the sex-

ual offense if the victim informed any person, other

than the defendant, of the alleged offense within

one year after the date on which the offense is

alleged to have occurred. The requirement that the

victim inform another person of an alleged offense

does not apply if the victim was younger than 18

years of age at the time of the alleged offense.

Tex. Code Crim. P. Ann. art. 38.07 (West Supp. 1999).

(la)