Amicus Curiae Brief — Snyder v. United States

LY

No. 94-514

IN THE ™

Supreme Court of the Gnited States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA,

Petitioner,

VS.

MICHAEL E. GAUDIN,

. Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON.

STEPHANIE J. FINELLI

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

~ BEST AVAILABLE COPY ~

QUESTION PRESENTED

Have recent developments in constitutional case law

abrogated the traditional rule that the judge and not the jury

determines whether a false statement was material?

(1)

et came OL AAS MER

ARON aA a cliente A ACIOETAN i BARA LL ote SN nee A ER ROO

TABLE OF CONTENTS

0 Ee ee ee ee i

SSP Tee eee eee eee ee eee eee V

Interest of amicus curiae ....... beet ee ee ee eens l

EE Ee ee ee 2

Ee ee ee 2

EN ee ee ee ee 3

I

Uncontrolled extrapolation of constitutional rules is a great

danger, and it requires great caution ...t.......... 3

II

Winship is premised on tradition and should be limited to

EN ee ee 5

EE ee 5

B. Mullaney and Patterson .........--+e000- 7

C. The presumption cases ..............26-. 10

ee 11

B. The bouniary of Winship... . 0.22 eee e ene 12

Il

The Sixth Amendment should not be extended to strike down

traditional practice without exceptionally compelling

justification, not present here............-+-+---> 13

A. Traditional practice and the Sixth Amendment .. 13

ee a a 15

(ili)

Mg oer irs 16

J pa oh 9 eee ban erupt ee Ee cy mg aaa To 18

TABLE OF AUTHORITIES

Cases

Arizona v. Roberson, 486 U. S. 675, 100 L. Ed. 2d 704,

ee a ee EE os og HO ae oe Oe ee 4

Bloom v. Illinois, 391 U. S. 194, 20 L. Ed. 2d 522,

oe S.A ee ee 6 hk Ree Oe ee Tabane 4 tats 14

Bushell’s Case, 124 Eng. Rep. 1006 (CP 1670) ....... 14

Cabana v. Bullock, 474 U. S. 376, 88 L. Ed. 2d 704,

SS. Ge es + eee ee ee eee es 16

Cage v. Louisiana, 498 U. S. 39, 112 L. Ed. 2d 339,

£33 3, Cy Se 6 kB ee es ee es 12

Carroll v. United States, 16 F. 2d 951 (CA2 1927) ..... 13

Carter v. Illinois, 329 U. S. 173, 91 L. Ed. 172,

OF, Co Se oo a od ne ech ws eee ae een a 4

Church of Lukumi Babalu Aye v. Hialeah, 124 L. Ed. 2d 472,

SS GO er ee kc on 85 2 ee we ee ee 9

Cohens v. Virginia, 6 Wheat. (19 U. S.) 264,

ee Re 2S! er ee ee eee 17

Cupp v. Naughten, 414 U. S. 141, 38 L. Ed. 2d 368,

6:5. Cy Fee. 6s ae 0 sO eee ee ee 6

Davis v. United States, 160 U. S. 469, 40 L. Ed. 499,

O65. Ce. Se cee sh eee oss ae oe oe ween 6

Duncan v. Louisiana, 391 U. S. 145, 20 L. Ed. 2d 491,

C5 :S Ee See hs 5.5 2 ar ee oe we ee 15

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

oe Be BQ fe) rr eee er eae ore 3

Ex parte Quirin, 317 U. S. 1, 87 L. Ed. 3,

Oe ry a ale de Se ee ek 13

Francis v. Franklin, 471 U. S. 307, 85 L. Ed. 2d 344,

Ce SC Pe Ce Sas oe a PE 10

v1

Holland v. Illinois, 493 U. S. 474, 107 L. Ed. 2d 905,

Sn ee eT atk wae ow 6 14

Hudson Water Co. v. McCarter, 209 U. S. 349,

52 L. Ed. 828, 28 S. Ct. 529 (1908) .............. 3

Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,

ee, i oe be ee kee eae 6

In re Gault, 387 U. S. 1, 18 L. Ed. 2d 527,

ee yp 6

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

— Be Fe 5,6, 7,17

Kokkonen v. Guardian Life Ins. Co. of America,

128 L. Ed. 2d 391, 114 S. Ct. 1673 (1994) ........ 17

Leland v. Oregon, 343 U. S. 790, 96 L. Ed. 1302,

po 5 Be 8). * ) ra 9

Luse v. United States, 49 F. 2d 241 (CA9 1931) ...... 13

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

§ ee ae Ee 3

Martin v. Ohio, 480 U. S. 228, 94 L. Ed. 2d 267,

107 S. Ct. 1098 (1987) .......20.........004. 11

McKeiver v. Pennsylvania, 403 U. S. 528, 29 L. Ed. 2d 647,

Se a PEP ED Work aeasoveecsaewsaanees 15

McMillan v. Pennsylvania, 477 U. S. 79, 91 L. Ed. 2d 67,

BGO &. Ch. ZED (ISSO) 0 wc ce cee es ‘i, i 33

Medina v. California, 120 L. Ed. 2d 353,

of ee ey S| a a 12

Mullaney v. Wilbur, 421 U. S. 684, 44 L. Ed. 2d 508,

we alg eee ecee we 7, o

Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S. 1,

Bae ma ee. ee , BO ee GL, PO Ce) wc ee ee 12

Parklane Hosiery Co. v. Shore, 439 U. S. 322,

oe L.. BG. 26 352, 99S. Ct. 645 CISTS) . we ee ees 13

Vil

Patterson v. New York, 432 U. S. 197, 53 L. Ed. 2d 281,

Jb Re Be). 2). eee eee Fe 8,9, 10

People v. Cahan, 44 Cal. 2d 434, 282 P. 2d 905 (1955)... 3

People v. Frye, 7 Cal. App. 4th 1148, 10 Cal. Rptr. 2d

pieei. | ae peer Sei wee ear eee ee 7

People v. Threewit, 96 N. E. 242 (Ill. 1911) ......... 13

Pope v. Illinois, 481 U. S. 497, 95 L. Ed. 2d 439,

oe Bw Me OVC. : eae are ae 17

Sandstrom v. Montana, 442 U. S. 510, 61 L. Ed. 2d 39,

OOS. Ce ee 8 hw ee ced eee eee ee wnes 10

Schad v. Arizona, 501 U. S. 624, 115 L. Ed. 2d 555,

bie ee we | eae rer ee a 12

Schick v. United States, 195 U. S. 65, 49 L. Ed. 99,

eee el ee es 2 a ee 14

Sinclair v. United States, 279 U. S. 263, 73 L. Ed. 692,

Po eee 0 ee ee ee oe ae 16

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674, |

ee a eis elk be ewok Ke eee ws 6

Sparf v. United States, 156 U. S. 51, 39 L. Ed. 343,

Le ips Bo: 0 sree see ee 13

Spencer v. Texas, 385 U. S. 554, 17 L. Ed. 2d 606,

vp Bek °). Berger ae re eae eee 6,8

State v. Dineen, 102 S. W. 480 (Mo. 1907) ......... 13

Sullivan v. Louisiana, 124 L. Ed. 2d 182,

Tp > ee of). ee aa 15, 16

Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460

U. S. 533, 75 L. Ed. 2d 260, 103 S. Ct. 1343 (1983)... 16

Tumey v. Ohio, 273 U. S. 510, 71 L. Ed. 749,

ye Bee 2g). se ee ee 14

United States v. Singleton, 54 F. 488 (DC Ala. 1892) ... 13

Vili

United States v. 12 200-Ft. Reels of Film, 413 U. S. 123,

of LL. EG. 26 FOO, Ss S. GA, SOG GPT) «ww ks 4

Victor v. Nebraska, 127 L. Ed. 2d 583,

SO. Ge. SRC IPED (os Ong a eek ae bees 11, 12

Woodruff v. Parham, 8 Wall. (75 U. S.) 123,

ers ee i ced wale Gk ns Gigs od 16

Yates v. Evatt, 500 U. S. 391, 114 L. Ed. 2d 432,

ey a. SE. hoa ee i aan acne ere 10

Statutes

U.S. Comst., Amdt. 9 2... cece ee cece en enns 2

Re ee eR ee rere ee ree 6

a a OR ee re a ree 17

Treatise

4 W. Blackstone, Commentaries (Ist ed. 1769) ...... 9,14

Miscellaneous

Advisory Committee Note to Federal Rule of Criminal

ee ee ee eae 14

Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ... 4

L. Hand, The Biil of Rights (1958) ................ 4

1 T. Heath, A History of Greek Mathematics (1981 reprint of

SEED ok x area bata sa as We yf er ere ee ee ee 4

i

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

UNITED STATES OF AMERICA,

Petitioner,

vs.

MICHAEL E. GAUDIN,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of

the accused into balance with the rights of victims and of society

to rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

In the present case, the Court of Appeals held that a

long-standing practice expressly approved by this Court is in

conflict with constitutional requirements, even though the

practice has coexisted with the underlying principles for well

over acentury. This creeping constitutionalization of criminal

procedure, overturning settled practice with little regard for the

1. Both parties have consented in writing to the filing of this brief.

consequences, is contrary to the interests CJLF was formed to

protect.

SUMMARY OF FACTS AND CASE

Respondent Michael Gaudin was convicted in federal court

of equity skimming and making false statements on HUD loan

documents. A panel of the Ninth Circuit overturned the false

statement conviction on the ground that the trial judge failed to

submit to the jury the question of whether those statements were

material. United States vy. Gaudin, 997 F. 2d 1267, 1273 (CA9

1993). The Ninth Circuit granted rehearing en banc, 5 F. 3d

374 (1993), and the en banc court came to the same decision. 28

F. 3d 943 (1994).

SUMMARY OF ARGUMENT

This is a case of uncontrolled extrapolation of constitutional

rules far beyond the text and history of the Constitution. Such

extrapolation, if not curbed, will eventually withdraw the entire

field of criminal procedure from democratic control. This area

of jurisprudence is in dire need of limiting principles.

One such principle is that a constitutional rule founded on

tradition is bounded by tradition. The rule of /n re Winship, that

guilt must be proved beyond a reasonable doubt, is a constitu-

tional rule because it is a traditional rule. Any practice that

traditionally coexisted with that rule, therefore, does not violate

it.

A second limiting principle is that the constitutional right to

jury trial is the common law right, and no more. Although an

exception was made in Bloom v. Illinois, regarding criminal

contempt, the making of an exception requires particularly

compelling circumstances, which are not present in this case.

Sinclair v. United States, remains a valid precedent. None

of the cases cited by the Court of Appeals to question its validity

dealt with the issue of whether the judge or jury decides particu-

lar issues at trial. The subsequent extension to the states of

certain rules that have always governed federal trials does not

impair a precedent established in a federal case.

ARGUMENT

On the surface, this case is about a seemingly minor question

of procedure. Will the materiality of false statements be decided

by judges or juries? On a deeper level, though, this case is

about much more. It is about the creeping constitutionalization

of criminal procedure. It is about courts extrapolating rules from

rules from rules further and further away from the text and

history of the Constitution. Most disturbing of all, it is about

courts doing these things without apparent awareness of the

magnitude of what they are doing.

I. Uncontrolled extrapolation of constitutional rules is a

great danger, and it requires great caution.

“All rights tend to declare themselves absolute to their

logical extreme.” Hudson Water Co. v. McCarter, 209 U. S.

349, 355 (1908) (Holmes, J.). Just as uncontrolled growth of

judicially created property and contract rights was a threat to

democracy in Justice Holmes’ day, so in modern times has

uncontrolled growth of constitutionalized criminal procedure

rights threatened the people’s right of self-government.

Judicial seizure of decisions of policy formerly thought to

belong to the people has occasionally come in dramatic leaps.

Compare Mapp v. Ohio, 367 U. S. 643, 655 (1961) (constitu-

tional mandate) with People v. Cahan, 44 Cal. 2d 434, 442, 282

P. 2d 905, 910 (1955) (“judicially declared rule of evidence,”

hence subject to legislative revision). More often, though, the

shift has come in increments. The process has been one of

erosion rather than mudslide.

The process typically begins with a constitutional principle

which nearly everyone agrees is good policy, although some may

doubt whether it is in the Constitution. Then further steps are

said to “follow” from the principle, or to be necessary to

“protect” it, or to prevent its “evasion.” See, e.g., Edwards v.

Arizona, 451 U.S. 477, 485 (1981) (questioning cut-off rule

lends substance to Miranda); Arizona v. Roberson, 486 U. S.

675, 684 (1988) (extension of Edwards to unrelated crimes

“follows”); but see id., at 688 (Kennedy, J., dissenting) (consid-

er practical realities).

As far back as 1970, Judge Henry Friendly warned that the

ballooning case law had already become “a detailed Code of

Criminal Procedure, to which a new chapter is added every

year.” Friendly, Is Innocence Irrelevant? Collateral Attacks on

“Criminal Judgments, 38 U. Chi. L. Rev. 142, 156; cf. Carter v.

Illinois, 329 U. S. 173, 175 (1946). Many, many chapters have

been added since then, often by successive extrapolation. The

danger of such extrapolation has not entirely escaped the notice

of this Court:

“The seductive plausibility of single steps im a chain of

evolutionary development of a legal rule is often not per-

ceived until a third, fourth, or fifth ‘logical’ extension

occurs. Each step, when taken, appeared a reasonable step

in relation to that which preceded it, although the aggregate

or end result is one that would never have been seriously

considered in the first instance.” United States v. 12 200-Ft.

Reels of Film, 413 U. S. 123, 127 (1973) (footnote omitted).

The Greek mathematician Euclid derived all of geometry

from only five postulates. See | T. Heath, A History of Greek

Mathematics 374 (1981 reprint of 1921 ed.). If the judiciary

continues to expand constitutional doctrine into every nook

where existing rules could logically lead, then it could similarly

derive from the Bill of Rights a complete, comprehensive code,

leaving nothing for the people to decide for themselves.

The code so derived might very well be an excellent code,

better than any now in force in the states. But the process of

democracy is often more important than the result. Having a say

in the enactment of laws is an essential part of citizenship. See

L. Hand, The Bill of Rights 58 (1958). The progressive decline

of democratic control over criminal procedure, as constitutional

doctrine crowds out more and more of the field, is a genuine loss

to the citizens of this country, regardless of how desirable the

rules themselves may be.

This expansion is typically framed by those who favor it as

the expansion of the rights of the individual against the govern-

ment. Yet it is equally true that every step in the expansion is a

diminution in another essential right: the right of self-govern-

ment. With each step this Court, a government entity, deprives

the individual voter of another piece of that precious right.

“Any legislature presumably passes a law because it thinks

the end result will help more than hinder and will thus

further the liberty of the society as a whole. ‘ The people,

through their elected representatives, may of course be

wrong in making those determinations, but the right of self-

government that our Constitution preserves is just as impor-

tant as any of the specific individual freedoms preserved in

the Bill of Rights. The liberty of government by the people,

in my opinion, should never be denied by this Court except

when the decision of the people as stated in laws passed by

their chosen representatives, conflicts with the express or

necessarily implied commands of our Constitution.” Jn re

Winship, 397 U. S. 358, 385 (1970) (Black, J., dissenting).

The present case does not involve an express legislative

choice that elements of offenses traditionally considered to be

questions of law would continue to be decided by the trial judge.

However, the constitutional basis of the Ninth Circuit’s rule

would forever take that decision away fiom both Congress and

the state legislatures and vest it instead in an unelected, unac-

countable judiciary. Any such diminution in the right of self-

government ought to be regarded as a drastic measure requiring

compelling justification. The mere fact that the conclusion may

seem to follow logically from a statement in a prior case is not

enough.

Il. Winship is premised on tradition and

should be limited to tradition.

A. Tradition and Winship.

The rule of In re Winship, 397 U. S.358 (1970) is not based

on any of the specific requirements of the Bill of Rights.

Instead, it comes under the general requirement of “due pro-

cess,” id., at 364, which the Constitution imposes in identical

terms on both the federal and state govemments. U. S. Const.,

Amdt. 5; id. Amdt. 14, §1. For this general requirement,

Justice Cardozo’s classic statement holds true today:

“The [government] 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 traditions and conscience of our

people as to be ranked as fundamental.” Snyder v. Massa-

chusetts, 291 U. S. 97, 105 (1934) (emphasis added).

There is no significant disagreement that guilt of a crime

ought to be proved beyond a reasonable doubt. Indeed, the

universality of that agreement was precisely the reason that the

constitutional question did not arise for so many years. See

Winship, 397 U.S., at 372 (Harlan, J., concurring). But

agreement alone does not make a constitutional mandate. Cupp

v. Naughten, 414 U.S. 141, 146 (1973). There must be

something more. For the Winship rule, that something more is

tradition.

The Winship opinion notes the deep roots of the reasonable

doubt standard “from our early years as a Nation.” 397 U. S.,

at 361. The requirement had been assumed to be implicit in

constitutional guarantees as far back as 1895. See id., at 362,

citing Davis v. United States, 160 U. S. 469, 488 (1895).

Winship also notes policy reasons for the reasonable doubt

standard. 397 U.S., at 363-364. But policy alone, like

universal agreement, is no basis for removing an issue from the

democratic process. Spencer v. Texas, 385 U. S. 554, 567-568

(1967). The strong connection between the reasonable doubt

standard and preventing the conviction of innocent people serves

to distinguish this traditional practice from other traditions which

have no such connection and may be abandoned. See, e.g.,

Hurtado v. California, 110 U. S. 516, 538, (1884) (state may

replace grand jury with preliminary hearing). Tradition remains

the foundation for Winship’s elevation of the reasonable doubt

standard to constitutional stature.

In Winship the Court addressed the constitutionality of a

variation on the burden of proof unknown to the common law.

The use of juvenile court to deal with children who had commit-

ted crimes was a turn-of-the-century innovation. See /n re

Gault, 387 U. S. 1, 14-15 (1967). Although the basic approach

of juvenile courts replacing criminal procedures was widely

agreed upon, ibid., the burden of proof was not. Courts and

legislatures were deeply divided. See Winship, 397 U. S., at

360, n. 3 and authorities cited.

Winship thus stands for the proposition that a rule deeply

rooted in our tradition and necessary to prevent miscarriages of

justice can be a part of the constitutional requirement of due

process. Hence, the power of judicial review may restrain

legislative innovation which is contrary to tradition. But can a

rule founded on tradition be used to chop down tradition as well

as conserve it? Can it be used to force change on a state which

chooses to retain a traditional practice? The course after Winship

has been neither straight nor smooth.

B. Mullaney and Patterson.

The Winship rule appeared to be cut loose from its historical

moorings in Mullaney v. Wilbur, 421 U. S. 684 (1975). Under

Maine law, murder and manslaughter were degrees of the single

offense of felonious homicide. The difference between the two

degrees was malice. For a hundred years, that element had been

presumed upon proof of an intentional killing; defendant had the

burden of negating malice by proving “heat of passion on sudden

provocation in order to reduce murder to manslaughter.” /d., at

688.

Traditional practice in both England and America clearly

supported placing some burden on the defendant, although it was

not clear whether the general rule was a burden of persuasion or

merely a burden of producing evidence. /d., at 693-695, and nn.

16, 20. Imposing the latter burden on the defendant remains

common practice to this day. See id., at 701, n. 28; People v.

Frye, 7 Cal. App. 4th 1148, 1154-1155, 10 Cal. Rptr. 2d 217,

220 (1992).

The Mullaney Court concluded its historical! discussion with

two points: that heat of passion was traditionally the main factor

determining the degree of homicide, and that the “clear trend”

was toward placing the ultimate burden of persuasion on the

prosecution. 421 U.S., at 696. Both of these are true, but

neither answers the Winship question: whether the rule in

ee

question is contrary to the traditional burden of proof constitu-

tionalized in Winship.

The remainder of the Mullaney opinion consists of policy

discussion. It discusses the consequences of a finding against the

defendant, id., at 698, “societal interests in the reliability of jury

verdicts,” id., at 699, and difficulties of proof. /d., at 701-702.

The Court worried that states might “undermine” Winship by

redefining separate crimes as degrees of a single offense. /d., at

698. The question of whether Maine had transgressed the

tradition which Winship found was part of “due process” was not

again mentioned.

If Mullaney were the last word, one could readily conclude

that Winship had been entirely detached from the tradition that

gave it birth and had become a free-floating principle, a “roving

commission” for this Court to reweigh the costs and benefits of

assignment of burdens of proof in criminal cases. Cf. Spencer

v. Texas, 385 U. S. 554, 569 (1967) (Stewart, J., concurring).

However, a partial correction was not long in coming.

Patterson v. New York, 432 U. S. 197 (1977) involved a

modern homicide statute which had abandoned the confusing

common-law concept of “malice.” Instead, intentional killing

was defined to be second-degree murder, subject to an affirma-

tive defense of “extreme emotional disturbance.” /d., at 198.

That defense was only partial, however, because an intentional

killer who established it was still guilty of manslaughter. /d., at

199. The burden of proving the defense was on the defendant,

by the preponderance of the evidence. /d., at 200.

There were two differences between the New York statute in

Patterson and the Maine law in Mullaney, one practical and one

of form. The practical difference, which the Court deemed

“relevant to note” was that the New York statutory defense was

much broader than the Maine common law concept. /d., at 202.

The other difference was that the disturbed mental state was

structured as an affirmative defense rather than negating an

element of the offense.

If the Court had simply followed the same logical path as |

Mullaney, neither of these differences would have mattered.

Indeed, as noted above, the manner in which a State structures

the offense was specifically rejected as a criterion by the

Mullaney Court. The fact that a defense is broader than the

traditional one makes only a political difference. Permitting

States to place the burden on the defendant lowers the political

barriers to the creation of new and broader defenses. See id., at

209, and n. 11.

Patterson, however, was not seeking to take advantage of the

broader defense. He claimed the quintessential common-law

manslaughter. Compare id., at 198 with 4 W. Blackstone,

Commentaries 191-192 (1st ed. 1769) (adultery, caught in the

act). It would be a curious interpretation of the Constitution to

permit a state to raise the burden of proof on a person who falls

Squarely within the traditional defense, merely in order to extend

that defense to other people who would not have qualified for it.

Other factors were necessary to the Patterson decision.

Foremost among these factors was that following the

rationale of Mullaney to its logical conclusion would have

resulted in a head-on collision with another precedent: Leland

v. Oregon, 343 U. S. 790, 799 (1952) (state may place burden

of proving insanity on defendant); see Patterson, 432 U. S., at

204-205. The question presented, then, was “not the usual

question of whether to follow a constitutional rule, but the

question of which constitutional rule to follow... .” Church of

Lukumi Babalu Aye v. Hialeah, 124 L. Ed. 2d 472, 517, 113

S. Ct. 2217, 2248 (1993) (Souter, J., concurring in part).

In refusing to extend Mullaney to overrule Leland, the

Patterson Court turned back to tradition.

“It is said that the common-law rule permits a State to punish

one as a murderer when it is as likely as not that he acted in

the heat of passion or under severe emotional distress and

when, if he did, he is guilty only of manslaughter. But this

has always been the case in those jurisdictions adhering to

the traditional rule.” 432 U.S., at 208-209 (emphasis

added).

Patterson did not need to overrule the specific holding of

Mullaney, and it did not do so. Id., at210. Yet the rationale of

Patterson left Mullaney as little more than a shell, a holding

without a rationale. According to the dissent, the majority’s

“explanation of the Mullaney holding bears little resemblance to

the basic rationale of that decision.” /d., at 222-223 (opinion of

cca ie id

10

Powell, J.). That is quite true, but it is equally true of Mul-

laney’s complete disregard of tradition as the basis for the

Winship rule.

C. The Presumption Cases.

Rather than overrule Mullaney, Patterson distinguished it on

the basis of the use of a presumption in that case. Patterson, 432

U.S., at 216; cf. id., at 221-222 (Powell, J., dissenting)

(criticizing that basis for distinguishing). This disapproval of

presumptions of elements soon took on a life of its own,

separated from both the tradition basis of Winship and the

rejected rationale of Mullaney.

Sandstrom v. Montana, 442. U. S. 510, 513, 524 (1979)

disapproved the traditional presumption that a person intends the

natural consequences of his voluntary acts. Conspicuous by its

absence from the opinion is any discussion of the tradition of this

presumption in American courts generally. The only significant

historical discussion is of this Court’s own cases. See id., at

519, n. 9.2 Subsequent cases simply relied on Sandstrom,

without looking further back. See Francis v. Franklin, 471

U. S. 307, 313-318 (1985); Yates v. Evatt, 500 U. S. 391, 400-

402 (1991).

Thus Mullaney, as narrowed by Patterson and then amplified

within that narrowed channel by Sandstrom, has used a rule

grounded in tradition to exterminate a traditional practice. The

damage in states which used the presumption as a standard jury

instruction was enormous, but the wreckage is behind us. The

instruction books have been purged, and the cases in which those

instructions had been used are resolved.

Regardless of whether the Sandstrom rule was really required

by the Constitution, the change has been made, it is a desirable

one as a matter of policy, and there will be no further damage if

the constitutional rule is not further extended.

2. Even this limited discussion was inadequate, for reasons we have

previously briefed in this Court. See Brief for the Criminal Justice

Legal Foundation as Amicus Curiae in Yates v. Evatt, O. T. 1990, No.

89-7691, pp. 7-9, but the point need not be rehashed here.

11

D. Holding the Line.

Other than the presumption cases, the decisions of this Court

since Winship have consistently refused to extend that decision

to strike down traditional practices. Although a per se rule has

not been adopted, the results are consistent with such a rule.

Patterson and the importance of tradition were reaffirmed in

Martin v. Ohio, 480 U. S. 228 (1987).

“As we noted in Patterson, the common-law rule was that

affirmative defenses, including self-defense, were matters for

the defendant to prove. ‘This was the rule when the Fifth

Amendment was adopted, and it was the American rule when

the Fourteenth Amendment was ratified.’ [Citation.] Indeed,

well into this century, a number of States followed the

common-law rule and required a defendant to shoulder the

burden of proving that he acted in self-defense.” /d., at 235

(emphasis added).

Even though the clear trend was to the contrary, Ohio did not

violate the Fourteenth Amendment by choosing to adhere to the

practice that was standard when that Amendment was adopted.

Compare id., at 236 with Mullaney, supra, 421 U. S., at 696.

McMillan v. Pennsylvania, 477 U.S. 79 (1986) similarly

looked to traditional practice. In that case, the legislature had

prescribed a mandatory minimum sentence for armed criminals,

without increasing the maximum sentence for the crime. Only

a preponderance of the evidence was needed for the firearm

finding. /d., at 81-82.

Rejecting the Winship/Mullaney claim, the Court noted that

sentencing judges “have traditionally heard evidence and found

facts without any prescribed burden of proof at all.” /d., at 91.

The fact that the legislature prescribed a sentence choice from a

fact, rather than leaving the impact of that fact discretionary,

made no constitutional difference.

Finally, in Victor v. Nebraska, 127 L. Ed. 2d 583, 114

S. Ct. 1239 (1994) this Court uphe!d the traditional definition of

reasonable doubt, derived from an 1850 Massachusetts case. See

id., at 592, 114 S. Ct., at 1244. The constitutionality of the

traditional definition as originally understood was beyond

question. The only difficulty was the impact of changes in the

12

English language on the jurors’ understanding of the definition.

See id., at 597, 114 S. Ct., at 1248; id., at 601, 114 S. Ct., at

1251 (Kennedy, J., concurring). In contrast, a definition that

deviated markedly from the traditional one was summarily struck

down in Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per

curiam).

E. The Boundary of Winship.

Justice Scalia has advanced the thesis that tradition alone is

sufficient to insulate a traditional practice from a general “due

process” attack, as opposed to an attack based on a specific

requirement of the Bill of Rights or the Equal Protection Clause.

See Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S. 1, 25, 38

(1991) (opinion concurring in the judgment). This per se rule

has not yet gained the support of a majority, although the

traditional practice carries great weight and nearly always

prevails. See id., at 17-18 (majority); id., at 40 (Kennedy, J.,

concurring in the judgment); Schad v. Arizona, 501 U. S. 624,

642-643 (1991) (plurality); Medina v. California, 120 L. Ed. 2d

353, 363, 112 S. Ct. 2572, 2577 (1992).

Amicus CJLF’s position in the present case is much narrower

than Justice Scalia’s thesis. We assert only that when a rule’s

constitutional stature is premised squarely on tradition, as

Winship is, that the boundary of the constitutional rule extends

no farther than the boundary of the traditional rule. Any practice

which traditionally coexisted with the rule in question, therefore,

is not a violation of the rule.

Acceptance of this principle would provide better guidance

to lower courts than the piecemeal approach that has character-

ized the post- Winship cases to date. Cf. McMillan v. Pennsylva-

nia, 477 U. S. 79, 91 (1986) (noting “inability to lay down any

‘bright line’ test”). If the Sandstrom cases are preserved as a

separate body of law under stare decisis, regardless of their

original correctness, this approach would not significantly

diminish protections for the accused, because Winship has not

been used successfully to attack traditional practice in other

cases.

With Winship this limited, legislatures would have a pole

star to navigate by as they deal with difficult questions of

a

13

burdens of proof, rather than having to guess where the next case

will come down in the “differences of degree” between Mullaney

and McMillan. See McMillan, supra, 477 U. S., at 91. So long

as they impose no greater burden on defendant than the common

law, they will be safe.

The traditional basis for the determination of materiality by

the judge is clear beyond question. The general principle that

questions of law are for the court in criminal cases as well as

civil was exhaustively discussed by the first Justice Harlan in his

opinion for the Court in Sparf v. United States, 156 U.S. 51,

59-107 (1895). Cases applying this principle to the materiality

of false statements are numerous. See, e.g., United States v.

Singleton, 54 F. 488, 489 (DC Ala. 1892); Carroll v. United

States, 16 F. 2d 951, 953 (CA2 1927); Luse v. United States, 49

F. 2d 241, 245 (CA9 1931); State v. Dineen, 102 S. W. 480,

482 (Mo. 1907) (“well settled”); People v. Threewit, 96 N. E.

242, 243 (Ill. 1911) (error to submit question to jury). That

should be the end of the Winship question.

III. The Sixth Amendment should not be extended to

strike down traditional practice without exceptionally

compelling justification, not present here.

A. Traditional Practice and the Sixth Amendment.

“As this Court has often recognized, it was not the purpose

or effect of § 2 of Article 3, read in the light of the common

law, to enlarge the then existing right to a jury trial. The

object was to preserve unimpaired trial by jury in all those

cases in which it had been recognized by the common law

and in all cases of a like nature as they might arise in the

future, [citation], but not to bring within the sweep of the

guaranty those cases in which it was then well understood

that a jury trial could not be demanded as of right.

“The Fifth and Sixth Amendments, while guaranteeing the

continuance of certain incidents of trial by jury which Article

3, § 2, had left unmentioned, did not enlarge the right to jury

trial as it had been established by that Article.” Ex parte

Quirin, 317 U. S. 1, 39 (1942); see also Parklane Hosiery

14

Co. v. Shore, 439 U.S. 322, 333 (1979) (civil cases,

Seventh Amendment).

This theme resounds throughout this Court’s decisions on the

constitutional right to jury trial. The several provisions of the

Constitution on this subject are “conservative” in the true sense

of the word. These provisions were intended to preserve an

existing right against future encroachment, in contrast to, for

example, the Equal Protection Clause, which worked an affirma-

tive change in the law. See Holland v. Illinois, 493 U. S. 474,

478-479 (1990) (prohibition of racial discrimination comes from

Equal Protection Clause, not Sixth Amendment).

In accordance with this principle, this Court has consistently

held that a jury trial for a petty offense is not within the scope of

the constitutional right precisely because it was not within the

scope of the common law right. See Schick v. United States,

195 U. S. 65, 69-70 (1904).

In only one type of case has this Court found that a defendant

was constitutionally entitled to have a jury determine a question

which judges determined at common law. Bloom v. Illinois, 391

U.S. 194, 198-200 (1968) extended the constitutional guaranty

of jury trial to criminal contempt cases where the punishment

exceeded the petty offense level, despite a long line of contrary

authority. See id., at 195-196.

Such a departure could only be justified by compelling

reasons, and the reasons are plain enough. There is great

potential for tyranny in a proceeding initiated, prosecuted, and

tried by a single judge. When all this is done by the same judge

whose authority was defied, it comes perilously close to the

judge having an interest in the action. Cf. Tumey v. Ohio, 273

U. S. 510, 535 (1927); see also Advisory Committee Note to

Federal Rule of Criminal Procedure 42(b), para. 4.

These dangers have long been apparent. Blackstone noted

that the manner of trying contempts was “not agreeable to the

genius of the common law in any other instance.” 4 W.

Blackstone, Commentaries 284 (Ist ed. 1769). In Bushell’s

Case, 124 Eng. Rep. 1006, 1010 (CP 1670), the potential for

abuse in a contempt proceeding was held to justify the extraordi-

nary remedy of de novo review on habeas corpus, a proceeding

|

15

completely unavailable to persons accused of felony or treason,

who had the benefit of trial by jury.

There are no dangers of comparable weight to justify

overturning traditional practice in the present case with a blanket

constitutional mandate. There may be particular false statement

laws where materiality is properly considered a factual question

for the jury. In the absence of an express Statutory directive

either way, this may be a proper decision for courts to make.

The problem with the opinion below is its implication that the

result is constitutionally required, leaving contrary state practices

in doubt. See App. to Pet. for Cert. 9a-10a, n. 2.

To follow the course of Bloom and hold that, throughout the

Nation, juries must now decide questions that judges have

decided for centuries, there should be a showing that something

is fundamentally unjust about having judges make these deci-

sions. Yet the entire institution of jury trial was not considered

“fundamental to ordered liberty” when that was the test of

incorporation in the Fourteenth Amendment. See Duncan v.

Louisiana, 391 U. S. 145, 185 (1968) (Harlan, J., dissenting).

Close on the heels of the Winship decision, this Court rejected a

requirement for juries in juvenile cases, in part because it did not

believe that juries would actually be better fact-finders.

McKeiver v. Pennsylvania, 403 U. S. 528, 547 (1971) (plurali-

ty); id., at 551 (White, J., concurring).

The court below says that juries are capable of making

materiality determinations. App. to Pet. for Cert. 14a. That

may well be true, but it does not follow that judges are not

capable or that determination by judges is unfair. Compelling

reasons for overthrowing a centuries-old practice have not been

shown.

B. Sullivan v. Louisiana.

The court below placed great reliance on Sullivan v. Louisi-

ana, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993), but that case

does not alter the scope of the right to jury trial. Sullivan

involved a clear case of Winship error. The burden of proof

instruction given to the jury was not “reasonable doubt” as that

term is generally understood in American jurisprudence. The

16

doubt at issue in Sullivan’s trial was the quintessential question

of fact: who did it? /d., at 187, 113 S. Ct., at 2080.

The Sixth Amendment only entered the case on the question

of harmless error analysis. The Court held that an appellate

court cannot say that the jury would have found the facts proven

by the required standard had they been so instructed, for then the

defendant would have been found guilty by the wrong entity.

Id., at 190, 113 S. Ct., at 2082. Sullivan says nothing about

which elements must be submitted to the jury at trial, because

the elements in question in that case were clearly for the jury.

C. Sinclair as Precedent.

The majority opinion in the Court of Appeals acknowledged

that Sinclair v. United States, 279 U. S. 263 (1929) is a prece-

dent of a higher court on point, and then proceeded to decide

whether this precedent survives later cases, which are not on

point. App. to Pet. for Cert. 6a. There are two problems with

this approach, one involving the hierarchy of courts, the other

involving the nature of precedent.

The first point is straightforward. “Needless to say, only

this Court may overrule one of its precedents. Until that occurs,

[Sinclair] is the law, and the decision below cannot be reconciled

with it.” Thurston Motor Lines, Inc. v. Jordan K. Rand Ltd.,

460 U. S. 533, 535 (1983).

The second point is equally fundamental. “We take it to be

a sound principle, that no proposition of law can be said to be

overruled by a court, which was not in the mind of that court

when the decision was made.” Woodruffv. Parham, 8 Wall. (75

U. S.) 123, 138 (1869). Sinclair was a case about who decides

which issues at trial, the judge or the jury. It could only be

overruled in a case where that question was “in the mind of the

court,” not merely by facial inconsistency with general state-

ments in cases dealing with other issues.

Winship was a case about the burden of proof employed by

a judge sitting without a jury. Identity of the decision maker was

not at all a factor in the case. Sullivan is not on point for the

reasons discussed ante, at 15-16. Cabana v. Bullock, 474 U. S.

376, 384-385 (1986) involved a finding of fact which was not an

element of the offense at all, and thus passing mention of the

17

requirement that juries find the elements is a pure example of an

obiter dictum, and a disapproved dictum at that. See Pope v.

Illinois, 481 U. S. 497, 503, n. 7 (1987).

By paying too much attention to dicta, the Court of Appeals

majority fell into an old, well-known trap. As Chief Justice

Marshall noted long ago, .

“general expressions, in every opinion, are to be taken in

connection with the case in which those expressions are

used. If they go beyond the case, they may be respected, but

ought not to control the judgment in a subsequent suit when

the very point is presented for decision. The reason of this

maxim is obvious. The question actually before the Court is

investigated with care, and considered in its full extent.

Other principles which may serve to illustrate it, are consid-

ered in their relation to the case decided, but their possible

bearing on all other cases is seldom completely investigat-

ed.” Cohens v. Virginia, 6 Wheat. (19 U. S.) 264, 399-400

(1821).

That is why “[i]t is to the holdings of our cases, rather than

their dicta, that we must attend... .” Kokkonen v. Guardian

Life Ins. Co. of America, 128 L. Ed. 2d 391, 396, 114 S. Ct.

1673, 1676 (1994). The possibility that there may remain some

elements to be determined by the trial judge in a jury trial was

not “completely investigated” (or, indeed, investigated at all) by

the cases cited by the Court of Appeals, because that question

was not presented in any of them. It was not “in the mind of the

court” in any of these cases, and a precedent on that point cannot

have been overruled by them.

Sinclair was a federal case. The right to jury trial in federal

courts was a constitutional right the day those courts were

created. U.S. Const., Art. III, §2, cl. 3. The application of

that rule to the states can hardly alter Sinclair’s status as

precedent. Similarly, proof beyond a reasonable doubt was a

well-known requirement at the time of Sinclair, see In re

Winship, 397 U.S. 358, 362 (1970) and cases cited, so the

subsequent constitutionalization of that requirement made no

change in the rules governing federal courts. If the Sinclair rule

coexisted with both rights in 1929, no change in the law since

then prevents them from coexisting now.

18

Amicus CJLF takes no position on whether this Court should

follow Sinclair or overrule it under its general supervisory power

over federal courts. What we do object to is the wresting of yet

one more decision from the realm of legislative control and state-

by-state development in the absence of any compelling reason for

such a step. The federalization and constitutionalization of

criminal procedure have gone too far already. In this case, at

least, they should go no further.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed.

February, 1995

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curice

Criminal Justice Legal Foundation