# Amicus Curiae Brief — Snyder v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0475%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 942

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0475%3A08. Public record. Not legal advice.