Amicus Curiae Brief — Wood v. Rupe

TION FILED .

“EC 13 1996

No. 96-763

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

TANA WOOD, Superintendent,

Washington State Penitentiary,

Petitioner,

VS.

MITCHELL E. RUPE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

KENT S. SCHEIDEGGER*

WILLIAM PEAK

Crimina) Justice Legal Fdn.

2131 1 Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

QUESTIONS PRESENTED

1. In the penalty phase of a capital case, does the Eighth

Amendment require a state to admit gravely unreliable evidence,

unless it is “so unreliable that it has no probative value at all”?

2. Would an affirmative answer to Question | be a “new

rule” within the meaning of Teague v. Lane?

(i)

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

TANA WOOD, Superintendent,

Washington State Penitentiary,

Petitioner,

VS.

MITCHELL E. RUPE,

Respondent.

———

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

——————

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

Legal Foundation respectfully moves for leave to file the

accompanying brief amicus curiae in support of the petition in

this case. Counsel for petitioner has consented, but counsel for

respondent has withheld consent.

In the accompanying brief, amicus argues that the division of

opinion between the Ninth Circuit in this case, on one side, and

other circuits and the highest courts of several states on the

other, makes this case appropriate for review on certiorari. In

addition, the Ninth Circuit’s analysis of the Teague issue is in

conflict with this Court’s precedents.

The ruling in this case threatens the integrity of capital

sentencing proceedings with “junk science” from both sides.

Finally, the ruling in this case calls into question the constitution-

ality of the federal death penalty statute.

iV

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the due process protection of the

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

to rapid, efficient and reliable determination of guilt and swift

execution of punishment.

The Ninth Circuit’s decision overturns a sentence affirmed

nine years ago. The state decision resolved the present issue in

a manner well within the dictates of this Court’s precedents and

well within the mainstream of American jurisprudence. Such

second-guessing of valid state court decisions is contrary to the

rights of victims and society which CJLF was formed to

advance.

For the foregoing reasons, amicus requests leave to file its

brief.

December, 1996

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

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pg I re ee er gr vi

Se bs 6 Bs ea 8S ee eee we ee l

REY GE TREES GG GOOD 0 ww ccc cece teen ceseess l

a Pk errr ere eee 3

PU cos oe wens se bane hc teee reer aveeenst 4

I

The decision in the present case is in conflict with other

circuits and with courts of last resort of multiple states

on an important federal question ................ 4

A. Scope of the present decision .............. 4

SS 5X Berrrre rer ss eee 5

Soe ee CUE GD 3g a. v0 ose hse wow nse ee es 5

Il

The Court of Appeals’ Teague analysis conflicts with relevant

GOING GE GE GS 0 0 ooh 0a OKs CORRES BAe eere 8

Ill

The decision in this case threatens the integrity and reliability

ff ee ee ee ee 1]

IV

The Ninth Circuit’s decision in this case would invalidate the

Sees Gee OE noc ose el ees cue ween enes 12

SINE oo c'ccanstivscudeeteatehisrus eee 14

vi

° TABLE OF AUTHORITIES

Cases

Alderman v. Zant, 22 F. 3d 1541 (CAI1 1994) ........ 3

Batson v. Kentucky, 476 U. S. 79, 90 L. Ed. 2d 69,

fe Be 2) | rrr ee 12

Booth v. Maryland, 482 U. S. 496, 96 L. Ed. 2d 440,

Pay By Gels SEEEDOTD 6.0 0 csv ebesevseveeneens 1]

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

Si GA. See Geeeee ec eccucss uveeseues 8,9, 11

Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,

Fee fi. were rere yee 9

Caspari v. Bohlen, 127 L. Ed. 2d 236,

'’o Se SR) f!. SPereverrrrrerrr sis 8,9

Chambers v. Mississippi, 410 U. S. 284, 35 L. Ed. 2d 297,

Ty es Ge SOD CHOTED 6 ccecvvurseereteareeewn 2

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

7 © |) :' Serererret rere 10

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U. S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786

CEE wos eectereerect es beeen beeen 13

Dowling v. United States, 493 U. S. 342, 107 L. Ed. 2d 708,

top Me OS.) rr rr ee 12

Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,

¢ Bee oT. | errr rrr rrr rr ry Te 4, 10

Emil v. State, 784 P. 2d 956 (Nev. 1989) .......... 7, 12

Ex parte Hinton, 548 So. 2d 562 (Ala. 1989) .......... 6

Gacy v. Welborn, 994 F. 2d 305 (CA7 1993) ......... 5

Georgia v. McCollum, 505 U. S. 42, 120 L. Ed. 2d 33,

112 S. Ct. 2348 (1992) 2... ee ee ee 12

Vii

Green v. Georgia, 442 U. S. 95, 60 L. Ed. 2d 738,

a a nT crs wceee ee 65.060 6006-0804 5

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

nen Sia c6 sheesh sae ee sens 11, 12

Hinton v. State, 548 So. 2d 547 (Ala. Crim. App. 1988) .. 7

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

ee i es RED wie os Sewer eee e ews 1, 3, 4, 10

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

Pen eT Ee cbs ductverOeaedtweuees 11

People v. Edwards, 579 N. E. 2d 336 (Ill. 1991) ....... 7

People v. Fudge, 7 Cal. 4th 1075, 31 Cal. Rptr. 2d 321,

Bees MONEE Jone direrdadteevéstnteen.s 6

People v. Gacy, 530 N. E. 2d 1340 (Ill. 1988) ......... 5

People v. Szabo, 447 N. E. 2d 193 (Ill. 1983) ......... 7

Romano v. Oklahoma, 129 L. Ed. 2d 1,

SUD Gy Gee SPEND cccccbvcececccenecens 12

Rupe v. Wood, 93 F. 3d 1434 (CA9 1996) ....... Passim

Rupe v. Wood, 863 F. Supp. 1315

Ph Ys o's on es Wn wane Oe 60s es i FS

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

Ss es ee GED boc Cb ee Rebewaedeudeoees 8

Sawyer v. Smith, 497 U. S. 227, 111 L. Ed. 2d 193,

Sails Gey CE @ 64.0-0.0 & 0 0 0 66 bee es 8,9

Skipper v. South Carolina, 476 U. S. 1, 90 L. Ed. 2d 1,

| hs el ee ree 6, 10, 11

State v. Bartholomew, 683 P. 2d 1079 (Wash. 1984)... 1,2

State v. Copeland, 300 S. E. 2d 63 (SC 1983) ......... 7

State v. Davis, 477 A. 2d 308 (NJ 1984) ...... seve Qe

Vili

State v. Pitts, 562 A. 2d 1320 (NJ 1989)........... 6,7

State v. Rupe, 743 P. 2d 210 (Wash. 1987) ........... 2

State v. Rupe, 683 P. 2d 571 (Wash. 1984) ......... 1,2

State v. Staat, 811 P. 2d 1261 (Mont. 1991) .......... 7

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

Sa ee DPR. cba ola CU eet a Ws ioe wa 8

United States v. Nguyen, 928 F. Supp. 1525

Sar SD cane ba ¥'ule db ON ab cb wane ewes 13

Whittlesey v. State, 665 A. 2d 223 (Md. 1995) ........ 7

Wood v. Bartholomew, 133 L. Ed. 2d 1,

SE Gs VEE SAC OEE RES Caw ee ees eh eheen 2

United States Statutes

1 & Re = 0 ee ere ee 12, 13

ae Ge Gs Ges BE cc adeeKbutedtbereeturecusee. x

State Statute

« & f- Fs § BAe errr. Pee ree Te Te 6

Rules of Court

Federal Rules of Evidence 401 .. 1... ccc eee cece. 4

Pererrcreyer tree re 4

iS «ses a ce eee a eas 11, 13

Depeeme Comst Rane FES) oc ccc ccc ccc eseccces 1]

Treatises

J. Thayer, Preliminary Treatise on Evidence (1898) ..... 4

E. Imwinkelried et al., Courtroom Criminal Evidence

I a ae a ats ota ae Sere ae Sin 5

ix

Miscellaneous

Annot., Addmissibility of Voice Stress Evaluation Test Results

or of Statements Made During Test, 47 ALR 4th 1202

rrr ee ee eee eee 12

Advisory Committee’s Notes on Federal Rules of Evidence

SRS ee ae ee err ae ogee 4

Berger, Evidentiary Framework, in Reference Manual on

Scientific Evidence (Federal Judicial Center 1994) .... 13

Weinstein, Rule 702 of the Federal Rules of Evidence Is

Sound; It Should Not Be Amended, 138 FRD 631

Ce Sane Bras i ee ee ett 13

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

TANA Woop, Superintendent,

Washington State Penitentiary,

Petitioner,

VS.

MITCHELL E. RUPE,

Respondent.

————————

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

a

SUMMARY OF FACTS AND CASE

Over 15 years ago, Mitchell Rupe murdered Candace

Hemmig and Twila Capron while robbing a bank. State v.

Rupe, 683 P. 2d 571, 576-577 (Wash. 1984). The evidence of

Rupe’s guilt included his confession and his statements to three

of his friends admitting involvement in the crimes. /d., at 578.

He was sentenced to death.

Two weeks before deciding Rupe’s case, the Washington

Supreme Court decided State v. Bartholomew, 683 P. 2d 1079

(1984). That case, like this one, involved an issue of the

admissibility of a polygraph test of a witness in the penalty

phase. After noting both Washington’s wide-open statutory rule

for penalty phase evidence and the rule of Lockett v. Ohio, 438

U. S. 586, 604 (1978) (plurality opinion), the court held that

polygraph evidence submitted in mitigation would generally be

admissible. Bartholomew, 683 P. 2d, at 1088-1089. However,

—_—

“the trial judge may refuse to accept such evidence if he is not

convinced that the examiner is qualified or that the test was

conducted under proper conditions.” /d., at 1089.'

At the guilt phase of Rupe’s trial, defense counsel sought to

introduce the police polygraph examination of Monte Yovetich.

Yovetich was a friend of Rupe’s who had some involvement in

the crime, see State v. Rupe, 683 P. 2d, at 577-578, but the

extent of his involvement is disputed. Washington follows the

general rule that polygraphs are inadmissible in the guilt phase

without a stipulation, id., at 587, and the evidence was excluded.

Defendant’s claim that Chambers v. Mississippi, 410 U. S.

284 (1973) requires admission was rejected on the ground that

Chambers is limited to reliable evidence. “The evidence offered

by the defendant simply does not reach the minimal threshold of

reliability necessary to its admission in a criminal proceeding.”

683 P. 2d, at 588. The polygraphist who administered the test

doubted its validity, citing various factors that may cause

polygraphs to give incorrect results. /bid.

The defense also sought to introduce the same polygraph

examination in the penalty phase. The Washington Supreme

Court noted that the standards in this phase were “more relaxed”

but held that “polygraph examinations will not be admitted in

those limited cases where their trustworthiness is seriously in

doubt.” J/bid.

The state court vacated Rupe’s sentence and remanded the

case for a new proceeding on other grounds. /d., at 597. Rupe

did not attempt to introduce the polygraph on retrial. Pet. for

Cert. 9. He was resentenced to death, and the Washington

Supreme Court affirmed. State v. Rupe, 743 P. 2d 210, 230

(1987). Multiple state collateral attacks were denied. Rupe v.

Wood, 93 F. 3d 1434, 1438 (CA9 1996).

Rupe then filed a habeas corpus petition in federal District

Court. After several more years, that court issued its decision.

Rupe v. Wood, 863 F. Supp. 1315 (WD Wash. 1994). The

1. The state court’s rejection of Bartholomew's guilt-phase polygraph claim

was ultimately validated by this Court last term, summarily reversing the

Ninth Circuit. Wood v. Bartholomew, 133 L. Ed. 2d 1, 116 S. Ct. 7

(1995) (per curiam).

District Court interpreted the Lockett v. Ohio, 438 U.S. 586

(1978) line of cases to permit exclusion of mitigation evidence in

Capital penalty hearings solely on the ground of irrelevance.

“[T]he Court has consistently held that any other barriers to the

consideration of relevant mitigating evidence must fall.” 863

F. Supp., at 1338 (emphasis added).

The District Court granted relief on this claim, expressly

disagreeing with the decision of the Eleventh Circuit in Alderman

v. Zant, 22 F. 3d 1541, 1555-1557 (CA11 1994) (applying the

Chambers standard). The Court of Appeals affirmed. Rupe v.

Wood, 93 F. 3d 1434, 1439-1441 (CA9 1996). Rupe’s other

claims were either rejected or have become moot. /d., at 1437.

SUMMARY OF ARGUMENT

The decision in this case establishes an absolute rule with no

exceptions that relevant evidence in mitigation must be admitted

in the sentencing phase of a capital case. Evidence cannot be

excluded on grounds of unreliability unless its unreliability is so

great as to reduce its probative value to zero, i.e., to render it

irrelevant. This rule is said to follow from the Lockett v. Ohio

line of cases.

The great weight of authority is to the contrary. The

prevailing rule throughout the United States is that restrictions in

the sentencing phase are greatly loosened, but that the trial judge

retains the authority to exclude unreliable evidence even if it

does have some probative value.

Petitioner has cited the Fifth, Tenth, and Eleventh Circuits

as contrary to the present decision. The Seventh Circuit is also

to the contrary, as are the highest courts of California, Alabama,

Illinois, South Carolina, Nevada, Montana, Maryland, and New

Jersey.

The Court of Appeals’ Teague analysis asked the wrong

question and got the wrong answer. The proper question is not

whether the District Court reached a “correct” result under this

Court’s precedents, but rather whether the state courts would

have found that interpretation dictated by then-existing prece-

dent. This well-established law was simply ignored by the Court

of Appeals.

The present decision threatens the integrity of capital

sentencing proceedings with unreliable “junk science” from both

sides. States will be compelled directly to admit it for defen-

dants and by fairness to admit it for the prosecution. This result

is contrary to the principle of Gregg v. Georgia to open the

sentencing proceeding to accurate information.

The decision below would render unconstitutional the

provision of the federal death penalty law which expressly

empowers the judge to exclude evidence based on a Rule 403-

like balancing test. The overturning of this vitally important

statute sub silento is a matter worthy of this Court’s attention.

ARGUMENT

I. The decision in the present case is in conflict with other

circuits and with courts of last resort of multiple states on

an important federal question.

A. Scope of the Present Decision.

The crux of this case is the decision by the District Court,

endorsed by the Court of Appeals, that “exclusion of relevant

evidence because of doubts about reliability violated the principle

of Lockett and Eddings* by interfering with the jury’s ability to

weigh mitigating factors.” Rupe v. Wood, 93 F. 3d 1434, 1440

(CA9 1996). There are no exceptions to this sweeping new rule

so long as the evidence is relevant. “[P]otentially mitigating

evidence can be excluded on reliability grounds, provided that

the proffered evidence is so unreliable that it has no probative

value at all,” ibid. (emphasis added), in other words, if it is

irrelevant. Cf. Fed. Rule Evid. 401.

The starting point of American evidence law is that relevant

evidence is admissible, with many exceptions. /d., Rule 402; J.

Thayer, Preliminary Treatise on Evidence 264-266 (1898). The

bulk of the Federal Rules consists of the exceptions. See

Advisory Committee’s Notes on Fed. Rule Evid. 402. The

decision in this case would throw out ail the exceptions and make

2. Lockett v. Ohio, 438 U. S. 586 (1978) (plurality); Eddings v. Oklahoma,

455 U.S. 104 (1982).

relevance the sole criterion of admissibility. Not surprisingly,

this assertion is contrary to the great weight of authority.

B. Gacy v. Welborn.

Petitioner has already noted conflicts with three other federal

circuits. Pet. for Cert. 13-14. We will therefore note only one

more. In Gacy v. Welborn, 994 F. 2d 305, 315 (CA7 1993),

Gacy sought to introduce his own hearsay statements through his

mental health experts. The trial court sustained the prosecution’s

hearsay objection. The Seventh Circuit held that there was no

constitutional error. J/d., at 316.’ “The hearsay rule and its

exception for admissions of a party opponent are venerable

doctrines; no serious constitutional challenge can be raised to

them.” J/bid. The hearsay rule is, of course, grounded in

considerations of reliability. See E. Imwinkelried et al.,

Courtroom Criminal Evidence § 1001, p. 261 (2d ed. 1993).

Because the hearsay nature of evidence alone never reduces its

reliability to absolute zero, the rule of the Ninth Circuit in the

present case would completely forbid states from invoking the

hearsay rule against defendants in capital sentencing proceedings.

Gacy holds flatly that there is no such rule.

Gacy did not expressly discuss Lockett. Instead, it noted the

case closest on point, Green v. Georgia, 442 U.S. 95 (1979)

(per curiam). See Gacy, supra, 994 F. 2d, at 316. Green, in

turn, notes Lockett for the proposition that all proffered mitiga-

tion is relevant, if not necessarily admissible, 442 U. S., at 97,

and holds that particularly reliable and critical hearsay must be

admitted. /bid. Thus, Gacy was not decided in ignorance of

Lockett or its requirements, and it is in conflict with the decision

in the present case.

C. State Court Decisions.

State court decisions have typically followed the path of

Green as well. Whether based in the Due Process Clause or the

Eighth Amendment, they recognize that some loosening of

3. The state court had found a state-law error, but held it was harmless.

Id., at 315 (citing People v. Gacy, 530 N. Ed. 2d 1340, 1345 (Ill.

1988).)

standards may be required, but that courts can still exclude

relevant but unreliable or misleading evidence. And they should.

As the Supreme Court of New Jersey put it,

“relaxed standards for admissibility are not to be equated

with automatic admissibility. Judicial tolerance is not

judicial license. . . . The court must retain discretion to

exclude the evidence, in whole or in part, if its probative

value is substantially outweighed by its unfounded or

speculative character and its risk of confusion of the

essential issues.” State v. Pitts, 562 A. 2d 1320, 1350

(NJ 1989) (quoting State v. Davis, 477 A. 2d 308, 314

(NJ 1984)).

People v. Fudge, 7 Cal. 4th 1075, 1121-1123, 875 P. 2d 36,

64-65 (1994) is squarely on point and contrary to the decision

below. Fudge wished to introduce his own polygraph test as

“lingering doubt” evidence. Polygraph evidence is excluded by

statute, Cal. Evid. Code § 351.1, but Fudge argued its admission

was required by Skipper v. South Carolina, 476 U. S. 1 (1986),

precisely the argument accepted by the Ninth Circuit in the

present case. Compare Fudge, 7 Cal. 4th, at 1122, 875 P. 2d,

at 64 with Rupe v. Wood, 93 F. 3d 1434, 1440 (CA9 1996)

(citing Skipper).

As did the Seventh Circuit in Gacy, the California Supreme

Court in Fudge took its cue from Green. To override the state’s

evidence rules, the defendant must show that the evidence is both

critical and reliable. Fudge, 7 Cal. 4th, at 1123, 875 P. 2d, at

65. Unreliable evidence fails both prongs, since it has minimal

probative value and hence is not “critical.” Jbid.

Significantly, Fudge places the burden of demonstrating

reliability on the defendant. This makes sense where the

category of evidence as a whole has been declared unreliable by

Statute, rule, or case law. Otherwise, well-settled rules would

have to be retried in every case. The Court of Appeals’ opinion

in the present case not only casts the burden of proving unreli-

ability on the state, but requires a showing “of no demonstrated

scientific validity.” Rupe, 93 F. 3d, at 1440 (emphasis added).

The Supreme Court of Alabama rejected penalty phase

polygraphs in Ex parte Hinton, 548 So. 2d 562, 569-570 (1989).

Although the Supreme Court decision does not discuss the

Lockett argument directly, it affirms a lower court ruling

discussing and rejecting that argument. See Hinton v. State, 548

So. 2d 547, 561 (Ala. Crim. App. 1988).

The Supreme Court of Illinois rejected penalty phase

polygraphs on reliability grounds in People v. Szabo, 447

N. E. 2d 193, 210 (1983). Illinois follows the rule that admis-

sion requirements are relaxed in the penalty phase, ibid., but

“the evidence must be reliable.” People v. Edwards, 579

N. E. 2d 336, 364 (‘Il. 1991) (after noting Lockett). See also

State v. Copeland, 300 S. E. 2d 63, 69 (SC 1983) (polygraph

inadmissible in penalty phase); Emil v. State, 784 P. 2d 956, 960

(Nev. 1989) (same); State v. Staat, 811 P. 2d 1261, 1262 (Mont.

1991) (polygraphs not admissible in any criminal proceeding).

The Court of Appeals of Maryland followed People v.

Fudge, supra, in Whittlesey v. State, 665 A. 2d 223 (Md. 1995).

In that case, the trial judge had excluded hearsay in the belief

that the state hearsay rule applied fully to the penalty phase.

This was state-law error, requiring reversal and remand. /d., at

243.

However, while the Whittlesey court noted the requirement

of some relaxation under Lockett as well as the statute, ibid., it

did not throw the doors wide open. The Lockett rule “does not

require the admission of unreliable evidence.” Ibid. (citing

Green and Fudge) (emphasis added). Hence, a remand for

consideration of reliable evidence, with an exercise of discretion

by the trial judge, was required. /d., at 244.

On an issue closely related to the present question, the

Supreme Court of New Jersey excluded evidence from a sodium

amytal interview in State v. Pitts, supra, 562 A. 2d, at 1350.

Applying its rule of tolerance but not license from State v.

Davis, supra, the New Jersey court upheld the trial judge’s

“balancing the potential impact of the proposed testimony against

its apparent unreliability.” Jbid.

In case after case, we see the same principle applied. Limits

on evidence at sentencing are relaxed, but not entirely aban-

doned. The holding of the Court of Appeals in the present case

is Certainly a distinct minority view, to say the least.

Il. The Court of Appeals’ Teague analysis conflicts with

relevant decisions of this Court.

The Court of Appeals’ analysis of the Teague issue in this

case, in its entirety, consists of this:*

“Nor did the district court announce any ‘new rule’

not recognized as generally applicable at the time of

Rupe’s trial and hence not applicable in habeas proceed-

ings. See Teague v. Lane, 489 U.S. at 305-310, 109

S.Ct. at 1073-1075. The district court endeavored,

faithfully and successfully, to follow earlier announced

constitutional standards of general applicability stemming

from Lockett and Eddings. See, e.g., Bartholomew, 101

Wash.2d 631, 683 P.2d 1079.” Rupe v. Wood, 93 F. 3d

1435, 1440-1441 (CA9 1996).

This is precisely the view of “new rules” rejected by this

Court over six years ago in Butler vy. McKellar, 494 U. S. 407

(1990), Saffle v. Parks, 494 U.S. 484 (1990), and Sawyer v.

Smith, 497 U.S. 227 (1990). To find such a fundamental

misunderstanding of a major doctrine this late in its development

is Surprising, to say the least.

The Court of Appeals’ focus on whether the District Court

faithfully endeavored to apply general principles in this Court’s

precedents is utterly misplaced in a Teague analysis. The correct

question is “whether a state court considering [Rupe’s] claim at

the time his conviction became final would have felt compelled

by existing precedent to conclude that the rule [he] seeks was

required by the Constitution.” Saffle, 494 U. S., at 488 (empha-

sis added). Conversely, could reasonable minds have differed on

4. Teague v. Lane, 489 U. S. 288 (1989) (plurality). Petitioner raises the

Teague issue in the body of the petition, although not in the Questions

Presented. See Pet. for Cert. i, 12-13, n. 5. The Teague issue is “fairly

included” in the underlying question. Caspari v. Bohlen, 127 L. Ed. 2d

236, 245, 114 S. Ct. 948, 953 (1994). The state does not raise the

Antiterrorism and Effective Death Penalty Act of 1996. In the context

of the present case, a question of “pure law” (not a “mixed question”)

resolved on the merits by the state court, 28 U.S.C. §2254 new

subdivision (d) appears to be largely a codification of Teague, and its

applicability would not change the result.

the point? See Butler, 494 U. S., at 415. A division of authori-

ty among jurisdictions is powerful evidence that they could,

ibid., and state court decisions count as much as federal in this

analysis. Caspari v. Bohlen, 127 L. Ed. 2d 236, 249, 114

S. Ct. 948, 956 (1994); see also Sawyer, 497 U.S., at 237

(contrary decision of state court supporting “newness” of later

rule).

Despite the mandate of Butler, Sawyer, and Caspari to

consider views of other jurisdictions in determining the reason-

ableness of the state court’s position, the Court of Appeals in this

case simply stuck its head in the sand. A substantial body of

contrary authority exists, as demonstrated in the previous section

of this brief and in the Petition for Writ of Certiorari. Indeed,

the District Court opinion affirmed by the Court of Appeals

noted and expressly disagreed with the considered opinion of a

sister circuit. See Rupe v. Wood, 863 F. Supp. 1315, 1339 (WD

Wash. 1994). Yet the Court of Appeals’ opinion on the poly-

graph point does not mention a single decision of a circuit other

than itself or a state other than Washington. See Rupe, supra, 93

F, 3d, at 1439-1441. This parochialism is squarely contrary to

this Court’s Teague precedents.

The Court of Appeals’ opinion is also contrary to Sawyer, in

that it distills a specific rule from a general principle and

declares that the resulting rule is not “new.” Sawyer held that

the fact that Caldwell v. Mississippi, 472 U. S. 320 (1985) “was

‘rooted’ in the Eighth Amendment command of reliable sentenc-

ing” derived from Lockett, Eddings, and other cases did not

“suffice[] to show that Caldwell was not a new rule.” Sawyer,

497 U. S., at 235-236. The Teague “test would be meaningless

if applied at this level of generality.” /d., at 236. Yet in the

present case, the Court of Appeals brushes aside the Teague

objection by saying “The district court endeavored, faithfully and

successfully, to follow earlier announced constitutional standards

of general applicability stemming from Lockett and Edwards.”

Rupe, supra, 93 F. 3d, at 1440-1441 (emphasis added).

The whole point of Sawyer is that general standards yield

“new rules” within the meaning of Teague when they crystalize

into specific rules, so long as reasonable minds could differ

whether those rules really do follow from the standards. The

10

assertion that Lockett mandates the admission of unreliable

evidence is a prime example.

None of the Supreme Court cases cited by the Court of

Appeals focused on reliable versus unreliable evidence, because

that question was not presented by the facts. General statements

in these opinions, therefore, should not be considered controlling

in a case where the issue is actually presented. Cohens v.

Virginia, 6 Wheat. 264, 399-400 (1821).

Lockett and Eddings were not evidence cases at all. The

mitigating facts were placed before the sentencer, and the only

question was whether the sentencer could consider them. Lockett

v. Ohio, 438 U. S. 586, 589-590 (1978) (prosecution’s case

showed Lockett to be a minor accomplice); Eddings v. Oklaho-

ma, 455 U. S. 104, 107-109 (1982). Skipper v. South Carolina,

476 U. S. 1 (1986) did involve evidence, but it was competent

evidence excluded on the sole basis that it was irrelevant. /d.,

at 3.° Thus, Skipper’s statement of a “corollary rule” to

Eddings, “that the sentencer may not... be precluded from

considering ‘any relevant mitigating evidence,’ ” id., at 4, must

be considered in that context.

Further evidence that Skipper is narrower than the Court of

Appeals’ interpretation of it can be seen in the way that it dealt

with the state’s attempts to save the trial judge’s ruling. First,

the state argued that the proffered evidence was “incompetent lay

opinion testimony” and that its exclusion “was no more than an

evenhanded application of rules restricting the use of opinion

testimony.” /d., at 5-6. If Lockett really trumped all rules of

evidence but relevance, that would have been the simple and

obvious answer to this argument. Instead, the Skipper Court

held that this evidence was not opinion. /d., at 6. Skipper also

notes without any hint of disapproval that another witness’s

opinion had been excluded. /bid.

Second, the state argued that the proffered evidence was

merely cumulative. /d., at 7. Again, if Lockett had wiped out

the discretion of trial judges to exclude cumulative evidence, cf.

5. “Petitioner also sought to introduce testimony of two jailers and one

‘regular visitor’ to the jail to the effect that petitioner had ‘made a good

adjustment’ during his time spent in jail.” /bid.

11

Fed. Rule Evid. 403, that would have been the simple answer.

Instead, Skipper held that on the facts of the specific case the

evidence could not be considered merely cumulative. /d., at 8.

The manner in which Skipper deals with these issues implies

that objections to mitigating evidence based on rules other than

relevance may still be made and sustained in capital sentencing

proceedings. Certainly it would not be “an illogical or even a

grudging application” of Skipper. See Butler v. McKellar,

supra, 494 U.S., at 415. Particularly with regard to such

notoriously unreliable categories as hearsay, lay opinion, and

“junk science,” a certain degree of control over evidence can be

seen as more faithful to the principle of accurate sentencing

information, see Gregg v. Georgia, 428 U. S. 153, 190 (1976)

(lead opinion), than is the Ninth Circuit's “anything goes” rule

in the present case.

The courts which have interpreted the Lockett/Eddings/

Skipper line of cases to permit exclusion of unreliable evidence

have rendered reasonable interpretations of this Court's prece-

dents. Brushing off Teague with the simplistic statement that the

District Court did a good job interpreting precedent, Rupe v.

Wood, supra, 93 F. 3d, at 1440-1441, the Court of Appeals runs

roughshod over the principle of that doctrine. This departure

from binding precedent is an appropriate ground for a writ of

certiorari under Supreme Court Rule 10(c).

III. The decision in this case threatens the integrity and

reliability of capital sentencing.

On its face, the opinion in the present case creates only a

unilateral rule in favor of the defendant. Yet it would be a

mistake to believe that defendants will not feel the sting of the

same rule operating in reverse. The creation of a rule for one

side creates a strong hydraulic pressure to allow the other side

the benefit of the same or a similar rule. Payne v. Tennessee,

501 U. S. 808 (1991), permitting emotion-laden “victim impact”

testimony, was based in large part on the fact that the combina-

tion of the Eddings rule and Booth v. Maryland, 482 U. S. 496

(1987) had “unfairly weighted the scales in a capital trial.”

Payne, 501 U.S., at 822; see also id., at 839 (Souter, J.,

12

concurring) (“significantly imbalanced process”). Similarly,

although not stated in the opinion in Georgia v. McCollum, 505

U.S. 42 (1992), there can be little doubt that the inherent

unfairness of a one-sided application of Batson v. Kentucky, 476

U. S. 79 (1986) was a factor in that decision.

Outside the specific guarantees of the Bill of Rights, the

federal Constitution has little to say about the admissibility of

evidence, see Dowling v. United States, 493 U.S. 342, 352

(1990), even in capital cases. Romano v. Oklahoma, 129

L. Ed. 2d 1, 10, 114 S. Ct. 2004, 2009 (1994). If the door is

thrown wide open to “junk science” for the defendant, states will

be largely free to admit it for the prosecution. One state high

court, at least, has already said it would. “If polygraph results

were available to defendants when deemed favorable to their

cause, an equal entitlement should be accorded the prosecutor

when favorable to the state’s case.” Emil v. State, 784 P. 2d

956, 960 (Nev. 1989). A technique supported by a small

minority in the field but denounced by the vast majority of

scientists as almost useless will then be admissible as evidence.

Voice stress tests, for example, have been uniformly denounced

by courts. See Annot., Admissibility of Voice Stress Evaluation

Test Results or of Statements Made During Test, 47 ALR 4th

1202, 1207-1210 (1986) (collecting cases). Yet the present case

would mandate their admission for defendants, and their

admission against defendants will not be far behind. The same

will be true of every new technique with even a scintilla of

probative value.

A doctrine that began by emphasizing “a vital need for

accurate information to impose a rational sentence,” Gregg v.

Georgia, 428 U.S. 153, 190 (1976) (lead opinion) (emphasis

added), has been twisted into just the opposite.

IV. The Ninth Circuit’s decision in this case would

invalidate the federal death penalty.

If the decision in the present case is correct, then 18 U. S. C.

§ 3593(c) is unconstitutional. Conversely, if that statute is

constitutional, the decision below is incorrect.

13

“Information is admissible regardless of its admissibility

under the rules governing admission of evidence at

criminal trials except that information may be excluded

if its probative value is outweighed by the danger of

creating unfair prejudice, confusing the issues, or

misleading the jury.” 18 U. S. C. §3593(c).

This language is lifted from Federal Rule of Evidence 403,

with two significant omissions. The word “substantially” before

“outweighed” has been dropped, as has the “waste of time”

clause at the end of the Rule. The first omission implies a

greater authority in the trial judge to exclude evidence, see

United States v. Nguyen, 928 F. Supp. 1525, 1547 (DC Kan.

1996), while the second is not material to the present case. Rule

403 authorizes trial judges to exclude unreliable evidence on the

ground it may mislead the jury. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (quoting

Weinstein, Rule 702 of the Federal Rules of Evidence is Sound;

It Should Not Be Amended, 138 FRD 631, 632 (1991)).

“Polygraph evidence has often been excluded on a Rule 403

analysis,” because of its false aura of infallibility. Berger,

Evidentiary Framework, in Reference Manual of Scientific

Evidence 115, n. 330 (Federal Judicial Center 1994).

Congress has expressly decided to extend this Rule 403

authority to the penalty phase of capital cases, and perhaps even

strengthen it. “Thus, any evidence presented must be relevant,

reliable and its probative value must outweigh any danger of

unfair prejudice.” Nguyen, 928 F. Supp., at 1546 (emphasis

added).° If Congress’s decision is to be struck down, it should

be done with considerably more thought than appears to have

gone into the Court of Appeals’ opinion in the present case.

Other examples of ill effects of this decision can be imag-

ined, but these should suffice. The exclusion of some evidence,

despite its relevance, is a long-established feature of Anglo-

American jury trials. Arguments can be made about whether

and to what extent these rules should be loosened for jury

6. Interestingly, the defendant in Nguyen attacked the federal evidence

standard as being not restrictive enough. Ibid. This may be the latest

variant of the Scylla and Charybdis attack on capital punishment.

14

sentencing, as opposed to guilt determination. The Court of

Appeals’ opinion in the present case, however, just sweeps away

the entire body of evidence law, with no apparent heed for the

consequences. This must not stand.

CONCLUSION

The petition for writ of certiorari should be granted.

December, 1996

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation