# Amicus Curiae Brief — McGautha v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 183 ## Text A. i ee biti dics reraiinndiie C. The penalty trial_.............. D. Co-defendant’s case on punish- E F G H . McGautha’s case on punishment. . Closing arguments............-- . Jury instructions on punishment. . . Jury deliberations, verdict, and D. Jury instructions---.........--- E. Verdict and sentence..........-- ‘Argument: I. The United States Constitution does not _ require that state legislatures prescribe statutory standards to guide or govern wrt es & Co omnc No} 10 11 15 17 17 18 25 Argument—Continued I. The United States Constitution—Con- tinued A. Historically, sentencing discre- tion, whether entrusted to judge or jury, in capital and non- capital cases, has not depended on legislative criteria: 1. Introduction: The attack on “standardless” sen- tencing in these cases implicates all felony sen- 2. Jury sentencing discretion is firmly established in American criminal law: (a) Jury-sentencing in non-capital (b) Jury-sentencing in capital cases_ B. Jury discretion in capital cases serves a legitimate governmen- C. Juries can and do function ration- ally without explicit legislative standards on capital sentencing. D. The present system of jury dis- cretion in capital sentencing does not violate any constitu- tionally protected interest of II. Neither the privilege against self-incrimi- nation nor the due process clause re- quires separate trials on the issues of guilt and punishment in every capital Ill Argument—Continued Il. Neither the privilege—Continued A. The unitary trial is the estab- lished and approved mode for even complex criminal cases -- B. A statute allowing the jury in a capital case to fix punishment as part of a single-stage guilt trial does not violate the privi- lege against self-incrimination - - 1. A defendant has no consti- tutional right to offer his personal testimony limit- ed to the issue of punish- 2. The defendant in a unitary capital trial can present mitigation evidence through witnesses other than himeelf...-....-- 3. The unitary tria! procedure does not imperinissibly burden the exercise of C. A statute which authorizes the jury in a capital case to fix pun- ishment in light of the evidence adduced at a one-stage trial on guilt is fundamentally fair- -- - - 1. A state may rationally de- termine that a sentence for murder should be based on the circum- stances of the crime it- Page 91 102 107 - ETT ERI TS Argument—Continued II. Neither the privilege—Continued C. A statute which—Continued 2. Even at a murder trial confined solely to guilt, sufficient facts about the defendant emerge to per- mit intelligent sentenc- 3. A separate hearing con- fined to penalty may affirmatively disadvan- tage defendants________ Conia nests sitind die nenceaknnteancees Appendix A: Statutes involved _---...----...__. Appendix B: Initial introduction of jury discretion to set life sentence for murder and/or other capi- tal offenses (none providing statutory stand- SID ai kn dah init Od ARO RED Kndmngnchnkenne Appendix C: States authorizing jury to exercise discretion in unitary trial to set sentence for murder at death or life imprisonment (none pro- viding statutory standards) -_____...__-_____- Appendix D: States authorizing jury to exercise discretion in separate, post-guilt proceeding to set sentence for murder at death or life imprison- ment (none providing statutory standards) ____- , Appendix E: Federal civil statutes authorizing discretion in imposing capital punishment (none providing statutory standards) -__--_.....---- Appendix F: Offenses under the Uniform Code of Military Justice punishable by death or such other punishment as a court martial may direct - Appendix G: Model Penal Code § 210.6. _--........------. Study Draft of a New Federal Criminal Code 111 114 125 126 128 132 136 14] ¥ Cases: CITATIONS Anderson, In re, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968)..-..-.-....----- 46 Andres v. United States, 333 U.S. 740 (1948).. 38, 39, 41, 47 Andrews v. Schwartz, 156 U.S. 272 (1895) __-_- 80 Ashbrook v. State, 49 Ohio App. 298, 197 N.E. DRG CRUE s wamcescnccconcvecaticdusecus 100 Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567 (ieee ncn a slicnccaccudncabekuuas haus 46 Baldwin v. New York, 399 U.S. 66 (1970). 45, 63, 75 Bell v. Patterson, 279 F. Supp. 760 (D. Colo.), affirmed, 402 F. 2d 394 (C.A. 10, 1968)_... 29, 46, 85, 86, 87, 99 Betts v. Brady, 316 U.S. 455 (1942)___...__- 28 Brady v. United States, 397 U.S. 742 (1970)__ 102, 103 Brown v. Walker, 161 U.S. 591 (1896)-_..__-- 96 Brown v. United States, 356 U.S. 148 (1958)_. 98 Bruton v. United States, 391 U.S. 123 (1968)_. 67, 92 Calloway v. United States, 399 F. 2d 1006 (C.A.D.C.), certiorari denied, 393 U.S. 987 Calton v. Utah, 130 U.S. 83 (1889)_____-- 38, Carter v. Jury Commission of Greene County, S06 UD. SEO (IGF i cso ec Coleman v. Alabama, 389 U.S. 22 (1967) _ _ -_- Coleman v. United States, 334 F. 2d 558 Ces Sncaneccasesnanntitnaden Coleman v. United States, 357 F. 2d 563 Cele WOU ac nw alndds cuatunesdeoante Commonwealth v. Bell, 417 Pa. 291, 208 A. 2d GPG os Cancecdbadncbuvscdeieuceddnen 118 Commonwealth v. Ross, 413 Pa. 35, 195 A. 2d Ge We cabtbnlatasdiduunctccendacasun 43 Contee v. United States, 410 F. 2d 249 PSs MERe cikidcacdukiccebeanuabe 85 S$ S$ &R BSB Cases—Continued he Cook v. Willingham, 400 F. 2d 885 (C.A. 10, Co a et eee Es ee? Sen 79 Crow Dog, Ex parte, 109 U.S. 556 (1883)... 3 Duisen v. State,—Mo.—, 441 S.W. 2d 688 (BQG0).....---.....-.-.---.-------- +. 47, 60 Duncan v. Louisiana, 391 U.S. 145 (1968)... 63, 67 Ernst, Petition of, 294 F. 2d 556 (C.A. 3), certiorari denied, 368 U.S. 917 (1961)---- 46, 100 Ferguson v. Georgia, 365 U.S. 570 (1961) -- 93, 96, 100 Fitzgerald v. Peyton, 303 F. Supp. 467 (W.D. Wa. BOB. cai ohn 2 eas eh be dh nk ees 31 Florida ex rel. Thomas v. Culver, 253 F. 2d 507 (C.A. 5), certiorari denied, 358 U.S. PR ac5s ch ceaecoensnvenasseanens 46 Frady v. United States, 348 F. 2d 84 (C.A.D.C.), certiorari denied, 382 U.S. 909 CRB oGS1LL. 205 ~ enol dthi-cenwe 88, 90, 115, 123 Frank v. United States, 395 U.S. 147 (1969).. 110 Giaccio v. Pennsylvania, 382 U.S. 399 (1966).. 31 Gideon v. Wainwright, 372 U.S. 335 (1963) -- Gohlston v. State, 143 Tenn. 126, 223 S.W. 839 ead eeeenacnnnedagnneeh 35 Gore v. United States, 357 U.S. 386 (1958)... 80 Gregg v. United States, 394 U.S. 489 (1969).. 79 99 95 8 Harrison v. United States, 392 U.S. 219 (1968) - Hill v. United States, 368 U.S. 424 (1962) -_-_- Holmes v. United States, 363 F. 2d 281 (C.A. ES y tte Pe aR 88 Howard v. Fleming, 191 U.S. 126 (1903) ---.-- 82 Hunter v. State—Tenn.—, 440 S.W. 2d 1 (GT ORR aise a LES Eres een 47, 60 Jackman v. Rosenbaum Co, 260 U.S. 22 (1922). 44 Jackson v. Denno, 378 U.S. 368 (1964) ---.---- 67 Jackson v. State, 225 Ga. 790, 171 S.E. 2d 501 tinued Page Johnson v. Commonwealth, 208 Va. 481, 158 S.E. 2d 725 (1968), petition for certiorari dismissed pursuant to Rule 60, 396 U.S. G88 (10BD) .. ..ccccaccccdcescnoscene---- 47, 88 Johnaon v. United States, 225 U.S. 405 (1912). 82 Jones v. Staie, 416 8.W. 2d 412 (Tex. Crim. App. 1967)....------------------------- 123 Kemmier, In re, 136 U.S. 436 (1890)-..------ 32 Louisiana ex rel. Francis v. Resweber, 329 U.S. 488 (1069). .0 cncccnccccncccccccetnsesee 32 McCants v. State, 282 Ala. 397, 211 So. 2d 877 (1968), pending on petition for certiorari, No. 5009 Misc., O.T. 1970...-.---------- 46 McKane v. Durston, 153 U.S. 684 (1894) ----- 80 McMann v. Richardson, 397 U.S. 759 (1970) .......------------------------ 102, 103 Manor v. State, 223 Ga. 594, 157 S.E. 2d 431 | hig staligpedie aieendlaninbien > 61 Mathis v. State, 283 Ala. 308, 216 So. 2d 286 (1968) ......-.----------+-------------- 88 Marwell v. Bishop, 398 F. 2d 138 (C.A.8, 1968), vacated, 398 U.S. 262 (1970)--.---- 46, 87 Miller v. State, 224 Ga. 627, 163 S.E. 2d 730 (1008) icin cnwinddncscnareenasoneente onan 46 North Carolina v. Pearce, 395 U.S. 711 (1969) +5, 82, 108 0’Callahan v. Parker, 395 U.S. 258 (1969).... 140 Parker v. North Carolina, 397 U.S. 790 (1970). 102 Parman v. United States, 399 F. 2d 559 (C.A. D.C.), certiorari denied, 393 U.S. 858 (1968)...--.--------------------------- 85 People v. Bandhauer, 1 Cal. 3d 609, 83 Cal. Rptr. 184, 463 P. 2d 408 (1970)---------- 61 People v. Dusablon, 16 N.Y. 2d 9, 261 N.Y.S. 2d 38, 209 N.E. 2d 90 (1965) -.------------ 121 Cases—Continued People v. Fitepatrick, 308 N.Y.S. 2d 18 (Co, Ct. 1970) wow nennenennsensonnecnne-astns 47 People v. Floyd, 1 Cal. 3d 694, 83 Cal. Rptr. 608, 464 P. 2d 64 (1970)__---.------___. 118 ‘People v. Hicks, 287 N.Y. 165, 38 N.E. 2d ks 2k reed iereg tremens Aun mek oe SRC 2 7 People v. Hurst, 42 Ill. 2d 217, 247 N.E. 2d GR ice cknkeacsececcpetseadiscscs 123 People v. Kelley, 44 Ill. 2d 315, 255 N.E. 2d Sr eee ica Ghent ititeedss coe 123 People v. McGautha, 70 Cal. 20770, 76 Cal. Rptr. 434, 452 P. 2d 650 (1969), certiorari granted, 398 U.S. 936 (1970)......_...__- 1 People ex rel. McKevitt v. District Court, —Colo.—, 447 P. 2d 205 (1968) ____--- 88, 95, 99 Pope v. United States, 372 F. 2d 710 (C.A. 8, 1967), vacated, 392 U.S. 651 (1968)__ 46, 88, 113 Pope v. United States, 392 U.S. 651 (1968)... 138 Powell v. Alabama, 287 U.S. 45 (1932)_.---- 28 Powell v. Texas, 392 U.S. 514 (1968) _---_--- 110 Raffel v. United States, 271 U.S. 494 (1926)... 9% Reid v. Covert, 354 U.S. 1 (1957)_..--------- 28 Schwab v. Berggren, 143 U.S. 442 (1892).... % Scott v. United States, 419 F. 2d 264 (C.A.D.C. 1969) __...--- ois i hd eb A AS bg Dee 48, 80 Segura v. Patterson, 402 F. 2d 249 (C.A. 10, SEs « cnbincede tee sdeene 46, 62, 87, 95, 99, 106 Simmons v. United States, 390 U.S. 377 (1968). 98 Sims v. Eyman, 405 F. 2d 439 (C.A. 9, 1969). 46, 109, 111, 112, 116 Smith v. State, 487 S.W. 2d 835 (Tex. Crim. SE Cth es cane bode a cae nse kate 122 Solesbee v. Balkcom, 339 U.S. 9 (1950) -_------ 29, 79 Specht v. Patterson, 386 U.S. 605 (1967).. 79, 93, 94 Spencer v. Texas, 385 U.S. 554 (1967) - ------ 31, 38, 44, 67, 84, 86, 92, 98, 115, 116 — Ix ntinued Page State v. Crampton, 18 Ohio St. 2d 182, 248 N.E. 2d 614 (1969), certiorari granted, 398 U.S. 986 (1970). -.-.------------------------ 2, 100 State v. Forcella, 52 N.J. 263, 245 A. 2d 181 (1968), pending on petition for certiorari, No. 5011 Misc., O.T. 1970_. 47, 69, 88, 115, 116 State v. Johnson, 34 N.J. 212, 168 A. 2d 1, appeal dismissed, 368 U.S. 145, certiorari denied, 368 U.S. 933 (1961)---.---------- 29, 47 State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297 (1969) ...-.----++--=+--+----------- 47, 88, 95 State v. Latham, 190 Kan. 411, 375 P. 2d 788 (1962), certiorari denied, 373 U.S. 919 (1963) - 47 State v. Maloney, 105 Ariz. 348, 464 P. 2d 793 (1970) «o sennnns- nn ccewnest---pspeesrs- 81 State v. Roseboro, 276 N.C. 185, 171 S.E. 2d 886 (1970), pending on petition for certiorari No. 5178 Misc., O.T. 1970__------------- 47, 61 State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571 (1969), pending on petition for cer- tiorari, No. 5034 Mise., O.T. 1970... 47, 69, 123 State v. Walters, 145 Conn. 60, 138 A. 2d 786, appeal dismissed and certiorari denied, 358 ee Ff: | ee rere: eee 46 State v. Worthy, 239 N.C. 449, 123 S.E. 2d 835 (ROD iain wits dob pce -nacsdwnesnnsonnsss 61 Stephens v. Turner, 421 F.2d 290 (C.A. 10, | a ee es are enn 48, 82 Trop v. Dulles, 356 U.S. 86 (1958)----------- 65 United States v. Chapman, 420 F. 2d 925 (C.A. GS I ain oak ctecncencincncnsceasstness 79 United States v. Curry, 358 F. 2d 904 (C.A. 2), certiorari denied, 385 U.S. 873 (1966). 87, 88, 115 United States v. Gross, 416 F. 2d 1205 (C.A. 8, 1969), certiorari denied, 397 U.S. 1013 79 ee Cases—Continued 0 ie United States v. Huff, 409 F. 2d 1225 (C.A. 5), © certiorari denied, 396 U.S. 857 (1969) _- ___ 85, 9g United States v. Jackson, 390 U.S. 570 (1968). 33, 87, 115, 117, 138 United States v. Kee Ming Hsu, 424 F. 2d 1286 ay EES Spat pei ett ae petty 79 United States ex rel. Scoleri v. Banmiller, 310 F. 2d 720 (C.A. 3, 1962), certiorari denied, ee 01 I conan eensccaskse cts 88 United States ex rel. Smith v. Nelson, 275 F. Supp. 261 (N.D. Calif. 1967)_.....-.....- 46 United States ex rel. Thompson v. Price, 258 F. 2d 918 (C.A. 3), certiorari denied, 358 U.S. ip al ap ly | ab lig el 3 amo hep 87 United States v. Trigg, 392 F. 2d 860 (C.A. 7), certiorari denied, 391 U.S. 961 (1968) _____- 79 United States v. White, 225 F. Supp. 514 CE Metre cnc oekcbate eset suas 115 Walz v. Tax Commission, 397 U.S. 664 (1970).. 43 Ward v. California, 269 F. 2d 906 (C.A. 9, ee ee ee eee adeheacsd 121 Washington v. Texas, 388 U.S. 14 (1967)_--. 100 Weems v. United States, 217 U.S. 349 (1910)__ 109 Wilkerson v. Utah, 99 U.S. 130 (1879) -___-_- 32, 38 Williams v. Florida, 399 U.S. 78 (1970) _-_ 45, 68, 105 Williams v. New York, 337 U.S. 241 (1949). 26, 28, 79, 93, 94, 109, 121 Williams v. Oklahoma, 358 U.S. 576 (1959)-..27, 79, 93, 109 Williams v. Oklahoma City, 395 U.S. 458 Wilson v. State, 225 So. 2d 321 (Fla. 1969) ___ 46, 61 Winston v. United States, 172 U.S. 303 (1899).. 38, 39, 54, 61, 62 Witherspoon v. Illinois, 391 U.S. 510 (1968)_- 32, 38, 64, 65, 66 xI Federal Statutes and Rules: hited Act of January 15, 1897, c. 29, 29 Stat. 487_._ 129 Act of March 22, 1962, Pub. L. 87-423, EL APP RN is bite tine wannwadbdosmtaatlens 131 Alaska Criminal Code, Act of March 3, 1899, -c. 429, 30 Stat. 1253... ....-2.-.22-_-- 8. 129 D.C. Code Ann. § 22-2404 (1967)_...._____- 133 Pod. BR. Card. GO) s.... ..2i05di.2 86 a e ” Sy es eee eee ee 86, 87 - Fed. B. Cot PS ki 2. cect 95 Uniform Code of Military Justice: Art. 85, 10 U.S.C. § 885....._..__.___- 140 Art. 90, 10 U.S.C. § 890____.___._____- 140 Ast. 04, 10.U B00. 6608... 2i.6 cel 140 Art. 99, 10 U.S.C. § 899__......._____- 140 Art. 100, 10 U.S.C. § 900___....._____- 140 Art. 101, 10 U.S.C. § 901___....._____- 140 Art. 102, 10 U.S.C. § 902_...___.____-_- 140 Art. 104, 10 U.S.C. § 904._._..._.____- 140 Art. 106, 10 U.S.C. § 906__.__________- 140 Ast. 2 De ae eee... «nw n~----... 140 Ast. 138,130 USA $9182.22. 2.5... 140 Ant..306, 10 UBC: § O16............... 140 Art. 120, 10 U.S.C. § 920_..._._______- 140 Bets Weer lt ili sis ne 139 NE OS ee ean Oe tes Qe ae 139 OR ee | RCSL pee rept eet Grane 138 es Oe ics Zc 139 We SA. no Bi ow ldecs us 139 ie Meee RUN edi cues lasek 138 Beene Beebe ke cl ccdioiu ius 139 Re eres DIRS oben i clad edb 139 ears BEL be cleiide eet cwsuls 139 Ie ae We oh ace een l. ockci.t 139 be ti | a a a go a a 138 Ne, We uot i aye 139 We ae Os Chain ah ene Ghatiad 138 Federal Statutes and Rules—Continued 2 UBC. $1967G)e- 2. Sone sseeccduag 28 DBAS § WOhei) 225i ci see i. URE BOO i uke es 3 UBC 4O0G) see ct we Pe EE EE ae State Statutes and Rules: Ala. Code tit. 14, § 318 (1958)_.....----.__- 132 Ala. Penal Code of 1841, Acts 1841, p. 122... 198 Alaska Stat. § 11.15.010 (Supp. 1968)__.__.. 132 Alaska Stat. § 11.15.020 (Supp. 1968)__..... 132 Ariz. Terr. Acts 1885, No. 70_.....---.--.-- 129 Ariz. Rev. Stat. Ann. § 13-453 (1956)______- 132 Ark: Atte WO16, BOCHT 022 ised sal. 130 Ark. Stat. § 41-2227 (1964)_._...._...______ 132 Ark. Stat. § 43-2153 (1964) _.........-.___. 132 Cal. Amendatory Acts 1873-1874, ch. 508___ 37, 129 Cal. Penal Code § 190 (West, Supp. 1970)_ 2, 126, 136 Cal. Penal Code § 190.1 (West, Supp. 1970).. 2,4, 86, 118, 126, 136 Cal. Penal Code:§ 2086. .o..22.5.004.1.u5.. 86 Cal. Stat. 1957, ch. 1968, p. 3509__-_...___- 136 Colo. Laws 1901, ch. 64. ....-..----------- 129 Colo. Rev. Stat. § 40-2-3 (1963)_......._--- 132 Conn. Gen. Stat. § 53-10 (1968)_.-...-_---- 136 Conn. Penal Code §. 90. ......5....2....... 42 Conn. Penal Code, Pub. Acts 1969, No. 828_ 119, 136 Conn. Pub. Acts 1951, No. 369_._...-_----- 131 Conn. Pub. Acts 1963, No. 588__....------- 136 Dakota Terr. Laws 1883, ch. 9___---------- 129 Del. Code Ann. tit. 11, § 571 (Supp. 1968)... 132 Del. Code Ann. tit. 11, § 3901 (Supp. 1968)_._ 132 Dal. Lawe 10917, cb. 906... ....4.25.....2.i. 130 Fla. Acts 1872, No. 15, ch. 1877__..-------- 129 xi State Statutes and Rules—Continued Fla. Stat. Ann. § 782.04 (1965) Fla. Stat. Ann. § 919.23 (1944) Ga. Acts 1866, No. 208 Ga. Acts 1866, No. 210 Ga. Code Ann. § 26-1101 (Supp. 1969) Ga. Code Ann. § 26-3102 (Supp. 1969) Ga. Code 1861, § 4220 Ga. Criminal Code, Laws 1968, p. 1249 Ga. Laws 1970, No. 1333 Hawaii Laws 1955, Act 239. ____....______- Hawaii Rev. Stat. § 748-4 (1968) Ida. Code § 18-4004 (1948) Ida. Gen. Laws 1911, ch. 68 Ml. Ann. Stat: ch. 38, § 1-7 (Smith-Hurd, . & 123, 133 Ill. Ann. Stat. ch. 38, § 9-1 (Smith-Hurd, Ill. Criminal Code, Laws 1961, p. 1983 iil. Pub. Laws 1867, p. 90 Iowa Code Ann. § 690.2 (Supp. 1969) Towa Laws 1878, ch. 165 Ind. Ann. Stat. § 9-1819 (1956) Ind. Ann. Stat. § 10-3401 (1956) Ind. Rev. Stat. 1881, § 1904 Kan. Criminal Code, Laws 1969, ch. 180 Kan. Laws 1935, ch. 154 Kan. Stat. Ann. § 21-3401 (Supp. 1969) Kan. Stat. Ann. § 21-4501 (Supp. 1969)__._ 89, 133 Kan. Stat. Ann. § 21-4606 (Supp. 1969) Kan. Stat. Ann. § 21-4607 (Supp. 1969) Ky. Gen. Stat. 1873, ch. 29 Ky. Pub. Acts 1869, ch. 1659 Ky. Rev. Stat. § 435.010 (1969) Ky. R. Crim. P. § 9.84 (1969) La. Acts 1846, No. 139 La. Code Crim. P. Ann. art. 817 (West 1967). 133 xIV State Statutes and Rules—Continued gis La. Stat. Ann. § 14.30 (1951)_-..-.....____. 133 Me. Rev. Stat. Ann. tit. 17, § 2651 (1964) ___ Md. Ann. Code art. 27, § 413 (1967). __..__. Md. Laws 1916, ch. 214.___....---_-.____. Mass. Acts 1951, ch. 203..-...----.--.._._. Mass. Ann. Laws ch. 265, § 2 (1968)_._.___- Mich. Comp. Laws § 750.316 (Supp. 1970). _. Minn. Gen. Laws 1868, ch. 88_.........___. Minn. Stat. Ann. § 609.185 (1964). __.._____ Miss. Code Ann. § 2217 (1956) _-_-._..-___. Miss. Code Ann. § 2536 (1956). ..-......__. Mies. Laws 1872, ch. 76... .........-...-... Mo. Ann. Stat. § 546.410 (1953)_.......____ Mo. Ann. Stat. § 559.030 (1959)_.......____ REO. DOWD BEG, Br DOG: on ennnnnctstsosands Mont. Laws 1907, ch. 179...........-.....- Mont. Rev. Codes § 94-2505 (1969)_..______ Neb. Laws 1893, ch. 44.....-...-.-._--___- Neb. Laws 1969, ch. 213____....------- 42, 90, 134 Neb. Rev. Stat. § 28-401_.._..-.._...____- Nev. Rev. Laws 1912, § 6386__..._...._____- Nev. Rev. Stat. § 200.030 (1969) ___._.____- PU Ee. Ree BOR Gs BEE sisi, cic cininive wetions N.H. Rev. Stat. Ann. §585:4 (1955)__...___- N.J. Pub. Laws 1916, ch. 270_._.._..-____-- N.J. Stat. §2A: 113-4 (1951)._...__....___- N.M. Laws 1939, ch. 49......-......-----.- N.M. Laws 1969, ch. 128__..........-- 42, 90, 134 N.M. Stat. Ann. §40A-2-1 (1964).._______- 134 N.M. Stat. Ann. §40A-29-2 (1964)._______- 134 N.M. Stat. Ann. §40A-29-2.1 (Supp. 1969).. 184 N.Y: Dawe 1007; Gi OT... Bid ene ndetbex 130 Iu. © Rae BOGE, Oh: GUE. sk cnc onde 136 N.Y. Penal Law §65.00 (1967)_........___-_- 42 N.Y. Penal Law § 125.30 (1967)......._._-- 136 N.Y. Penal Law § 125.35 (1967)...__.___- 119, 136 XV State Statutes and Rules—Continued N.C. Gen. Stat. §14-17 (1969) N.C. Sess. Laws 1949, ch. 299 ) N.D. Cent. Code § 12-06-06 (Supp. 1969).... 132 N.D. Cent. Code § 12-27-13 (1960) 93 Ohio Laws 223 (1898) Ohio Rev. Code Ann. § 2901.01 (Page 1954) ___ 2, 83, 127, 134 Ohio Rev. Code Ann. § 2947.05 (Page 1954). 95 Okla. Stat. Ann. tit. 21, § 707 (1958) Okla. Terr. Stats. 1890, ch. 25 Ore. Gen. Laws 1920, ch. 19 Ore. Rev. Stat. § 163.010 (1967) Pa. Laws 1794, ch. 257 Pa. Pub. Laws 1925, ch. 411 Pa. Pub. Laws 1959, No. 594 Pa. Stat. tit. 18, § 4701 (1963) R.I. Gen. Laws § 11-23-2 (1969) S.C. Acts 1878, No. 541 S.C. Acts 1894, No. 530 S.C. Code § 16-52 (1962) _- S.D. Comp. Laws § 22-16-12 (1967) §.D. Comp. Laws § 22-16-13 (1967) S.D. Comp. Laws § 23-48-16 (1967) Tenn. Code Ann. § 39-2405 (1956) Tenn. Code Ann. § 39-2406 (1956) Tenn. Laws 1837-1838, ch. 29 Tex. Acts 1965, ch. 722 Tex. Code Crim. P. Ann. art. 37.07 (Supp. 119, 137 Utah. Code Ann. § 76-30-4 (1953) Utah Penal Code of 1876, Comp. Laws 1876, 1910, No. 225 Vt. Stat. Ann, tit. 13, § 2303 (Supp. 1969)... 135 XVI State Statutes and Rules—Continued We. Rate 2006, Wee lpn ce coe cc ccce cd: 130 Va. Code § 18.1-22 (1960). _.---..----.___- 135 Va. Code § 19.1-250 (1960) .-.---------_ 135 Wash. Rev. Code § 9.48.030 (1956) _________ 135 Wash. Sess. Laws 1909, ch. 249.....________ 130 Wash. Sess. Laws 1919, ch. 112_-.._._______ 130 W. Va. Code 1870, ch. 159. ..---------.2-.- 128 W. Va. Code § 61-2-2 (1966)_..-....-..___. 132 Wis. Stat. Ann. § 940.01 (1958)_........____ 132 Wyo. Sess. Laws 1915, ch. 87...-..-..--._.. 130 Wyo. Stat. § 6-54 (1957). ..------------2. 135 Foreign Statute: Great Britain, Homicide Act of 1957, 5 & 6 By Oe Gh Be te Pitanickenescncccensess 54 Miscellaneous: Appellate Power to Reduce Jury-Determined Sentences, 23 Rutgers L. Rev. 490 (1969)_. 6 Appellate Review of Primary Sentencing De- cisions: A Connecticut Case Study, 69 Yale Ed IG as aa aeons cp ewevnades + o- American Bar Ass’n, Project on Minimum Standards for Criminal Justice: Standards Relating to Sentencing Alternatives and Procedures (Tent. Draft 1967)_........__- 28, 54 A.L.I., Model Penal Code (Tent. Draft No. 9, WED) nn Sin dc ivdcnwssnpicnws 34, 42, 57, 58, 61, 88 A.L.I., Model Penal Code (Proposed Official Draft 1062)............. 42, 56, 74, 75, 77, 88, 141 36 A.L.I., Proceedings (1959)........--- 57, 58, 116 Bedau, The Death Penalty in America (rev. OB, FOGG i Geedeeyenga aden cncaeens 34, 49, 60, 61 Bifurcated Trial Procedure and First Degree Murder, 3 Suffolk U.L. Rev. 628 (1969).. 117 Bradford, An Enquiry How Far the Punish- ment of Death Is Necessary in Pennsylvania TED ccoscscdcevevcaseqsscccsoncsceuum 34 xvi Miscellaneous—Continued California and Pennsylvania Courts Divide on Question of Admissibility of Details of Prior Unrelated Offenses at Hearing on Sentencing Under Split Verdict Statutes, 110 U. Pa. L. The Capital Punishment Controversy, 60 J. Crim. L., Criminol. & Pol. Sci. 360 (1969) - The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170 (1964) Dawson, Sentencing: The Decision As to the Type, Length, and Conditions of Sentence (Am. Bar Foundation 1969) 27, 42, 58, 60 Executive Clemency in Capital Cases, 39 N.Y.U.L. Rev. 136 (1964) Frankfurter, Of Law and Men (Elman ed. 69, 70, 112 George, Aggravating Circumstances in American Substantive and Procedural Criminal Law, 32 U.M.K.C.L. Rev. 14 (1964) Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773 (1970) Great Britain, Royal Commission on Capital Punishment 1949-1953, Report (1953) Great Britain, Select Committee on Capital Punishment, Report (1930) Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401 (1958) 405-388—70——2 xv Miscellaneous—Continued Jury Sentencing in Virginia, 53 Va. L. Rev. BG AED 4.00 Jd. §594. Mr. Justice Frankfurter had testified before the Commission: “May I say, with all respect, I do not under- stand the view that juries are not qualified to discriminate between situations calling for mitigated sentences.” See Frank- furter, Of Law and Men 87 (Elman ed. 1956). 71 jury trials. Their ultimate conclusion was a reaffirma- tion of the practical reliability of the jury system. With remarkable regularity, they found, the ad hoc jury decides the case the way the experienced trial judge would have." The authors posed three explana- tions to explain why the jury actually comes so close tp deciding in accordance with abstract norms (p. 498) : * * * [First], the official law has done pretty well in adjusting to the equities, and there is therefore no great gap between the official values and the popular. Again, the group nature of the jury decision will moderate and brake ec- centric views. Lastly, the jury is not simply a corner gang picked from the street; it has been invested with a public task, brought under the influence of a judge, and put to work in solemn surroundings. The final assessment of the jury’s performance, in light of the empirical data, is this (tbid.) : The jury thus represents a uniquely subtle distribution of official power, an unusual ar- rangement of checks and balances. It repre- sents also an impressive way of building discre- tion, equity, and flexibility into a legal system. The data on jury behavior in capital cases illustrate this rationality and judgment. The two types of situ- And to the extent there is disagreement, the jury is eight times more likely to opt in favor of the defendant than is the judge (p. 376), either because of its more stringent applica- tion of the reasonable-doubt standard or because of its rec- ognition of particular “equities” not officially accommodated by the law. See, ¢.g., pp. 107-116, 182-190, 300-305, 494-495. 72 ations that exist, one where judge and jury woul agree on the death penalty, and the other where they would not, both seem to indicate that statutory “standards’’ would be superfluous. In the former cage, where judge and jury agree that the death penalty should be imposed, it is because the obvious factors listed in the Model Penal Code as generally in ‘‘aggravation’’™ are actually present and are found to preponderate in favor of the death penalty. In those situations where there is disagreement—and in the event of disagreement the jury is found to be somewhat more lenient (p. 436)—there are present one or more of the rather obvious ‘‘mitigation”’ fae- tors listed in the Code, such as provocation, emotional instability, mental abnormality, or mere vicarious par- ticipation in a killing actually committed by someone else (pp. 439-445).” The fact of disagreement in the face of the presence of such factors simply illustrates that a value-judgment must be made in weighing the significance of mitigating circumstances against ag- gravating circumstances. This evaluation is an in- herent part of the jury’s deliberation on penalty, and seems to be performed satisfactorily without external statutory enumeration. Certainly, it must be conceded ™ Such factors include peculiar heinousness, multiple murder, concurrence with other vicious felony (pp. 437-439). ** The survey demonstrated that the “jury’s sense of equity” emerged quite clearly in the felony-murder context where the jury tolerates the “rigidity” of that rule in fixing guilt, but “rebels at imposing the death penalty for the vicarious crim- inal responsibility of the defendant” who did not actually kill the victim (p. 443 & n. 18). This distinction was evidently drawn by the jury in the McGautha case now before the Court. 73 to be impossible to assign in advance some relative quan ‘tative weight that various circumstances should be accorded in a particular case. Since this is so, and since juries do at present make their penalty deter- minations in light of ‘“‘aggravating” and “mitigating” - circumstances that become evident in the concrete case, we see utterly no factual basis for petitioners’ argument that only the formulation of statutory “eriteria’’ can supply fundamental rationality to the jury’s sentencing decision, The other major recent study of the workings of the modern jury system was conducted by the Stan- ford Law Review and focused on the precise question now before the Court: whether juries charged with the responsibility for fixing punishment in capital cases behave irrationally in the absence of statutory standards. See A Study of the California Penalty Jury in First-Degree-Murder Cases: Standardless Sentencing, 21 Stan. L, Rev. 1302 (1969). That sur- vey considered all California cases in which first- degree murder verdicts were returned from 1958 through 1966, some 238 cases (pp. 1306, 1310). In order to make the study as informative and inquisi- tive as possible, the authors investigated and analyzed 178 separate variables that might have entered into the penalty decision in each case (see pp. 1317, and 1471-1476 [listing the variables]). The ultimate con- clusion reached, apparently to the surprise and disap- pointment of the student editors, was that there are “definite patterns of jury decisionmaking, precluding the possibility that juries make their decisions wholly at random”, and that “[m]Jore importantly, the discovery 74 of variables that by themselves affect the penalty deci. sion clearly indicates standards of decisionmaking” even without explicit statutory criteria (p. 1419). On the key question whether the patterns actually revealed indicate that juries follow any irrational or illegal standards—like race—, the conclusion was a resound- ing No (pp. 1346, 1366-1367, 1417-1420). On the con. trary, jurors under the present system do indeed follow patterns which ‘‘are rational in terms of, say, the Model Penal Code’’ (p. 1429).” For instance, the Model Penal Code enumerates as The one asserted exception to this finding of rationality was the conclusion that juries appear to discriminate along economic lines, in that blue-collar murderers were somewhat more likely to receive the death penalty than white-collar mur- derers (p. 1419). This was the only “factual” basis to which the student authors could point as indicating that “standardless” sentencing should be abolished (pp. 1420, 1421, 1429, 1431). It is not clear how this conclusion can be reconciled with the authors’ own recognition that a set of criteria like those in the Model Penal Code could not in any event preclude a bias- minded jury from making an unreviewable decision to “aggra- vate” or “mitigate” along impermissible lines (pp. 1422-1493), However, the validity of even this single finding of irration- ality was questioned by Prof. Harry Kalven Jr., who wrote the Preface for the student piece. On the basis of his years of experience with the American jury, Prof. Kalven commented: “I am not persuaded that this is an expression of simple class bias and not a reflection of a more subtle concern with personality and character.” Professor Kalven further explained : “IT would suggest also that the authors risk being corrupted somewhat by their passion for turning their findings into con- stitutional arguments against the death penalty. It keeps them from being speculative enough about the mystery they are inquiring into.” Kalven, A Study of the California Penalty Jury in First- Degree-Murder Cases: Preface, 21 Stan. L. Rev. 1297, 1300, 1301 (1969). eee ee eet mrt ew 75 “aggravating circumstances” (see Section 210.6(3), App. G, infra, p. 144): a prior record of violent felo- nies; commission of more than one murder on the occasion; and killing while resisting arrest or " ommitting a forcible felony. Without the existence of a formal codification of such factors, juries exercising ‘ their innate common sense “ recognized, assessed, and applied these factors in concrete cases. Thus, the most significant impact on whether the death penalty was selected came from whether the defendant had a prior felony record (pp. 1326-1327, 1389-1390, 1412). The incidence of the death penalty also varied directly with the number of victims actually killed or wounded (p. 1351, 1398). And a murder committed while resisting arrest was recognized as aggravated (pp. 1354-1355), as was a killing during the course of another felony, like kidnapping or rape (p. 1352, 1401)." On the other hand, the Model Penal Code spells out as “mitigating circumstances” the lack of prior criminal history, the effect of extreme mental or emotional disturbance, vicarious participation in a killing committed by another, and diminished mental capacity. Here again, the jury required no such ex- trinsie enumeration to recognize the potential sig- nificance of such factors. Thus, the cleaner the defendant’s prior record, the less likely he was w be condemned to death (pp. 1389-1390). So too, severe provocation or stress reduced the likelihood of the “See Baldwin v. New York, 399 U.S. 66, 72 (1970). * Notably, one factor that the Model Penal Code would point to as “aggravating”—exceptional bloodiness—is not assigned any such significance by juries under the present system (p. 1357). 76 death penalty (pp. 1404-1406, 1408). If the killing was actually committed by a co-participant in ‘the crime, the jury was exceedingly unlikely to return a death verdict (pp. 1348, 1398). And the Code’s con- cept of diminished responsibility was found to be reflected in practice by the reduced incidence of capi- tal verdicts against murderers who had, for instanee, consumed some alcohol before committing the crime (pp. 1357-1358, 1389). The two cases now before the Court illustrate the accuracy of those findings of jury rationality even in the absence of extrinsic standards. When the jury refused to exercise its prerogative under Ohio law to recommend mercy for James Edward Crampton, it knew him to be a habitual criminal who had spent much of his adult life in prison, a man who had not benefited from prior confinement in prison or treat- ment in hospitals. Within the span of a few days prior to murdering his wife he had embarked on a one-man interstate crime wave demonstrating extra- ordinary disregard for the law. The crime itself was obviously cold-blooded murder, the culmination of months of threats and the product of a clear design to obtain and use a lethal weapon. The killing was completely unprovoked, while the victim was helpless. And on the other hand, the evidence failed to demon- strate anything in support of Crampton’s insanity defense beyond a purely sociopathic condition—an an- tagonism to the norms of society. Nor is there any more room to speculate that the ‘standardless’”’ sentencing of Dennis Councle Me- Gautha was irrational. Rather, the jury seems to have 77 heen eminently reasonable in drawing the distinction it did in fixing a life sentence for co-defendant Wilkinson and a death sentence for McGautha. In terms of all the aggravating and mitigating circum- stances enumerated by the Model Penal Code and actually sensed and applied by modern juries, Mc- Gautha and his co-defendant stood poles apart. Per- haps most dramatic was the jury’s persistent effort to determine which of the two men had actually fired the fatal shot. McGautha argues that this inquiry was “immaterial to the question of their legal responsibil- ity for the crime charged’’.” Legally, of course, both men were guilty of felony-murder. But as the Model Penal Code suggests, and as the studies by Kalven and Zeisel and by the Stanford Law Review dem- mstrate, it does indeed make sense on the penalty question to treat a man who is im fact only a robber differently from one who is in law and in fact a killer.” Thus, juries in general, as typified by the juries in the instant cases, do follow rational patterns in deliberating the fateful question of which murderers should die for their crimes and which should not. There is simply no factual basis for the argument that statutory standards are constitutionally neces- sry to insure the fairness of these deliberations. “Brief for Petitioner McGautha, No. 203, p. 7. 'See, also, People v. Hicks, 287 N.Y. 165, 170, 88 N.E. 2d 492, 485 (1941) (the jury in a felony-murder case may tailor the penalties “to the varying degrees of moral guilt of the persons involved in the same crime”). 405-888—70——7 78 D. THE PAESENT SYSTEM OF JURY: DISCRETION IN CAPITAL GRUNT HEC, DOES NOT VIOLATE ANY CONSTITUTIONALLY PROTECTED INTEREST or AN ACCUBED Petitioners’ principal thrust i is that “‘standardless” jury discretion in capital sentencing is fundamentally unfair because it allows juries to be arbitrary ‘and capricious when left to their own devices. We have seen that this contention finds ho support in law or in fact. But in the course of pressing the argument, peti. tioners refer to certain other “rights’”’ which are al- legedly infringed by the State’s decision not ty establish a set of statutory standards. These claims, however, rest on equally shaky foundations. 1, The argument is made that the absence of official, published standards deprives every person charged with a capital offense of notice of what factors are going to be considered in determining his punishment upon conviction. Such a contention proceeds on the assumption that defense counsel (and indeed the prosecutor) lack the same common sense that ani- mates the jury, for it rather naively supposes that counsel cannot predict with some degree of relia- bility what factors in his case are likely to appeal to the jury he has helped to select (and thus should be stressed) and which are likely to offend it (and thus should be muted). In any event, this “notice” point ignores the settled constitutional principle that when a pure question of sentencing is involved—including capital sentencing— the accused is not entitled to notice of the factors that will be considered, or to a hearing on their weight, or to an opportunity to litigate those factors or others. See, ¢.9., Williams v. New York, 337 U.S. 941, 245-246 (1949) ; Williams v. Oklahoma, 358 US. 516, 583-584 (1959)." In accordance with this settled rule, this Court and lower federal courts invariably agree that a defendant has no right to examine and litigate the pre-sentence report on which his sentence will be based.” 9, A second subordinate argument advanced in support of the need for statutory standards is that without such formally defined factors it is impossible to review the jury’s penalty decision. This contention is doubly deficient. First, it begs the critical question ghether the jury is constitutionally obliged to fix a penalty according to some set of pre-determined cri- teria. And second, and perhaps more basic, this posi- tion has as its major premise the notion that the Con- stitution guarantees a right of review of the jury’s penalty verdict. This premise is demonstrably false. As was stated in Williams v. Oklahoma City, 395 U.S. 458, 459 (1969), this Court has ‘‘never held that the States are required to establish avenues of appel- “The holding in Williams v. New York on this point was explicitly reaffirmed in Specht v. Patterson, 386 U.S. 605, 608 (1967). Cf. Solesbee v. Balkcom, 389 U.S. 9, 12-18 (1950), holding thut due process does not guarantee % person under sentence of death a right to an adversary hearing or an op- portunity to present evidence in support of a request for ex- ecutive clemency. See, c.g., Gregg v. United States, 394 U.S. 489, 492 (1969) ; United States v. Kee Ming Heu, 494 F. 2d 1286, 1291 & n. 1 (C.A. 2, 1970); United States v. Chapman, 420 F. 2d 925, 996 (C.A. 5, 1969); United States v. Trigg, 392 F. 2d 860, 864 (C.A. 7), certiorari denied, 391 U.S. 961 (1968); United States v. Gross, 416 F. 2d 1205 (C.A. 8, 1969), certiorari de- nied, 397 U.S. 1013 (1970) ; Cook v. Willingham, 400 F. 2d 885 (C.A. 10, 1968). late review.’’ See, also, McKane v. Durston, 153 Ug, 684, 687 (1894). Indeed, in Andrews v. Schwarts, 15% U.S. 272, 275 (1895), the Court specifically rejected the claim that due process should be held to guaran. tee a right of appeal in a capital case. And even when appeals are allowed, there is no constitutional compulsion to broaden the scope of review to include the sentence. Few states authorize appellate review of sentences.” Si in the federal system, this Court and the lower fed. eral courts have long expressed inability, in the absence of specific statutory authority, to review a sentence that is within the maximum limits fixed by law. See, e.g., Gore v. United States, 357 U.S. 386, 393 (1958) ; Scott v. United States, 419 F. 2d 264, 266 n. 2 (C.A.D.C. 1969)." It would seem to follow then that the Constitution cannot be said to require the formulation of stand- ards for capital sentencing in order to facilitate review of the sentencing determination when the Con- stitution does not require the review itself and most jurisdictions do not authorize it. Even where review by the trial judge or by an appellate court is author- ** See President’s Commission on Law Enforcement and Ad- ministration of Justice, Task Force Report: The Courts 25 brand also, Weigel, Appellate Revision of Sentences: To Make the Punishment Fit the Crime, 20 Stan. L. Rev. 405, 411 (1968). The National Commission on Reform of Federal Criminal Laws, in its Study Draft of a New Federal Criminal Code (1970), proposes amending 28 U.S.C. § 1291 to authorize courts of appeals to review, reduce, or set aside a criminal sentence (p. 311). 81 ised, We can perceive no Treason why the election to it that review must carry with it the enumeration of criteria to which the primary sentencing authority is to look. Indeed, where review is allowed it may be more desirable to avoid the formulation of sentencing standards; such standards might tend to discourage the reviewing court from exercising independent dis- eretion if it found “some” evidence in support of one or more “aggravating circumstances”—almost an in- evitable situation in a first degree murder case. Thus, even if it opts to permit review of the death sentence, the State has a legitimate interest in not attempting to codify sentencing considerations. 3, Finally, there are some cryptic references to the Equal Protection Clause as a constitutional basis for requiring standards. We have already seen that juries do, without statutory standards, follow general pat- terns in considering certain types of circumstances as normally of an aggravating nature and others as of a generally mitigating tone. It is true that a person convicted of a first-degree murder that appears to be similar to the crime committed by another person may receive the death penalty while the other per- son is sentenced to life imprisonment, or vice versa. At most this indicates that different juries—or judges —may assess similar factors differently or accord them different relative weight. This occasional dis- parity is inherent in any system that depends on hu- *The Appendix to California’s Respondent’s Brief in the MeGautha case, No. 208, shows that every death case before the California Supreme Court in the past five years involved at least one “aggravating circumstance.” Compare State v. Maloney, 105 Ariz, 348, 464 P. 2d 793, 805 (1970), reducing a death sentence to man judgments in administering the law, and there is little reason to suppose that the addition of statutory standards to the equation could or would affect the assessment in a particular case. But apart from that the similarity of certain circumstances two murders may mask the existence of substantial diffences either in other aspects of the crime or in the respective defendants’ backgrounds. No principle of equal protection of the laws is offended by imposing different sentences in such a context. Different pun- ishments for the ‘“‘same offense” can constitutionally be justified on the basis of the inevitable distinguish- ing circumstances, It is certainly true that no two murders and no two murderers are the same, and the Equal Protection Clause can not require that they be treated identically.” There can be no invidious dis- crimination or denial of equal protection when the sentencing “‘result may depend upon a particular com- bination of infinite variables peculiar to each individ- ual trial.” North Carolina v. Pearce, 395 US, 711, 722 (1969). There is no logical, legal, or factual nexus between ‘‘standardless’” sentencing under a statute neutral on its face and any denial of equal protection. As with all other constitutional challenges proposed by petitioners against the present sentencing system, this one too must fail. life imprisonment in accordance with statutory authority to do s0 when the court finds that “the punishment imposed is greater than under the circumstances of the case ought to be inflicted.” "See Howard v. Fleming, 191 U.S. 126, 135 (1908); Step- hens v. Turner, 421 F. 2d 290, 292 (C.A. 10, 1970). Cf. John son v. United States, 225 U.S. 405, 417 (1912) : “There is cer- tainly nothing anomalous about punishing the crime of mur der differently in different jurisdictions.” 83 I sgITHER THE PRIVILEGE AGAINST SELF-INCRIMINATION NOB {HE DUE PROCESS CLAUSE REQUIRES SEPARATE TRIALS ON THE ISSUES OF GUILT AND PUNISHMENT IN EVERY CAPITAL CASE Petitioner James Edward Crampton raises an addi- tional constitutional contention in attacking his death sentence. He contends that Section 2901.01 of the Qhio Revised Code under which he was tried and convicted of first-degree murder impermissibly im- pinged upon his privilege against self-incrimination. Under that statute the jury determining guilt simul- taneously has the responsibility for deciding whether, upon conviction, the accused’s punishment should be reduced to life imprisonment in lieu of the death penalty that otherwise automatically attaches. The essence of petitioner’s contention is that this statu- tory scheme confronts an accused with an unreason- able dilemma: he must either waive his privilege against self-incrimination by testifying before the jury prior to its determination of his guilt or he must forego an opportunity to explain why, if convicted, he should receive mercy.” Petitioner casts his argument in favor of a consti- tutional requirement of bifurcated trials in capital eases solely in terms of protecting the privilege against self-incrimination." The amici curiae sup- porting the same objective, however, expand the pur- ported constitutional basis for it by also relying on "Since California provides for separate trials on the guilt and punishment questions, the bifurcation issu» does not arise in the McGautha case, No. 208. " See Brief for Petitioner Crampton, No. 204, pp. 9-19. — 99 rgeret the requirements of fundamental fairness under the Due Process Clause.” It is the view of the United States that neither of these constitutional principle compels the adoption of bifurcated trials in Capital cases or invalidates a death sentence imposed’ Ge an otherwise fair unitary trial. Ae THE UNITARY TRIAL 18 THE ESTABLISHED AND APPROVED MODS RR EVEN COMPLEX CRIMINAL CASES We preface our discussions of the precise conatity. tional issues presented with a brief review of the place of the bifurcated trial in our jurisprudence, It is easy to conceive of a variety of criminal prosecutions where a number of complex issues arise and where the accused may wish to be able to present defenses in addition to and sometimes inconsistent with a bare “not-guilty” stance. Frequently such de. fenses are also inconsistent with each other. Henee, it might be to the defendant’s tactical advantage to have the trial subdivided, so that the jury could pass upon his alibi defense, for instance, before he falls back on a claim of self-defense or insanity. In no situation heretofore, however, has an accused been able to show a constitutional basis for imposing his preference, As this Court noted not long ago in Spencer ¥. Texas, 385 U.S. 554, 568 (1967): ‘“Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitu- tional law, or even as a matter of federal procedure.” In Spencer the accused unsuccessfully sought a ruling that the Due Process Clause invalidated a Texas * See Brief Amici Curiae of the NAACP et al., iene 204, pp. 72-74 and Appendix pp. 66-78. eS —_— GQ ea wD — SE eee 85 datute that authorized the introduction of prior- mes evidence at a one-stage criminal trial in order to enable the jury, in fixing punishment, to set an enhanced punishment for recidivism. Rejeeting the argument that fundamental fairness required a bi- fureated proceeding to prevent the jury from con- fusing the issues of guilt and punishment the Court upheld Spencer’s conviction and the sentence of death fixed by the jury. | Demands for bifurcation have also arisen with some frequency in cases where the accused seeks to present an insanity defense—as in Crampton’s case now be- fore the Court. In such situations, too, the lower courts have dismissed assertions that the Constitu- tion requires separate trials, despite recognition that the insanity defense might be “collaterally incon- sistent with other defenses”; this conclusion has been reached even where the denial of bifurcation led the defendant to abandon the insanity claim in order to preserve his privilege against self-incrimination.” Even in first-degree murder cases the possibility of overlapping inconsistency between a claim of insan- ity and either a general plea of not guilty or such other affirmative defenses as alibi, self-defense, or lack of premeditation, has not created a constitutional right to split proceedings.” These cases reflect the thesis, firmly established in "See United States v. Huff, 409 F. 2d 1225, 1228 (C.A. 5), certiorari denied, 396 U.S. 857 (1969). See, also, Bell v. Patterson, 402 F. 2d 894, 399 (C.A. 10, 1968), affirming 279 F. Supp. 760, 767 (D. Colo. 1968). See, ¢.g., Contee v. United States, 410 F. 2d 249 (C.A.D.C. 1969); Parman v. United States, 399 F. 2d 559, 562 (C.A.D.C.) (Burger, J.), certiorari denied, 393 U.S. 858 (1968). 86 our criminal hw, that the integrity of a criminy trial should not be sacrificed by carving ‘it into a two. or three-act phy with the jury returning after ead, intermission’ to announce whether the parties should proceed to devilop the next issue.” This historie:l conception of the essentially uitary nature of the ciminal trial, coupled with the State's “‘valid and substantial interest in expeditiously prose. cuting offenses’, has generally served to sustain the propriety of athering to such a procedure, notwith- standing the potential complication of the accused’; position.” In Svencer v. Texas, supra, this Court hed that the State’ interest in utilizing a umiary tral for complete dsposition of all questions to be decided by the jury was sufficient for due-process. purpose even though there was some possibility of ‘‘collateral prejudice” (3 U.S. at 563-564) and even though a two-stage trial might have been more fair to the ac cused (385 U.f. at 567-568) : ** Historically, in civil trials there has been greater resort to separate deteminations of divisible issues. Significantly, while Rule 42(b of the Federal Rules of Civil Procedur explicitly authories severance of separable claims or issues for separate trials, itsanalogue ini the Federal Rules of Criminal Pro- cedure, Rule 14, atthorizes only “separate trials of counts”, “*" California, by sontrast, provides by statute'for a three-stag jury trial in a cpital case, where a plea of not guilty by re- son of insanity ic raised. First, guilt is to be tried, then sanity, and finally penaty. See Cal. Penal Code §§ 190.1, 1026. ** See, ¢.g., Unied States v. Huff, 409 F. 2d 1225, 1298 (CA. 5, 1969); Bell v. Patterson, 279 F. Supp. 760, 767 (D. Colo.), affirmed, 402 F. 21 394 (C.A. 10, 1968). iJ y 8 ‘ e - 8 d y d 8 y a - To say that the two-stage jury trial in the English-Connecticut style is probably the fair- est, as some commentators and courts have sug- and with which we might. well agree were the matter before us in a legislative or rule-making context ["], is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. ([Court’s. footnote omitted. ] ** In the present case petitioner challenges a statute authorizing the jury in a capital case to fix punish- ment at the time it returns its verdict on guilt. This attack has been made often in the past and has met with uniform rejection by the lower federal and state courts.” As far as we are aware, no court has ever held a statute of this type unconstitutional on its face, and none has reversed a conviction and. death sentence imposed under such a statute because of the * But see Rule 14, Fed. R. Crim. P., which does not author- i trials of discrete issues in federal criminal.cases. See, also, App. E. infra, p. 188. "See, ¢.g., United States. v. Curry, 858 F. 2d 904, 913-916 (C.A. 2), cert. den., 385 U.S. 873 (1966) ; United States ew rel. Thompson v. Price, 258 F. 2d 918, 921-922 (C.A. 3), cert. den., 358 U.S. 922 (1958) ; Maawell v. Bishop, 898 F. 2d 138 (C.A. 8, 1968); vacated on other grounds, 398 U.S. 262 (1970) ; Segura v. Patterson, 402 F. 2d 249, 258-254 (C.A. 10, 1968); Bell v. failure of the trial judge, on motion or sua sponte, to order a bifurcated trial.’ On the legislative side, proposals for bifurcation in capital cases* have met with somewhat more pp. Patterson, 279 F. Supp. 760 (D. Colo.), affirmed, 402 F. 9 394 (C.A. 10, 1968) ; Mathis v. State, 283 Ala. 308, 216 So. 4 286, 287-288 (1968); People ex rel. McKevitt v. District Court — Colo. —, 447 P. 2d 205, 207-208 (1968) ; Jackson v. State, 225 Ga. 790, 171 S.E, 2d 501, 504 (1969) ; State v. Forcella, 9 N.J. 263, 245 A. 2d 181, 194-195, pending on pet. for cert., No. 5011, O.T. 1970; State v. Kelbach, 23 Utah 2d 231, 461 P, 94 297, 299 (1969); Johnson v. Commonwealth, 208 Va. 481; 8g S.E. 2d 725, 780-731, pet. for cert. dismissed, 396 U.S. 801 (1980), Some federal courts have suggested that the bifurcation question should be resolved on a case-by-case basis, and that trial judges possess discretion to grant such requests whenever substantial justice would be served. See United States v. Cury, supra, 358 F. 2d at 916; Pope v. United States, 372 F. 2d 710, 730 (C.A. 8, 1967) (en banc), vacated on other grounds, 392 U.S. 651 (1968); Frady v. United States, 348 F. 2d 84, 91-8 (C.A.D.C.) (opinion of McGowan, J.) certiorari denied, 382 U.S. 909 (1965); cf. Holmes v. United States, 363 F. 2d 281, 283 (C.A.D.C. 1966) (insanity issue). See also the imme diately following footnote. Compare United States ex rel. Scoleri v. Banmiller, 310 F. 2d 720, 725, 736 (C.A. 3, 1962), certiorari denied, 374 US. 828 (1963), where on the particular facts the court held that due process had been violated by the introduction in a Penn- sylvania capital case of evidence of twenty-five prior armel posed Official Draft 1962) [App. G, infra, pp. 141-145.]; Ne- tional Commission on Reform of Federal Criminal Laws, Draft of a» New Federal Criminal Code § 3604 (1970) [App. G, infra, 147]. _ a ee as >= eels wr s,s =—S~lCUerlmlCUGDUCUOUOUlUU eee CG lUCUOeOUDme.C 8Y ceptivity than have the proposals for statutory sen- tneing “criteria” as discussed above. At present, however, thirty-three of the thirty-nine States that re- tin a discretionary death penalty for murder and give the jury a voice in whether that penalty will getually be pronounced, adhere to the traditional pro- cedure whereby the jury makes its decision as part of the single proceeding at which guilt is in issue.” The District of Columbia murder statute and the various federal homicide statutes also prescribe a unitary proceeding for determination of both questions.* The remaining six States with a discretionary death pen- alty recently enacted statutes to provide for a sep- arate post-conviction hearing on the penalty question. California in 1957 was the first State to adopt such a procedure ; Pennsylvania followed in 1959, as did Connecticut and New York in 1963, Texas in 1960, and Georgia on March 27, 1970.* On the other hand, several States that enacted new criminal codes during this same period chose not to authorize splitting the jury’s guilt and punishment determinations into a two-stage exercise. Still other States in the interim have amended their murder statutes and by-passed the opportunity to abandon the * See statutes listed in Appendix C, infra, pp. 132-135. ‘See District of Columbia statute in Appendix C, infra, p. 183, and federal statutes in Appendix E, infra, pp. 138-139. ‘See Appendix D, infra, pp. 136-137, citing and discussing these statutes, *See, for instance, the Illinois Criminal Code of 1961 and the Kansas Criminal Code of 1969, cited in App. C, infra p. 133. 90 traditional single-trial system for capital cases.' A in 1962 when Congress amended the District of Colum. bia murder statute to allow juries discretion to recom. mend life sentences, it deliberately declined to adopt the California—Model Penal Code bifurcated prog. dure.’ : | Thus, although there has been a discernible trend toward legislative adoption of the two-stage trial in death cases, the equally evident reluctance of other legislatures to follow suit suggests that bifurcation may be a mixed blessing. Indeed, some of the reasons we shall discuss (in section C below) in explaining why we do not consider statutory bifurcation constita- tionally compelled also indicate that the accused may get a fairer shake in a unitary trial. B. A STATUTE ALLOWING THE JURY IN A CAPITAL CASE TO Fix PUNISHMENT AS PART OF A SINGLE-STAGE GUILT TRIAL Dogs NOT VIOLATE THE PRIVILEGE AGAINST SELF-INCRIMINATION Petitioner’s constitutional argument against ‘the procedure whereby the jury decides whether to recom- mend mercy without any further proceedings directed exclusively toward that question is that this procedure impermissibly creates a tension between two constitu- tional rights: “his Fifth and Fourteenth Amendments right against self-incrimination * * * and his Four * See, ¢.g., the 1969 amendments by Nebraska and New Mexico, described in Appendix C, infra, p. 134. * See Frady v. United States, 348 F. 2d 84, 114-115 (C.A.D.C.) (opinion of Burger, J.), certiorari denied, 382 U.S. 909 (1965); see, also, Coleman v. United States, 334 F. 2d 558, 563, (C.A.D.C. 1964). ol teenth Amendment right..‘to be heard * * * and to offer evidence of his own’.’’ * The surface attraction of this argument, however, is not matched by any underlying support in constitu- tional principle or in practical reality. First, as we shall attempt to show, it is doubtful that there is a tension between two constitutional rights here, since the alternative “right” to which petitioner points is apparently the opportunity to offer his own personal testimony on the single issue of punishment without having any of this testimony, directly or through cross- examination, carry over into the consideration of guilt. We are unable to discover the constitutional source for this purported “right”. Second, there is little fac- tual basis for an argument that the aceused’s election to rely on his privilege against self-incrimination com- pels him to forego an opportunity to present evidence bearing on the question of punishment, since—just as with the guilt issue—a defendant exercising his con- stitutional option reserves the ability to make his case through other witnesses and evidence. And third, to the extent the unitary trial procedure may be said to oceasion a hard choice between standing on the con- stitutional privilege or testifying personally, the proce- dure does not unconstitutionally burden his options or “eompel” a waiver. 1. A defendant has no constitutional right to offer his personal gation evidence through witnesses other than himself. Petitioner’s constitutional argument depends first on the existence of an alleged dilemma: a ‘‘bruising * Brief for Petitioner Crampton, No. 204, p. 7. 92 antagonism” forcing him to choose between two ‘con: stitutional rights, “the right to speak to his sentencér or the right to remain silent.” * One traditional way of resolving an apparent dilemma is, of course, itp determine whether each of the “horns’’ has i been correctly perceived, for it sometimes happens’ that an erroneous definition of the alternatives clouds the true dimension of the choice involved. Here, one horn jg indeed the privilege against self-incrimination, which allows a defendant charged with a crime to decling to testify before the jury trying his case. What is doubtful is the nature of the other horn, ‘‘the right to speak to his sentencer”. Necessarily, if petitioner Brief for Petitioner Crampton, No. 204, pp. 13-14 Throughout his argument in support of bifurcation, petitioner intertwines references to the alleged complication presented by his use of the insanity defense, because of the “risk that the medical evidence of his mental condition will disclose data prejudicial on the issues of guilt and punishment * * *” (Brief p. 18). We note first that this argument looks toward constitu- tionally compelled ¢rifurcation of the trial into guilt, sanity, and punishment stages. On the possibility of guilt-sanity over- lap there is no reason to treat the one-stage trial as inherently and unfairly causing the jury to confuse the two issues. See Spencer v. Texas, supra, 385 U.S. at 565; Bruton v. United States, supra, 391 U.S. at 135. On the possibility of sanity. punishment overlap, we fail to understand the point since even under a bifurcated (or trifurcated) procedure the punish- ment decision would have to follow the determination of sanity. Even if it be assumed that insanity testimony would bring out embarrassing facts that would not in any event come out at s penalty hearing, that risk is inherent in the nature of the in- sanity defense and is in no way enhanced by a procedure that authorizes the jury to determine punishment as part of the same hearing—unless a new, and thus insulated jury is to be em- paneled solely for the penalty determination. There may be a real strategic problem for the defense in attempting an in- sanity defense but it is not relevant to the issue whether the Constitution requires a separate trial on penalty. oo '| F&F oe * 93 ig to have any complaint about being impermissibly forced to choose between two constitutional rights, this second right must otherwise be exercisable compatibly with the privilege against self-incrimination—the right to remain silent. Thus, what must be meant by the alleged constitutional right to “speak to his gentencer’”’ is a right to participate in the sentencing process by offering personal testimony confined to that question and immunized from impact on the issue of guilt. So understood, this second alleged con- stitutional right turns out to be merely the creation of attractive rhetoric, for this Court has never held either that a defendant has a constitutional right to establish sentencing factors or that he has a right to control the scope and impact of the testimony he may elect to give. It is well settled that an accused does not havea distinct constitutional right to address himself to the sentencing authority. Whatever may be the present right of a defendant to testify in his own behalf on whether he is guilty of the charge," the historical difference between guilt trials and sentence determina- tions has thus far denied an accused any such right at the sentencing stage. This distinction is at the heart of cases like Williams v. New York, 337 U.S. 241 (1949), and Williams v. Oklahoma, 358 U.S. 576 (1959), which hold that even in a capital case due process does not guarantee the accused an opportunity to liti- gate the factors which should be considered in passing sentence. Any contrary reliance on Specht v. Patter- son, 386 U.S. 605 (1967), is misplaced. There, the “Compare Ferguson v. Georgia, 365 U.S. 570 (1961), with id. at 602 (Clark and Frankfurter, JJ., concurring). 405-388—70—8 04 Court defined the holding of Williams v. New roth follows (386 U.S. at 606) : We held in Williams v. New York, 337 UA 241, that the Due Process Clause of the Fou, teenth Amendment did not require a judge to have hearings and to give a convicted an opportunity to participate in those heart when he came to determine the sentence to imposed, [Emphasis added.] As thus restated the Court expressly stated in Specht (386 U.S. at 608) : “We adhere to Williams v. New York, supra,” declining only to extend that principle to pre. clude an opportunity for notice and hearing in the radically different situation where a Sex Offenders Act authorized different and more drastic dispositions only if additional findings of fact were made about circum- stances beyond those at issue in the guilt trial. There are repeated references in the briefs of peti- tioner and of the amici supporting him to the “right of allocution”. It is a gross mischaracterization to press that “right” as the coded equivalent of a con- stitutional right to ‘‘speak” to the sentencer with palliating explanations why sentencing discretion should be exercised in the defendant’s favor. The right of allocution developed at common law to give a defendant convicted of a capital offense—where tradi- tionally the judge had no sentencing discretion—an opportunity to state why judgment should not be passed, “thus giving him an opportunity to allege any ground of arrest, or to plead a pardon, if he had obtained one, or to urge any other legal objection to further proceedings against him.” Schwab v. Berg- — 95 gren, 143 U.S. 442, 446-447 (1892). That opportunity has generally been carried forward by statute * or by court rule.” Indeed. petitioner did avail himself of this ity under the Ohio statute," but his state- ments “‘did not show sufficient cause why his eentence should not be pronounced” (C.A. 2-3). Furthermore, even as thus properly and narrowly understood, the of allocution’”’ does not rise to the level of a constitutional right and its denial is not a “funda- mental defect”. This Court so held in Hil v. United States, 368 U.S. 424, 428 (1962). Thus, having no constitutional right to allocution, or to “speak” to his sentencer, petitioner could not, as he argues, have suffered the imposition of an imper- missible burden on the assertion of a constitutional right.” But, of course, the State of Ohio did not in any sense attempt to prevent petitioner from “speaking to his sentencer’’, if he wanted to testify before the jury that was to decide his sentence. The real question is whether he can point to any constitutional privilege allowing him to confine his testimony solely to a single issue—pun- ishment—and also to avoid the normal consequence 1 See, ¢.g., Ohio Rev. Code § 2947.05: “Before sentencing is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him.” 8 See, e.g., Rule 32(a), Fed. R. Crim. P. “See Brief for Petitioner Crampton, Appendix, pp. 33-35. See Segura v. Patterson, 402 F. 2d 249, 252-258 (C.A. 10, 1968); People ex rel. McKevitt v. District Court, —Colo. —, 447 P, 2d 205, 208 (1968); State v. Kelbach, 23 Utah 2d 231, 461 P, 2d 297, 299 (1969). —~«y of testifying that he thereby “subjects himself tp cross-examination and impeachment.”** The answer is surely negative. Certainly, the privilege againg self-incrimination does not empower an accused "to enforce his preference about the selective subject and significance of his testimony by directing the jury not to assess his testimony in connection with the other issues in the case or by forbidding the proseen- tion to elucidate damaging information from him Ever since the advent of statutes waiving the common law incompetence of a criminal defendant to testify in his own behalf,” it has been settled that a defend- ant who elects to testify can be cross-examined in full, See Brown v. Walker, 161 U.S. 591, 597-598 (1896). In Raffel v. United States, 271 U.S. 494 (1926), Jus- tice Stone, speaking for the Court, explained the con- stitutional significance of a defendant’s decision to testify : When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross- examined as to facts in issue. (p. 497) o * * + His waiver [of the privilege against self-in- crimination] is not partial; having once cast aside the cloak of immunity he may not re sume it at will, whenever cross-examination may be inconvenient or embarrassing. (#bid.). * * * * ; + The safeguards against self-incrimination are %* Brief for Petitioner Crampton, No. 204, p. 18. 17 See, generally, Ferguson v. Georgia, 365 U.S. 570, 575-683 (1961). for the benefit of those who do not wish to be- come witnesses on their own behalf and not for those who do. There is a sound policy in requir- ing the accused who offers himself as a witness | to do so without reservation, as does any other witness. (p. 499). Thus, subject only to the usual rules limiting the scope of cross-examination, a defendant in a criminal trial cannot decide to testify in support of a particu- lar defense he wishes to make and then assert the priv- ilege against self-incrimination either to direct the jury not to consider his testimony as bearing on other parts of the whole case or to preclude the pros- ecution from discrediting that testimony. A defend- ant charged with first-degree murder may be able to construct a series of defenses to the charge: one simply challenging the sufficiency of the State’s case; a second affirmatively alleging alibi; a third claiming self-defense; a fourth averring provocation or a lack of premeditation; and a fifth asserting insanity. Testimony from the accused on any of these latter four defenses may undercut the general denial, either through what he must disclose as part of his story or through concessions on cross-examination. And testi- mony on any of the four affirmative defenses raises the same practical problem that petitioner complains of here, namely, the risk that the jury will (quite logically, we think) conclude that the various theories are mutually inconsistent. Yet, the defendant in such a situation has not heretofore been allowed to invoke the privilege against self-incrimination to compel sep- arate trials of each defense or even to prevent the 98 jury from concluding that his testimony in support of alleged provocation, for example, actually indicate, premeditation, Similarly, the accused cannot jump back behind that privilege when, in the course of cross-examining on alibi testimony, the prosecutor seeks to elicit a concession of motive or an admisgign of presence at the scene of the crime.” There seems to be little reason in constitutions principle to allow a defendant who wants to. speak only on the question of sentence any more right tp constrict the breadth of his testimony and the jury’ consideration of it than is allowed to a defendant who wants only to testify on a specific element of guilt or defense. In neither situation is it sufficient to say, as petitioner earnestly argues in pressing his particular claim, that the State could sever the trial into separate hearings on discrete issues. (Brief pp. 14-15). The State may do so, but there is no basis for asserting that the privilege against self-incrimination requires it to do so.” > The foregoing discussion demonstrates, we believe, that the ‘‘right’’ petitioner claims he was unconstitu- tionally compelled to forego in order to assert his privilege against self-incrimination is no more than an imaginative construct. Since this is so, cases like Simmons v. United States, 390 U.S. 377 (1968), which “See, generally, Brown v. United States, 356 US. 148, 154+- 156 (1958). ; * Cf. Spencer v. Texas, supra, 385 U.S. at 567-568: “To say that the two-stage jury trial in the English-Connecticut style is probably the fairest [procedure] * * * is a far cry from's constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment.” 99 condemned a practice that forced an unnecessary elec- tion between two constitutional rights (see 390 US. at 393-394), are not really apposite. @. The defendant in a unitary capital trial can present miti- gation evidence through witnesses other than himself. The Simmons case, supra, is doubly distinguishable because in that case the only practical way for the defendant to assert his Fourth Amendment claim was by testifying himself at a suppression hearing, since that is customarily necessary to establish personal standing to object to a search and seizure. It was in that context that the Court held that he was entitled to rely on his privilege against self-incrimination to exclude his testimony from being used against him at his trial on the merits. In the present case, however, petitioner was not forced to choose between his priv- ilege to remain silent and any right, assumed argu- endo, to advance his views on the punishment ques- tion.” As a number of courts have noted in rejecting the very argument tendered by petitioner, whatever evidence would be admissible on the punishment ques- tion through petitioner’s testimony could be presented through other witnesses instead.” Indeed, in rejecting % Even if that’ were the situation, it would not émpermissibly burden the exercise of his constitutional rights if the dilemma resulted from the ordinary and inherent vicissitudes of the criminal process. Thus, the weight of the State’s case and the jlability of other witnesses may as a practical matter “compel” the defendant to testify, but such inherent presures do not render the dilemma unconstitutional. See Harrison v. United States, 892 U.S. 219, 222 (1968). % See ¢.g., Segura v. Patterson, 402 F. 2d 249, 258 (C.A. 10, 1968); Bell v. Patterson, 279 F. Supp. 760, 765-766 (D. Colo.), affirmed, 402 F. 2d 394 (C.A. 10, 1968); People ex rel. Me- 100 petitioner’s arguments the court below s noted that he was able to present mitigation evideng through witnesses other than himself and that peti. tion availed himself of this opportunity.” Nor can it be said that conjoiing the determing tion of guilt and capital punishment in one trial creates any inberent pressure for the defendant t testify. The constitutional protection of the defend. ant’s right to summon other favorable witnesses" relieves any such pressures. And it is demonstrable that defendants do indeed call family, friends, or character witnesses more often in murder cases than Kevitt v. District Court, — Colo. — 447 P. 2d 205, 208 (1968); cf. Petition of Ernst, 294 F. 2d 556, 561 (C.A. 3), cert, dea, 368 U.S. 917. Most American jurisdictions allow the introdu. tion of evidence directed solely toward mitigation of punish- ment in capital cases. See Knowlton, Problems of Jury Disoretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1116 (1953)... If a State chooses not to allow any evidence to be introduced on the question of aggravating or mitigating the penalty, and thus if the jury is to determine punishment solely in light of evidence of the circumstances surrounding the crime, as peti- tioner argues is the rule in Ohio (Brief pp. 9-10)—and if such a practice is permissible under the Constitution, as we argw below—then it would seem to follow a fortiori that the State is not constitutionally compelled to afford a separate trial mm penalty question. Recognizing the inevitability of this conclusion, the amici supporting petitioner take considerable pains to distinguish the case on schist Sin’ villas tiethbe-aniendien,” Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214 (1935), and to demonstrate to the contrary that Ohio does allow the introduction of miti gation evidence. See Brief Amici Curiae of NAACP et a Nos. 203 & 204, pp. 72-74. =(C.A. 86-87 (18 Ohio St. 182, 248 N.E. 2d 614, 617). ** Compare Washington v. Tewas, 388 U.S. 14, 28 (1967), with Ferguson v. Georgia, 365 U.S. 570 (1961). 101 in non-capital cases.“ Moreover, the available data suggest that a defendant in a murder case is neither induced to testify nor discouraged from doing so by reason of the fact that the jury will simultaneously decide guilt and punishment.” The decision whether the accused will personally take the stand is based on a multitude of strategic considerations, and the uni- tary nature of ‘the trial does not seem to be a sig- nificant ingredient. Thus, there is still a further reason for declining to hold that the unitary trial inherently impinges upon the privilege against self-incrimination, since this premise is not supported by any theoretical likelihood of induced waiver or by any indication that the pro- cedure actually induces waiver of the privilege. And in the present case, where petitioner did not request bifurcation at the trial court level and did in fact elect to stand on his constitutional privilege he certainly cannot be heard to argue that the unitary trial imper- missibly ‘‘chills’ the assertion of the privilege against self-incrimination. Nor on the other hand has petitioner pointed to any peculiar information which he alone could have presented and to which he would have testified at a bifurcated proceeding. It seems therefore that the unitary nature of petitioner’s trial had no significant impact at all on his decision whether to testify in his own behalf. * See Kalven & Zeisel, The American Jury 143 (1966). * See Kalven & Zeisel, swpra, at 148-148. 102 3. eee ee ere ee ewercise of the privilege not to testify. ety Finally, even if the Court adopts putitionel'pab ception of the “bruising antagonism’’ that confronted him—a choice ‘between his privilege against selfin crimination and his ‘‘right”’ to speak to his sentencer, the fact that he had to make such an election does ng establish the desired constitutional infirmity in ‘the unitary proceeding. i Any foundation for the final leg of petitioner’s argument that the choice that confronted him (hovw- ever it may be defined) unconstitutionally impaled him on the horns of a dilemma was decisively washed away by the Court’s guilty-plea trilogy last’ Term See Brady v. United States, 397 U.S. 742 (1910); McMann v.. Richardson, 397 U.S. 759 (1970); and Parker v. North Carolina, 397 U.S. 790 (1970). In Brady and Parker the defendants alleged that their decisions to plead guilty, and thus to waive their cor- stitutional rights to avoid self-incrimination and to demand jury trials, were unconstitutionally induced by the fear of the death penalty, which could only © have been imposed after jury trials. This Court af- firmed the. convictions. The rationale realistically took account of the accused’s inherent need to make tacti- cal judgments about his conduct of a criminal proceed- ing against him. The innate complexity of a criminal litigation generates a cross-current of pressures, in- eluding some that induce defendants to plead guilty in the hope or expectation that the consequences of such a course will be preferable to the result risked upon trial. The constitutional touchstone, the Court 103 ruled, is simply one of voluntariness, traditionally considered: was the accused “‘with the help of coun- sel rationally [able to] weigh the advantages of going to trial against the advantages of ling guilty.” Brady Vv. United States, supra, 397 U.S. at 750. That the assessment made later turns out to have been un- wise does not vitiate the constitutionality of the elec- tion. As the Court explained in Brady (397 US. at 156-157) : Often the decision to plead guilty is in- fluenced by imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sen- sible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the vant factor entering into his decision. A defend- ant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. In McMann v. Richardson supra, three defendants who had pleaded guilty to charges of robbery and murder contended that their pleas had been induced by the fear that the State would be able to introduce confessions they argued had been involuntarily pro- sired from them. This Court vacated orders of the court of appeals which had ordered hearings on the daims; the Court held that the allegations that coun- séled defendants had entered guilty pleas because of 104 the existence of allegedly coerced confessions, -diig, they would otherwise have put the State to its proof did not make out a claim for relief even if truce jy the Court explained (397 U.S. at 769) : Lib {T]he decision to plead guilty before the’. dence is in frequently involves the makings difficult judgments. * * * In the face of«m,. avoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would bk viewed by a court. If proved, would those facts convince a judge or jury of the defendant’ guilt? ** * It seems clear to us that similar reasoning demands rejection of petitioner’s argument in the present case, Guided by eminent appointed counsel, the choice that confronted him was whether, on balance, it was str- tegically desirable for him to testify. Evaluation of that option had to depend on many of factors like the weight of the State’s case, the quality of the expert psychiatric testimony, the probable impact of the testi- mony of petitioner’s mother, the availability of other witnesses, the relative significance of petitioner’s po- tential testimony, the jury’s likely attitude toward the death penalty, and anticipation of petitioner's impression as a witness. There is no basis for conelud- ing that the one additional factor in the calculus on which petitioner focuses—the jury’s responsibility for simultaneously determining guilt and punishment— was so weighty that its presence overwhelmed his ability to make a rational and intelligent choice.’ In any event, it is made abundantly clear by the Court’s most recent discussion of the privilege agains 105 gelf-incrimination that, even to the extent the statu- tory procedure did require petitioner to make a diffi- mit choice, the procedure cannot be condemned. In Williams v. Florida, 399 U.S. 78 (1970), the Court rejected the argument that Florida’s notice-of-alibi statute transgressed the privilege against self-incrimi- nation, holding that the privilege no more entitled a defendant to await the end of the State’s case before announcing his defense ‘than it entitled him to await the jury’s verdict on the State’s case-in-chief before deciding whether or not to take the stand himself” (399 U.S. at 85). In reaching that conclusion, the Court noted (399 U.S. at 83-85) : The defendant in a criminal trial is fre- quently forced to testify himself * * * in an effort to reduce the risk of conviction. estiasalaes That the defendant faces such a dilemma de- manding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against self-incrimina- tion. The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice * * * even though the attempted defense ends in a catastrophe for the defendant. * * * * * * Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments. Even more clear then is the conclusion in the pres- ent case that the privilege against self-incrimination does not entitle the accused ‘‘to await the jury’s verdict on the State’s case-in-chief”’ and on his in- sanity defense ‘‘before deciding whether to take the 106 stand himself’? on the punishment question.’ There fore, a procedure which occasions the need to make and act upon the waiver decision before the jury re turns its guilt verdict does not unreasonably i impinge upon the privilege. As the Court of Appeals for the Tenth Circuit i in Segura v. Patterson, 402 F. 2d 249, 253 (1968), ex plained in rejecting an argument identical to ‘pat tioner’s: This compulsion does not derive from any coercion of the State, instead it arises from the desire of the accused to act in his own enlight- ened self-interest. He is compelled to testify only in the sense that it may be to his advan- tage to do so. The choice is his embracing no more substantial ‘chilling effects”’ in a single- verdict situation than it does in any other in- stance. It is always the case that in exercising the constitutional right to remain silent, the individual is forced to forego his opportunity to personally appeal to the jury. Whether such an appeal relates to the determination of guilt or punishment or both, it cannot be denied that the inducement not to remain silent and thus to forego a specific constitutional right does not arise from any unnecessary burden imposed by the State. We conclude that the single-verdict procedure does not ‘needlessly chill the exercise of basic constitutional rights”. [Footnote omitted] A fortiori, petitioner cannot complain that trial pres- sures encourage waiver of the privilege when these pressures did not result in a decision to give up the privilege by testifying at his trial. _— 107 A STATUTE WHICH AUTHORIZES THE JURY IN A CAPITAL CASE TO yIX PUNISHMENT IN LIGHT OF THE EVIDENCE ADDUCED AT A ONE- “graGE TRIAL ON GUILT I8 FUNDAMENTALLY FAIR “The amici curiae supporting petitioner’s attack on the unitary trial advance the additional argument that the demand for fundamental fairness implicit in the Due Process Clause requires a separate penalty hear- ing. Their claim is that it is basically irrational to allow a jury to sentence a defendant when there has been no exploration of the personal background factors that are normally considered in judge-sentenc- ing of major felony offenders: “it is the imperative condition of rational sentencing choice that the sen- tencer consider more information about the individual defendant than is likely or permissibly forthcoming on trial of the guilt issue.’’ ** Counsel for the United States tends to agree that modern sentencing philosophy properly emphasizes maximum inquiry into the defendant’s background, character, and potential and that a separate proceed- ing directed solely to the penalty question would be an appropriate device for developing such information in a structured way.” We disagree, however, with the contention that the Constitution mandates resort to such a device. Sentencing hearings, and even pre-sentence reports, have not heretofore achieved the level of constitutional requisites when sentence is to be determined by a * Brief Amici Curiae of the NAACP et al., Nos. 203 and 204 Appendix, p. 70. ** See National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 3604 (1970), App. G, infra, p. 147. 108 judge, and we discern no principled basis, in law orig experience, for a contrary rule applicable to jury sep tencing in capital cases. In this final portion of our brief we shall discuss three points that seem to sup. port this conclusion: first, that a State may permis sibly determine that a sentence for murder should be set in light of the evidence adduced in the course of litigating guilt; second, that whether or not the Stats also allows evidence directed toward penalty to come out at the guilt trial, the evidence showing the cireum- stances surrounding a murder normally provides a sufficiently substantial basis for rational sentencing of the offender ; and third, that certain indications that penalty trial mey have a substantive impact in increas. ing the likelihood of a death sentence caution against general resort to the device as a _ constitutional requirement. 1. A State may rationally determine that a sentence for murder should be based on the circumstances of the crime itself Implicit in the argument that the Constitution r- quires consideration of extrinsic data about the de- fendant before he can be sentenced is the premise that the State is forbidden to let the punishment “fit the crime” itself. Although current penology generally tends toward the view that it is preferable to examine the defendant’s life history, we are not aware of any decision by this Court that the Fourteenth Amend- ment establishes this philosophy as an essential in- gredient of due process. At most, the Court has commented that “a state may adopt the ‘prevalent modern philosophy that the punishment should fit the offender and not merely the crime’.” North Caro- lina v. Pearce, 395 U.S. 711, 723 (1969) (emphasis — nae sided), quoting from Williams v. New York, 337 U.S. 941, 247 (1949). But it is inherent in the nature of our federal system that an individual State may elect as a matter of legislative policy not to copy a par- ticular penological philosophy elsewhere in vogue, and we see no fundamental irrationality in a State’s de- cision to adhere to’ the traditional policy “that ‘the punishment for first degree murder shall fit the par- ticular crime rather than the individual criminal.” Sims v. Eyman, 405 F. 2d 439, 443 (C.A. 9, 1969). Even where that policy is maintained, as we have seen in Point I of this brief, every State that au- thorizes capital punishment for murder has super- imposed a procedure for allowing the jury to indi- yiduate the punishment. Thus, even if the penalty de- cision is made solely in the context of the evidence of the crime, there is room to exercise “a sound dis- cretion” to take into account “consideration of all the cireumstances of the crime” in order to decide what. the proper penalty should be for the particular murder committed by the defendant on trial. See Williams v. Oklahoma, 358 U.S. 576, 585 (1959). We see nothing arbitrary in allowing a sentence to be determined in such a context. Indeed, to the extent this Court has undertaken to deal with the constitutional parameters of lawful punishments, the dominant concern has been with the proportionality of the punishment to the offense, and not to the offender. Thus, in Weems v. United States, 217 U.S. 349 (1910), the Court condemned a particu- larly intense and persistent combination of punish- ments for an offense that was found to be relatively 405-888—_70——9 110 trivial. In our society, as throughout the. civiligg world, murder is regarded as intrinsically the my hateful of offenses and thus, to the extent a Staten. tains. the death penalty, that. sanction is authorized for murder.” Especially where this ‘unigy offense is involved, it appears well within the bounds. ries of substantive due process of law for the Stata t determine that the punishment for murder should le adjusted only to the facts surrounding that act itself the ultimate renunciation of social peace and persoia security—and need not be measured against the a derer’s past deeds or misdeeds.” — This Court has historically refused to treat’ the Constitution as imposing upon the States any partic ular theory of the nature and purposes of punishment. See, ¢.g., Powell v. Texas, 392 U.S. 514, 530 (plurality opinion of Mazshall, J.). This recognition of th breadth of the legislative freedom committed to the States in fashioning their criminal laws leaves ample room for a State to determine that the object ani effect of its murder statute should be to hold a mur. derer personally accountable with his life for commiit- _ °See Frank v. United States, 395 U.S. 147, 148 (1960), explaining that the “most relevant indication” of the “seriou. nee with whlch seckty guns: Oa emer oe ee of the penalty authorized for its commission.” * Compare Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1077-1078 (1964) : “It is true * * * that the idea of imposing a penalty m a class of offenses rather than adjusting it to the individul punished runs counter to some cherished principles of moi- ern penology. Nevertheless, individualization of punishment appears hardly to be a constitutional principle.” se proses Ft? & sf = & he ie- nt. ty he the ple nd ur- at 69), pus- nts ime, BRE s 111 ting that offense, irrespective of his prior life-style.” Thus, we believe, even a procedure which utterly pre- dudes introduction of aggravation or mitigation. evi- dence at the trial of an accused’s guilt as a murderer provides a constitutionally adequate basis for the jury to determine how he should be punished.” : 4. Even at a-murder trial confined solely to guilt, sufficient facts about the defendant emerge to permit intelligent sentencing The sentencing milieu we discussed in the preceding section relates to the constitutionality of an abstract model that assumes a more limited acquaintance with the defendant’s general history than.a jury deciding a murder case actually gains. Whether or not the State formally allows evidence purely concerned with punishment to be admitted at a one-stage murder trial, the jury will learn quite a bit about the accused beyond his narrow involvement in the particular crime. To the extent the amici supporting petitioner argue that a jury fixing sentence after a unitary trial has only a fragmentary or distorted picture of the real person on trial, the argument suffers from a serious incongruity with reality. The experience of those who try capital murder cases and those who are regularly called upon to review them is that, through one medium of admissibility or another, the jury ordi- narily has access to a fairly accurate, albeit often rough or low-relief portrait of the accused’s life. When he was testifying before the British Royal See Hart, The Aims of the Criminal Law, 23 Law & Con- temp. Prob. 401, 407-411 (1958). " Accord, Sims v. Eyman, supra, 405 F. 2d at 443. 112 Commission on Capital Punishment, Mr. ‘Juste Frankfurter was asked whether juries in capital eis have enough information about the defendant to:jim. form their sentencing responsibility intelligently: stated that it was his experience that there is a am: cient factual context for the sentence, since “with'pef. erence to the particular transaction on which the jiiry has to pass, a good many facts incidentally come oit, either through the defendant when he takes the stand, or through other witnesses, when he doesn’t.” * The Court of Appeals for the Ninth Circuit in Sim v. Eyman, supra, recently expressed the same expe rience in rejecting an argument that introduction of evidence related solely to mitigation is essential to a fair trial (405 F. 2d at 443, 444): Many items of information about the defend- ant may come in during the disclosure of the crime itself and the circumstances surrouné- ing it 2 * +d * * * e * * * * When a first degree murder case is tried before a jury, the jury can form an opinion as to the proper punishment from hearing the whole case, observing witnesses, and discussing the evidence introduced concerning the crime and the surrounding circumstances. Moreover, the general American rule in capital cases is that mitigation evidence is admissible at the guilt stage to show such things as environment, motive, provocation, mental impairment, and the like.” Espe- #2 Frankfurter, Of Law and Men 87 (Elman ed. 1956). %3See Knowlton, Problems of Jury Discretion in Capita Cases, 101 U. Pa. L. Rev. 1099, 1116 (1953). 113 cially where the defense of insanity is raised, as it was in the present case, the jury is likely to know as much about the accused—at least as much of an extenuating import—as does a judge possessed of a pre-sentence report. In affirming a conviction and death sentence imposed by a jury, the Kighth Circuit, speaking through then Circuit Judge Blackmun, rejected an argument similar to the one made by amiet here, ex- plaining: The jury also had the full picture of the defendant’s background, his prior behavior, and the like. And the defense of insanity, with all its implications, is in itself wholly mitigative and rehabilitative in nature. The ‘urv therefore was not without an appropriate messure of infor- mation.” In the present case, petitioner was able to bring before the jury through the sympathetic testimony of his mother a rather complete chronology of his life, including his stepfather’s jealous rejection of him which drove him from his mother’s home at age 14 (C.A. 49), petitioner’s head injury at age nine (C.A. 53-54), his employment as a valet for an entertainer (C.A. 53), and his unhappy experiences with mar- riage even after the birth of a son some nine years prior to the trial (C.A. 54-56). And, of course, the data that were contained in the various psychiatric reports and underlying documents introduced in sup- port of petitioner’s insanity defense presented to the jury a more vivid profile of petitioner than the ordi- “Pope v. United States, 372 F. 2d 710, 730 (1967) (en banc), vacated on other grounds, 392 U.S. 651 (1968). 114 nary pre-sentence report provides. Thus, ‘whatuyi quantum ‘of information about the accused’ may} argued to be constitutionally necessary, there {x4 room in the facts of the present case to conterid thi the jury which sentenced petitioner to death -laeky that irreducibly minimal familiarity with the - whose fate they decided. But to bring the discussion full circle we capa size that the instant case is more typical than anoma- lous in this regard. Although the contours of the back. ground evidence admitted in first-degree murder cases fluctuate from case to case and jurisdiction to juris diction, the normal course of a one-stage murder trial develops enough tangential information about the accused to offer the sentencing jury a rather accurate perspective on him. 3. A con to t separate aay have pe penalty may afirmatie The practical experience discussed in the preceding section implies a possibility that some courts and com- mentators have verbalized: that holding a separate penalty hearing may in its normal course operate to the disadvantage of defendants, for it offers them little opportunity to adduce mitigating evidence that could not be brought forth at the traditional one-stage guilt trial, but allows the prosecution to develop aggravating factors that would otherwise be inadmis- 115 sible. This Court™ and others” have in the recent pointed to this uncertainty about the actual im- pact of bifurcation as a prudent basis for declining to hold that the Constitution impels its adoption. Our experience with two-stage trials on guilt and punish- ment stretches back only thirteen years to California’s adoption of the device in 1957. It would be improvi- dent, we believe, to freeze this ambivalent procedure, with its merits and demerits still elusive, into a con- stitutional directive. | | | ‘In perhaps every single-stage jurisdiction the ac- cused can introduce a good deal of ameliorative infor- mation either as somehow bearing upon the guilt de- termination or as frankly tending toward moderating punishment.” In fact in discussing the evidentiary % See United States v. Jackson, supra 390 U.S. at 579-581 and nn. 17 & 19; Spencer v. Tewas, supra, 385 U.S. at 567-568 n, 12. *See, ¢.g., Frady v. United States, 348 F. 2d 84, 115 (C.A.D.C.) (opinion of Burger, J.) certiorari denied, 382 US. 909 (1965) ; United States v. Curry, 358 F. 2d 904, 914-915 (C.A. 9), certiorari denied, 385 U.S. 873 (1966) ; State v. Forcella, 52 N.J. 263, 245 A. 2d 181, 195 (1968), pending on pet. for cert., No. 5011, O.T. 1970. See Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1116 (1953). See, also United States v. White, 225 F. Supp. 514, 523 (D.D.C. 1963), rejecting the argument that, under the 1962 amendment to the District of Columbia murder statute giving sentencing discretion to the jury, the jury’s initial deliberations should be confined to guilt, with the defendant thereafter permitted to present evidence in mitigation : “Defendant clearly can only be helped by being permitted to introduce character testimony possibly relevant to the choice of sentences before the jury has agreed upon the [guilt] verdict itself. It is fairest to the defendant for the jury to have the full range of clearly distinguished alternatives before it for consideration at one time.” 116 thrust of the separate penalty hearing proposed by the Model Penal Code (see App. G, infra), the Oode's Chief Reporter, Prof. Herbert Wechsler, explained to the American Law Institute: dg On the aggravating side the most important illustration would be the previous [criminal] record. On the mitigating side, it may be less likely that there will be mitigations to be estab. lished that won’t be in evidence, but I can conceive for example of a psychiatric report that might have weight and that would not come in until after the verdict.” It is precisely this type’ of realistic prediction that courts and commentators have made in suggesting that bifurcation is a ‘‘two-way street” which perhaps provides down-hill momentum for the prosecution,” Contrasted with the speculation that there might be significant mitigating factors that the defense could only introduce at a separate hearing is the unique and certain opportunity for the State to open up the accused’s background, character, and criminal history to show just what kind of a person he really is, In the unitary trial, if the defendant’s background is unblemished, he can usually demonstrate that. If he is tainted with prior misbehavior he can normally concentrate subtly enough on some redeeming features so that the door will not be opened too wide to expose all his faults.“ But at a two-stage trial there is little more that the defendant can elucidate, while the State, 936 ALL, Proceedings 193 (1959). ' * See, ¢.g., Sims v. Eyman, 405 F. 2d 489, 444 (CA. 9, 1969) ; State v. Forcella, 52 N.J. 263, 245 A. 2d 181, 195 (1968). “See Spencer v. Texas, supra, 385 U.S. at 560-562. 117 by hypothesis, is permitted to demonstrate in detail what it otherwise might not be able to show: that the jury need have no illusions about the possibility that - the crime on trial might have been a momentary aberration in an otherwise decent life.” The Stanford Law Review’s recent massive survey of California murder cases has demonstrated that the feature in the two-stage murder trials that had “the greatest impact on penalty was the presence or ab- sence of a prior criminal record. Defendants with such a record were considerably more likely to receive the death penalty on the basis of that attribute alone.”’ * Yet it is just that type of evidence that is generally inadmissible to affect the punishment de- cision at a unitary trial but is routinely admissible at a penalty hearing.” Little wonder then that some commentators have noted that the penalty hearing is by no means an unambiguous plus for defendants.“ “1 It has also been suggested that, to the extent there has already been a full hearing focusing on circumstances of aggravation and mitigation, the Executive may be particularly reluctant to grant clemency in the face of the jury’s decision. See Lwecutive Clemency in Capital Cases, 39 N.Y.U.L. Rev. 136, 166-167 (1964). That same study states that the California experience has been that defense counsel have not been as well prepared for litigation at the penalty phase as have been the prosecuting attorneys, nor have they been as sophisticated. See 39 N.Y.U.L. Rev. at 167. This Court in United States v. Jackson, supra, 390 U.S. at 580 n. 19, attributed this reported phenomenon to the “relative novelty of penalty proceedings”. 4 Study of the California Penalty Jury in First-Degree Murder Cases: Standardless Sentencing, 21 Stan. L. Rev. 1302, 1326 (1969) ; see, also, id. at 1889-1390, 1412. “See Note, 110 U. Pa. L. Rev. 1036, 1087 (1962). “ See, ¢.g., The Bifurcated Trial Procedure and First Degree Murder, 3 Suffolk U. L. Rev. 628, 632 (1969). 118 An examination of bifurcation statutes now in fons reveals the scope of adverse evidence admissible under them, frequently without regard to the rules of; éj. dence .applicable at a guilt trial’ The California statute, for example (Cal. Penal Code § 190.1, App A, infra, p. 126) authorizes the introduction of evi- dence “of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” Under this statute the State may prove not only prior criminal convictions but also crimes for which the defendant was neither charged nor con- victed, so long as the jury is told not to consider them unless established beyond a reasonable doubt. People v. Floyd, 1 Cal. 3d 694, 83 Cal. Rptr. 608, 464 P. 2d 64, 77 (1970). The Pennsylvania statute (18 Pa. Stat. § 4701) simply provides that after the verdict of guilt “and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received as may be relevant and admis sible upon the question of the penalty to be im- posed * * *.”” Under this statute, the Pennsylvania Supreme Court has upheld the admissibility of. evi- dence of crimes, including a separate homicide, com- mitted by the defendant after he committed the murder on trial, reasoning that the statute is designed to let the jury know exactly what kind of man the accused is at the time it fixes his punishment. Com- ** See, generally, on the admissibility of evidence at penalty hearings: The California Penalty Trial, 52 Calif. L. Rev. 386, 388-389 (1964); The Two-Trial System in Capital Cases, %9 N.Y.U. L. Rev. 50, 59-68 (1964). 119 nonwealth V. Bell, 417 Pa. 291, 208 A. 24 465, 468 1965). | ye new Connecticut Penal Code continues that State’s use of a penalty proceeding. Section 46(a) of the new Code provides in part that in the penalty proceedings : * * * evidence may be presented as to any matter that the court deems relevant to sen- tence, including but not limited to the nature and circumstances of the crime, the defend- ant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any such evidence which the court deems to have probative foree may be received, regardless of its admissibility under the exclusionary rules of evidence. The Texas provision states that in the post-verdict proceedings ‘‘evidence may be offered hy the state and the defendant as to the prior criminal record of the defendant, his general reputation and his char- acter.’’ Tex. Code Crim. Pro. art. 37.07(3) (a) (Supp. 1970). New York’s statute generally prescribes with refer- ence to the separate punishment hearing (N.Y. Penal Law § 125.35) : 3. In such proceeding, evidence may be presented by either party on any matter rel- evant to sentence including, but not limited to, the nature and circumstances of the crime, defendant’s background and history, and any aggravating or mitigating circumstances. Any relevant evidence, not legally privileged, shall rg 120 be received regardless of its admissibility wnder the exclusionary rules of evidence. er The new Georgia statute (Ga. Laws 1970, No, 1333, p. 949) provides that there is to be a penalty hearing after a verdict of guilty is returned in every felony case: In such hearing, subject to the laws of evidenee, the jury shall hear additional evidence in exten- uation, mitigation, and aggravation of punish- ment, including the record of any prior criminal convictions and pleas of guilty or pleas of nole contendre [sic] of the defendant, or the ab- sence of any such prior criminal convictions and pleas; provided, however, that only such evi- dence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. There is substantial reason to believe that these pro- cedures do enlarge the probability that a jury will return a death verdict. In commenting specifically on the bifurcated procedures established in New York and California which “‘permit the jury access to the broadest possible evidence about the defendant”, Pro- fessors Kalven and Zeisel reported : ‘‘Some judges have suggested that the system may be resulting in an in- crease in capital cases’’.“ ‘6 The American Jury, supra, at 448 & n. 29. The State of California in its Brief in the McGautha case (No. 203) presents statistics in Table C (p. 72) that may in- dicate that the introduction of bifurcation in California in 1957 has had no discernible effect on the ratio of death sen- tences to first degree murder convictions. It is difficult, however, to draw any firm conclusions on this question from the gross figures available. The relative constancy of the death penalty 121 Reported cases tend to show that this adverse sub- stantive impact on defendants—though not an “irra- tional” or unconstitutional one, of course—may indeed result from focusing on the question of what penalty the convicted murderer deserves.” In Ward v. Cali- fornia, 269 F. 2d 906, 907-908 (C.A. 9, 1959), for example, the court of appeals was faced with a com- plaint from a murderer sentenced to death after a California penalty trial that at the hearing the jury was given evidence of his prior criminal record which would not have been admissible under the unitary ure in foree at the time the offense was com- mitted. The court held that this material was properly related to rational sentencing under the new procedure and that he could not object to this expansion of the scope of information available to aid in sentencing. More vivid perhaps is People v. Dusablon, 16 N.Y. 2d 9, 261 N.Y.S. 2d 38, 209 N.E. 2d 90 (1965), where the New York Court of Appeals was called upon to review death sentences imposed by a jury after a penalty hearing under New York’s 1963 bifurcation statute. The two defendants were convicted of felony- ratio over a period when the popular attitude toward the death penalty has probably become somewhat more cautious may mask some net impetus toward the death penalty stem- ing from fuller knowledge about the defendants’ back- grounds. ‘In Williams v. New York, supra, it will be recalled, the constitutional claims about the nature and source of sentencing information arose after a New York jury at a one-stage trial had made a non-binding recommendation of mercy but the trial judge, with access to background information that had not come before the jury, decided that a death sentence was appropriate. See 337 U.S. at 244. murder. Under the general American rule to whieh New York had adhered, evidence of prior criminy] convictions was not admissible under the former one. stage procedure, but such evidence was properly ad- mitted at the penalty hearing. In affirming the convie. tions and death sentences, the court took note of the defendants’ plight under the bifurcated system (16 N.Y. 2d at 17, 261 N.Y.S. 2d at 40, 209 NE. at 91): It is possible that, if the jury had not known of appellants’ prior criminal records, they might have recommended life imprisonment in the case of either or both of them, particularly, perhaps, in the case of the one who did not fire the fatal shot in this felony murder.“ Similarly, defendants who received death sentences after Texas punishment hearings at which relevant bad-character evidence was admissible have unsuceess- fully complained about having their full backgrounds exposed to the sentencing jury. See, ¢.g., Smith y. State, 437 S.W. 2d 835, 838 (Tex. Crim. App. 1969); ** The result in the McGautha case (No. 203) now before the Court, tends to substantiate this realistic assessment. There, at the end of the guilt trial the jury had very little clear information about which defendant had fired the fatal shot and knew nothing of their respective criminal records. The jury evi- dently agonized over the death penalty decision and it seems within the bounds of reasonable surmise to suspect that if there had not been a separate penalty proceeding at which these two questions were fully ventilated the jury might not have felt confident enough about the identity of the trigger-man or about the defendants’ characters to sentence either of them to death. oP? ™ FP EH FESS tases 123 Jones V. State, 416 S.W. 2d 412, 414 (Tex. Crim. App. 1967).” | oe the Supreme Court of the State of Washing- ton, in affirming a death penalty set by a jury after q one-stage trial for murder, overruled an objection to the denial of a request for bifurcation, noting pointedly, State v. Smith, 74 Wash. 2d 744, 446 P. 94 571, 591. (1969): It may be true that the advantages of a bi- furcated trial outweigh the disadvantages to the defendants; but the defendants themselves do not appear to be altogether certain of this, particularly the [co-]defendant Riggins, who objected to the procedure when it was proposed to the trial court.” See, also, People v. Hurst, 42 Ill. 2d 217, 247 N.E. Qd 614 (1969); People v. Kelley, 44 Ill. 2d 315, 255 N.E. 2d 390 (1970), upholding the introduction of bad-character evidence in separate penalty hearings in capital cases under the Illinois provision for the sentencing judge in all felony cases to hear post-conviction evidence in aggravation and mitigation. See IIl. Ann. Stat. ch. 38, §1-7(g) (Smith Hurd, Supp. 1970). * See, also, the opinion of the Chief Justice while a circuit judge, in Frady v. United States, supra, 348 F. 2d at 115, advancing similar reasons for cautioning against judicial estab- lishment of mandatory bifurcation : “Various arguments against such a system appear in the pro- ceedings of the Judicial Conference of this Circuit which considered this problem in drafting the bill it sent to Congress: eg., that such a procedure would be troublesome, expensive and time-consuming; that the introduction of aggravating back- ground evidence would work too harshly against the defendant, inflaming the jury rather than providing a basis for dispas- sionate exercise of discretion. A further substantial argument _ With the record this ambivalent on the crucial queg. tion of what effect separate penalty trials may havegn the defendants who are exposed to them, there is a need for prudent restraint in deciding that the Con- stitution requires their adoption as an integral feature of due process. To some extent, a separate hearing on punishment probably does introduce greater “ration- ality” into the jury sentencing system, in that: the jury is more likely to learn just how jaded a particu. lar defendant may be. But on the other hand, it ap- pears that this procedure does not ordinarily acquaint the jury with substantially more extenuating circum- stances than they otherwise would observe or leam about. There exists at present this disquieting uncer- tainty about whether a separate penalty trial may not in fact tip the scales in favor of a capital sentence. Certainly our experience with bifurcated capital trials over the past thirteen years is empty of any genuine or compelling indication that such procedures are more fair to an accused than the traditional unitary trial. It seems to us, therefore, that the Court should not be encouraged to believe that bifurcation is so over- made against a two-trial system during the course of our 1959 Judicial Conference proceedings was that defendants are prob- ably better off under the present system, since in many capital cases the ‘insanity’ issue is raised and the accused reaps much of the benefit of developing background information in mitiga- tion without the burden of being exposed to evidence in aggra- vation. Some serious students of this problem see an sdditional point in that defense counsel may be slow to adapt their tactics to a two-trial procedure, thus prejudicing their clients.” (foot- note omitted) 125 ghelmingly indispensable to a fair trial and a just sentence that due process of law forbids any other procedure. In the view of the United States, therefore, there is no constitutional reason why the judgments of the Supreme Court of California in No. 203, McGautha v. California, and of the Supreme Court of Ohio in No. 204, Crampton v. Ohto, should not be affirmed. Respectfully submitted. Erwin N. GRISWOLD, Solicitor General. Pump A. Lacovara, Special Assistant to the Attorney General. CONCLUSION OctosER 1970. 405-388—70——10 APPENDIX A Statutes INVOLVED I. Sections 190 and 190.1 of the California Pena) Code (West, Supp. 1970) provide: § 190. Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as provided .in Section 190.1, and every person guilty of murder in the second degree is punish- able by imprisonment in the state prison from five years to life. § 190.1. The guilt or innocence of every per- son charged with an offense for which the pen- alty is in the alternative death or imprisonment for life shall first be determined, without a finding as to penalty. If such person has been found guilty of an offense punishable by life imprisonment or death, and has been found sane on any plea of not guilty by reason of insanity, there shall thereupon be further pro- ceedings on the issue of penalty, and the trier of fact shall fix the penalty. Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and his- tory, and of any facts in aggravation or miti- gation of the penalty. The determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented, and the penalty fixed shall be expressly stated in the decision or verdict. The death penalty shall not be imposed, however, upon any person who was under the age of 18 years at the time of the commission of the crime. The burden of (126) — proof as to the age of said person shall be upon the defendant. If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived. If the defendant was convicted by a jury, the trier of fact shall be the same jury unless, for good cause shown, the court discharges that jury, in which-case a new jury shall be drawn to determine the issue of penalty. , ‘ xf “yd in which gr es has been found guilty by a jury, and the same or an- other jury, trying the issue of penalty, is unable to reach a unanimous verdict on the issue of penalty, the court shall dismiss the jury and either impose the punishment for life in lieu of ordering a new trial on the issue of penalty, or order a new jury impaneled to try the issue of penalty, but the issue of guilt shall not be retried by such jury. | II. Section 2901.01 of the Ohio Revised Code Ann. (Page, 1954), provides: . No person shall purposely, and either of de- liberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate a rape, arson, robbery, or burglary, kill another. Whoever violates this section is guilty of murder in the first degree and shall be pun- ished by death unless the jury trying the ac- cused recommends mercy, in which case the we aR a shall be imprisonment for life. urder in the first degree is a capital crime un- der Section 9 and 10 of Article I, Ohio Constitu- tion. APPENDIX B ’ Inrriau IntRODUCTION oF JURY DiscRETION TO Ser Lip SENTENCE FOR MURDER AND/OR OTHER CaPrraL (Op. FENSES* (None Provipine Statutory Sranparns) 1838—Tennessee, Act of June 10, 1838, Laws 1837- 1838, ch. 29. 1841—Alabama, Penal Code of 1841 (Act of Jan, 9 1841), ch. 3, § 1, Acts 1841, p. 122. 1846—Louisiana, Act of June 1, 1846, Acts 1846, No. 139, p. 118 (all capital crimes) 1858—Texas, Act of February 12, 1858, Gen. Laws 1858, ch. 121, art. Tla (in any capital case, when lesser penalty authorized, jury to é&x penalty) 1861—Georgia, Code 1861, § 4220 1866—Georgia, Acts 1866, No. 208 (all capital crimes) Georgia, Acts 1866, No. 210 (rape) 1867—Illinois, Public Laws 1867, p. 90, § 1 (all capi- tal felonies; life or term not less than 14 years optional) 1868—Minnescta, General Laws 1868, ch. 88 1869—Kentucky, Public Acts 1669, ch. 1659, §1 p. 52 (rape; jury to sentence to death or term of year [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A04. Public record. Not legal advice.