DocketNumber: 68
Judges: Stewart, Warren, Brennan, Harlan, Fortas, Douglas
Filed Date: 11/21/1966
Status: Precedential
Modified Date: 11/15/2024
dissenting in Nos. 68 and 69, and concurring in No. 70.
It seems to me that the only argument made by the Court which might support its disposition of these cases is the amorphous one that this Court should proceed hesitantly in dealing with courtroom procedures which are alleged to violate the Due Process Clause of the Fourteenth Amendment. It attempts to bolster its decision with arguments about the conceded validity of the purpose of recidivist statutes and by pointing to occa
It seems to me that the use of prior-convictions evidence in these cases is fundamentally at odds with traditional notions of due process, not because this procedure is not the nicest resolution of conflicting but legitimate interests of the State and the accused, but because it needlessly prejudices the accused without advancing any legitimate interest of the State. If I am wrong in thinking that the introduction of prior-convictions evidence serves no valid purpose I am not alone, for the Court never states what interest of the State is advanced by this procedure. And this failure, in my view, undermines the logic of the Court’s opinion.
There is much said about the valid purpose of enhanced punishment for repeating offenders, with which I agree, and about the variety of occasions in criminal trials in which prior-crimes evidence is admitted as having some relevance to the question of guilt or innocence. But I cannot find support for this procedure in either the purposes of recidivist statutes or by analogy to the
Recidivist statutes have never been thought to allow the State to show probability of guilt because of prior convictions. Their justification is only that a defendant’s prior crimes should lead to enhanced punishment for any subsequent offenses. Recidivist statutes embody four traditional rationales for imposing penal sanctions.
The amended Texas procedure is the nearest demonstration that none of the interests served by recidivist
Whether or not a State has recidivist statutes on its books, it is well established that evidence of prior convictions may not be used by the State to show that the accused has a criminal disposition and that the probability that he committed the crime currently charged is increased.
Recognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the requirement of our criminal law that the State prove beyond a reasonable doubt the commission of a specific criminal act. It is surely engrained in our jurisprudence that an accused’s reputation or criminal disposition is no basis for penal sanctions. Because of the possibility that the generality of the jury’s verdict might mask a finding of guilt based on an accused’s past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition.
As I have stated, I do not understand the opinion to assert that this Court would find consistent with due process the admission of prior-crimes evidence for no
Although the theory justifying admission of evidence of prior convictions to impeach a defendant’s credibility has been criticized,
In all the situations pointed out by the Court, the admission of prior-crimes evidence rests on a conclusion that the probative value of the evidence outweighs the
From these situations where the probative value of prior convictions evidence is thought to outweigh its prejudicial impact, the Court draws the legitimate conclusion that prior-convictions evidence is not so inherently prejudicial that its admission is invariably prohibited. It combines this premise with the concededly valid purpose of recidivist statutes to produce the following logic: since prior-crimes evidence may be admitted at the guilt phase of a trial where the admission serves a valid purpose and since the purpose of recidivist statutes is valid, prior crimes may be proven in the course of the guilt phase of a trial in order that the jury may also assess whether a defendant, if found guilty, should be sentenced to an enhanced punishment under recidivist statutes. I believe this syllogism is plausible only on the surface, because the Court’s premises do not combine to justify its far-reaching result. I believe the Court has fallen into the logical fallacy sometimes known as the fallacy of the undistributed middle, because it has failed to examine the
Unlike the purpose for the admission of prior-convictions evidence in all the examples cited by the Court, the admission in connection with enhancing punishment for repeating offenders has nothing whatever to do with the question of guilt or innocence of the crime currently charged. Because of the complete irrelevance of prior convictions to the question of guilt or innocence, the recidivist situation is not one where the trial courts are called upon to balance the probative value of prior convictions against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient of a procedure which reflects the exclusive relevance of recidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convictions should then be decided by the jury.
The availability of this procedural alternative, through which the interests of the State as reflected in its recidivist statutes can be fully effectuated while prejudice to the defendant is avoided, means that the only interest the State may offset against the possibility of prejudice to justify introducing evidence of prior crimes in these cases is the inconvenience which would result from postponing a determination that the defendant falls within a recidivist category until after the jury has found him guilty of the crime currently charged. However, for the
I would reverse No. 68 and remand for a new trial. For me, the State’s refusal to accept the stipulation removes any vestige of legitimate interest it might have to balance against the prejudice to the accused. To nevertheless admit the evidence seems to me entirely inconsistent with the way evidence of prior convictions is traditionally handled in our legal system.
What I have said about the State’s lack of interest in introducing this evidence when the defendant tries to stipulate to the prior conviction seems to me to apply equally to defendants under the Texas procedure who were not offered the opportunity of stipuláting to their prior convictions. Because of the unclear state of the law in Texas as to the right to have such a stipulation accepted, the failure of a defendant to volunteer a stipulation cannot be interpreted as indicative of what would have happened if the State made stipulation a right. The Texas Court, of Criminal Appeals approved a stipulation procedure for felony cases in Pitcock v. State, 367 S. W. 2d 864 (1963), on the convincing ground that, because the recidivist statutes in felony cases provided for automatic sentencing, a stipulation resolved all issues for which the prior convictions were relevant. As the court put it: “[t]o allow its introduction, after such stipulation, resolves no issue and may result in prejudice to the accused.” 367 S. W. 2d, at 865. However, two later cases held that refusal by the prosecutor to accept a
Because the stipulation procedure had become merely a matter of prosecutorial discretion, the petitioners in Nos. 69 and 70 cannot be said to have waived any right to stipulate their prior convictions, and it seems to me that, in the absence of a stipulation right, they must be regarded in the same light as the petitioner in No. 68, whose offer of stipulation was refused. If a defendant’s offer of stipulation removes any legitimate interest the State might otherwise have in presenting prior convictions to the jury for recidivist purposes, and makes the introduction inconsistent with due process, then it seems to me that the protection of the Due Process Clause should not be limited according to whether a defendant actually explored the chance that a prosecutor might accept an offer of stipulation. Since a stipulation procedure would completely effectuate the minimal state interest in having facts found under its recidivist statutes without the inconvenience of a two-part trial, while at the same time offering a defendant the chance to prevent the possibility of prejudice, it seems to me that due process requires this safeguard.
If the admission of prior-convictions evidence solely for the purpose of enhancing punishment in the event a defendant is found guilty violates due process when the defendant is not given the right of conceding the prior-convictions evidence to prevent its admission, peti-
In my view, these factors justify limiting the application of the decision I propose to nonfinal convictions. Texas came to rely on the constitutionality of the procedure involved in these cases by this Court’s consistent failure to review the practice until the grant of certiorari in these cases. Moreover, there can be no doubt but that application of this rule to final convictions would seriously disrupt the administration of crim
In all the cases where the constitutional doctrine has been retroactively applied, the judgment was made that the procedure found erroneous went to the heart of the fairness of the conviction and raised the danger of convicting the innocent. Thus, in Gideon and Douglas, the Court concluded that failure of an indigent defendant to be represented by counsel at trial and on appeal negated the possibility of a fair adversary proceeding. Similarly, the rule of Griffin v. Illinois was retroactively applied because forcing an indigent to forgo a meaningful appeal because he could not pay for a transcript meant that the availability of a basic part of the State’s system for determining guilt or innocence was conditioned on financial resources. This procedure was an obvious and funda-, mental denial of fairness in the process leading to conviction. In the final area where new rulings have been retroactively applied, Jackson v. Denno, the prejudice to the defendant was that he was not assured of a fair procedure in determining the voluntariness of his confession, and, moreover, that a jury might take into account a confession which it believed to be coerced in determining the defendant’s guilt. Obviously, the prejudice which results from the jury’s learning of a confession which is obtained unconstitutionally goes directly to the heart of the finding of guilt; and because one reason the Constitution has been held to outlaw involuntary confessions is their unreliability, Brown v. Mississippi, 297 U. S. 278 (1936) (for
In contrast to the unconstitutional procedures involved in the cases discussed above, the admission of prior-convictions evidence in connection with a recidivist statute does not seem to me to justify reversal of final convictions. The fact that prior-convictions evidence has been traditionally admitted when related to guilt or innocence suggests that its prejudice has not been thought so great as to undermine “the very integrity of the fact-finding process” and to involve a “clear danger of convicting the innocent.” See Linkletter v. Walker, 381 U. S., at 639; Tehan v. Shott, 382 U. S., at 416. Consequently, I would not apply a decision in line with this dissent to final convictions, such as No. 70, a habeas corpus proceeding.
The decision I propose is consistent with a large body of judicial thought. Two United States Courts of Appeals have adopted the view that recidivist procedures which authorize admission of prior-convictions evidence before the jury determines that the defendant is guilty violate due process. In Lane v. Warden, 320 F. 2d 179 (C. A. 4th Cir. 1963), the court reasoned that “it is patent that jurors would be likely to find a man guilty of a narcotics violation more readily if aware that he has had prior illegal association with narcotics. . . . Such a prejudice would clearly violate the standards of impartiality required for a fair trial.” 320 F. 2d, at 185. In the same vein, the Third Circuit, in United States v. Banmiller, 310 F. 2d 720 (1962), reasoned that a procedure like the one involved in the three cases at bar would cause the jury to have in mind the defendant’s previous convictions in determining his guilt of the crime currently charged. Both these courts, in fact, went farther than I would, in that they applied their decisions to final
The majority of States have adopted procedures which cure the prejudice inherent in the procedure in the cases at bar. In all, some 31 States have recidivist procedures which postpone the introduction of prior convictions until after the jury has found the defendant guilty of the crime currently charged.
I would reverse the convictions in Nos. 68 and 69 and remand for a new trial. In No. 70, I would affirm this final conviction.
See generally Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965).
Texas Code Crim. Proc. Art. 36.01, effective January 1, 1966. The new two-stage procedure does not apply in capital cases, the reason for the distinction apparently being because in capital cases the jury has a choice of punishment under the applicable recidivist statute. The validity of this distinction will be discussed below.
Professor McCormick states:
“The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” McCormick, Evidence § 157 (1954 ed.).
Dean Wigmore agrees with this statement of the general rule of exclusion, 1 Wigmore, Evidence §§ 193-194 (3d ed. 1940). As Wig-more points out, evidence of prior crimes is objectionable, not because it is not somewhat probative, but because the jury is likely to
See, e. g., Marshall v. United States, 360 U. S. 310 (1959); Michelson v. United States, 335 U. S. 469 (1948); Boyd v. United States, 142 U. S. 450 (1892).
In Michelson, the Court stated:
“Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.” 335 U. S., at 475-476.
In Marshall, the Court reversed a conviction where it was shown that newspaper accounts of the defendant’s prior convictions had been seen by a substantial number of jurors. The Court stated:
“. . . We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence.” 360 U. S., at 312-313.
In Boyd, the defendants were charged with murder following an attempt to rob, and the prosecution introduced evidence that the defendants had committed other robberies before the one involved
“. . . Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment of death.” 142 U. S., at 458.
See, e. g., Lovely v. United States, 169 F. 2d 386, 389 (C. A. 4th Cir. 1948):
“The rule which thus forbids the introduction of evidence of other offenses having no reasonable tendency to prove the crime charged, except in so far as they may establish a criminal tendency on the part of the accused, is not a mere technical rule of law. It arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence. If such evidence were allowed, not only would the time of courts be wasted in the trial of collateral issues, but persons accused of crime would be greatly prejudiced before juries and would be otherwise embarrassed in presenting their defenses on the issues really on trial.”
Railton v. United States, 127 F. 2d 691, 693 (C. A. 5th Cir. 1942):
. . It is logical to conclude, and very apt to be concluded, that because a man was dishonest once he will steal again. It is certainly ‘more probable’ that a crooked official did steal than if ho were an upright one. Yet our law forbids these very premises. It cannot be shown that the accused has committed other similar crimes to show that it is probable he committed the one charged.”
Cf. also Tedesco v. United States, 118 F. 2d 737 (C. A. 9th Cir. 1941); Swann v. United States, 195 F. 2d 689 (C. A. 4th Cir. 1952); United States v. Jacangelo, 281 F. 2d 574 (C. A. 3d Cir. 1960).
Texas recognizes this general rule, Seay v. State, 395 S. W. 2d 40. Other typical decisions are People v. Molineux, 168 N. Y. 264, 61 N. E. 286 (1901); State v. Scott, 111 Utah 9, 175 P. 2d 1016 (1947). See also State v. Myrick, 181 Kan. 1056, 317 P. 2d 485 (1957); Scarbrough v. State, 204 Miss. 487, 37 So. 2d 748 (1948).
See generally exceptions set out in McCormick, Evidence § 157.
See, e. g., Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L. J. 763 (1961).
See Stebbing, A Modern Introduction to Logic 88 (6th ed. 1948).
Coinage Offences Act, 1861, 24 & 25 Vict., c. 99; Act of 6 & 7 Will. 4, c. 111; Reg. v. Shuttleworth, 3 Car. & K. 375.
The States which have adopted a procedure either by legislation or judicial decision which separates the determination of prior convictions from the determination of guilt of the crime currently charged are: Alaska, Alaska Stat. § 12.55.060 (1962); Arkansas, Miller v. State, 239 Ark. 836, 394 S. W. 2d 601 (1965); Colorado, Heinze v. People, 127 Colo. 54, 253 P. 2d 596 (1953); Connecticut, State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921); Delaware, Del. Code Ann. Tit. 11, § 3912 (b) (Supp. 1964); Florida, Fla. Stat. Ann. §775.11 (1965), Shargaa v. State, 102 So. 2d 814 (1958); Idaho, State v. Johnson, 86 Idaho 51, 383 P. 2d 326 (1963); Illinois, Ill. Rev. Stat. c. 38, §§603.1-603.9 (1963), Ill. Rev. Stat. c. 38, § 22-43 (1965); Kansas, Kan. Gen. Stat. Ann. § 21-107a (1949); Louisiana, La. Rev. Stat. Ann. § 15:529.1 D (Supp. 1962); Maryland, Md. Rule of Proc. 713; Michigan, Mich. Stat. Ann. §28.1085 (1954); Minnesota, Minn. Stat. Ann. §609.16; Missouri, Mo. Rev. Stat. § 556.280 (1959); Nebraska, Neb. Rev. Stat. § 29-2221 (1964); New York, N. Y. Pen. Law § 1943; New Mexico, Johnson v. Cox, 72 N. M. 55, 380 P. 2d 199 (1963); North Dakota, N. D. Cent. Code § 12-06-23 (1960); Ohio, Ohio Rev. Code Ann. § 2961.13 (1954); Oklahoma, Okla. Stat. Ann. Tit. 22, § 860 (Supp. 1964), Harris v. State, 369 P. 2d 187 (1962); Oregon, Ore. Rev. Stat. § 168.065 (1961); Pennsylvania, Pa. Stat. Ann. Tit. 18, §5108 (1963); South Dakota, S. D. Code § 13.0611 (3) (1939); Tennessee, Tenn. Code Ann. §40-2801 (1955), Harrison v. State, — Tenn. —, 394 S. W. 2d 713 (1965); Texas, Texas Code Crim. Proc. Art.
The three States which have adopted a stipulation procedure are: Arizona, Ariz. Rule Crim. Proc. 180, Ariz. Code Ann. § 44-1004 (1939), Montgomery v. Eyman, 96 Ariz. 55, 391 P. 2d 915 (1964); California, Cal. Penal Code § 1025, People v. Hobbs, 37 Cal. App. 2d 8, 98 P. 2d 775 (1940); and Wisconsin, State v. Meyer, 258 Wis. 326, 46 N. W. 2d 341 (1951).