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urden of the prosecution to prove guilt beyond a reasonable doubt and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979). 1054 E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains ‘‘reasonable doubt’’ as doubt that would give rise to a ‘‘grave uncertainty,’’ as equivalent to a ‘‘substantial doubt,’’ and as requiring ‘‘a moral certainty,’’ suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define ‘‘reasonable doubt’’ as requiring a ‘‘moral certainty’’ or as equivalent to ‘‘substantial doubt’’ did not violate due process because other clarifying language was included.) 1055 Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S. 36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895), in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt. 1056 Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Coconviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’’ 1050 ‘‘The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’’’ 1051 In many past cases, this standard was assumed to be the required one, 1052 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process. 1053 The presumption of innocence is valuable in assuring defendants a fair trial, 1054 and it operates to ensure that the jury considers the case solely on the evidence. 1055 The Court had long held that, under the due process clause, it would set aside convictions that are supported by no evidence at all. 1056 The Winship case, however, necessitated a consideration of VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00190 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1861 lumbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957). 1057 443 U.S. 307 (1979). 1058 443 U.S. at 3116, 318-19. On a somewhat related point, the Court has ruled that a general guilty verdict on a multiple-object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conspiracy, but is adequate to support conviction as to another. Griffin v. United States, 112 U.S. 466 (1991). 1059 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). 1060 Rivera v. Delaware, 429 U.S. 877 (1976), dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a State from placing on the defendant the burden of proving insanity by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice Rehnquist and Chief Justice Burger concurring in Mullaney, 421 U.S. at 704, 705, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that the defense may be required to prove insanity beyond a reasonable doubt. 1061 432 U.S. 197 (1977). whether reviewing courts should weigh the sufficiency of trial evidence. Thus, in Jackson v. Virginia, 1057 it held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 1058 Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the Court held in Mullaney v. Wilbur 1059 that it was unconstitutional to require a defendant charged with murder to prove that he acted ‘‘in the heat of passion on sudden provocation’’ in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test was to be employed to determine when the due process clause required the prosecution to carry the burden and when some part of the burden might be shifted to the defendant, but the decision called into question the practice in many States under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion, a significant and weighty task given the large numbers of affirmative defenses. The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense, 1060 and later, in Patterson v. New York, 1061 upheld a state statute that provided that required a defendant asserting ‘‘extreme VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00191 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1862 AMENDMENT 14—RIGHTS GUARANTEED 1062 Proving the defense would reduce a murder offense to manslaughter. 1063 The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. 1064 Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts which historically have made a substantial difference in the punishment and stigma flowing from a criminal act the State always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. 432 U.S. at 216. Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is ‘‘prior calculation and design’’). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240. 1065 McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these type of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may be evaluated by a judge. See discussion in ‘‘Criminal Proceedings to Which the Guarantee Applies’’, supra. emotional disturbance’’ as an affirmative defense to murder 1062 to prove such by a preponderance of the evidence. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the State to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, while allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense. 1063 This distinction has been criticized as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses. 1064 Another important distinction which can substantially affect a prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. While a criminal conviction is generally established by a jury using the ‘‘beyond a reasonable doubt’’ standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient ‘‘preponderance of the evidence’’ standard. The Court has taken a formalistic approach to this issue, allowing states to essentially designate which facts fall under which of these two categories. For instance, the Court has held that whether a defendant ‘‘visibly possessed a gun’’ during a crime may be designated by a state as a sentencing factor, and determined by a judge based on the preponderance of evidence. 1065 Although the Court has generally deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00192 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1863 1066 530 U.S. 466, 490 (2000) (interpreting New Jersey’s ‘‘hate crime’’ law). It should be noted that prior to its decision in Apprendi the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v. United States, 122 S. Ct. 2406 (2002). 1067 Walton v. Arizona, 497 U.S. 639 (1990) overruled by Ring v. Arizona, 122 S. Ct. 2428 (2002). 1068 This limiting principle does not apply to sentencing enhancements based on recidivism. Apprendi, 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction). 1069 See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent). 1070 319 U.S. 463, 467-68 (1943). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was ‘‘carrying on’’ or aiding in ‘‘carrying on’’ its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still). v. New Jersey. In Apprendi the Court held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime. 1066 This led, in turn, to the Court overruling conflicting prior case law which had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment. 1067 These holding are subject to at least one exception, however, 1068 and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range. Another closely related issue is statutory presumptions, where proof of a ‘‘presumed fact’’ which is a required element of a crime, is established by another fact, the ‘‘basic fact.’’ 1069 In Tot v. United States, 1070 the Court held that a statutory presumption was valid under the due process clause only if it met a ‘‘rational connection’’ test. In that case, the Court struck down a presumption that person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. ‘‘Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.’’ VerDate Aug<10>2004 02:42 Aug 19, 2004 Jkt 077500 PO 00000 Frm 00193 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1864 AMENDMENT 14—RIGHTS GUARANTEED 1071 395 U.S. 6, 36 (1969). 1072 395 U.S. at 37-54. While some of the reasoning in Yee Hem, supra, was disapproved, it was factually distinguished as involving users of ‘‘hard’’ narcotics. 1073 395 U.S. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either ‘‘rational connection’’ or ‘‘reasonable doubt,’’ a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the ‘‘rational connection’’ test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process). 1074 Ulster County Court v. Allen, 442 U.S. 140, 166–67 (1979). In Leary v. United States, 1071 this due process test was stiffened to require that for such a ‘‘rational connection’’ to exist, it must ‘‘at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’’ Thus, a provision which permitted a jury to infer from defendant’s possession of marijuana his knowledge of its illegal importation was voided. A lengthy canvass of factual materials established to the Court’s satisfaction that while the greater part of marijuana consumed here is of foreign origin, there was still a good amount produced domestically and there was thus no way to assure that the majority of those possessing marijuana have any reason to know their marijuana is imported. 1072 The Court left open the question whether a presumption which survived the ‘‘rational connection’’ test ‘‘must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.’’ 1073 In its most recent case, a closely divided Court drew a further distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, ‘‘since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.’’ 1074 But, with respect to permissive presumptions, ‘‘the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted.’’ Thus, because the jury was told it had to believe in defendants’ guilt beyond a reasonable doubt and that it could consider the inference, due process was not violated by the application of the statutory presumption that the presence of a firearm in an VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00194 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1865 1075 The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. 442 U.S. at 168 (Justices Powell, Brennan, Stewart, and Marshall). See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction that, to dissenting Justices O’Connor and Stevens, id. at 75, seemed to direct the jury to draw the inference that evidence that a child had been ‘‘battered’’ in the past meant that the defendant, the child’s father, had necessarily done the battering). 1076 Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 350 U.S. 961 (1956)). 1077 Pate v. Robinson, 383 U.S. 375, 378 (1966). For treatment of the circumstances when a trial court should inquire into the mental competency of the defendant, see Drope v. Missouri, 420 U.S. 162 (1975). Also, an indigent who makes a preliminary showing that his sanity at the time of his offense will be a substantial factor in his trial is entitled to a court-appointed psychiatrist to assist in presenting the defense. Ake v. Oklahoma, 470 U.S. 68 (1985). 1078 Medina v. California, 112 S. Ct. 2572 (1992). It is a violation of due process, however, for a state to require that a defendant must prove competence to stand trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996). 1079 Jackson v. Indiana, 406 U.S. 715 (1972). automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. 1075 The division of the Court in these cases and in the Mullaney v. Wilbur line of cases clearly shows the unsettled doctrinal nature of the issues. The Problem of the Incompetent or Insane Defendant or Convict.—It is a denial of due process to try or sentence a defendant who is insane or incompetent to stand trial. 1076 When it becomes evident during the trial that a defendant is or has become insane or incompetent to stand trial, the court on its own initiative must conduct a hearing on the issue. 1077 Although there is no constitutional requirement that the state assume the burden of proving the defendant competent, the state must provide the defendant with a chance to prove that he is incompetent to stand trial. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process 1078 When a State determines that a person charged with a criminal offense is incompetent to stand trial he cannot be committed indefinitely for that reason. The court’s power is to commit him to a period no longer than is necessary to determine whether there is a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that this is not the case, then the State must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen. 1079 Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00195 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1866 AMENDMENT 14—RIGHTS GUARANTEED 1080 Jones v. United States, 463 U.S. 354 (1983). The fact that the affirmative defense of insanity need only be established by a preponderance of the evidence, while civil commitment requires the higher standard of clear and convincing evidence, does not render the former invalid; proof beyond a reasonable doubt of commission of a criminal act establishes dangerousness justifying confinement and eliminates the risk of confinement for mere idiosyncratic behavior. 1081 463 U.S. at 368. 1082 463 U.S. at 370. 1083 Foucha v. Louisiana, 504 U.S. 71 (1992). 1084 477 U.S. 399 (1986). 1085 There was no opinion of the Court on the issue of procedural requirements. Justice Marshall, joined by Justices Brennan, Blackmun, and Stevens, would hold that ‘‘the ascertainment of a prisoner’s sanity calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.’’ 477 U.S. at 411-12. Concurring Justice Powell thought that due process might be met by a proceeding ‘‘far less formal than a trial,’’ that the state ‘‘should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel.’’ Id. at 427. Concurring Justice O’Connor, joined by Justice White, emphasized Florida’s denial of the opportunity to be heard, and did not express an opinion on whether the state could designate the governor as decisionmaker. Thus Justice Powell’s opinion, requiring the opportunity to be heard before an impartial officer or board, sets forth the Court’s holding. 1086 There are a number of other reasons why a defendant may be willing to plead guilty. There may be overwhelming evidence against him or his sentence after trial will be more severe than if he pleads guilty. 1087 United States v. Jackson, 390 U.S. 570 (1968). person could have been sentenced if convicted. 1080 The purpose of the confinement is not punishment, but treatment, and the Court explained that the length of a possible criminal sentence ‘‘therefore is irrelevant to the purposes of . . . commitment.’’ 1081 Thus, the insanity acquittee may be confined for treatment ‘‘until such time as he has regained his sanity or is no longer a danger to himself or society.’’ 1082 It follows, however, that a state may not indefinitely confine an insanity acquittee who is no longer mentally ill but who has an untreatable personality disorder that may lead to criminal conduct. 1083 The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing an individual who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding satisfying the minimum requirements of due process. 1084 Those minimum standards are not met when the decision on sanity is left to the unfettered discretion of the governor; rather, due process requires the opportunity to be heard before an impartial officer or board. 1085 Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a ‘‘plea bargain’’ with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense. 1086 While the government may not structure its system so as to coerce a guilty plea, 1087 a guilty plea that is entered VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00196 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1867 1088 North Carolina v. Alford, 400 U.S. 25 (1971); Parker v. North Carolina, 397 U.S. 790 (1970). See also Brady v. United States, 397 U.S. 742 (1970). A guilty plea will ordinarily waive challenges to alleged unconstitutional police practices occurring prior to the plea, unless the defendant can show that the plea resulted from incompetent counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21 (1974). The State can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283 (1975). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386 (1987). 1089 Blackledge v. Allison, 431 U.S. 63, 71 (1977). 1090 Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the Government obtained a four-count felony indictment and conviction). 1091 Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and posttrial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to. 1092 Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential elem

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