At petitioner's Kentucky state robbery trial, which resulted in
his conviction, the trial court instructed the jury as to the
prosecutor's burden of proof beyond a reasonable doubt but refused,
inter alia, petitioner's requested instruction on the
presumption of innocence. The robbery victim was the prosecution's
only witness, and petitioner was the sole defense witness. The
prosecutor, in his opening statement, related the circumstances of
petitioner's arrest and indictment. In his closing statement, the
prosecutor made observations suggesting that petitioner's status as
a defendant tended to establish his guilt. The Kentucky Court of
Appeals affirmed the conviction, rejecting petitioner's argument
that he was entitled to the requested instruction as a matter of
due process under the Fourteenth Amendment.
Held: On the facts, the trial court's refusal to give
petitioner's requested instruction on the presumption of innocence
resulted in a violation of his right to a fair trial as guaranteed
by the Due Process Clause of the Fourteenth Amendment.
Howard
v. Fleming, 191 U. S. 126,
distinguished. Pp.
436 U. S.
483-490.
(a) While the legal scholar may understand that the presumption
of innocence and the prosecution's burden of proof are logically
similar, the ordinary citizen may draw significant additional
guidance from an instruction on the presumption of innocence. Pp.
436 U. S.
483-485.
(b) An instruction on the presumption is one way of impressing
upon the jury the importance of an accused's right to have his
guilt or innocence determined solely on the basis of evidence
introduced at trial and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced
as proof at trial. Pp.
436 U. S.
485-486.
(c) The prosecutor's remarks during his opening and closing
statements, together with the skeletal instructions of the trial
court, gave rise to a genuine risk that the jury would convict
petitioner on the basis of extraneous considerations, rather than
on the proof adduced at the trial, a risk heightened by the fact
that the trial was essentially a swearing contest between victim
and accused. Pp.
436 U. S.
486-488.
(d) That the trial court instructed as to the burden of proof
beyond a reasonable doubt did not obviate the necessity for a
presumption of innocence instruction in view of both the special
purpose of such an instruction and the particular need for it in
this case. P.
436 U. S.
488.
Page 436 U. S. 479
(e) Nor did the fact that defense counsel argued the presumption
of innocence in both his opening and closing statements dispense
with the need for a presumption of innocence instruction, since
arguments of counsel cannot substitute for instructions by the
court. Pp.
436 U. S.
488-489.
551
S.W.2d 813, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ.,
joined. BRENNAN, J., filed a concurring statement,
post,
p.
436 U. S. 490.
STEVENS, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
436 U. S.
491.
MR. JUSTICE POWELL delivered the opinion of the Court.
Only two Terms ago, this Court observed that the "presumption of
innocence, although not articulated in the Constitution, is basic
component of a fair trial under our system of criminal justice."
Estelle v. Williams, 425 U. S. 501,
425 U. S. 503
(1976). In this felony case, the trial court instructed the jury as
to the prosecution's burden of proof beyond a reasonable doubt, but
refused petitioner's timely request for instructions on the
presumption of innocence and the indictment's lack of evidentiary
value. We are asked to decide whether the Due Process Clause of the
Fourteenth Amendment requires that either or both instructions be
given upon timely defense motions.
I
Petitioner was tried for robbery in 1976, allegedly having
forced his way into the home of James Maddox and stolen a house key
and a billfold containing $10 to $15. During
voir
Page 436 U. S. 480
dire of the jury, defense counsel questioned the panel
about their understanding of the presumption of innocence,
[
Footnote 1] the burden of
proof beyond a reasonable doubt, [
Footnote 2] and the fact that an indictment is not
evidence. [
Footnote 3] The
prosecutor then read the indictment to the jury. [
Footnote 4]
The Commonwealth's only witness was Maddox. He testified that he
had known petitioner for several years and had entertained
petitioner at his home on several occasions. According to Maddox,
petitioner and a friend knocked on his door on the evening of
February 16, 1976, asking to be admitted. Maddox refused, saying he
had to go to bed. The two left, but returned 15 minutes later. They
forced their way in, hit Maddox over the head, and fled with his
billfold and house key, which were never recovered.
Petitioner then took the stand as the only witness for the
defense. He admitted having been at Maddox's home on other
occasions, but denied going there on February 16 or participating
in the robbery. He stated that he had spent that night with two
friends sitting in a parked car, watching a rainstorm and a power
failure. Defense counsel requested the trial court to instruct the
jury that "[t]he law presumes a defendant to be innocent of a
crime," [
Footnote 5] and that
the indictment,
Page 436 U. S. 481
previously read to the jury, was not evidence to be considered
against the defendant. [
Footnote
6] The court declined to give either instruction, and did not
convey their substance in its charge to the jury. It did instruct
the jury as to the Commonwealth's burden of proving petitioner's
guilt beyond a reasonable doubt. [
Footnote 7] Petitioner was found guilty and sentenced to
five years of imprisonment.
Page 436 U. S. 482
The Kentucky Court of Appeals affirmed, one judge dissenting.
551
S.W.2d 813 (1977). Petitioner argued [
Footnote 8] -- and the Commonwealth denied [
Footnote 9] -- that he was entitled as
a matter of due process under the Fourteenth Amendment to
instructions that he was presumed to be innocent, [
Footnote 10] and that his indictment was
not evidence of guilt. Both sides briefed federal decisions at some
length. Nevertheless, the Court of Appeals rejected petitioner's
presumption of innocence contention by
Page 436 U. S. 483
citing Kentucky case law for the proposition "that, as long as
the trial court instructs the jury on reasonable doubt, an
instruction on the presumption of innocence is not necessary."
Id. at 814. Without citing any authority, the court also
declared that there was no merit in the position "that failure to
give . . . an instruction [on the indictment's lack of evidentiary
value] denies the defendant due process of the law."
Ibid.
Because petitioner had not made a contemporaneous objection, the
court refused to consider petitioner's additional contention that
the prosecutor's closing argument had been improper. [
Footnote 11] The Supreme Court of
Kentucky denied discretionary review, and we granted certiorari,
434 U.S. 964 (1977). We now reverse.
II
"The principle that there is a presumption of innocence in favor
of the accused is the undoubted law, axiomatic and elementary, and
its enforcement lies at the foundation of the administration of our
criminal law."
Coffin v. United States, 156 U.
S. 432,
156 U. S. 453
(1895). The
Coffin Court traced the venerable history of
the presumption from Deuteronomy through Roman law, English common
law, and the common law of the United States. While
Coffin
held that the presumption of innocence and the equally fundamental
principle that the prosecution bears the burden of proof beyond a
reasonable doubt were logically separate and distinct,
id.
at
156 U. S.
458-461, sharp scholarly criticism demonstrated the
error of that view,
see, e.g., J. Thayer, A Preliminary
Treatise on Evidence 551-576 (1898) (hereafter Thayer); 9 J.
Wigmore, Evidence § 2511 (3d ed.1940) (hereafter Wigmore); C.
McCormick, Evidence 805-806 (2d ed.1972) (hereafter McCormick).
[
Footnote 12]
Page 436 U. S. 484
Nevertheless, these same scholars advise against abandoning the
instruction on the presumption of innocence, even when a complete
explanation of the burden of proof beyond a reasonable doubt is
provided. Thayer 571-572; Wigmore 407; McCormick 806.
See
also ALI, Model Penal Code § 1.12(1) (Proposed Off.Draft
1962). This admonition derives from a perceived salutary effect
upon lay jurors. While the legal scholar may understand that the
presumption of innocence and the prosecution's burden of proof are
logically similar, the ordinary citizen well may draw significant
additional guidance from an instruction on the presumption of
innocence. Wigmore described this effect as follows:
"[I]n a criminal case the term [presumption of innocence]
Page 436 U. S. 485
does convey a special and perhaps useful hint over and above the
other form of the rule about the burden of proof, in that it
cautions the jury to put away from their minds all the suspicion
that arises from the arrest, the indictment, and the arraignment,
and to reach their conclusion solely from the legal evidence
adduced. In other words, the rule about burden of proof requires
the prosecution by evidence to convince the jury of the accused's
guilt, while the presumption of innocence, too, requires this, but
conveys for the jury a special and additional caution (which is
perhaps only an implied corollary to the other) to consider, in the
material for their belief,
nothing but the evidence, i.e.,
no surmises based on the present situation of the accused. This
caution is indeed particularly needed in criminal cases."
Wigmore 407.
This Court has declared that one accused of a crime is entitled
to have his guilt or innocence determined solely on the basis of
the evidence introduced at trial, and not on grounds of official
suspicion, indictment, continued custody, or other circumstances
not adduced as proof at trial.
See, e.g., Estelle v.
Williams, 425 U. S. 501
(1976). And it long has been recognized that an instruction on the
presumption is one way of impressing upon the jury the importance
of that right.
See, e.g., United States v. Thaxton, 483
F.2d 1071, 1073 (CA5 1973);
Reynolds v. United States, 238
F.2d 460, 463, and n. 4 (CA9 1956);
People v. Hill, 182
Colo. 253, 257-258,
512 P.2d 257,
259 (1973);
Carr v. State, 192 Miss. 152, 157, 4 So. 2d
887, 888 (1941);
State v. Rivers, 206 Minn. 85, 93, 287
N.W. 790, 794 (1939);
Commonwealth v. Madeiros, 255 Mass.
304, 316, 151 N.E. 297, 300 (1926);
Reeves v. State, 29
Fla. 527, 542, 10 So. 901, 905 (1892).
See also Holt v. United
States, 218 U. S. 245,
218 U. S.
253-54 (1910);
Agnew v. United States,
165 U. S. 36,
165 U. S. 51-52
(1897). While use of the particular phrase "presumption of
innocence" -- or any other form of words -- may not be
constitutionally mandated, the Due Process Clause of the
Page 436 U. S. 486
Fourteenth Amendment must be held to safeguard "against dilution
of the principle that guilt is to be established by probative
evidence and beyond a reasonable doubt."
Estelle v. Williams,
supra at
425 U. S. 503.
The "purging" effect of an instruction on the presumption of
innocence,
Thaxton, supra, at 1073, simply represents one
means of protecting the accused's constitutional right to be judged
solely on the basis of proof adduced at trial. [
Footnote 13]
III
Petitioner argues that, in the circumstances of this case, the
purging effect of an instruction on the presumption of innocence
was essential to a fair trial. He points out that the trial court's
instructions were themselves skeletal, placing little emphasis on
the prosecution's duty to prove the case beyond a reasonable doubt
and none at all on the jury's duty to judge petitioner only on the
basis of the testimony heard at trial.
Against the background of the court's rather Spartan
instructions, the prosecutor's closing argument ranged far and
wide, asking the jury to draw inferences about petitioner's conduct
from "facts" not in evidence, but propounded by the prosecutor. For
example, he described the reasonable doubt standard by declaring
that petitioner,
"like every other defendant who's ever been tried who's in the
penitentiary or in the reformatory today, has this presumption of
innocence until proved guilty beyond a reasonable doubt."
App. 45 (emphasis added). This statement linked petitioner to
every defendant
Page 436 U. S. 487
who turned out to be guilty and was sentenced to imprisonment.
It could be viewed as an invitation to the jury to consider
petitioner's status as a defendant as evidence tending to prove his
guilt. Similarly, in responding to defense counsel's rhetorical
query as to the whereabouts of the items stolen from Maddox, the
prosecutor declared that "[o]ne of the first things
defendants
do after they rip someone off, they get rid of the evidence as
fast and as quickly as they can."
Ibid. (emphasis added).
This statement also implied that all defendants are guilty, and
invited the jury to consider that proposition in determining
petitioner's guilt or innocence. [
Footnote 14]
Additionally, the prosecutor observed in his opening statement
that Maddox "took out" a warrant against petitioner and that the
grand jury had returned an indictment, which the prosecutor read to
the jury. Thus, the jury not only was invited to consider the
petitioner's status as a defendant, but also was permitted to draw
inferences of guilt from the fact of arrest and indictment.
[
Footnote 15] The
prosecutor's description of those events was not necessarily
improper, but the combination of the skeletal instructions, the
possible harmful inferences from the references to the indictment,
and the repeated
Page 436 U. S. 488
suggestions that petitioner's status as a defendant tended to
establish his guilt created a genuine danger that the jury would
convict petitioner on the basis of those extraneous considerations,
rather than on the evidence introduced at trial. That risk was
heightened because the trial essentially was a swearing contest
between victim and accused. [
Footnote 16]
IV
Against the need for a presumption of innocence instruction, the
Commonwealth argues first that such an instruction is not required
where, as here, the jury is instructed as to the burden of proof
beyond a reasonable doubt. The trial court's truncated discussion
of reasonable doubt, however, was hardly a model of clarity. It
defined reasonable doubt as "a substantial doubt, a real doubt."
Id. at 40. This definition, though perhaps not in itself
reversible error, often has been criticized as confusing.
See,
e.g., United States v. Muckenstrum, 515 F.2d 568, 571 (CA5),
cert. denied, 423 U.S. 1032 (1975);
United States v.
Christy, 444 F.2d 448, 450 (CA6),
cert. denied, 404
U.S. 949 (1971). And even if the instruction on reasonable doubt
had been more clearly stated, the Commonwealth's argument ignores
both the special purpose of a presumption of innocence instruction
and the particular need for such an instruction in this case.
The Commonwealth also contends that no additional instructions
were required, because defense counsel argued the presumption of
innocence in both his opening and closing statements. But arguments
of counsel cannot substitute for
Page 436 U. S. 489
instructions by the court.
United States v. Nelson, 498
F.2d 1247 (CA5 1974). Petitioner's right to have the jury
deliberate solely on the basis of the evidence cannot be permitted
to hinge upon a hope that defense counsel will be a more effective
advocate for that proposition than the prosecutor will be in
implying that extraneous circumstances may be considered. It was
the duty of the court to safeguard petitioner's rights, a duty only
it could have performed reliably.
See Estelle v. Williams,
425 U.S. at
425 U. S. 503.
[
Footnote 17]
Finally, the Commonwealth argues that
Howard v.
Fleming, 191 U. S. 126
(1903), established that the Fourteenth Amendment does not require
instructions on the presumption of innocence. In
Howard,
however, the trial court had instructed the jury to consider only
the evidence and the law as received from the court. [
Footnote 18] The argument in
Howard was not that
Page 436 U. S. 490
failure to give an explicit instruction on the presumption of
innocence raised a danger that the jury might judge defendants on
matters other than the evidence. Instead, plaintiffs in error
relied on
Coffin for the erroneous proposition that the
presumption of innocence is "evidence" to be weighed in the
accused's favor. Brief for Appellants in
Howard v.
Fleming, O.T. 1903, Nos. 44 and 45, pp. 111-113. The Court had
discarded this view some years before.
See 436 U.
S. 12,
supra. Thus,
Howard held only
that the accused is not entitled to an instruction that the
presumption of innocence is "evidence." It did not cast doubt upon
the additional function of the presumption as an admonition to
consider only the evidence actually introduced, since such an
instruction had been given.
V
We hold that, on the facts of this case, the trial court's
refusal to give petitioner's requested instruction on the
presumption of innocence resulted in a violation of his right to a
fair trial as guaranteed by the Due Process Clause of the
Fourteenth Amendment. The judgment of conviction is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
So ordered.
[
Footnote 1]
App. 19, 21.
[
Footnote 2]
Id. at 19-21.
[
Footnote 3]
Id. at 17.
[
Footnote 4]
Id. at 23.
[
Footnote 5]
Petitioner's requested instruction on this point read as
follows:
"The law presumes a defendant to be innocent of a crime. Thus a
defendant, although accused, begins the trial with a 'clean slate.'
That is, with no evidence against him. The law permits nothing but
legal evidence presented before a jury to be considered in support
of any charge against the accused. So the presumption of innocence
alone is sufficient to acquit a defendant, unless you are satisfied
beyond a reasonable doubt of the defendant's guilt after careful
and impartial consideration of all the evidence in the case."
Id. at 53. This instruction is nearly identical to one
contained in 1 E. Devitt & C. Blackmar, Federal Jury Practice
and Instructions § 11.14, p. 310 (3d ed. 1977).
See also United
States v. Alston, 179 U.S.App.D.C. 129, 132-133 551 F.2d 315,
318-319 (1976);
United States v. Cummings, 468 F.2d 274,
280 (CA9 1972).
[
Footnote 6]
Petitioner's proposed instruction on this point read as
follows:
"The jury is instructed that an indictment is in no way any
evidence against the defendant and no adverse inference can be
drawn against the defendant from a finding of the indictment. The
indictment is merely a written accusation charging the defendant
with the commission of a crime. It has no probative force and
carries with it no implication of guilt."
App. 53.
[
Footnote 7]
The trial court's instructions, in their entirety, were as
follows:
"All right. These are your instructions as to the law applicable
to the facts you've heard in evidence from the witness stand in
this case."
"Number one, you will find the defendant guilty under this
instruction if and only if you believe from the evidence beyond a
reasonable doubt all of the following: A. That in this county on or
about February 16, 1976 and before the finding of the indictment
herein, he the defendant stole a sum of money and a house key from
James Maddox, 249 Rosewood, Frankfort, Kentucky; and B. in the
course of so doing he used physical force on James Maddox. If you
find the defendant guilty under this instruction you will fix his
punishment at confinement in the penitentiary for not less than
five nor more than ten years in your discretion."
"Number two, if upon the whole case you have a reasonable doubt
as to the defendant's guilt you will find him not guilty. The term
'reasonable doubt' as used in these instructions means a
substantial doubt, a real doubt, in that you must ask yourself not
whether a better case might have been proved but whether after
hearing all the evidence you actually doubt that the defendant is
guilty."
"Number three, the verdict of the jury must be unanimous and be
signed by one of you as foreman. You may use the form provided at
the end of these instructions for writing your verdict."
"There is appended to these instructions a form with alternate
verdicts, one of which you will use: A. We the jury find the
defendant not guilty; B. We the jury find the defendant guilty
under instruction number one and fix his punishment at blank years
in the penitentiary."
Id. at 40-41.
[
Footnote 8]
E.g., 3 Record 15, 86-87.
[
Footnote 9]
E.g., id. at 56.
[
Footnote 10]
Although the Commonwealth does not challenge our jurisdiction to
entertain petitioner's claims, we have examined the record and
satisfied ourselves that jurisdiction exists. Petitioner's
contemporaneous objection to the refusal of his request for an
instruction on the presumption of innocence invoked "fundamental
principle[s] of judicial fair play." App. 51. This should have
sufficed to alert the trial judge to petitioner's reliance on due
process principles. And in the face of petitioner's exclusive,
explicit reliance on the Fourteenth Amendment in the Kentucky Court
of Appeals, the Commonwealth has not argued that he has forfeited
his right to raise federal claims.
The short opinion of the Kentucky Court of Appeals did not
discuss federal decisions, relying instead on Kentucky authority.
551 S.W.2d at 813-814. This reliance on state law apparently was
due to the fact that the highest court of Kentucky settled the
issue for that State almost 50 years ago.
See, e.g., Mink v.
Commonwealth, 228 Ky. 674, 15 S.W.2d 463 (1929). By way of
contrast, the Court of Appeals quite explicitly refused to consider
petitioner's argument that he was prejudiced by improper
prosecutorial comments, on the ground that petitioner's failure to
make a contemporaneous objection operated as a bar to appellate
review. Thus, the Court of Appeals clearly denoted the one issue it
refused to consider because of a procedural default. In view of
both petitioner's contemporaneous objection to the failure to give
the presumption of innocence charge, and the Kentucky Court of
Appeals' apparent consideration of petitioner's federal claim, we
will not strain the record in an effort to divest petitioner of his
federal forum at this late date.
See Cicenia v. Lagay,
357 U. S. 504,
357 U. S.
507-508, n. 2 (1958).
[
Footnote 11]
The Kentucky court remanded for resentencing because of the
trial court's failure to order a statutorily required presentencing
investigation. 551 S.W.2d at 814.
[
Footnote 12]
The
Coffin Court viewed the presumption of innocence
as
"an instrument of proof created by the law in favor of one
accused, whereby his innocence is established until sufficient
evidence is introduced to overcome the proof which the law has
created."
156 U.S. at
156 U. S. 459.
As actual "evidence in favor of the accused,"
id. at
156 U. S. 460,
it was distinguished from the reasonable doubt standard, which
merely described "the condition of mind produced by the proof
resulting from the evidence in the cause."
Ibid. Professor
Thayer ably demonstrated the error of this distinction, pointing
out that the so-called "presumption" is not evidence -- not even an
inference drawn from a fact in evidence -- but instead is a way of
describing the prosecution's duty both to produce evidence of guilt
and to convince the jury beyond a reasonable doubt. Thayer 560-563.
Shortly after the appearance of Thayer's criticism, the Court, in a
case in which the presumption of innocence instruction was given,
retreated from its conclusion that the presumption of innocence is
evidence to be weighed by the jury.
See Agnew v. United
States, 165 U. S. 36,
165 U. S. 51-52
(1897).
It is now generally recognized that the "presumption of
innocence" is an inaccurate, shorthand description of the right of
the accused to
"remain inactive and secure until the prosecution has taken up
its burden and produced evidence and effected persuasion;
i.e., to say in this case, as in any other, that the
opponent of a claim or charge is presumed not to be guilty is to
say in another form that the proponent of the claim or charge must
evidence it."
Wigmore 407. The principal inaccuracy is the fact that it is not
technically a "presumption" -- a mandatory inference drawn from a
fact in evidence. Instead, it is better characterized as an
"assumption" that is indulged in the absence of contrary evidence.
Carr v. State, 192 Miss. 152, 156, 4 So. 2d 887, 888
(1941);
accord, McCormick 806.
[
Footnote 13]
Estelle v. Williams quite clearly relates the concept
of presumption of innocence to the cognate requirements of finding
guilt only on the basis of the evidence and beyond a reasonable
doubt. 425 U.S. at
425 U. S. 503.
In this sense, it is possible to interpret the extended historical
discussion of the presumption of innocence in
Coffin v. United
States, 156 U. S. 432,
156 U. S.
453-460 (1895), as supporting the conclusion that an
instruction emphasizing for the jury the first of those two
requirements is an element of Fourteenth Amendment due process, an
essential of a civilized system of criminal procedure.
See
Johnson v. Louisiana, 406 U. S. 356,
406 U. S. 360
n. 2 (1972).
[
Footnote 14]
We do not suggest that such prosecutorial comments, standing
alone, would rise to the level of reversible error, an issue not
raised in this case. But they are relevant to the need for
carefully framed instructions designed to assure that the accused
be judged only on the evidence.
[
Footnote 15]
As noted above,
see supra at
436 U. S.
480-481, the trial court also refused petitioner's
request for an instruction that the indictment was not evidence.
This permitted the prosecutor's reference to the indictment to
serve as one more extraneous, negative circumstance which may have
influenced the jury's deliberations. Because of our conclusion that
the cumulative effect of the potentially damaging circumstances of
this case violated the due process guarantee of fundamental
fairness in the absence of an instruction as to the presumption of
innocence, we do not reach petitioner's further claim that the
refusal to instruct that an indictment is not evidence
independently constituted reversible error.
[
Footnote 16]
While we do not necessarily approve of the presumption of
innocence instruction requested by petitioner, it appears to have
been well suited to forestalling the jury's consideration of
extraneous matters, that is, to performing the purging function
described in
436 U. S.
above. The requested instruction noted that petitioner, "although
accused, [began] the trial with a
clean slate.'" It emphasized
that the law would permit "nothing but legal evidence presented
before a jury to be considered in support of any charge against the
accused."
[
Footnote 17]
See ABA Project on Standards for Criminal Justice,
Function of the Trial Judge § 1.1(a) (App. Draft 1972):
"The trial judge has the responsibility for safeguarding both
the rights of the accused and the interests of the public in the
administration of criminal justice. The adversary nature of the
proceedings does not relieve the trial judge of the obligation of
raising on his own initiative, at all appropriate times and in an
appropriate manner, matters which may significantly promote a. just
determination of the trial. The only purpose of a criminal trial is
to determine whether the prosecution has established the guilt of
the accused as required by law, and the trial judge should not
allow the proceedings to be used for any other purpose."
[
Footnote 18]
The trial court had given the following instructions:
"Now, gentlemen, in the trial of this cause, the court
admonishes you to divest yourselves of any possible feeling or
prejudice which you might have against the defendants, as well as
any sympathy that you might entertain for them on account of their
misfortune, and try this case upon the law and the evidence as the
court has endeavored to lay it down to you. When you do this, you
have responded to the high responsibilities which rest upon you as
jurors. It matters not whether your verdict accords with public
sentiment or not. You are supposed to be indifferent to any such
influences, and for such to influence you would be a failure to
perform your duty. I need not say to you that the offense with
which the defendants are charged is a grave one under the law, and,
if guilty, they should be convicted, but, while this is true, they
are entitled under the constitution and laws of your State to a
fair and honest trial at your hands, and I feel sure that you will
give them such."
Record in
Howard v. Flemming, O.T. 1903, Nos. 44 and
45, p. 120.
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion because, in reversing petitioner's
conviction, it reaffirms that "the
presumption of innocence,
although not articulated in the Constitution, is a basic component
of a fair trial under our system of criminal justice,'"
ante at 436 U. S. 479,
quoting Estelle v. Williams, 425 U.
S. 501, 425 U. S. 503
(1976). It follows from this proposition, as is clear from
the
Page 436 U. S. 491
Court's opinion, that trial judges should instruct the jury on a
criminal defendant's entitlement to a presumption of innocence in
all cases where such an instruction is requested.
MR. JUSTICE STEVENS, with whom MR JUSTICE REHNQUIST joins,
dissenting.
In a federal court, it is reversible error to refuse a request
for a proper instruction on the presumption of innocence.
Coffin v. United States, 156 U. S. 432,
156 U. S.
460-461. [
Footnote 2/1]
That is not, however, a sufficient reason for holding that such an
instruction is constitutionally required in every criminal trial.
[
Footnote 2/2]
The function of the instruction is to make it clear that the
burden of persuasion rests entirely on the prosecutor. The same
function is performed by the instruction requiring proof beyond a
reasonable doubt. [
Footnote 2/3]
One standard instruction adds emphasis to the other. Neither should
be omitted, but an "omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law."
Henderson v. Kibbe, 431 U. S. 145,
431 U. S. 155.
In some cases the omission may be fatal, but the Court wisely
avoids a holding that this is always so.
Page 436 U. S. 492
In this case, the omission did not violate a specific
constitutional guarantee, such as the privilege against compulsory
self-incrimination. [
Footnote 2/4]
Nor did it deny the defendant his fundamental right to a fair
trial. An instruction on reasonable doubt, admittedly brief, was
given. The
voir dire had made clear to each juror the
defendant's right to be presumed innocent despite his indictment.
[
Footnote 2/5] The prosecutor's
closing argument did not precipitate any objection from defense
counsel who listened to it; it may not, therefore, provide the
basis for a reversal.
Cf. Estelle v. Williams,
425 U. S. 501,
425 U. S.
506-513. Although the Court's appraisal is not
unreasonable, for this was by no means a perfect trial, I do not
believe that constitutional error was committed. Accordingly, I
respectfully dissent.
[
Footnote 2/1]
Although that decision rested on the erroneous notion that "the
presumption of innocence is evidence in favor of the accused," 156
U.S. at
156 U. S. 460;
cf. J. Thayer, A Preliminary Treatise on Evidence 566-575
(1898), the rule in
Coffin is surely sound.
[
Footnote 2/2]
"Before a federal court may overturn a conviction resulting from
a state trial [on the basis of an error in the instructions to the
jury], it must be established not merely that the instruction is
undesirable, erroneous, or even 'universally condemned,' but that
it violated some right which was guaranteed to the defendant by the
Fourteenth Amendment."
Cupp v. Naughten, 414 U. S. 141,
414 U. S.
146.
[
Footnote 2/3]
The instruction may also give the jury a "hint," 9 J. Wigmore,
Evidence § 2511 (3d ed.1940), that arrest, indictment, and
arraignment should not count against the accused. But when an
instruction on this point is necessary, it should be explicit. An
instruction on the presumption of innocence is not an adequate
substitute for stating expressly that the indictment is not
evidence.
[
Footnote 2/4]
Cf. Lakeside v. Oregon, 435 U.
S. 333,
435 U. S. 342
(STEVENS, J., dissenting).
[
Footnote 2/5]
Petitioner's lawyer asked the jurors the following
questions:
"You all understand an indictment is only a charge, the
initiating paper which brings us here today, and that, in and of
itself, the indictment is no evidence, no way. It's merely a
document that gets us here to this stage in the proceedings. Do you
understand that's not to be considered as evidence?"
"
* * * *"
"I'm sure you all will agree to this final question as regards
the principle of innocence or reasonable doubt. Do each of you all
agree and understand that Mike Taylor, as he sits there today, is a
young man who is presumed to be innocent of the charge of second
degree robbery, that this innocence has to be overcome by the
Commonwealth to meet a standard of what we call beyond a reasonable
doubt, and that, in the event that, at the conclusion of the
evidence, you have a reasonable doubt, then it is your duty to
return a verdict of not guilty. Do each of you understand the
principle of innocence, the requirement of reasonable doubt? That
reasonable doubt must be removed in order to find a verdict of
guilty?"
"Do each of you understand that principle, and I try to make it
as elementary as I can. Lawyers sometimes have a tendency to make
things complicated, but I hope I made it sufficiently clear."
"I take it by your silence that each of you does
understand."