In a criminal prosecution in an Oregon state court on an
indictment for murder in the first degree, appellant pleaded not
guilty and gave notice of his intention to prove insanity. Oregon
statutes required him to prove his insanity beyond a reasonable
doubt, and made a "morbid propensity" no defense. Appellant was
found guilty by a jury and was sentenced to death.
These statutes did not deprive appellant of life
and liberty without due process of law in violation of the
Fourteenth Amendment of the Federal Constitution. Pp. 343 U. S.
1. The trial judge's instructions to the jury, and the charge as
a whole, made it clear that the burden was upon the State to prove
all the necessary elements of guilt, of the lesser degrees of
homicide as well as of the offense charged in the indictment. Pp.
343 U. S.
2. The rule announced in Davis v. United States,
160 U. S. 469
that an accused is
"entitled to an acquittal of the specific crime charged if upon
all the evidence there is reasonable doubt whether he was capable
in law of committing the crime,"
established no constitutional doctrine, but only the rule to be
followed in federal courts. P. 343 U. S.
3. Between the Oregon rule requiring the accused, on a plea of
insanity, to establish that defense beyond a reasonable doubt, and
the rule in effect in some twenty states, which places the burden
on the accused to establish his insanity by a preponderance of the
evidence or some similar measure of persuasion, there is no
difference of such magnitude as to be significant in determining
the constitutional question here presented. P. 343 U. S.
4. That a practice is followed by a large number of states is
not conclusive as to whether it accords with due process, but may
be considered in determining whether it "offends some principle of
justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental." P. 343 U. S.
5. The instant case is not one in which it is sought to enforce
against the State a right which has been held to be secured to
defendants in federal courts by the Bill of Rights. Pp.
343 U. S.
6. Oregon's policy with respect to the burden of proof on the
issue of sanity cannot be said to violate generally accepted
concepts of basic standards of justice. P. 343 U. S.
Page 343 U. S. 791
7. Tot v. United States, 319 U.
, does not require a different conclusion from
that here reached. P. 343 U. S.
8. The contention that the instructions to the jury in this case
may have confused the jury as to the distinction between the
State's burden of proving premeditation and the other elements of
the crime charged and appellant's burden of proving insanity,
cannot be sustained. P. 343 U. S.
9. Due process is not violated by the Oregon statute which
provides that a
"morbid propensity to commit prohibited acts, existing in the
mind of a person, who is not shown to have been incapable of
knowing the wrongfulness of such acts, forms no defense to a
Pp. 343 U. S.
10. The "irresistible impulse" test of legal sanity is not
"implicit in the concept of ordered liberty"; and due process does
not require the State to adopt that test, rather than the "right
and wrong" test. Pp. 343 U. S.
11. The trial court's refusal to require the district attorney
to make one of appellant's confessions available to his counsel
before trial did not deny due process in the circumstances of this
case. Pp. 343 U. S.
190 Ore. 598, 227 P.2d
Appellant's conviction of murder, challenged as denying him due
process in violation of the Fourteenth Amendment, was affirmed by
the State Supreme Court. 190 Ore. 598, 227 P.2d
. On appeal to this Court, affirmed,
343 U. S.
MR. JUSTICE CLARK delivered the opinion of the Court.
Appellant was charged with murder in the first degree. He
pleaded not guilty and gave notice of his intention to prove
insanity. Upon trial in the Circuit Court of
Page 343 U. S. 792
Multnomah County, Oregon, he was found guilty by a jury. In
accordance with the jury's decision not to recommend life
imprisonment, appellant received a sentence of death. The Supreme
Court of Oregon affirmed. 190 Or. 598, 227 P.2d
. The case is here on appeal. 28 U.S.C. § 1257(2).
Oregon statutes required appellant to prove his insanity beyond
a reasonable doubt and made "a morbid propensity" no defense.
] The principal
questions in this appeal are raised by appellant's contentions that
these statutes deprive him of his life and liberty without due
process of law as guaranteed by the Fourteenth Amendment.
The facts of the crime were revealed by appellant's confessions,
as corroborated by other evidence. He killed a fifteen-year-old
girl by striking her over the head several times with a steel bar
and stabbing her twice with a hunting knife. Upon being arrested
five days later for the theft of an automobile, he asked to talk
with a homicide officer, voluntarily confessed the murder, and
directed the police to the scene of the crime, whether he pointed
out the location of the body. On the same day, he signed a full
confession and, at his own request, made another in his own
handwriting. After his indictment, counsel were appointed to
represent him. They have done so with diligence in carrying his
case through three courts.
One of the Oregon statutes in question provides:
"When the commission of the act charged as a crime is proven,
and the defense sought to be established is the insanity of the
defendant, the same must be proven beyond a reasonable doubt. . . .
Page 343 U. S. 793
Appellant urges that this statute in effect requires a defendant
pleading insanity to establish his innocence by disproving beyond a
reasonable doubt elements of the crime necessary to a verdict of
guilty, and that the statute is therefore violative of that due
process of law secured by the Fourteenth Amendment. To determine
the merit of this challenge, the statute must be viewed in its
relation to other relevant Oregon law and in its place in the trial
of this case.
In conformity with the applicable state law, [Footnote 3
] the trial judge instructed the
jury that, although appellant was charged with murder in the first
degree, they might determine that he had committed a lesser crime
included in that charged. They were further instructed that his
plea of not guilty put in issue every material and necessary
element of the lesser degrees of homicide, as well as of the
offense charged in the indictment. The jury could have returned any
of five verdicts: [Footnote 4
(1) guilty of murder in the first degree, if they found beyond a
reasonable doubt that appellant did the killing purposely and with
deliberate and premeditated malice; (2) guilty of murder in the
second degree, if they found beyond a reasonable doubt that
appellant did the killing purposely and maliciously, but without
deliberation and premeditation; (3) guilty of manslaughter, if they
found beyond a reasonable doubt that appellant did the killing
without malice or deliberation, but upon a sudden heat of passion
caused by a provocation apparently sufficient to make the passion
irresistible; (4) not guilty, if, after a careful consideration
Page 343 U. S. 794
of all the evidence, there remained in their minds a reasonable
doubt as to the existence of any of the necessary elements of each
degree of homicide; and (5) not guilty by reason of insanity, if
they found beyond a reasonable doubt that appellant was insane at
the time of the offense charged. A finding of insanity would have
freed appellant from responsibility for any of the possible
offenses. The verdict which the jury determined -- guilty of first
degree murder -- required the agreement of all twelve jurors; a
verdict of not guilty by reason of insanity would have required the
concurrence of only ten members of the panel. [Footnote 5
It is apparent that the jury might have found appellant to have
been mentally incapable of the premeditation and deliberation
required to support a first degree murder verdict or of the intent
necessary to find him guilty of either first or second degree
murder, and yet not have found him to have been legally insane.
Although a plea of insanity was made, the prosecution was required
to prove beyond a reasonable doubt every element of the crime
charged, including, in the case of first degree murder,
premeditation, deliberation, malice and intent. [Footnote 6
] The trial court repeatedly
emphasized this requirement in its charge to the jury. [Footnote 7
] Moreover, the judge
directed the jury as follows:
"I instruct you that the evidence adduced during this trial to
prove defendant's insanity shall be considered and weighed by you,
with all other evidence,
Page 343 U. S. 795
whether or not you find defendant insane, in regard to the
ability of the defendant to premeditate, form a purpose, to
deliberate, act wilfully, and act maliciously; and if you find the
defendant lacking in such ability, the defendant cannot have
committed the crime of murder in the first degree."
"I instruct you that, should you find the defendant's mental
condition to be so affected or diseased to the end that the
defendant could formulate no plan, design, or intent to kill in
cool blood, the defendant has not committed the crime of murder in
the first degree. [Footnote
These and other instructions, and the charge as a whole, make it
clear that the burden of proof of guilt, and of all the necessary
elements of guilt, was placed squarely upon the State. As the jury
was told, this burden did not shift, but rested upon the State
throughout the trial, just as, according to the instructions,
appellant was presumed to be innocent until the jury was convinced
beyond a reasonable doubt that he was guilty. [Footnote 9
] The jurors were to consider separately
the issue of legal sanity per se
-- an issue
Page 343 U. S. 796
set apart from the crime charged, to be introduced by a special
plea and decided by a special verdict. [Footnote 10
] On this issue, appellant had the burden
of proof under the statute in question here.
By this statute, originally enacted in 1864, [Footnote 11
] Oregon adopted the prevailing
doctrine of the time -- that, since most men are sane, a defendant
must prove his insanity to avoid responsibility for his acts. That
was the rule announced in 1843 in the leading English decision in
"[T]he jurors ought to be told in all cases that every man is to
be presumed to be sane, and to possess a sufficient degree of
reason to be responsible for his crimes, until the contrary be
proved to their satisfaction; and . . . to establish a defence on
the ground of insanity, it must be clearly proved that, at the time
of the committing of the act, the party accused was laboring under
such a defect of reason, from disease of the mind, as not to know
the nature and quality of the act he was doing. . . . [Footnote 12
Page 343 U. S. 797
This remains the English view today. [Footnote 13
] In most of the nineteenth-century
American cases, also, the defendant was required to "clearly" prove
insanity, [Footnote 14
that was probably the rule followed in most states in 1895,
] when Davis
v. United States
was decided. In that case, this Court,
speaking through Mr. Justice Harlan, announced the rule for federal
prosecutions to be that an accused is
"entitled to an acquittal of the specific crime charged if, upon
all the evidence, there is reasonable doubt whether he was capable
in law of committing crime. [Footnote 16
In reaching that conclusion, the Court observed:
"The views we have expressed are supported by many adjudications
that are entitled to high respect. If such were not the fact, we
might have felt obligated to accept the general doctrine announced
in some of the above cases; for it is desirable that there be
uniformity of rule in the administration of the criminal law in
governments whose constitutions equally recognize the fundamental
principles that are deemed essential for the protection of life and
liberty. [Footnote 17
The decision obviously establishes no constitutional doctrine,
but only the rule to be followed in federal courts. As such, the
rule is not in question here.
Page 343 U. S. 798
Today, Oregon is the only state that requires the accused, on a
plea of insanity, to establish that defense beyond a reasonable
doubt. Some twenty states, however, place the burden on the accused
to establish his insanity by a preponderance of the evidence or
some similar measure of persuasion. [Footnote 18
] While there is an evident distinction
between these two rules as to the quantum of proof required, we see
no practical difference of such magnitude as to be significant in
determining the constitutional question we face here. Oregon merely
requires a heavier burden of proof. In each instance, in order to
establish insanity as a complete defense to the charges preferred,
the accused must prove that insanity. The fact that a practice is
followed by a large number of states is not conclusive in a
decision as to whether that practice accords with due process, but
it is plainly worth considering in determining whether the practice
"offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental."
Snyder v. Massachusetts, 291 U. S. 97
291 U. S. 105
Nor is this a case in which it is sought to enforce against the
states a right which we have held to be secured to defendants in
federal courts by the Bill of Rights. In Davis. v. United
we adopted a rule of procedure for the federal
courts which is contrary to that of
Page 343 U. S. 799
"[i]ts procedure does not run foul of the Fourteenth Amendment
because another method may seem to our thinking to be fairer or
wiser or to give a surer promise of protection to the prisoner at
Snyder v. Massachusetts, supra,
at 291 U. S.
"The judicial judgment in applying the Due Process Clause must
move within the limits of accepted notions of justice, and is not
to be based upon the idiosyncrasies of a merely personal judgment.
. . . An important safeguard against such merely individual
judgment is an alert deference to the judgment of the state court
MR. JUSTICE FRANKFURTER, concurring in Malinski v. New
York, 324 U. S. 401
324 U. S. 417
(1945). We are therefore reluctant to interfere with Oregon's
determination of its policy with respect to the burden of proof on
the issue of sanity, since we cannot say that policy violates
generally accepted concepts of basic standards of justice.
Nothing said in Tot v. United States, 319 U.
(1943), suggests a different conclusion. That
decision struck down a specific presumption created by
congressional enactment. This Court found that the fact thus
required to be presumed had no rational connection with the fact
which, when proven, set the presumption in operation, and that the
statute resulted in a presumption of guilt based only upon proof of
a fact neither criminal in itself nor an element of the crime
charged. We have seen that, here, Oregon required the prosecutor to
prove beyond a reasonable doubt every element of the offense
charged. Only on the issue of insanity as an absolute bar to the
charge was the burden placed upon appellant. In all
English-speaking courts, the accused is obliged to introduce proof
if he would overcome the presumption of sanity. [Footnote 19
Page 343 U. S. 800
It is contended that the instructions may have confused the jury
as to the distinction between the State's burden of proving
premeditation and the other elements of the charge and appellant's
burden of proving insanity. We think the charge to the jury was as
clear as instructions to juries ordinarily are or reasonably can
be, and, with respect to the State's burden of proof upon all the
elements of the crime, the charge was particularly emphatic. Juries
have for centuries made the basic decisions between guilt and
innocence and between criminal responsibility and legal insanity
upon the basis of the facts, as revealed by all the evidence, and
the law, as explained by instructions detailing the legal
distinctions, the placement and weight of the burden of proof, the
effect of presumptions, the meaning of intent, etc. We think that
to condemn the operation of this system here, would be to condemn
the system generally. We are not prepared to do so.
Much we have said applies also to appellant's contention that
due process is violated by the Oregon statute providing that a
"morbid propensity to commit prohibited acts, existing in the
mind of a person who is not shown to have been incapable of knowing
the wrongfulness of such acts, forms no defense to a prosecution
therefor. [Footnote 20
That statute amounts to no more than a legislative adoption of
the "right and wrong" test of legal insanity in preference to the
"irresistible impulse" test. [Footnote 21
] Knowledge of right and wrong is the
exclusive test of criminal responsibility in a majority of American
jurisdictions. [Footnote 22
The science of psychiatry has made tremendous strides
Page 343 U. S. 801
since that test was laid down in M'Naghten's Case,
] but the
progress of science has not reached a point where its learning
would compel us to require the states to eliminate the right and
wrong test from their criminal law. [Footnote 24
] Moreover, choice of a test of legal sanity
involves not only scientific knowledge, but questions of basic
policy as to the extent to which that knowledge should determine
criminal responsibility. [Footnote 25
] This whole problem has evoked wide
disagreement among those who have studied it. In these
circumstances, it is clear that adoption of the irresistible
impulse test is not "implicit in the concept of ordered liberty."
Appellant also contends that the trial court's refusal to
require the district attorney to make one of appellant's
confessions available to his counsel before trial was contrary to
due process. We think there is no substance in this argument. This
conclusion is buttressed by the absence of any assignment of error
on this ground in appellant's motion for a new trial. Compare
Avery v. Alabama, 308 U. S. 444
308 U. S. 452
(1940). While it may be the better practice for the prosecution
thus to exhibit a confession, failure to do so in this case in no
way denied appellant a fair trial. The record shows that the
confession was produced in court five days before appellant rested
his case. There was ample time both for counsel and expert
witnesses to study the confession. In addition, the trial judge
offered further time for that purpose, but it
Page 343 U. S. 802
was refused. There is no indication in the record that appellant
was prejudiced by the inability of his counsel to acquire earlier
access to the confession.
Or.Comp.Laws 1940, §§ 26-929, 23-122.
§§ 26-947, 26-948.
Six possible verdicts were listed in the instructions, guilty of
murder in the first degree being divided into two verdicts: with,
and without, recommendation of life imprisonment as the penalty.
Since the jury in this case did not recommend that punishment, the
death sentence was automatically invoked under Oregon law.
The agreement of ten jurors would also have been sufficient for
a verdict of not guilty, a verdict of guilty of second degree
murder, or a verdict of guilty of manslaughter. R. 333-334.
Ore.Comp.Laws, 1940, §§ 23-401, 23-414, 26-933; cf. State v.
121 Or. 141, 253 P. 367, 254 P. 805 (1927).
R. 321, 323, 324, 330, 331, 332.
R. 330. Again:
"I instruct you that to constitute murder in the first degree,
it is necessary that the State prove beyond a reasonable doubt, and
to your moral certainty, that the defendant's design or plan to
take life was formed and matured in cool blood, and not hastily
upon the occasion."
"I instruct you that, in determining whether or not the
defendant acted purposely and with premeditated and deliberated
malice, it is your duty to take into consideration defendant's
mental condition and all factors relating thereto, and that, even
though you may not find him legally insane, if, in fact, his
mentality was impaired, that evidence bears upon these factors, and
it is your duty to consider this evidence along with all the other
evidence in the case."
R. 321, 324.
Or. Comp.Laws 1940, § 26-846 (requiring notice of purpose to
show insanity as defense); id.,
§26-955 (providing for
verdict of not guilty by reason of insanity and consequent
commitment to asylum by judge). After defining legal insanity, the
trial court instructed the jury:
"In this case, evidence has been introduced relating to the
mental capacity and condition of the defendant . . . at the time
[the girl] is alleged to have been killed, and if
satisfied beyond a reasonable doubt that the defendant killed her
in the manner alleged in the indictment, or within the lesser
degrees included therein, then
you are to consider the
mental capacity of the defendant at the time the homicide is
alleged to have been committed."
R. 327 (emphasis supplied).
Deady's Gen.Laws of Or., 1845-1864, Code of Crim.Proc., §
10 Cl. & Fin. 200, 210 (H.L., 1843).
Stephen, Digest of the Criminal Law (9th ed., Sturge, 1950), 6;
cf. Sodeman v. The King,
 W.N. 190 (P.C.); see
Woolmington v. Director of Public Prosecutions,
Weihofen, Insanity as a Defense in Criminal Law (1933), 151-155.
"Clear proof" was sometimes interpreted to mean proof beyond a
reasonable doubt, e.g., State v. De Rance,
34 La.Ann. 186
(1882), and sometimes to mean proof by a preponderance of the
evidence, e.g., Hurst v. State,
40 Tex.Crim. 378, 383, 46
S.W. 635 (1899).
Wharton, Criminal Evidence (9th ed. 1884), §§
160 U. S. 160
469, 160 U. S. 484
(1895); see Hotema v. United States, 186 U.
(1902); Matheson v. United States,
227 U. S. 540
at 160 U. S.
Weihofen lists twelve states as requiring proof by a
preponderance of the evidence, four as requiring proof "to the
satisfaction of the jury," two which combine these formulae, one
where by statute the defense must be "clearly proved to the
reasonable satisfaction of the jury," one where it has been held
that the jury must "believe" the defendant insane, and one where
the quantum of proof has not been stated by the court of last
resort, but which appears to follow the preponderance rule.
Weihofen, Insanity as a Defense in Criminal Law (1933), 148-151,
172-200. Twenty-two states, including Oregon, are mentioned as
holding that the accuse has the burden of proving insanity, at
least by a preponderance of the evidence, in 9 Wigmore, Evidence
(3d ed. 1940 and Supp. 1951), § 2501.
Weihofen, Insanity as a Defense in Criminal Law (1933), 161; 9
Wigmore, Evidence (3d ed. 1940), § 2501.
Or.Comp.Laws 1940, § 23-122.
State v. Garver,
190 Or. 291, 225 P.2d
(1950); State v. Wallace,
170 Or. 60, 131 P.2d 222
(1942); State v. Hassing,
60 Or. 81, 118 P. 195
Weihofen, Insanity as a Defense in Criminal Law (1933), 15,
10 Cl. & Fin. 200 (H.L., 1843).
Compare Fisher v. United States, 328 U.
, 328 U. S.
See Holloway v. United States,
80 U.S.App.D.C. 3, 148
F.2d 665 (1945); Glueck, Mental Disorder and the Criminal Law
(1925); Hall, Mental Disease and Criminal Responsibility, 45
Col.L.Rev. 677 (1945); Keedy, Insanity and Criminal Responsibility,
30 Harv.L.Rev. 535, 724 (1917).
Palko v. Connecticut, 302 U. S. 319
302 U. S. 325
MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BLACK,
However much conditions may have improved since 1905, when
William H. (later Mr. Chief Justice) Taft expressed his disturbing
conviction "that the administration of the criminal law in all the
states of the Union (there may be one or two exceptions) is a
disgrace to our civilization" (Taft, in The Administration of
Criminal Law, 15 Yale L.J. 1, 11), no informed person can be other
than unhappy about the serious defects of present-day American
criminal justice. It is not unthinkable that failure to bring the
guilty to book for a heinous crime which deeply stirs popular
sentiment may lead the legislature of a State, in one of those
emotional storms which on occasion sweep over our people, to enact
that thereafter an indictment for murder, following attempted rape,
should be presumptive proof of guilt and cast upon the defendant
the burden of proving beyond a reasonable doubt that he did not do
the killing. Can there be any doubt that such a statute would go
beyond the freedom of the States, under the Due Process Clause of
the Fourteenth Amendment, to fashion their own penal codes and
their own procedures for enforcing them? Why is that so? Because,
from the time that the law which we have inherited has emerged from
dark and barbaric times, the conception of justice which has
dominated our criminal law has refused to put an accused at the
hazard of punishment if he fails to remove every reasonable doubt
of is innocence in the minds of jurors. It is the duty of the
Government to establish his guilt beyond a reasonable
Page 343 U. S. 803
doubt. This notion -- basic in our law and rightly one of the
boasts of a free society -- is a requirement and a safeguard of due
process of law in the historic, procedural content of "due
process." Accordingly, there can be no doubt, I repeat, that a
State cannot cast upon an accused the duty of establishing beyond a
reasonable doubt that his was not the act which caused the death of
But a muscular contraction resulting in a homicide does not
constitute murder. Even though a person be the immediate occasion
of another's death, he is not a deodand to be forfeited like a
thing in the medieval law. Behind a muscular contraction resulting
in another's death there must be culpability to turn homicide into
The tests by which such culpability may be determined are
varying and conflicting. One does not have to echo the scepticism
uttered by Brian, C.J., in the fifteenth century, that "the devil
himself knoweth not the mind of men" to appreciate how vast a
darkness still envelops man's understanding of man's mind. Sanity
and insanity are concepts of incertitude. They are given varying
and conflicting content at the same time and from time to time by
specialists in the field. Naturally there has always been conflict
between the psychological views absorbed by law and the
contradictory views of students of mental health at a particular
time. At this stage of scientific knowledge, it would be
indefensible to impose upon the States, through the due process of
law which they must accord before depriving a person of life or
liberty, one test rather than another for determining criminal
culpability, and thereby to displace a State's own choice of such a
test, no matter how backward it may be in the light of the best
scientific canons. Inevitably, the legal tests for determining the
mental state on which criminal culpability is to be based are in
strong conflict in our forty-eight
Page 343 U. S. 804
States. But when a State has chosen its theory for testing
culpability, it is a deprivation of life without due process to
send a man to his doom if he cannot prove beyond a reasonable doubt
that the physical events of homicide did not constitute murder
because under the State's theory he was incapable of acting
This does not preclude State from utilizing common sense
regarding mental irresponsibility for acts resulting in homicide --
from taking for granted that most men are sane and responsible for
their acts. That a man's act is not his, because he is devoid of
that mental state which begets culpability, is so exceptional a
situation that the law has a right to devise an exceptional
procedure regarding it. Accordingly, States may provide various
ways for dealing with this exceptional situation by requiring, for
instance, that the defense of "insanity" be specially pleaded, or
that he on whose behalf the claim of insanity is made should have
the burden of showing enough to overcome the assumption and
presumption that normally a man knows what he is about, and is
therefore responsible for what he does, or that the issue be
separately tried, or that a standing disinterested expert agency
advise court and jury, or that these and other devices be used in
combination. The laws of the forty-eight States present the
greatest diversity in relieving the prosecution from proving
affirmatively that a man is sane in the way it must prove
affirmatively that the defendant is the man who pulled the trigger
or struck the blow. Such legislation makes no inroad upon the basic
principle that the State must prove guilt, not the defendant
innocence, and prove it to the satisfaction of a jury beyond a
For some unrecorded reason, Oregon is the only one of the
forty-eight States that has made inroads upon that principle by
requiring the accused to prove beyond a reasonable doubt the
absence of one of the essential elements for the commission of
murder, namely, culpability
Page 343 U. S. 805
for his muscular contraction. Like every other State, Oregon
presupposes that an insane person cannot be made to pay with his
life for a homicide, though, for the public good, he may, of
course, be put beyond doing further harm. Unlike every other State,
however, Oregon says that the accused person must satisfy a jury
beyond a reasonable doubt that, being incapable of committing
murder, he has not committed murder.
Such has been the law of Oregon since 1864. That year, the Code
of Criminal Procedure defined murder in the conventional way, but
it also provided:
"When the commission of the act charged as a crime is proven,
and the defence sought to be established is the insanity of the
defendant, the same must be proven beyond a reasonable doubt. . .
General Laws of Oregon 1845-1864, p. 441 et seq.,
502, 204. The latter section, through various revisions, is the law
of Oregon today and was applied in the conviction under review.
Whatever tentative and intermediate steps experience makes
permissible for aiding the State in establishing the ultimate
issues in a prosecution for crime, the State cannot be relieved, on
a final show-down, from proving its accusation. To prove the
accusation it must prove each of the items which in combination
constitute the offense. And it must make such proof beyond a
reasonable doubt. This duty of the State of establishing every fact
of the equation which adds up to a crime, and of establishing it to
the satisfaction of a jury beyond a reasonable doubt is the
decisive difference between criminal culpability and civil
liability. The only exception is that very limited class of cases
variously characterized as mala prohibita
or public torts
or enforcement of regulatory measures. See United States v.
Dotterweich, 320 U. S. 277
Morissette v. United States, 342 U.
. Murder is not a malum prohibitum
public tort or the object of regulatory legislation. To suggest
that the legal oddity by
Page 343 U. S. 806
which Oregon imposes upon the accused the burden of proving
beyond reasonable doubt that he had not the mind capable of
committing murder is a mere difference in the measure of proof is
to obliterate the distinction between civil and criminal law.
It is suggested that the jury were charged not merely in
conformity with this requirement of Oregon law, but also in various
general terms, as to the duty of the State to prove every element
of the crime charged beyond a reasonable doubt, including in the
case of first degree murder, "premeditation, deliberation, malice
and intent." Be it so. The short of the matter is that the Oregon
Supreme Court sustained the conviction on the ground that the
Oregon statute "casts upon the defendant the burden of proving the
defense of insanity beyond a reasonable doubt." State v.
190 Or. 598, 638, 227 P.2d
, 802. To suggest, as is suggested by this Court but not by
the State court, that, although the jury was compelled to act upon
this requirement, the statute does not offend the Due Process
Clause because the trial judge also indulged in a farrago of
generalities to the jury about "premeditation, deliberation, malice
and intent" is to exact gifts of subtlety that not even judges, let
alone juries, possess. See International Harvester Co. v.
Kentucky, 234 U. S. 216
234 U. S.
-224. If the Due Process Clause has any meaning at
all, it does not permit life to be put to such hazards.
To deny this mode of dealing with the abuses of insanity pleas
and with unedifying spectacles of expert testimony is not to
deprive Oregon of the widest possible choice of remedies for
circumventing such abuses. The multiform legislation prevailing in
the different States evinces the great variety of the experimental
methods open to them for dealing with the problems raised by
insanity defenses in prosecutions for murder.
Page 343 U. S. 807
To repeat the extreme reluctance with which I find a
constitutional barrier to any legislation is not to mouth a
threadbare phrase. Especially is deference due to the policy of a
State when it deals with local crime, its repression and
punishment. There is a gulf, however narrow, between deference to
local legislation and complete disregard of the duty of judicial
review which has fallen to this Court by virtue of the limits
placed by the Fourteenth Amendment upon State action. This duty is
not to be escaped, whatever I may think of investing judges with
the power which the enforcement of that Amendment involves.