Trial court's "accomplice instruction," in effect requiring the
jury to decide that a defense witness' testimony was "true beyond a
reasonable doubt" before considering that testimony, impermissibly
obstructed the right of a criminal defendant to present exculpatory
testimony of an accomplice (Washington v. Texas,
388 U. S. 14
it unfairly reduced the prosecution's burden of proof, since it is
possible that the testimony would have created a reasonable doubt
in the minds of the jury, but that it was not considered because
the testimony itself was not believable beyond a reasonable doubt.
Cf. In re Winship, 397 U. S. 358
Certiorari ranted; 461 F.2d 621, reversed and remanded.
The petition for a writ of certiorari is granted.
In this case, the court below held, in effect, that, in a
criminal trial, the jury may be instructed to ignore defense
testimony unless it believes beyond a reasonable doubt that the
testimony is true. That holding is fundamentally inconsistent with
our prior decisions in In re Winship, 397 U.
(1970), and Washington v. Texas,
388 U. S. 14
(1967), and must therefore be reversed.
After a jury trial, petitioner was found guilty of possessing
and concealing, with intent to defraud, counterfeit obligations of
the United States. The evidence showed that, on June 2, 1970,
petitioner, her husband, and one Robert E. Voyles were traveling
together by car between St. Louis, Missouri, and Brazil, Indiana.
Upon reaching Brazil, Voyles left petitioner and her husband and
passed two counterfeit bills at a local store. He was then arrested
shortly after he entered the car in which petitioner and her
husband were waiting.
After his arrest, Voyles was placed in the police car and taken
to the station house. Petitioner and her husband
Page 409 U. S. 101
were told to follow in their own car. A Mr. Baumunk testified
that he saw petitioner throw a paper sack out of the car window as
petitioner was following the police car. The bag was subsequently
found to contain counterfeit bills. Police also found three
counterfeit bills crumpled up under the right seat of petitioner's
Although petitioner testified in her own defense, she relied
primarily on the testimony of Voyles. Voyles freely admitted his
own guilt, [Footnote 1
steadfastly insisted that neither petitioner nor her husband had
anything to do with the crime. He testified that petitioner had
merely agreed to give him a ride, and knew nothing about the
counterfeit bills that he carried with him. When the car stopped in
Brazil, Voyles allegedly removed some of the counterfeit bills from
his satchel, which he kept in petitioner's trunk, and concealed the
rest of the bills in a sack which he placed under the front bumper
by the headlight. The defense argued that it was this sack that
Baumunk saw fall to the ground as petitioner drove to the police
station. Voyles also stated that, after he had rejoined petitioner,
he saw police approaching the car and threw the remaining bills on
his person onto the car floor, again without the knowledge of
petitioner. Petitioner thus asserts that she was not in knowing
possession of the bills on the car floor.
With the case in this posture, the Government's position clearly
depended upon its ability to discredit Voyles, since his testimony
was completely exculpatory. Over strenuous defense objection,
] the trial judge
gave the jury
Page 409 U. S. 102
a lengthy "accomplice instruction" to be used in evaluating
Voyles' testimony. After first defining the word "accomplice" and
warning that an accomplice's testimony is "open to suspicion," the
judge made the following statement:
"However, I charge you that the testimony of an accomplice is
competent evidence, and it is for you to pass upon the credibility
thereof. If the testimony carries conviction and you are convinced
it is true beyond a reasonable doubt,
the jury should give
it the same effect as you would to a witness not in any respect
implicated in the alleged crime, and you are not only justified,
but it is your duty, not to throw this testimony out because it
comes from a tainted source."
The clear implication of this instruction was that the jury
should disregard Voyles' testimony unless it was "convinced it is
true beyond a reasonable doubt." [Footnote 3
Page 409 U. S. 103
an instruction places an improper burden on the defense, and
allows the jury to convict despite its failure to find guilt beyond
a reasonable doubt. [Footnote
Accomplice instructions have long been in use, and have been
repeatedly approved. See, e.g., Holmgren v. United States,
217 U. S. 509
217 U. S.
-524 (1910). In most instances, they represent no
more than a common sense recognition that an accomplice may have a
special interest in testifying, thus casting doubt upon his
veracity. See, e.g., Crawford v. United States,
212 U. S. 183
212 U. S. 204
(1909). But, in most of the recorded cases, the instruction has
been used when the accomplice turned State's evidence and testified
against the defendant. See generally McMillen v. United
386 F.2d 29 (CA1 1967), and cases cited therein. No
constitutional problem is posed when the judge instructs a jury to
receive the prosecution's accomplice testimony "with care and
caution." See, e.g., United States v. George,
319 F.2d 77,
80 (CA6 1963). Cf. United States v. Nolte,
440 F.2d 1124
Page 409 U. S. 104
But there is an essential difference between instructing a jury
on the care with which it should scrutinize certain evidence in
determining how much weight to accord it and instructing a jury, as
the judge did here, that as a predicate to the consideration of
certain evidence, it must find it true beyond a reasonable
In Washington v. Texas, supra,
we held that a criminal
defendant has a Sixth Amendment right to present to the jury
exculpatory testimony of an accomplice. The instruction given below
impermissibly obstructs the exercise of that right by totally
excluding relevant evidence unless the jury makes a preliminary
determination that it is extremely reliable.
Moreover, the instruction also has the effect of substantially
reducing the Government's burden of proof. We held in In re
that the Constitution requires proof of guilt
beyond a reasonable doubt. It is possible that Voyles' testimony
would have created a reasonable doubt in the minds of the jury, but
that it was not considered because the testimony itself was not
believable beyond a reasonable doubt. By creating an artificial
barrier to the consideration of relevant defense testimony
putatively credible by a preponderance of the evidence, the trial
judge reduced the level of proof necessary for the Government to
carry its burden. Indeed, where, as here, the defendant's case
rests almost entirely on accomplice testimony, the effect of the
judge's instructions is to require the defendant to establish his
innocence beyond a reasonable doubt.
Because such a requirement is plainly inconsistent with the
constitutionally rooted presumption of innocence, the conviction
must be reversed and the cause remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Page 409 U. S. 105
At the time of his testimony, Voyles had already pleaded guilty
to a charge of complicity in the possession and concealment of
The dissent suggests that the defendant objected to the
accomplice instruction solely on the ground that use of the word
"accomplice" suggested that the defendant was guilty. Although the
defense objection was not a model of clarity, it seems apparent
that it was grounded more broadly on the trial judge's decision to
give the standard accomplice instruction despite the fact that the
accomplice was a defense witness. The defense attorney stated:
"I take exception to Instruction No. 16, as it's misleading.
I don't think it belongs in this cause. There was no accomplice
sic] for the Government,
and this could
mislead them as to the person who was accused of this crime and has
already pled guilty, as making an accomplice of him, when actually
he is not an accomplice, because they are not involved in the
(Emphasis added.) Certainly, the trial judge understood this
objection to be directed to his decision to give the standard
cautionary instruction even though the alleged accomplice was
called by the defendant. In colloquy with the defense attorney, the
"The next, 'accomplice,' the evidence of both the Government and
the defendants may be considered by the jury in determining the
guilt or innocence, no matter who produces the witness.
. . Now there's a lot of inferences can be drawn from one item of
evidence or another, and that's for the jury to decide. So long as
there is some evidence, the instruction must be given. It hits
both ways on that point.
(Emphasis added.) Nor did the Court of Appeals indicate any
doubt that defendant's objection was sufficient to preserve the
point on appeal.
True, the instruction was couched in positive terms. It told the
jury to consider
the evidence if it believed it true
beyond a reasonable doubt. But the statement contained a negative
pregnant as well. There is an unacceptable risk that jurors might
have thought they were to reject the evidence -- "throw [it] out,"
in the words of the trial judge -- if they had a reasonable doubt
as to its veracity.
In the next paragraph of his instruction, the judge stated:
"I further instruct you that testimony of an accomplice may,
alone and uncorroborated, support your verdict of guilty of the
charges in the Indictment if believed by you to prove beyond a
reasonable doubt the essential elements of the charges in the
Indictment against the defendants."
In light of the fact that the only accomplice testimony in the
case was exculpatory, this instruction was confusing, to say the
least. But even if it is assumed that Voyles' testimony was to some
extent inculpatory, the instruction was still fundamentally unfair
in that it told the jury that it could convict solely on the basis
of accomplice testimony without telling it that it could acquit on
this basis. Even had there been no other error, the conviction
would have to be reversed on the basis of this instruction
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN concur, dissenting.
I believe that the Court's fine-spun parsing of the trial
judge's charge to the jury turns the appellate review of this case
into the sort of "quest for error" which was said in Bihn v.
United States, 328 U. S. 633
328 U. S. 638
(1946), to be forbidden by Rule 52(a) of the Federal Rules of
Criminal Procedure, [Footnote 2/1
and by 28 U.S.C. § 2111. [Footnote
The testimony of the witness Voyles, called by petitioner as a
witness in her behalf, presented the trial judge with something of
a dilemma in determining how he should charge the jury. Much of
Voyles' testimony tended to exculpate petitioner, but there were
significant aspects of it that did not. He substantiated the fact
that the petitioner and her husband [Footnote 2/3
] had traveled with him from St. Louis to
Brazil, Indiana. He corroborated prosecution evidence that both
petitioner and her husband gave the same false last name of Gibbs
when booked at the police station in Brazil. He also suggested a
closeness to petitioner's husband which was scarcely helpful to
their defense when he testified that "I was a little sore at Mike
[petitioner's husband], because I thought Mike should help me [get
out on bond]."
The trial judge made clear in his colloquy with counsel, while
dealing with their objections to the charge, that he
Page 409 U. S. 106
was concerned about the ambivalence of Voyles' testimony and
felt it necessary to give the charge relating to accomplices.
Petitioner's counsel in objecting to that portion of the charge did
so on a quite different ground from that now sustained by the
Court; the ground of objection stated to the trial court was
apparently that the mention of the term "accomplice" to the jury
suggested that petitioner and her husband were in fact guilty. Such
a ground of objection was wholly without merit, since, as the Court
of Appeals pointed out in its opinion in this case, the instruction
left it entirely to the jury to determine whether or not the facts
existed that would make Voyles an accomplice.
The trial court gave 36 separate instructions to the jury, which
covered some 52 pages of the transcript in this case. The
instruction in question covers two pages, and the Court reverses
the conviction on the basis of one sentence in that one
instruction. The trial judge repeatedly emphasized to the jury that
the Government was obligated to prove guilt beyond a reasonable
doubt. Typical is the following statement, which is repeated
throughout the instructions in at least half a dozen places:
"The entire burden of proof is upon the Government from the
beginning to the end of the trial, and this burden of proof never
shifts from the Government to the defendants, and the defendants
are not bound to prove their innocence, offer any excuse, or
explain anything. . . ."
The record before us does not indicate that either counsel so
much as mentioned the accomplice instruction in his argument to the
jury. Nonetheless, the Court concludes that, because the
instruction contained a "negative pregnant" that could be taken to
mean that the jurors should reject Voyles' testimony if they had a
Page 409 U. S. 107
doubt as to its veracity, the conviction is to be reversed.
I had thought the day long past when even appellate courts of
the first instance, such as the Court of Appeals in this case,
parsed instructions and engaged in nice semantic distinctions in
the absence of any showing that would satisfy an ordinary lawyer or
layman that substantial rights of one of the parties had been
prejudiced by the supposed error. If the nuance of the instruction
upon which reversal is now based did not suggest itself to
petitioner's trial counsel, it seems doubtful that it suggested
itself to the jury, either:
"A party must make every reasonable effort to secure from the
trial court correct rulings or such at least as are satisfactory to
him before he will be permitted to ask any review by the appellate
tribunal; and,, to that end, he must be distinct and specific in
his objections and exceptions. . . ."
" . . . [J]ustice itself, and fairness to the court which makes
the rulings complained of, require that the attention of that court
shall be specifically called to the precise point to which
exception is taken, that it may have an opportunity to reconsider
the matter and remove the ground of exception."
Allis v. United States, 155 U.
, 155 U. S. 122
(1894), quoting Harvey v.
2 Wall. 328, 69 U. S. 339
Nor, as pointed out above, did this particular instruction of
the trial court stand alone; it was incorporated into a series of
instructions that had as their predominant theme that the burden of
proof was upon the Government at every stage to prove guilt beyond
a reasonable doubt. The trial court's instructions are to be taken
as a whole, and even if an isolated passage might be error if
standing by itself, that alone is not a sufficient ground
Page 409 U. S. 108
for reversal. Boyd v. United States, 271 U.
, 271 U. S. 107
The Court's reversal on the ground that one of the instructions
contained a "negative pregnant" smacks more of the scholastic
jurisprudence whose shortcomings led to the enactment of 28 U.S.C.
§ 2111 than it does of the common sense approach to appellate
review that that section mandates.
"Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded." Fed.Rule
"On the hearing of any appeal or writ of certiorari in any case,
the court shall give judgment after an examination of the record
without regard to errors or defects which do not affect the
substantial rights of the parties."
28 U.S.C. § 2111.
The petitioner and her husband were tried and convicted together
on the counterfeiting charges. Both appealed their convictions to
the Seventh Circuit, which affirmed both. Petitioner's husband has
not sought certiorari to have his conviction reviewed.