At respondent's Oregon criminal trial, the trial judge charged,
in accordance with a state statutory provision:
"Every witness is presumed to speak the truth. This presumption
may be overcome by the manner in which the witness testifies, by
the nature of his or her testimony, by evidence affecting his or
her character, interest, or motives, by contradictory evidence or
by a presumption."
Respondent was convicted and, following exhaustion of his state
remedies, brought this federal habeas corpus action. The Court of
Appeals, reversing the District Court, concluded that the
"presumption of truthfulness" instruction placed the burden of
proving innocence upon the defendant, and thus did not comport with
due process.
Held: The instruction cannot be considered in
isolation, and, when viewed, as it must be, in the context of the
overall charge, in which the trial court twice gave explicit
instructions affirming the presumption of innocence and declaring
the State's obligation to prove guilt beyond a reasonable doubt,
did not so infect the entire trial that the resulting conviction
violated the requirements of the Due Process Clause of the
Fourteenth Amendment, the challenged instruction having neither
shifted the burden of proof to the defendant nor negated the
presumption of innocence accorded under state law.
In re
Winship, 397 U. S. 358,
distinguished. Pp.
414 U. S. 144
150.
476 F.2d 845, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS
and MARSHALL, JJ., joined,
post, p.
414 U. S.
150.
Page 414 U. S. 142
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Naughten was tried in an Oregon state court for the
crime of armed robbery. The State's principal evidence consisted of
testimony by the owner of the grocery store that respondent had
robbed the store at gunpoint and of corroborative testimony by
another eyewitness. In addition, two police officers testified that
respondent had been found near the scene of the robbery and that
the stolen money was located near his car in a neighboring parking
lot. A few items of clothing, identified as belonging to
respondent, and the stolen money were also introduced. Respondent
neither took the stand himself nor called any witnesses to testify
in his behalf.
The trial judge charged the jury that respondent was presumed
innocent "until guilt is proved beyond a reasonable doubt," and
then continued:
"Every witness is presumed to speak the truth. This presumption
may be overcome by the manner in which the witness testifies, by
the nature of his or her testimony, by evidence affecting his or
her character, interest, or motives, by contradictory evidence, or
by a presumption."
App. 16.
The trial judge also instructed the jury as to the State's
burden of proof, defining in detail the concept of reasonable
doubt; later, at the respondent's request, he gave an additional
instruction on the presumption
Page 414 U. S. 143
of innocence. [
Footnote 1]
The jury returned a verdict of guilty, and respondent was sentenced
to a term in the state penitentiary.
The Oregon Court of Appeals affirmed respondent's conviction,
finding that inclusion of the "presumption of truthfulness"
instruction in the judge's charge to the jury was not error. The
Supreme Court of Oregon denied a petition for review. His state
remedies thus exhausted, respondent sought federal habeas corpus
relief in the United States District Court for the District of
Oregon, asserting that the "presumption of truthfulness" charge
shifted the State's burden to prove guilt beyond a reasonable doubt
and forced respondent instead to prove his innocence. The District
Court noted that similar instructions had met with disfavor in the
federal courts of appeals, but observed that "[those] cases [did]
not involve appeals from State Court convictions." Recognizing that
the instruction was "proper under Oregon law," the District Court
stated:
"In any event, the giving of the instruction did not deprive
petitioner of a federally protected constitutional right. [
Footnote 2]"
The Court of Appeals for the Ninth Circuit reversed. [
Footnote 3] That court, noting that the
instruction in question "has
Page 414 U. S. 144
been almost universally condemned" [
Footnote 4] and that Naughten had not testified or called
witnesses in his own behalf, went on to say:
"Thus, the clear effect of the challenged instruction was to
place the burden on Naughten to prove his innocence. This is so
repugnant to the American concept that it is offensive to any fair
notion of due process of law."
476 F.2d 845, 847.
We granted certiorari to consider whether the giving of this
instruction in a state criminal trial so offended established
notions of due process as to deprive the respondent of a
constitutionally fair trial.
Although the "presumption of truthfulness" instruction
apparently became increasingly used in federal criminal
prosecutions following the publication of Judge Mathes' Jury
Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 67
(1961), [
Footnote 5] the
instruction appears to have had quite an independent origin in
Oregon practice. The instruction given in Naughten's trial was
directly based on § 44.370 of the Oregon Revised
Page 414 U. S. 145
Statutes, a provision first passed in 1862. Only four years ago,
the Oregon Supreme Court upheld the validity of the instruction
against constitutional attack.
State v. Kessler, 254 Ore.
124,
458 P.2d
432 (1969). At that time the court noted the extensive
criticism of similar instructions in the federal courts of appeals
and the possible effect of such instructions on the presumption of
innocence. Nonetheless, though the court stated that
"it might be preferable not to instruct the jury in criminal
cases where defendant does not take the stand that a witness is
presumed to speak the truth,"
it concluded that there was no error in giving the instruction
"if accompanied by an explanation of how the presumption can be
overcome."
Id. at 128, 458 P.2d at 435. The Oregon Court
of Appeals followed that holding in affirming respondent's
conviction in this case.
The criticism of the instruction by the federal courts has been
based on the idea that the instruction may "dilute," "conflict
with," "seem to collide with," or "impinge upon" a criminal
defendant's presumption of innocence; [
Footnote 6] "clash with" or "shift" the prosecution's
burden of proof; [
Footnote 7]
or "interfere" with or "invade" the province of the jury to
determine credibility. [
Footnote
8] In fact, in some cases, the courts of appeals have
determined that a "presumption of truthfulness" instruction is so
undesirable that the defendant may be entitled to a new trial on
that ground alone. [
Footnote 9]
A reading of these cases, however, indicates
Page 414 U. S. 146
that the courts of appeals were primarily concerned with
directing inferior courts within the same jurisdiction to refrain
from giving the instruction because it was thought confusing, of
little positive value to the jury, or simply undesirable. The
appellate courts were, in effect, exercising the so-called
supervisory power of an appellate court to review proceedings of
trial courts and to reverse judgments of such courts which the
appellate court concludes were wrong.
Within such a unitary jurisdictional framework, the appellate
court will, of course, require the trial court to conform to
constitutional mandates, but it may likewise require it to follow
procedures deemed desirable from the viewpoint of sound judicial
practice, although in nowise commanded by statute or by the
Constitution. Thus, even substantial unanimity among federal courts
of appeals that the instruction in question ought not to be given
in United States district courts within their respective
jurisdictions is not, without more, authority for declaring that
the giving of the instruction makes a resulting conviction invalid
under the Fourteenth Amendment. Before a federal court may overturn
a conviction resulting from a state trial in which this instruction
was used, 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.
In determining the effect of this instruction on the validity of
respondent's conviction, we accept at the outset the well
established proposition that a single instruction
Page 414 U. S. 147
to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.
Boyd v. United
States, 271 U. S. 104,
271 U. S. 107
(1926). While this does not mean that an instruction by itself may
never rise to the level of constitutional error,
see Cool v.
United States, 409 U. S. 100
(1972), it does recognize that a judgment of conviction is commonly
the culmination of a trial which includes testimony of witnesses,
argument of counsel, receipt of exhibits in evidence, and
instruction of the jury by the judge. Thus, not only is the
challenged instruction but one of many such instructions, but the
process of instruction itself is but one of several components of
the trial which may result in the judgment of conviction.
The Court of Appeals in this case stated that the effect of the
instruction was to place the burden on respondent to prove his
innocence. But the trial court gave, not once, but twice, explicit
instructions affirming the presumption of innocence and declaring
the obligation of the State to prove guilt beyond a reasonable
doubt. The Court of Appeals, recognizing that these other
instructions had been given, nevertheless declared that "there was
no instruction so specifically directed to that under attack as can
be said to have effected a cure." 476 F.2d at 847. But we believe
this analysis puts the cart before the horse; the question is not
whether the trial court failed to isolate and cure a particular
ailing instruction, but rather whether the ailing instruction, by
itself, so infected the entire trial that the resulting conviction
violates due process.
This Court has recently held that the Due Process Clause
requires the State in criminal prosecutions to prove guilt beyond a
reasonable doubt.
In re Winship, 397 U.
S. 358 (1970). In that case, the judge, presiding over
the trial of a juvenile charged with stealing $112 from a woman's
pocketbook, specifically found that the
Page 414 U. S. 148
evidence was sufficient to convict under a "preponderance of the
evidence" standard, but insufficient to convict under a "beyond a
reasonable doubt" standard.
Id. at
397 U. S. 360
and n. 2. Since the judge found that a New York statute compelled
evaluation under the more lenient standard, the defendant was found
guilty. This Court reversed, stating that "[t]he reasonable doubt
standard plays a vital role in the American scheme of criminal
procedure,"
id. at
397 U. S. 363,
and holding explicitly
"that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is
charged."
Id. at
397 U. S.
364.
We imply no retreat from the doctrine of
Winship when
we observe that it was a different case from that, before us now.
There, the trial judge made an express finding that the State was
not required to prove guilt beyond a reasonable doubt; in this
case, the State's burden of proof was emphasized and reemphasized
in the course of the complete jury instructions. Respondent
nevertheless contends that, despite the burden of proof and
reasonable doubt instructions given by the trial court, the charge
as to presumption of truthfulness impliedly placed the burden of
proof on him. We do not agree.
Certainly the instruction, by its language, neither shifts the
burden of proof nor negates the presumption of innocence accorded
under Oregon law. It would be possible perhaps, as a matter of
abstract logic, to contend that any instruction suggesting that the
jury should believe the testimony of a witness might, in some
tangential respect, "impinge" upon the right of the defendant to
have his guilt proved beyond a reasonable doubt. But instructions
bearing on the burden of proof, just as those bearing on the weight
to be accorded different types of testimony and other familiar
subjects of jury instructions, are, in one way or another,
designed
Page 414 U. S. 149
to get the jury off dead center and to give it some guidance by
which to evaluate the frequently confusing and conflicting
testimony which it has heard. This well-recognized and
long-established function of the trial judge to assist the jury by
such instructions is not emasculated by such abstract and
conjectural emanations from
Winship.
It must be remembered that
"review by this Court of state action expressing its notion of
what will best further its own security in the administration of
criminal justice demands appropriate respect for the deliberative
judgment of a state in so basic an exercise of its
jurisdiction."
McNabb v. United States, 318 U.
S. 332,
318 U. S. 340
(1943). In this case, while the jury was informed about the
presumption of truthfulness, it was also specifically instructed to
consider the manner of the witness, the nature of the testimony,
and any other matter relating to the witness' possible motivation
to speak falsely. It thus remained free to exercise its collective
judgment to reject what it did not find trustworthy or plausible.
Furthermore, by acknowledging that a witness could be discredited
by his own manner or words, the instruction freed respondent from
any undue pressure to take the witness stand himself or to call
witnesses under the belief that only positive testimony could
engender disbelief of the State's witnesses.
The jury here was charged fully and explicitly about the
presumption of innocence and the State's duty to prove guilt beyond
a reasonable doubt. Whatever tangential undercutting of these
clearly stated propositions may, as a theoretical matter, have
resulted from the giving of the instruction on the presumption of
truthfulness is not of constitutional dimension. The giving of that
instruction, whether judged in terms of the reasonable doubt
requirement in
In re Winship, supra, or of offense against
"some principle of justice so rooted in
Page 414 U. S. 150
the traditions and conscience of our people as to be ranked as
fundamental,"
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 105
(1934), did not render the conviction constitutionally invalid.
Reversed.
[
Footnote 1]
The judge also instructed the jury that respondent did not have
to testify, and that the jury was to draw no inference of guilt
from his failure to do so.
[
Footnote 2]
Alternatively, the District Court held that assuming there had
been error of constitutional proportions in the charge, the error
was harmless in view of the overwhelming evidence of guilt.
Harrington v. California, 395 U.
S. 250 (1969). The Court of Appeals, without detailing
its reasoning, disagreed, stating that the State had not met its
burden of showing that the error was harmless. In view of our
disposition of this case, we do not reach that issue.
[
Footnote 3]
476 F.2d 845, 846 (1972). The court then denied a petition for
rehearing by an equally divided vote.
[
Footnote 4]
The court cited nine cases from various federal courts of
appeals, all of which had expressed disapproval of the "presumption
of truthfulness" instruction.
See United States v.
Birmingham, 447 F.2d 1313 (CA10 1971);
United States v.
Stroble, 431 F.2d 1273 (CA6 1970);
McMillen v. United
States, 386 F.2d 29 (CA1 1967),
cert. denied, 390
U.S. 1031 (1968);
United States v. Dichiarinte, 385 F.2d
333 (CA7 1967);
United States v. Johnson, 371 F.2d 800
(CA3 1967);
United States v. Persico, 349 F.2d 6 (CA2
1965).
See also United States v. Safley, 408 F.2d 603 (CA4
1969);
Harrison v. United States, 387 F.2d 614 (CA5 1968);
Stone v. United States, 126 U.S.App.D.C. 369, 379 F.2d 146
(1967) (Burger, J.). None of these cases, however, dealt with
review of a state court proceeding.
[
Footnote 5]
Judge Mathes' original instruction was modified in W. Mathes
& E. Devitt, Federal Jury Practice and Instructions § 9.01
(1965), and is not included in E. Devitt & C. Blackmar, Federal
Jury Practice and Instructions (2d ed.1970).
See id., vol.
1, § 12.01, and accompanying note.
[
Footnote 6]
See, e.g., United States v. Johnson, supra, at 804;
United States v. Stroble, supra, at 1278;
United
States v. Dichiarinte, supra, at 339;
Stone v. United
States, supra, at 370, 379 F.2d at 147.
[
Footnote 7]
See, e.g., United States v. Meisch, 370 F.2d 768, 774
(CA3 1966);
United States v. Birmingham, supra, at
1315.
[
Footnote 8]
See, e.g., United States v. Stroble, supra; United States v.
Birmingham, supra.
[
Footnote 9]
See, e.g., United States v. Birmingham, supra. However,
the instruction given in
Birmingham was somewhat different
from the instruction given here. The jury there was told that the
presumption of truthfulness controlled "[u]nless and until
outweighed by evidence to the contrary." 447 F.2d at 1315.
Apparently no additional instruction was given regarding
consideration of the manner or nature of the witnesses' testimony
or of the witnesses' possible motivations to speak falsely.
See
also Johnson, supra.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
Respondent was found guilty of armed robbery and assault, after
the jury had been charged, in pertinent part, as follows:
"The law provides for certain disputable presumptions which are
to be considered as evidence."
"A presumption is a deduction which the law expressly directs to
be made from particular facts and is to be considered by you along
with the other evidence.
However, since these presumptions are
disputable presumptions only, they may be outweighed or equaled by
other evidence. Unless outweighed or equaled, however, they are to
be accepted by you as true."
"The law presumes that the defendant is innocent, and this
presumption follows the defendant until guilt is proved beyond a
reasonable doubt."
"
Every witness is presumed to speak the truth. This
presumption may be overcome by the manner in which the witness
testifies, by the nature of his or her testimony, by evidence
affecting his or her character, interest, or motives, by
contradictory evidence, or by a presumption."
"Burden of Proof. The burden is upon the State to prove the
guilt of the defendant beyond a reasonable doubt."
(Emphasis added.) A timely objection was taken to the part
instructing upon the presumption of truthfulness. In my view,
Page 414 U. S. 151
the charge permitted the jury to convict even though the
evidence may have failed to establish respondent's guilt beyond a
reasonable doubt, and therefore denied respondent due process of
law.
The charge directed the jury to find that the State's witnesses
had spoken the truth, unless the presumption of truthfulness were
"overcome" by demeanor, impeachment, or contradictory evidence.
This instruction followed an earlier instruction that a presumption
could be rebutted by other evidence which "outweighed or equaled"
the presumption, but that, otherwise, "the law expressly
direct[ed]" that a finding be made in accordance with the
presumption. Considered together, these instructions clearly
required the jury to believe a witness' testimony until his or her
untruthfulness had been demonstrated by evidence making it appear
as likely as not that the testimony was false. [
Footnote 2/1] Since the State's case rested almost
entirely upon the testimony of two eyewitnesses and two police
officers,
see ante at
414 U. S. 142,
and since respondent neither called witnesses nor took the stand
himself, the practical effect of the court's instructions was to
convert the State's burden of proving guilt beyond a reasonable
doubt to proving guilt by a preponderance of the evidence.
[
Footnote 2/2]
Page 414 U. S. 152
The reduction of the prosecution's burden of persuasion to a
preponderance clearly conflicts with the Due Process Clause
guarantee that an accused shall not be convicted "except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged."
In re Winship,
397 U. S. 358,
397 U. S. 364
(1970). In
Cool v. United States, 409 U.
S. 100 (1972), we held that an "unacceptable risk"
existed that the jury might have understood an instruction -- that
certain defense testimony could properly be considered if found to
be true beyond a reasonable doubt -- as requiring that the defense
testimony be considered only if believed beyond a reasonable doubt.
Id. at
409 U. S. 102
n. 3. Over a dissent which asserted that the Court was parsing
instructions and engaging in semantical distinctions without
considering the trial court's charge to the jury as a whole,
id. at
409 U. S.
107-108, the instruction was found "fundamentally
inconsistent" with our
Winship decision, since a
possibility existed that exculpatory testimony -- that would
have
Page 414 U. S. 153
created a reasonable doubt in the minds of the jurors -- had
been rejected because not believable beyond a reasonable doubt.
Id. at
409 U. S. 104.
Thus, the evil in
Cool was the unacceptable risk that
jurors would understand the instruction to require that defense
testimony be rejected out of hand which, if considered, might have
given rise to a reasonable doubt about the defendant's guilt.
Respondent suffered no less a constitutional deprivation when, in
unequivocal terms, the jury was instructed to accept the statements
of prosecution witnesses as true even though the jurors might have
entertained substantial and reasonable doubts about the veracity of
the testimony -- but not sufficient to conclude that it was as
likely as not that the testimony was false.
Moreover, the "presumption of truthfulness" instruction itself
is constitutionally defective. In
Turner v. United States,
396 U. S. 398
(1970), we approved an inference of "knowledge" from the fact of
possessing smuggled heroin, because "
[c]ommon sense' . . .
tells us that those who traffic in heroin will inevitably
become aware that the product they deal in is smuggled,"
id. at 396 U. S. 417;
at the same time, we rejected the presumption that possession of
unstamped cocaine was prima facie evidence that the drug
was not purchased in or from the original stamped container,
because a "reasonable possibility" existed that the defendant
"stole the cocaine himself or obtained it from a stamped package in
possession of the actual thief." Id. at 396 U. S.
423-424 (emphasis added). In the instant case, common
sense does not dictate that a prosecution witness who has sworn or
affirmed to tell the truth will inevitably do so, and
there is surely a reasonable possibility that he will fail
to do so. [Footnote 2/3] Since here
no defense witnesses were
Page 414 U. S. 154
called, the practical effect of the presumption of truthfulness
was to permit the jury to find each and every element of the crimes
charged without requiring that the elements be proved beyond a
reasonable doubt. The presumption itself thus violates the mandate
of
Winship that "every fact necessary to constitute the
crime" be proved beyond a reasonable doubt.
See Barnes v.
United States, 412 U. S. 837,
412 U. S. 854
(1973) (BRENNAN, J., dissenting).
Viewed in the context of the overall charge to the jury, the
instructions were no less objectionable. To be sure -- as had been
the case in
Cool -- the jurors were instructed that guilt
must be proved beyond a reasonable doubt. However, they were also
directed in effect to ignore certain doubts they might have
entertained concerning the credibility of the prosecution's
witnesses. Had the instructions concerning the reasonable doubt
standard necessarily
contradicted the instructions dealing
with the burden of proof needed to overcome the truthfulness
presumption, the constitutional objection might have been
dissipated. But there is, in my view, an "unacceptable risk" that
the jury understood the instructions unambiguously to require that
they put to one side certain doubts about the credibility of the
testimony they had heard and only then determine whether the
evidence
Page 414 U. S. 155
supported a finding of guilt beyond a reasonable doubt.
[
Footnote 2/4] I therefore conclude
that the instructions are constitutionally infirm.
In this circumstance, the constitutional error inhering in the
instruction cannot properly be viewed as harmless beyond a
reasonable doubt.
See Chapman v. California, 386 U. S.
18,
386 U. S. 24
(1967). The reasonable doubt standard reduces the risk that an
error in factfinding could deprive an innocent man of his good name
and freedom.
See In re Winship, supra, at
397 U. S.
363-364. It also impresses the jurors with their solemn
responsibility to avoid being misled by suspicion, conjecture, or
mere appearance, and to arrive at a state of certainty concerning
the proper resolution of the relevant factual issues. Here, the
truthfinding function of the jury was invaded and the State's
burden of proving guilt beyond a reasonable doubt was diminished.
When the reasonable doubt standard has been thus compromised, it
cannot be said beyond doubt that the error "made
no
contribution to a criminal conviction."
Harrington v.
California, 395 U. S. 250,
395 U. S. 255
(1969) (dissenting opinion). Rather, such an error so conflicts
with an accused's right to a fair trial that the "infraction can
never be treated as harmless error."
Chapman v. California,
supra, at
386 U. S.
23.
[
Footnote 2/1]
Due to the structuring of the instructions, it is conceivable
that the jurors would have understood that, since the presumption
of innocence could be overcome only by proof of guilt beyond a
reasonable doubt, the presumption of truthfulness could likewise be
overcome only by evidence of untruthfulness beyond a reasonable
doubt. If the instructions were, in fact, understood in this
manner, the ensuing arguments concerning the unconstitutionality of
the instructions would follow
a fortiori.
[
Footnote 2/2]
The courts of appeals in every circuit have disapproved of
"presumption of truthfulness" instructions and have often expressed
their objections in terms of constitutional values.
See
McMillen v. United States, 386 F.2d 29 (CA1 1967);
United
States v. Bilotti, 380 F.2d 649 (CA2 1967);
United States
v. Evans, 398 F.2d 159 (CA3 1968);
United States v.
Safley, 408 F.2d 603 (CA4 1969);
United States v.
Reid, 469 F.2d 1094 (CA5 1972);
United States v.
Stroble, 431 F.2d 1273 (CA6 1970);
United States v.
Dichiarinte, 385 F.2d 333 (CA7 1967);
United States v.
Gray, 464 F.2d 632 (CA8 1972); the instant case,
Naughten
v. Cupp, 476 F.2d 845 (CA9 1972);
United States v.
Birmingham, 447 F.2d 1313 (CA10 1971);
Stone v. United
States, 126 U.S.App.D.C. 369, 379 F.2d 146 (1967). But the
courts have been particularly concerned about the impact that such
instructions might have when the defendant has not offered
testimony.
See United States v. Safley, supra, at 605;
United States v. Boone, 401 F.2d 659, 661 (CA3 1968);
United States v. Evans, supra, at 162;
United States
v. Dichiarinte, supra, at 339;
Stone v. United States,
supra, at 370, 379 F.2d at 147;
United States v.
Johnson, 371 F.2d 800, 805 (CA3 1967);
United States v.
Meisch, 370 F.2d 768, 774 (CA3 1966). However, even in a
situation where the defendant has introduced rebuttal testimony,
the impact of the presumption on the parties will be imponderable,
and not necessarily equal.
See McMillen v. United States,
supra, at 33.
[
Footnote 2/3]
The origins of the presumption that witnesses will testify
truthfully appear to extend back at least into the 19th century,
see ante at
414 U. S.
144-145, when it was a widely held belief that a willful
violation of the oath would expose the witness "at once to temporal
and to eternal punishment." T. Starkie, Law of Evidence 29 (10th
Am. ed. 1876). In addition, at that time, many of the common law
rules of incompetency were applied to disqualify individuals from
testifying for reasons which today would merely be grounds for
impeachment.
See generally 9 W. Holdsworth, History of
English Law 177-197 (1926); C. McCormick, Evidence, c. 7 (2d
ed.1972). Since that time, the rationale underlying the presumption
has been substantially undercut.
[
Footnote 2/4]
The majority's reliance on
Boyd v. United States,
271 U. S. 104
(1926),
ante at
414 U. S.
146-147, is misplaced. There it was found that an
"ambiguous" statement in the charge in a criminal case was likely
understood in its harmless sense because of additional curative
instructions.
Id. at
271 U. S. 107.
The disputed instruction, even if erroneous, concerned a question
of law under the Harrison Anti-Narcotic Act not of constitutional
dimension, and the Court relied on the fact that a proper objection
had not been taken to the charge.
See id. at
271 U. S.
107-108.