Based upon a confession and other evidence, petitioner was
charged under a Montana statute with "deliberate homicide," in that
he "purposely or knowingly" caused the victim's death. At trial,
petitioner argued that, although he killed the victim, he did not
do so "purposely or knowingly," and therefore was not guilty of
deliberate homicide. The trial court instructed the jury that
"[t]he law presumes that a person intends the ordinary consequences
of his voluntary acts," over petitioner's objection that such
instruction had the effect of shifting the burden of proof on the
issue of purpose or knowledge. The jury found petitioner guilty,
and the Montana Supreme Court affirmed, holding that although
shifting the burden of proof to the defendant by means of a
presumption is prohibited, allocation of "some burden of proof" to
a defendant is permissible. Finding that under the instruction in
question petitioner's sole burden was to produce "some" evidence
that he did not intend the ordinary consequences of his voluntary
acts, and not to disprove that he acted "purposely or knowingly,"
the Montana court held that the instruction did not violate due
process standards.
Held: Because the jury may have interpreted the
challenged presumption as conclusive, like the presumptions in
Morissette v. United States, 342 U.
S. 246, and
United States v. United States Gypsum
Co., 438 U. S. 422, or
as shifting the burden of persuasion, like that in
Mullaney v.
Wilbur, 421 U. S. 684, and
because either interpretation would have violated the Fourteenth
Amendment's requirement that the State prove every element of a
criminal offense beyond a reasonable doubt, the instruction is
unconstitutional. Pp.
442 U. S.
514-527.
(a) The effect of a presumption in a jury instruction is
determined by the way in which a reasonable juror could have
interpreted it, not by a state court's interpretation of its legal
import. Pp.
442 U. S. 514,
442 U. S.
517.
(b) Conclusive presumptions
"conflict with the overriding presumption of innocence with
which t,he law endows the accused and which extends to every
element of the crime,"
Morissette, supra at
342 U. S. 275,
and they "invad[e the] factfinding function,"
United States
Gypsum Co. supra at
438 U. S. 446,
which, in a criminal case, the law assigns to the jury. The
presumption announced to petitioner's jury may well have had
exactly
Page 442 U. S. 511
these consequences, since upon finding proof of one element of
the crime (causing death), and of facts insufficient to establish
the second (the voluntariness and "ordinary consequences" of
petitioner's action), the jury could have reasonably concluded that
it was directed to find against petitioner on the element of
intent. The State was thus not forced to prove "beyond a reasonable
doubt . . . every fact necessary to constitute the crime . . .
charged,"
In re Winship, 397 U. S. 358,
397 U. S. 364,
and petitioner was deprived of his constitutional rights. Pp.
442 U. S.
521-523.
(c) A presumption which, although not conclusive, had the effect
of shifting the burden of persuasion to petitioner, would have
suffered from similar infirmities. If the jury interpreted the
presumption in this manner, it could have concluded that, upon
proof by the State of the slaying, and of additional facts not
themselves establishing the element of intent, the burden was then
shifted to petitioner to prove that he lacked the requisite mental
state. Such a presumption was found constitutionally deficient in
Mullaney, supra. P.
442 U. S.
524.
(d) Without merit is the State's argument that, since the jury
could have interpreted the word "intends" in the instruction as
referring only to petitioner's "purpose," and could have convicted
petitioner solely for his "knowledge" without considering
"purpose," it might not have relied upon the tainted presumption at
all. First, it is not clear that a jury would have so interpreted
"intends." More significantly, even if a jury could have ignored
the presumption, it cannot be certain that this is what it did do,
as its verdict was a general one. Pp.
442 U. S.
525-526.
(e) Since whether the jury's reliance upon the instruction
constituted, or could have ever constituted, harmless error are
issues that were not considered by the Montana Supreme Court, this
Court will not reach them as an initial matter. Pp.
442 U. S.
526-527.
176 Mont. 492, 580 P.2d 106, reversed and remanded.
BRENNAN, J., delivered the opinion for a unanimous Court.
REHNQUIST, J., filed a concurring opinion, in which BURGER, C.J.,
joined, post, p.
442 U. S.
527.
Page 442 U. S. 512
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question presented is whether, in a case in which intent is
an element of the crime charged; the jury instruction, "the law
presumes that a person intends the ordinary consequences of his
voluntary acts," violates the Fourteenth Amendment's requirement
that the State prove every element of a criminal offense beyond a
reasonable doubt.
I
On November 22, 1976, 18-year-old David Sandstrom confessed to
the slaying of Annie Jessen. Based upon the confession and
corroborating evidence, petitioner was charged on December 2 with
"deliberate homicide," Mont.Code Ann. § 45-5102 (1978), in that he
"purposely or knowingly caused the death of Annie Jessen." App. 3.
[
Footnote 1] At trial,
Sandstrom's attorney informed the jury that, although his client
admitted killing Jessen, he did not do so "purposely or knowingly,"
and was therefore not guilty of "deliberate homicide," but of a
lesser crime.
Id. at 6-8. The basic support for this
contention was the testimony of two court-appointed mental health
experts, each of whom described for the jury petitioner's mental
state at the time of the incident. Sandstrom's attorney argued that
this testimony demonstrated that petitioner, due to a personality
disorder aggravated by alcohol consumption, did not kill Annie
Jessen "purposely or knowingly." [
Footnote 2]
Page 442 U. S. 513
The prosecution requested the trial judge to instruct the jury
that "[t]he law presumes that a person intends the ordinary
consequences of his voluntary acts." Petitioner's counsel objected,
arguing that "the instruction has the effect of shifting the burden
of proof on the issue of" purpose or knowledge to the defense, and
that "that is impermissible under the Federal Constitution, due
process of law."
Id. at 34. He offered to provide a number
of federal decisions in support of the objection, including this
Court's holding in
Mullaney v. Wilbur, 421 U.
S. 684 (1975), but was told by the judge: "You can give
those to the Supreme Court. The objection is overruled." App. 34.
The instruction was delivered, the jury found petitioner guilty of
deliberate homicide,
id. at 38, and petitioner was
sentenced to 100 years in prison.
Sandstrom appealed to the Supreme Court of Montana, again
contending that the instruction shifted to the defendant the burden
of disproving an element of the crime charged, in violation of
Mullaney v. Wilbur, supra, In re Winship, 397 U.
S. 358 (1970), and
Patterson v. New York,
432 U. S. 197
(1977). The Montana court conceded that these cases did prohibit
shifting the burden of proof to the defendant by means of a
presumption, but held that the cases "do not prohibit allocation of
some burden of proof to a defendant under certain circumstances."
176 Mont. 492, 497, 580 P.2d 106, 109 (1978). Since, in the court's
view,
"[d]efendant's sole burden under instruction No. 5 was to
produce
some evidence that he did not intend the ordinary
consequences of his voluntary acts, not to disprove that he acted
'purposely' or 'knowingly,' . . . the instruction does not violate
due process
Page 442 U. S. 514
standards as defined by the United States or Montana
Constitution. . . ."
Ibid. (emphasis added) .
Both federal and state courts have held, under a variety of
rationales, that the giving of an instruction similar to that
challenged here is fatal to the validity of a criminal conviction.
[
Footnote 3] We granted
certiorari, 439 U.S. 1067 (1979), to decide the important question
of the instruction's constitutionality. We reverse.
II
The threshold inquiry in ascertaining the constitutional
analysis applicable to this kind of jury instruction is to
determine the nature of the presumption it describes.
See
Ulster County Court v. Allen, ante at
442 U. S.
157-163. That determination requires careful attention
to the words actually spoken to the jury,
see ante at
442 U. S.
157-159, n. 16, for whether a defendant has been
accorded his constitutional rights depends upon the way in which a
reasonable juror could have interpreted the instruction.
Respondent argues, first, that the instruction merely described
a permissive inference -- that is, it allowed, but did not require,
the jury to draw conclusions about defendant's intent from his
actions -- and that such inferences are constitutional. Brief for
Respondent 3, 15. These arguments need not detain us long, for even
respondent admits that "it's possible" that
Page 442 U. S. 515
the jury believed they were required to apply the presumption.
Tr. of Oral Arg. 28. Sandstrom's jurors were told that "[t]he law
presumes that a person intends the ordinary consequences of his
voluntary acts." They were not told that they had a choice, or that
they might infer that conclusion; they were told only that the law
presumed it. It is clear that a reasonable juror could easily have
viewed such an instruction as mandatory.
See generally United
States v. Wharton, 139 U.S.App.D.C. 93, 298, 433 F.2d 451, 456
(1970);
Green v. United States, 132 U.S.App.D.C. 98, 99,
405 F.2d 1368, 1369 (1968).
See also Montana Rule of
Evidence 301(a). [
Footnote
4]
In the alternative, respondent urges that, even if viewed as a
mandatory presumption, rather than as a permissive inference, the
presumption did not conclusively establish intent, but rather could
be rebutted. On this view, the instruction required the jury, if
satisfied as to the facts which trigger the presumption, to find
intent
unless the defendant offered evidence to the
contrary. Moreover, according to the State, all the defendant had
to do to rebut the presumption was produce "some" contrary
evidence; he did not have to "prove" that he lacked the required
mental state. Thus,
"[a]t most, it placed a
burden of production on the
petitioner,' but 'did not shift to petitioner the
burden of
persuasion with respect to any element of the offense. . .
."
Brief for Respondent 3 (emphasis added). Again, respondent
contends that presumptions with this limited effect pass
constitutional muster.
We need not review respondent's constitutional argument on this
point either, however, for we reject this characterization of the
presumption as well. Respondent concedes there is a "risk" that the
jury, once having found petitioner's act
Page 442 U. S. 516
voluntary, would interpret the instruction as automatically
directing a finding of intent. Tr. of Oral Arg. 29. Moreover, the
State also concedes that numerous courts "have differed as to the
effect of the presumption when given as a jury instruction without
further explanation as to its use by the jury," and that some have
found it to shift more than the burden of production, and even to
have conclusive effect. Brief for Respondent 17. Nonetheless, the
State contends that the only authoritative reading of the effect of
the presumption resides in the Supreme Court of Montana. And the
State argues that, by holding that
"[d]efendant's sole burden under instruction No. 5 was to
produce
some evidence that he did not intend the ordinary
consequences of his voluntary acts, not to disprove that he acted
'purposely' or 'knowingly,'"
176 Mont. at 497-498, 580 P.2d at 109 (emphasis added), the
Montana Supreme Court decisively established that the presumption,
at most, affected only the burden of going forward with evidence of
intent -- that is, the burden of production. [
Footnote 5]
The Supreme Court of Montana is, of course, the final authority
on the legal weight to be given a presumption under Montana law,
but it is not the final authority on the interpretation
Page 442 U. S. 517
which a jury could have given the instruction. If Montana
intended its presumption to have only the effect described by its
Supreme Court, then we are convinced that a reasonable juror could
well have been misled by the instruction given, and could have
believed that the presumption was not limited to requiring the
defendant to satisfy only a burden of production. Petitioner's jury
was told that "
[t]he law presumes that a person intends
the ordinary consequences of his voluntary acts." They were not
told that the presumption could be rebutted, as the Montana Supreme
Court held, by the defendant's simple presentation of "some"
evidence; nor even that it could be rebutted at all. Given the
common definition of "presume" as "to suppose to be true without
proof," Webster's New Collegiate Dictionary 911 (1974), and given
the lack of qualifying instructions as to the legal effect of the
presumption, we cannot discount the possibility that the jury may
have interpreted the instruction in either of two more stringent
ways.
First, a reasonable jury could well have interpreted the
presumption as "conclusive," that is, not technically as a
presumption at all, but rather as an irrebuttable direction by the
court to find intent once convinced of the facts triggering the
presumption. Alternatively, the jury may have interpreted the
instruction as a direction to find intent upon proof of the
defendant's voluntary actions (and their "ordinary" consequences),
unless
the defendant proved the contrary by some quantum
of proof which may well have been considerably greater than "some"
evidence -- thus effectively shifting the burden of persuasion on
the element of intent. Numerous federal and state courts have
warned that instructions of the type given here can be interpreted
in just these ways.
See generally United States v.
Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970);
Berkovitz v. United States, 213 F.2d 468 (CA5 1954);
State v. Roberts, 88 Wash. 2d
337, 341-342,
562 P.2d
1259, 1261-1262 (1977) (en banc);
State v.
Warbritton,
Page 442 U. S. 518
211 Kan. 506, 509,
506 P.2d 1152,
1155 (1973);
Hall v. State, 49 Ala.App. 381, 385,
272 So. 2d 590,
593 (Crim.App. 1973).
See also United States v.
Chiantese, 560 F.2d 1244, 1255 (CA5 1977). And although the
Montana Supreme Court held to the contrary in this case, Montana's
own Rules of Evidence expressly state that the presumption at issue
here may be overcome only "by a preponderance of evidence contrary
to the presumption." Montana Rule of Evidence 301(b)(2). [
Footnote 6] Such a requirement shifts
not only the burden of production, but also the ultimate burden of
persuasion on the issue of intent. [
Footnote 7]
Page 442 U. S. 519
We do not reject the possibility that some jurors may have
interpreted the challenged instruction as permissive, or, if
mandatory, as requiring only that the defendant come forward with
"some" evidence in rebuttal. However, the fact that a reasonable
juror could have given the presumption conclusive or
persuasion-shifting effect means that we cannot discount the
possibility that Sandstrom's jurors actually did proceed upon one
or the other of these latter interpretations. And that means that,
unless these kinds of presumptions are constitutional, the
instruction cannot be adjudged valid. [
Footnote 8]
Ulster County Court v. Allen, ante at
442 U. S.
159-160, n. 17, and at
442 U. S.
175-176 (POWELL, J., dissenting);
Bachellar v.
Maryland, 397 U. S. 564,
397 U. S.
570-571 (1970);
Leary v. United States,
395 U. S. 6,
395 U. S. 31-32
(1969);
Carpenters v. United States, 330 U.
S. 395,
330 U. S.
408-409 (1947);
Bollenbach v. United States,
326 U. S. 607,
326 U. S.
611-614 (1946). It is the line of cases urged by
petitioner, and exemplified by
In re Winship, 397 U.
S. 358 (1970), that provides the appropriate mode of
constitutional analysis for these kinds of presumptions. [
Footnote 9]
Page 442 U. S. 520
III
In
Winship, this Court stated:
"Lest there remain any doubt about the constitutional stature of
the reasonable doubt standard, we explicitly hold 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
(emphasis added).
Accord, Patterson v. New York, 432 U.S.
at
432 U. S. 210.
The petitioner here was charged with and convicted of deliberate
homicide, committed purposely or knowingly, under Mont.Code Ann. §
45-5-102(a) (1978).
See App. 3, 42. It is clear that,
under Montana law, whether the crime was committed purposely or
knowingly is a fact necessary to constitute the crime of deliberate
homicide. [
Footnote 10]
Indeed, it was
Page 442 U. S. 521
the lone element of the offense at issue in Sandstrom's trial,
as he confessed to causing the death of the victim, told the jury
that knowledge and purpose were the only questions he was
controverting, and introduced evidence solely on those points. App.
6-8. Moreover, it is conceded that proof of defendant's "intent"
would be sufficient to establish this element. [
Footnote 11] Thus, the question before this
Court is whether the challenged jury instruction had the effect of
relieving the State of the burden of proof enunciated in
Winship on the critical question of petitioner's state of
mind. We conclude that, under either of the two possible
interpretations of the instruction set out above, precisely that
effect would result, and that the instruction therefore represents
constitutional error.
We consider first the validity of a conclusive presumption. This
Court has considered such a presumption on at least two prior
occasions. In
Morissette v. United States, 342 U.
S. 246 (1952), the defendant was charged with willful
and knowing theft of Government property. Although his attorney
argued that, for his client to be found guilty, "the taking must
have been with felonious intent," the trial judge ruled that
"[t]hat is presumed by his own act."
Id. at
342 U. S. 249.
After first concluding that intent was in fact an element of the
crime charged, and after declaring that "[w]here intent of the
accused
Page 442 U. S. 522
is an ingredient of the crime charged, its existence is . . . a
jury issue,"
Morissette held:
"
It follows that the trial court may not withdraw or
prejudge the issue by instruction that the law raises a presumption
of intent from an act. It often is tempting to cast in terms
of a 'presumption' a conclusion which a court thinks probable from
given facts. . . . [But] [w]e think presumptive intent has no place
in this case.
A conclusive presumption which testimony could
not overthrow would effectively eliminate intent as an ingredient
of the offense. A presumption which would permit, but not
require, the jury to assume intent from an isolated fact would
prejudge a conclusion which the jury should reach of its own
volition. A presumption which would permit the jury to make an
assumption which all the evidence considered together does not
logically establish would give to a proven fact an artificial and
fictional effect. In either case,
this presumption would
conflict with the overriding presumption of innocence with which
the law endows the accused and which extends to every element of
the crime."
Id. at
342 U. S.
274-275. (Emphasis added; footnote omitted.)
Just last Term, in
United States v. United States Gypsum
Co., 438 U. S. 422
(1978), we reaffirmed the holding of
Morissette. In that
case, defendants, who were charged with criminal violations of the
Sherman Act, challenged the following jury instruction:
"The law presumes that a person intends the necessary and
natural consequences of his acts. Therefore, if the effect of the
exchanges of pricing information was to raise, fix, maintain, and
stabilize prices, then the parties to them are presumed, as a
matter of law, to have intended that result."
438 U.S. at
438 U. S.
430.
Page 442 U. S. 523
After again determining that the offense included the element of
intent, we held:
"[A] defendant's state of mind or
intent is an element of a
criminal antitrust offense which . . . cannot be taken from the
trier of fact through reliance on a legal presumption of
wrongful intent from proof of an effect on prices.
Cf.
Morissette v. United States. . . ."
"
* * * *"
"Although an effect on prices may well support an inference that
the defendant had knowledge of the probability of such a
consequence at the time he acted, the jury must remain free to
consider additional evidence before accepting or rejecting the
inference. . . . [U]ltimately, the decision on the issue of intent
must be left to the trier of fact alone. The instruction given
invaded this factfinding function."
Id. at
438 U. S. 435,
438 U. S. 446
(emphasis added).
See also Hickory v. United States,
160 U. S. 408,
160 U. S. 422
(1896). As in
Morissette and
United States Gypsum
Co., a conclusive presumption in this case would
"conflict with the overriding presumption of innocence with
which the law endows the accused and which extends to every element
of the crime,"
and would "invade [the] factfinding function" which, in a
criminal case, the law assigns solely to the jury. The instruction
announced to David Sandstrom's jury may well have had exactly these
consequences. Upon finding proof of one element of the crime
(causing death), and of facts insufficient to establish the second
(the voluntariness and "ordinary consequences" of defendant's
action), Sandstrom's jurors could reasonably have concluded that
they were directed to find against defendant on the element of
intent. The State was thus not forced to prove "beyond a reasonable
doubt . . . every fact necessary to constitute the crime . . .
charged," 397 U.S. at
397 U. S. 364,
and defendant was deprived of his constitutional rights as
explicated in
Winship.
Page 442 U. S. 524
A presumption which, although not conclusive, had the effect of
shifting the burden of persuasion to the defendant, would have
suffered from similar infirmities. If Sandstrom's jury interpreted
the presumption in that manner, it could have concluded that, upon
proof by the State of the slaying and of additional facts not
themselves establishing the element of intent, the burden was
shifted to the defendant to prove that he lacked the requisite
mental state. Such a presumption was found constitutionally
deficient in
Mullaney v. Wilbur, 421 U.
S. 684 (1975). In
Mullaney, the charge was
murder, which, under Maine law, required proof not only of intent,
but of malice. The trial court charged the jury that "
malice
aforethought is an essential and indispensable element of the crime
of murder.'" Id. at 421 U. S. 686.
However, it also instructed that, if the prosecution established
that the homicide was both intentional and unlawful, malice
aforethought was to be implied unless the defendant proved by a
fair preponderance of the evidence that he acted in the heat of
passion on sudden provocation. Ibid. As we recounted just
two Terms ago in Patterson v. New York,
"[t]his Court . . . unanimously agreed with the Court of Appeals
that Wilbur's due process rights had been invaded by the
presumption casting upon him the burden of proving by a
preponderance of the evidence that he had acted in the heat of
passion upon sudden provocation."
432 U.S. at
432 U. S. 214.
And
Patterson reaffirmed that
"a State must prove every ingredient of an offense beyond a
reasonable doubt, and . . . may not shift the burden of proof to
the defendant"
by means of such a presumption.
Id. at
432 U. S.
215.
Because David Sandstrom's jury may have interpreted the judge's
instruction as constituting either a burden-shifting presumption
like that in
Mullaney or a conclusive presumption like
those in
Morissette and
United States Gypsum Co.,
and because either interpretation would have deprived defendant of
his right to the due process of law, we hold the instruction given
in this case unconstitutional.
Page 442 U. S. 525
IV
Respondent has proposed two alternative rationales for affirming
petitioner's conviction even if the presumption at issue in this
case is unconstitutional. First, the State notes that the jury was
instructed that deliberate homicide may be committed "purposely
or knowingly." [
Footnote 12] App 35 (emphasis added). Since the jury was
also instructed that a person "intends" the ordinary consequences
of his voluntary acts, but was not provided with a definition of
"intends," respondent argues that jurors could have interpreted the
word as referring only to the defendant's "purpose." Thus, a jury
which convicted Sandstrom solely for his "knowledge," and which
interpreted "intends" as relevant only to "purpose", would not have
needed to rely upon the tainted presumption at all.
We cannot accept respondent's argument. As an initial matter, we
are not at all certain that a jury would interpret the word
"intends" as bearing solely upon purpose. As we said in
United
States v. United States Gypsum Co., 438 U.S. at
438 U. S.
445,
"[t]he element of intent in the criminal law has
traditionally
Page 442 U. S. 526
been viewed as a bifurcated concept embracing either the
specific requirement of purpose or the more general one of
knowledge or awareness."
See also W. LaFave & A Scott, Criminal Law 196
(1972).
But, more significantly, even if a jury
could have
ignored the presumption and found defendant guilty because he acted
knowingly, we cannot be certain that this is what they
did
do. [
Footnote 13] As the
jury's verdict was a general one, App. 38, we have no way of
knowing that Sandstrom was not convicted on the basis of the
unconstitutional instruction. And
"[i]t has long been settled that, when a case is submitted to
the jury on alternative theories, the unconstitutionality of any of
the theories requires that the conviction be set aside.
See,
e.g., Stromberg v. California, 283 U. S.
359 (1931)."
Leary v. United States, 395 U.S. at
395 U. S. 31-32.
See Ulster County Court v. Allen, ante, at
442 U. S.
159-160, n. 17, and at
442 U. S.
175-176 (POWELL, J., dissenting);
Bachellar v.
Maryland, 397 U.S. at
397 U. S. 570-571;
Carpenters v. United States,
330 U.S. at
330 U. S.
408-409;
Bollenbach v. United States, 326 U.S.
at
326 U. S.
611-614.
Respondent's final argument is that, even if the jury did rely
upon the unconstitutional instruction, this constituted harmless
error under
Chapman v. California, 386 U. S.
18 (1967), because both defendant's confession and the
psychiatrist's testimony demonstrated that Sandstrom possessed the
requisite mental state. Brief for Respondent 4-13. In reply, it is
said that petitioner confessed only to the slaying, and not to his
mental state, that the psychiatrist's testimony amply supported his
defense, Brief for Petitioner 15-16, and that, in any event, an
unconstitutional jury instruction on an element of the crime can
never constitute harmless error,
see generally
Page 442 U. S. 527
Carpenters v. United States, supra at
330 U. S.
408-409;
Bollenbach v. United States, supra at
326 U. S. 614,
326 U. S. 615.
As none of these issues was considered by the Supreme Court of
Montana, we decline to reach them as an initial matter here.
See Moore v. Illinois, 434 U. S. 220,
434 U. S. 232
(1977);
Coleman v. Alabama, 399 U. S.
1,
399 U. S. 11
(1970). The Montana court will, of course, be free to consider them
on remand if it so desires.
Ibid. Accordingly, the
judgment of the Supreme Court of Montana is reversed, and the case
is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
The statute provides:
"45-5-101. Criminal homicide. (1) A person commits the offense
of criminal homicide if he purposely, knowingly, or negligently
causes the death of another human being."
"(2) Criminal homicide is deliberate homicide, mitigated
deliberate homicide, or negligent homicide."
"45-5-102. Deliberate homicide. (1) Except as provided in
45-5-103(1), criminal homicide constitutes deliberate homicide
if:"
"(a) it is committed purposely or knowingly. . . ."
[
Footnote 2]
Petitioner initially filed a notice of intent to rely on "mental
disease or defect excluding criminal responsibility" as a defense.
That defense required evidence that defendant was "unable either to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of law." Mont.Code Ann. § 46-14-101 (1978). The
defense was withdrawn at trial, with the petitioner contending
that, although he was not "unable" to form the requisite intent, he
did not have it at the time of the killing.
[
Footnote 3]
See Chappell v. United States, 270 F.2d 274 (CA9 1959);
Bloch v. United States, 221 F.2d 786 (CA9 1955);
Berkovitz v. United States, 213 F.2d 468 (CA5 1954);
Wardlaw v. United States, 203 F.2d 884 (CA5 1953);
State v. Warbritton, 211 Kan. 506,
506 P.2d
1152 (1973),
Hall v. State, 49 Ala.App. 381, 385,
272 So. 2d 590,
593 (Crim.App. 1973).
See also United States v.
Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970). In
addition, two United States Courts of Appeals have ordered their
District Courts to delete the instruction in future cases.
See
United States v. Garrett, 574 F.2d 778 (CA3 1978);
United
States v. Chiantese, 560 F.2d 1244 (CA5 1977). The standard
reference work for federal instructions, 1 E. Devitt & C.
Blackmar, Federal Jury Practice and Instructions 405 (3d ed.1977),
describes the instruction as "clearly erroneous," and as
constituting "reversible error,"
id. at 448.
[
Footnote 4]
"Rule 301. (a) Presumption defined. A presumption is an
assumption of fact
that the law requires to be made from
another fact or group of facts found or otherwise established in
the action or proceeding."
(Emphasis added.)
[
Footnote 5]
For purposes of argument, we accept respondent's definition of
the production burden when applied to a defendant in a criminal
case. We note, however, that the burden is often described quite
differently when it rests upon the prosecution.
See United
States v. Vuitch, 402 U. S. 62,
402 U. S. 72 n.
7 (1971) ("evidence from which a jury could find a defendant guilty
beyond a reasonable doubt"); C. McCormick, Evidence § 338, p. 790,
and n. 33 (2d ed.1972), p. 101, and n. 34.1 (Supp. 1978). We also
note that the effect of a failure to meet the production burden is
significantly different for the defendant and prosecution. When the
prosecution fails to meet it, a directed verdict in favor of the
defense results. Such a consequence is not possible upon a
defendant's failure, however, as verdicts may not be directed
against defendants in criminal cases.
United States v. Martin
Linen Supply Co., 430 U. S. 564,
430 U. S.
572-573 (1977);
Carpenters v. United States,
330 U. S. 395,
330 U. S. 408
(1947);
Mims v. United States, 375 F.2d 135, 148 (CA5
1967).
[
Footnote 6]
Montana Code Ann. § 26-1-602 (1978) states:
"'[D]isputable presumptions' . . . may be controverted by other
evidence. The following are of that kind:"
"
* * * *"
"3. that a person intends the ordinary consequence of his
voluntary act."
Montana Rule of Evidence 301 provides:
"(b)(2) All presumptions, other than conclusive presumptions,
are disputable presumptions and may be controverted.
A
disputable presumption may be overcome by a preponderance of
evidence contrary to the presumption. Unless the presumption is
overcome, the trier of fact must find the assumed fact in
accordance with the presumption."
(Emphasis added.)
See also Monaghan v. Standard Motor
Co., 96 Mont. 165, 173-174, 29 P.2d 378, 379-380 (1934). At
oral argument, the Attorney General of Montana agreed that
"admittedly Montana law . . . states that a presumption requires a
person to overcome that presumption by a preponderance of
evidence." Tr. of Oral Arg. 30.
We do not, of course, cite this Rule of Evidence to dispute the
Montana Supreme Court's interpretation of its own law. It merely
serves as evidence that a reasonable man -- here, apparently, the
drafter of Montana's own Rules of Evidence -- could interpret the
presumption at issue in this case as shifting to the defendant the
burden of proving his innocence by a preponderance of the
evidence.
[
Footnote 7]
The potential for these interpretations of the presumption was
not removed by the other instructions given at the trial. It is
true that the jury was instructed generally that the accused was
presumed innocent until proved guilty, and that the State had the
burden of proving beyond a reasonable doubt that the defendant
caused the death of the deceased purposely or knowingly. App.
34-35; Brief for Respondent 21. But this is not rhetorically
inconsistent with a conclusive or burden-shifting presumption. The
jury could have interpreted the two sets of instructions as
indicating that the presumption was a means by which proof beyond a
reasonable doubt as to intent could be satisfied. For example, if
the presumption were viewed as conclusive, the jury could have
believed that, although intent must be proved beyond a reasonable
doubt, proof of the voluntary slaying and its ordinary consequences
constituted proof of intent beyond a reasonable doubt.
Cf.
Mullaney v. Wilbur, 421 U. S. 684,
421 U. S. 703
n. 31 (1975) ("These procedural devices require (in the case of a
presumption) . . . the trier of fact to conclude that the
prosecution has met its burden of proof with respect to the
presumed . . . fact by having satisfactorily established other
facts").
[
Footnote 8]
Given our ultimate result in this case, we do not need to
consider what kind of constitutional analysis would be appropriate
for other kinds of presumptions.
[
Footnote 9]
Another line of our cases also deals with the validity of
certain kinds of presumptions.
See Ulster County Court v.
Allen, ante, p.
442 U. S. 140;
Barnes v. United States, 412 U. S. 837
(1973);
Turner v. United States, 396 U.
S. 398 (1970);
Leary v. United States,
395 U. S. 6 (1969);
United States v. Romano, 382 U. S. 136
(1965);
United States v. Gainey, 380 U. S.
63 (1965);
Roviaro v. United States,
353 U. S. 53
(1957);
Tot v. United States, 319 U.
S. 463 (1943). These cases did not, however, involve
presumptions of the conclusive or persuasion-shifting variety.
See Ulster County Court v. Allen, ante at
442 U. S. 157
and n. 16; and at
442 U. S. 169
(POWELL, J., dissenting);
Mullaney v. Wilbur, supra at
421 U. S. 703
n. 31;
Leary v. United States, supra at
Roviaro v.
United States, supra at
353 U. S. 63; C.
McCormick, Evidence 831 (2d ed.1972).
A line of even older cases urged upon us by respondent is
equally inapplicable. In
Agnew v. United States,
165 U. S. 36,
165 U. S. 50
(1897), the trial court's instruction expressly stated that the
presumption was not conclusive, and this Court found that other
problems with the instruction were cured by the charge considered
as a whole. The other proffered cases simply involved general
comments by the Court upon the validity of presuming intent from
action.
See Radio Officers v. NLRB, 347 U. S.
17,
347 U. S. 45
(1954);
Cramer v. United States, 325 U. S.
1,
325 U. S. 31
(1945).
See also Reynolds v. United States, 98 U. S.
145,
98 U. S. 167
(1879) (religious objection to polygamy law not a defense).
[
Footnote 10]
The statute is set out at
n
1,
supra. In
State v. McKenzie, 177 Mont. 80,
327-328, 581 P.2d 1205, 1232 (1978), the Montana Supreme Court
stated:
"In Montana, a person commits the offense of deliberate homicide
if he purposely or knowingly causes the death of another human
being. Sections 94-5-102(1)(a), 94-5-101(1), R. C. M.1947.
The
statutorily defined elements of the offense, each of which the
State must prove beyond a reasonable doubt,
are therefore
causing the death of another human being with the knowledge
that you are causing
or with the purpose to cause the
death of that human being."
(Emphasis added.)
Accord, State v. Collins, 178 Mont.
36, 45, 582 P.2d 1179, 1184 (1978) ("committing the homicide
purposely or knowingly' is an element of deliberate
homicide").
[
Footnote 11]
Respondent agrees that "intent" and "purpose" are roughly
synonymous,
see also Webster's New Collegiate Dictionary
601 (1974), but contests the relevance of "intent" to "knowledge."
See Tr. of Oral Arg. 18; Brief for Respondent 8-9. This
problem is discussed in
442 U. S.
infra.
[
Footnote 12]
The jurors were instructed:
"
I
NSTRUCTION NO. 7"
"'Knowingly' is defined as follows: A person acts knowingly with
respect to conduct or to a circumstance described by a statute
defining an offense when he is aware of his conduct or that the
circumstance exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an offense when
he is aware that it is highly probable that such result will be
caused by his conduct. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is
established if a person is aware of a high probability of its
existence. Equivalent terms such as 'knowing' or 'with knowledge'
have the same meaning."
"
I
NSTRUCTION NO. 8"
"'Purposely' is defined as follows: A person acts purposely with
respect to a result or to conduct described by a statute defining
an offense if it is his conscious object to engage in that conduct
or to cause that result."
App. 35-36.
[
Footnote 13]
Indeed, with respondent's interpretation of "intends" as going
solely to "purpose," it would be surprising if the jury considered
"knowledge" before it considered "purpose." With the assistance of
the presumption, the latter would have been easier to find than the
former, and there is no reason to believe the jury would have
deliberately undertaken the more difficult task.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
concurring.
The Fourteenth Amendment to the United States Constitution
prohibits any State from depriving a person of liberty without due
process of law, and in
Mullaney v. Wilbur, 421 U.
S. 684 (1975), this Court held that the Fourteenth
Amendment's guarantees prohibit a State from shifting to the
defendant the burden of disproving an element of the crime charged.
I am loath to see this Court go into the business of parsing jury
instructions given by state trial courts, for, as we have
consistently recognized, "a single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context
of the overall charge."
Cupp v. Naughten, 414 U.
S. 141,
414 U. S.
146-147 (1973). And surely if this charge had, in the
words of the Court, "merely described a permissive inference,"
ante at
442 U. S. 514,
it could not conceivably have run afoul of the constitutional
decisions cited by the Court in its opinion. But a majority of my
Brethren conclude that "it is clear that a reasonable juror could
easily have viewed such an instruction as mandatory,"
ante
at
442 U. S. 515,
and counsel for the State admitted in oral argument "that
it's
possible' that the jury believed they were required to apply the
presumption." Ante at 442 U. S.
514-515.
Page 442 U. S. 528
While I continue to have doubts as to whether this particular
jury was so attentively attuned to the instructions of the trial
court that it divined the difference recognized by lawyers between
"infer" and "presume," I defer to the judgment of the majority of
the Court that this difference in meaning may have been critical in
its effect on the jury. I therefore concur in the Court's opinion
and judgment.