Bank Robbery Insanity Defense Question for Jury

520 F.
2d 250
United States Court of Appeals, First Circuit. UNITED STATES of America, Appellee, v. Roland William DUBE, Jr., Defendant-Appellant.
No. 75-1034. Argued May 5, 1975. Decided June 30, 1975.
Defendant was convicted in the United States District Court for the District of Maine, Gignoux, J., for robbery of a federally insured bank and he appealed. The Court of Appeals, McEntee, Circuit Judge, held that testimony of defendant's expert witnesses, and cross-examination of the witnesses and lay testimony of bank tellers, made question for jury as to defendant's sanity at the time of the offense.
Affirmed.
Levin H. Campbell, Circuit Judge, filed concurring opinion.
West Headnotes
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Key Number Symbol110 Criminal Law Key Number Symbol110XVII Evidence Key Number Symbol110XVII(B) Presumptions and Inferences Key Number Symbol110k305 Presumptions Key Number Symbol110k311 k. Sanity. Most Cited Cases
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A criminal defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt.
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Insanity is a jury question unless a reasonable man viewing the facts and reasonable inferences therefrom in the light most favorable to the prosecution must necessarily possess a reasonable doubt as to the defendant's sanity.
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Prosecution need not counter defendant's expert medical evidence on question of insanity with expert testimony of its own.
Expert testimony as to defendant's insanity may be rebutted in various ways apart from the introduction of countervailing expert opinion.
Psychologist's and psychiatrist's diagnoses of defendant's sanity at time of bank robbery were suspect where based on minimal observation of defendant.
Key Number Symbol110 Criminal Law Key Number Symbol110XX Trial Key Number Symbol110XX(F) Province of Court and Jury in General Key Number Symbol110k733 Questions of Law or of Fact Key Number Symbol110k740 k. Defense of Insanity. Most Cited Cases
Evidence in bank robbery prosecution, including testimony of defense psychiatrist and psychologist, and cross-examination of the experts and lay testimony of two bank tellers, made question for jury as to defendant's sanity at time of robbery.
*251 Peter L. Murray, Portland, Maine, by appointment of the Court, Murray, Plumb & Murray, Portland, Maine, was on brief, for appellant.
Peter Mills, U. S. Atty., for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
Defendant Dube was tried on an indictment charging him with robbery of a federally insured bank. He did not deny that he committed the robbery, but introduced the testimony of a psychiatrist and a psychologist that he was insane when he committed the offense. The prosecution did not present expert opinion evidence but relied instead on cross-examination and the lay testimony of two bank tellers and Dube's accomplice to rebut his case. Dube moved for a judgment of acquittal on the ground that the prosecution had failed as a matter of law to sustain its burden of proving his sanity beyond a reasonable doubt, but the motion was denied. The jury returned a verdict of guilty and Dube appeals.
[1] Headnote Citing References[2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing References A criminal defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt. Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962). Insanity is a jury question unless a reasonable man viewing the facts and reasonable inferences therefrom in the light most favorable to the prosecution must necessarily possess a reasonable doubt as to the defendant's sanity. United States v. Coleman, 501 F.2d 342 (10th Cir. 1974). The nature and quantum of rebuttal evidence sufficient to present a jury question is to some extent determined by the strength of the case for insanity. United States v. Bass, 490 F.2d 846, 851 (5th Cir. 1974). There is no general principle that the prosecution must counter defendant's expert medical evidence with expert testimony of its own. See United States v. Shackelford, 494 F.2d 67 (9th Cir.), cert. denied, *252 417 U.S. 934, 94 S.Ct. 2647, 41 L.Ed.2d 237 (1974). The expert testimony is not conclusive even where uncontradicted; its weight and credibility are for the jury to determine, United States v. Lutz, 420 F.2d 414, 415 (3d Cir.), cert. denied, 398 U.S. 911, 90 S.Ct. 1709, 26 L.Ed.2d 73 (1970), and it may be rebutted in various ways apart from the introduction of countervailing expert opinion.[FN1]
FN1. In Mims v. United States, 375 F.2d 135, 143-44 (5th Cir. 1967), the court stated that expert testimony may be rebuttedby showing the incorrectness or inadequacy of the factual assumptions upon which the opinion is based, the reasoning by which he progresses from his material to his conclusion, the interest or bias of the expert, inconsistencies or contradiction in
his testimony as to material matters, material variations between the experts themselves, and defendant's lack of co-operation with the expert. Also in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross-examination of the expert may be such as to justify the trier of facts in not being convinced by him. One or more of these factors may, depending on the particular facts of each case, make a jury issue as to the credibility and weight to be given to the expert testimony . . .. (footnotes omitted).See also United States v. McGraw, 515 F.2d 758 (9th Cir. 1975), holding that defendant's expert testimony may be rebutted by cross-examination or evidence from which the jury could infer that the defendant's expert testimony depended upon an incorrect view of the facts.
[5] Headnote Citing References We do not think the evidence in this case was such that a reasonable man must necessarily have entertained doubts as to defendant's sanity. Both Dr. Voss, the psychiatrist, and Dr. Bishop, the psychologist, testified that in their opinion defendant was a schizophrenic and substantially incapable of conforming his conduct to the requirements of the law at the time of the crime. [FN2] They arrived at those diagnoses nearly five months after the robbery and only a week before trial. Dr. Voss's opinion was based on two hours of interviews and Dr. Bishop's on a one-hour interview and three hours of intelligence and personality testing. Diagnoses based on such minimal observation are suspect. Mims v. United States, 375 F.2d 135, 146 (5th Cir. 1967). Though both examined and diagnosed defendant separately, they subsequently discussed his case together before testifying. Neither had any prior acquaintance with defendant nor did either treat him at any time. In fact, in contrast to most of the cases defendant cites, he had no organic manifestations, had never received any psychiatric treatment and had experienced no earlier abnormal episodes of any kind. Id. Some of the factors the experts relied on in reaching their diagnoses were contradictory or unconvincing.[FN3]
FN2. Dr. Voss qualified his opinion by noting that he of course was not present on the day of the robbery and that his diagnosis was predicated in large part on the defendant's own description of his thought processes that day, the accuracy and completeness of which are open to grave doubt in the light of the accomplice's testimony. Dube remembered very little of the incident, according to Dr. Voss.
FN3. Thus Dr. Bishop opined that Dube's emotional response was flat, a judgment based in part on his wet fish handshake, while Dr. Voss characterized Dube as open and friendly. Dr. Bishop also stated that Dube had a basic thought disturbance illustrated by his response Holler fire to the question If you were the first one in a movie to discover smoke or see a fire, what would you do? Dr. Bishop considered this response inappropriate since it deviated from the response given by a majority of 3,000 of the control group, but admitted that Dube's educational background would affect his response. See United States v. Shackelford, supra.
[6] Headnote Citing References Most importantly, Dr. Voss's diagnosis was based almost entirely on the subjective history narrated by defendant and his counsel, see United States v. Ingman, 426 F.2d 973 (9th Cir. 1970), and Dr. Bishop undoubtedly interpreted the test results in light of the history he received. Both testified that they were able to detect malingering and that defendant could not fabricate a history suggesting schizophrenia, but of course a jury would not be bound to believe these assertions. Id. Indeed the factual assumptions they derived from Dube's narrative,*253 on which they predicated their conclusions, did not comport with the testimony at trial. On the basis of defendant's statements, both regarded the robbery as compulsive and irrational, but the testimony of Mrs. Kyllonen, the accomplice, furnished abundant evidence of a carefully planned and executed crime.[FN4] The experts' testimony also seemed to rest in part on the notion that bank robbery is an irrational activity in the first place, making the competence of a bank robber at least suspect.[FN5] Both concluded that defendant was shy, a loner, unable to form emotional attachments to others, but Mrs. Kyllonen testified that she was in love with defendant, that they had lived together for as long as three weeks before the robbery and that they had arranged to get back together after defendant disposed of some stolen checks in New York. She also testified that during the period immediately after the robbery she did not notice anything peculiar about defendant's activities. Since expert opinion rises no higher than the reasons on which it is based, Dusky v. United States, 295 F.2d 743 (8th Cir. 1961), cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536 (1962), we cannot say that it would be unreasonable to discount the testimony of Drs. Voss and Bishop heavily. We agree with our concurring brother that the prosecution was remiss in not offering psychiatric testimony of its own. However, on all the evidence we think the court correctly allowed the case to go to the jury. See United States v. Coleman, supra.
FN4. According to Dr. Bishop, Dube stated he had no intention of robbing a bank when he left home that day, and that he and Mrs. Kyllonen passed a bank while driving along and that he did not know whose idea it was to enter the bank and rob it. Based upon this statement Dr. Bishop concluded that Dube's behavior was inappropriate. Mrs. Kyllonen, however, testified that
Dube first discussed robbing the bank after arising that day. He cased and rejected several banks on the ground that they were too well protected, or otherwise unsuitable, and finally chose one which was unprotected, staffed by only two women, empty of customers and about to close, with a parking space for the getaway car nearby. After robbing the bank defendant changed clothing, hid his old clothes, and had Mrs. Kyllonen drive to a hospital parking lot (he knew just where he wanted to go, she testified) where they waited for a few hours listening to the radio for a report of the crime. They then counted the money and drove down the coast to avoid capture, and Dube disposed of his gun along the way by tossing it in a river. Dr. Bishop was apparently unaware of these details indicating deliberation. Dr. Voss heard Mrs. Kyllonen's testimony but believed Dube could have planned out a much better robbery, although he could not suggest how.
FN5. Dr. Voss testified:Q. Well, you wouldn't expect ordinary people to think that that was the act of a crazy person would you?A. I wouldn't know what an ordinary person would think. I would think that the man might be crazy at that point.Q. Because he robbed a bank?A. No, I don't say that anybody who robs a bank is crazy, but I would suspect that the person doing it might be under some emotional disorder. I don't know. You would have to see the person.And Dr. Bishop testified If a rational person were going to rob a bank, to me that's a rather logical contradiction. . . .
Affirmed.
LEVIN H. CAMPBELL, Circuit Judge (concurring).
I find this a difficult case to analyze though, on the facts, I concur in the result. The court dwells on the inadequacy of the psychiatrist's and psychologist's diagnoses. While in certain respects I think it is overly critical, I agree that the jury was entitled to be skeptical of opinions of insanity based upon relatively brief examinations made several months after the crime and at a time when Dube had everything to gain from a finding of insanity. There were, besides, indications from which a jury might wonder if the experts were confusing insanity in the criminal sense with a less fundamental disorder.
Still it is not simple to identify the affirmative evidence from which the jury could find defendant sane beyond a reasonable doubt. Certain conclusions, could, it is true, be drawn from Dube's girl friend's description of his conduct *254 before and after the crime. She had lived with Dube for several weeks and was in his company when he fled. While the defense argues that by selecting a bank to rob on the spur of the moment, Dube behaved in a bizarre manner, this behavior does not necessarily compel an inference of mental abnormality; and his conduct during and after the robbery, including precautions to avoid detection such as discarding the gun and driving to a city where he felt the police were less likely to be on the lookout, seems rational enough. The two tellers, who saw him briefly during the robbery, observed nothing bizarre, and the jury was able to add to this evidence its own observations of Dube while in the courtroom. Thus, there was evidence that Dube at certain times had behaved in a way which, to the average eyes, might seem normal. Still one wonders by what standard the fleeting glimpses of behavior transmitted by Dube's girl friend and the tellers allowed a finding of sanity beyond a reasonable doubt.[FN*] Dr. Voss, the psychiatrist, testified that the girl friend's version of Dube's behavior was consistent with a diagnosis of schizophrenia. Whether or not that is so, it is questionable whether her association with Dube was extensive enough, and her behavioral testimony detailed enough, to permit a positive diagnosis of sanity either by a layman or an expert.
FN* Our approach is not easily reconciled with that taken in Beltran v. United States, 302 F.2d 48 (1st Cir. 1962), in which Judge Aldrich wrote, 302 F.2d at 52,The introduction of evidence of insanity places a burden on the government of proving sanity beyond a reasonable doubt. . . . This burden cannot be spirited away by the simple method proposed by the government of the court's saying it does not believe the evidence, therefore there is no evidence, therefore there is no burden . . . (S)uch thinking would render the whole principle meaningless. Rather, the record must be looked at as a whole, with the burden on the government to overcome any reasonable doubt.Beltran was, however, on its facts a stronger case for the defense. The diagnosis of paranoid schizophrenia had been made at about the time of the crime and was subsequently confirmed. It was accepted by the court with respect to Beltran's competency to stand trial for a different offense. Nonetheless, I think it fair to say that our approach in the present case is closer to Judge Magruder's dissenting opinion in Beltran than to the court's.
Yet not without some hesitation I think the jury was entitled to receive help from another quarter. In Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), the Supreme Court did not characterize the presumption of sanity as belonging to that category of presumption which vanishes once the defense shows evidence of insanity. Instead, it stated,
If the whole evidence, including that supplied by the presumption of sanity, does not exclude
beyond a reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal. . . .
160 U.S. at 488, 16 S.Ct. at 358 (Emphasis supplied).
Except for the quoted reference in Davis (which was the case that established the federal rule requiring the prosecution to prove sanity beyond a reasonable doubt) there has been little attention paid in federal cases to whether the presumption of sanity, once questioned, continues to have evidentiary force. Some courts, like the court here, see it as a presumption that evaporates once evidence of insanity is introduced. Yet viewed as a common sense inference that a person without marked symptoms to the contrary is likely to be sane, I think the presumption is entitled to be given reasonable weight in determining whether on all the evidence the Government gets to a jury.
Massachusetts courts have for years relied upon the presumption of sanity as sufficient to take a case to the jury notwithstanding an absence of affirmative evidence of sanity. See, e. g., Commonwealth v. Masskow, Mass., 290 N.E.2d 154, 159 (1972). But cf. Commonwealth v. Mutina, Mass., 323 N.E.2d 294, 297 n. 2 (1975) (questioning but not deciding *255 the continued viability of this doctrine in light of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Cases such as Winship and, most recently, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), call into question the use of devices designed to shift the Government's burden of proof. Still the presumption of sanity in the limited sense suggested states a commonly perceived probability and can be distinguished from a mere contrivance to undercut the Government's burden.
Moreover, the approach falls well short of the rule adopted by England, Canada and many states that insanity is an affirmative defense, the burden of proving which is on the defense. That rule, while different from that applied in federal prosecutions, was held constitutional in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), and Leland was defended as being still good law by Mr. Justice Rehnquist in his concurring opinion in Mullaney v. Wilbur, supra.
In the present case, given the evidence of an ability to function normally, and an absence of evidence of abnormal behavior, I think the jury could summons assistance from the inference, or presumption, that Dube was sane. Evidence bearing upon insanity has never been restricted to
expert evidence. Conduct, lay observations and even lay opinions have traditionally been given much weight. 2 J. Wigmore Evidence, ss 227 et seq. (3d ed. 1940). And the jury could add to factors such as the reasonableness of Dube's conduct before and after the crime and his apparent lack of any history of mental disturbance, an inference of sanity drawn from its common experience that most people (at least those without marked outward symptoms) are sane. With the aid of this inference it could reach the conclusion that he was sane beyond a reasonable doubt. I recognize that this rationale is not without its difficulties, but it seems more satisfying than to pretend that the Government's meager evidence of Dube's conduct established, or could establish, by itself, much of anything.
Had there been somewhat less evidence of ordinary behavior, or slightly stronger evidence of abnormality, reversal might be in order. But without condoning the Government's failure to call an expert or otherwise bolster its case I think the issue was properly submitted to the jury.
C.A.Me. 1975. U. S. v. Dube, 520 F.2d 250
END OF DOCUMENT
432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
Briefs and Other Related Documents Supreme Court of the United States Gordon G. PATTERSON, Jr., Appellant, v. State of NEW YORK.
No. 75-1861. Argued March 1, 1977. Decided June 17, 1977.
Defendant appealed from an order of the New York Supreme Court, Appellate Division, 41 A.D.2d 1028, 344 N.Y.S.2d 836, affirming his conviction of second-degree murder in the Steuben County Court. The New York Court of Appeals affirmed, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, and upon defendant's appeal, probable jurisdiction was noted. The Supreme Court, Mr. Justice White, held that: (1) defendant's conviction of second-degree murder under New York statute did not deprive him of due process by placing on him the burden of proving by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional distress, in order to reduce the crime to manslaughter in the first degree, where such defense did not serve to negative any of the facts of the crime which the state had to prove in order to convict for murder, and (2) the due process clause requires the prosecution to prove beyond a reasonable doubt all elements included in the definition of the offense of which defendant is charged, but proof of nonexistence of all affirmative defenses is not constitutionally required, though there are constitutional limits beyond which states may not go in reallocating burdens of proof by labeling as affirmative defense at least some of the elements of the crimes now defined in their statutes.
Affirmed.
Mr. Justice Powell, with whom Mr. Justice Brennan and Mr. Justice Marshall joined, filed a dissenting opinion.
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Defendant's conviction of second-degree murder under New York statute did not deprive him of due process by placing on him the burden of proving by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional distress, in order to reduce the crime to manslaughter in the first degree, where such defense did not serve to negative any of the facts of the crime which the state had to prove under its statute in order to convict for murder, namely, intending to cause the death of another person and causing the death of such person or a third person, but constituted a separate issue. U.S.C.A.Const. Amend. 14; Penal Law N.Y. 125.20, 125.25.
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**2320 *197 Syllabus FN*
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
New York law requiring that the defendant in a prosecution for second-degree murder prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter held not to violate the Due Process Clause of the Fourteenth Amendment. Mallaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, distinguished. Pp. 2322-2330.
(a) Such affirmative defense does not serve to negative any facts of the crime which the State must prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. P. 2325.
(b) The Due Process Clause does not put New York to the choice of abandoning such an affirmative defense or undertaking to disprove its existence in order to convict for a crime which is otherwise within the State's constitutional powers to sanction by substantial punishment. If the State chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the fact has been established with reasonable certainty, and to recognize at all a mitigating circumstance does not require the State to prove beyond a reasonable doubt its
nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, expensive, and inaccurate. Pp. 2325-2326.
39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affirmed.
Victor J. Rubino, New York City, for the appellant.
John M. Finnerty, Steuben County Dist. Atty., Bath, N.Y., for the appellee.
*198 Mr. Justice WHITE delivered the opinion of the Court.
The question here is the constitutionality under the Fourteenth Amendment's Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.
**2321 I After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.
Patterson was charged with second-degree murder. In New York there are two elements of this crime: (1) intent to cause the death of another person; and (2) caus(ing) the death of such person or of a third person. N.Y.Penal Law s 125.25 (McKinney 1975).FN1 Malice aforethought is not an element of the crime. In addition, the State permits a person accused of murder to raise an affirmative defense that he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse. FN2
FN1. References herein to the charge of murder under New York law are to this section. Cf. N.Y.Penal Law s 125.27 (McKinney 1975) (murder in the first degree).
FN2. Section 125.25 provides in relevant part:A person is guilty of murder in the second degree when:1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
*199 New York also recognizes the crime of manslaughter. A person is guilty of manslaughter if he intentionally kills another person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance. FN3 Appellant confessed before trial to killing Northrup, but at trial he raised the defense of extreme emotional disturbance. FN4
FN3. Section 125.20(2), N.Y. Penal Law s 125.20(2), (McKinney 1975), provides:A person is guilty of manslaughter in the first degree when:2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.
FN4. Appellant also contended at trial that the shooting was accidental and that therefore he
had no intent to kill Northrup. It is here undisputed, however, that the prosecution proved beyond a reasonable doubt that the killing was intentional.
The jury was instructed as to the elements of the crime of murder. Focusing on the element of intent, the trial court charged:
Before you, considering all of the evidence, can convict this defendant or any-one of murder, you must believe and decide that the People have established beyond a reasonable doubt that he intended, in firing the gun, to kill *200 either the victim himself or some other human being. . . .
Always remember that you must not expect or require the defendant to prove to your satisfaction that his acts were done without the intent to kill. Whatever proof he may have attempted, however far he may have gone in an effort to convince you of his innocence or guiltlessness,**2322 he is not obliged, he is not obligated to prove anything. It is always the People's burden to prove his guilt, and to prove that he intended to kill in this instance beyond a reasonable doubt. App. A70-A71.FN5
FN5. The trial court's instructions to the jury focused emphatically and repeatedly on the prosecution's burden of proving guilt beyond a reasonable doubt.The burden of proving the guilt of a defendant beyond a reasonable doubt rests at all times upon the prosecution. A defendant is never obliged to prove his innocence.Before you can find a defendant guilty, you must be convinced that each and every element of the crime charged and his guilt has been established to your satisfaction by reliable and credible evidence beyond a reasonable doubt. App. A48-A49.
The jury was further instructed, consistently with New York law, that the defendant had the burden of proving his affirmative defense by a preponderance of the evidence. The jury was told that if it found beyond a reasonable doubt that appellant had intentionally killed Northrup but that appellant had demonstrated by a preponderance of the evidence that he had acted under the influence of extreme emotional disturbance, it had to find appellant guilty of manslaughter instead of murder.
The jury found appellant guilty of murder. Judgment was entered on the verdict, and the Appellate Division affirmed. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), in which the Court declared Maine's murder statute unconstitutional. Under the Maine statute, a person accused of murder could rebut the statutory presumption that he committed*201 the offense with malice aforethought by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process. In the Court of Appeals appellant urged that New York's murder statute is functionally equivalent to the one struck down in Mullaney and that therefore his conviction should be reversed.FN6
FN6. In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306, we hold, as did the New York Court of Appeals in the present case, that Mullaney is to be applied retroactively. The fact that Patterson was tried prior to our decision in Mullaney does not insulate this case from the principles of Mullaney.
The Court of Appeals rejected appellant's argument, holding that the New York murder statute is consistent with due process. 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976). The Court distinguished Mullaney on the ground that the New York statute involved no shifting of the burden to the defendant to disprove any fact essential to the offense charged since the New York affirmative defense of extreme emotional disturbance bears no direct relationship to any element of murder. This appeal ensued, and we noted probable jurisdiction. 429 U.S. 813, 97 S.Ct. 52, 50 L.Ed.2d 72 (1976). We affirm.
II [1] Headnote Citing References[2] Headnote Citing References It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U.S. 128, 134, 74 S.Ct. 381, 384, 98 L.Ed. 561 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decision in this regard is not subject to proscription *202 under the Due Process Clause unless it offends
some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Speiser v. Randall, 357 U.S. 513, 523, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958); Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
**2323 In determining whether New York's allocation to the defendant of proving the mitigating circumstances of severe emotional disturbance is consistent with due process, it is therefore relevant to note that this defense is a considerably expanded version of the common-law defense of heat of passion on sudden provocation and that at common law the burden of proving the latter, as well as other affirmative defenses indeed, all . . . circumstances of justification, excuse or alleviation rested on the defendant. 4 W. Blackstone, Commentaries *201; M. Foster, Crown Law 255 (1762); Mullaney v. Wilbur, supra, 421 U.S., at 693-694, 95 S.Ct., at 1886-1887.FN7 This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified. Commonwealth v. York, 50 Mass. 93 (1845). FN8
FN7. See also F. Wharton, A Treatise on the Law of Evidence in Criminal Issues 240-269 (9th ed. 1884); H. Kelley, Criminal Law and Practice 124-128, 131 (1876); Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 882-884 (1968); Note, Affirmative Defenses After Mullaney v. Wilbur : New York's Extreme Emotional Disturbance, 43 Brooklyn L.Rev. 171, 190 (1976).
FN8. York, which relied on American authorities dating back to the early 1800's, confirmed that the common-law and prevailing American view was that the burden was on the defendant to prove provocation. York is said to have governed a half century of American burden-of-proof decisions in provocation and self-defense cases. Fletcher, supra, n.7, at 903-904.
In 1895 the common-law view was abandoned with respect to the insanity defense in federal prosecutions. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). This ruling had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses, and the prosecution*203 in a majority of jurisdictions in this country sooner or later came to shoulder the burden of proving the sanity of the accused and of disproving the facts constituting other affirmative defenses, including provocation. Davis was
not a constitutional ruling, however, as Leland v. Oregon, supra, made clear.FN9
FN9. Meanwhile, the Court had explained that although the State could go too far in shifting the burden of proof to a defendant in a criminal case, the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact. In Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), a state law made it illegal for an alien ineligible for citizenship to own or possess land. Initially, in a summary dismissal for want of a substantial federal question, Morrison v. California, 288 U.S. 591, 53 S.Ct. 401, 77 L.Ed. 970 (1933), the Court held that it did not violate the Due Process Clause for the State to place on the defendant the burden of proving citizenship as a defense, 291 U.S., at 88, 54 S.Ct. at 284, once the State's evidence had shown that the defendant possessed the land and was a member of a race barred from citizenship. In the later Morrison case the Court reiterated and approved its previous summary holding, even though it struck down more drastic burden shifting permitted under another section of the statute. The Court said that its earlier per curiam ruling was not novel:The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, ss 2486, 2512 and cases cited. Special reasons are at hand to make the change permissible when citizenship vel non is the issue to be determined. Citizenship is a privilege not due of common right. One who lays claim to it as his, and does this in justification or excuse of an act otherwise illegal, may fairly be called upon to prove his title good. Id., at 8889, 54 S.Ct., at 284.In ruling that in the other section of the statute then at issue the State had gone too far, the Court said:For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance (Yee Hem v. United States, (268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925)); Casey v. United States, (276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928))), or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, s 79. Id., at 90-91, 54 S.Ct., at 285.The Court added that, of course, the possible situations were too variable and that too much depended on distinctions of degree to crowd them all into a simple formula. A sharper definition was to await specific cases. Of course, if the Morrison cases are understood as approving shifting to the defendant the burden of disproving a fact necessary to constitute the crime, the result in the first Morrison case could not coexist with In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney.
*204 **2324 At issue in Leland v. Oregon was the constitutionality under the Due Process Clause of the Oregon rule that the defense of insanity must be proved by the defendant beyond a reasonable doubt. Noting that Davis obviously establish(ed) no constitutional doctrine, 343 U.S., at 797, 72 S.Ct. at 1007, the Court refused to strike down the Oregon scheme, saying that the burden of proving all elements of the crime beyond reasonable doubt, including the elements of premeditation and deliberation, was placed on the State under Oregon procedures and remained there throughout the trial. To convict, the jury was required to find each element of the crime beyond a reasonable doubt, based on all the evidence, including the evidence going to the issue of insanity. Only then was the jury to consider separately the issue of legal sanity per se. . . . Id., at 795, 72 S.Ct. at 1006. This practice did not offend the Due Process Clause even though among the 20 States then placing the burden of proving his insanity on the defendant, Oregon was alone in requiring him to convince the jury beyond a reasonable doubt.
In 1970, the Court declared 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. *205 In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Five years later, in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Court further announced that under the Maine law of homicide, the burden could not constitutionally be placed on the defendant of proving by a preponderance of the evidence that the killing had occurred in the heat of passion on sudden provocation. The Chief Justice and Mr. Justice Rehnquist, concurring, expressed their understanding that the Mullaney decision did not call into question the ruling in Leland v. Oregon, supra, with respect to the proof of insanity.
Subsequently, the Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223 (1975).
III
[3] Headnote Citing References We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law. The crime of murder is defined by the statute, which represents a recent revision of the state criminal code, as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred *206 in order to constitute the crime. The statute does provide an affirmative defense that the defendant acted under the influence of extreme**2325 emotional disturbance for which there was a reasonable explanation which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter, an offense defined in a separate section of the statute. It is plain enough that if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances.
Here, the jury was instructed in accordance with the statute, and the guilty verdict confirms that the State successfully carried its burden of proving the facts of the crime beyond a reasonable doubt. Nothing in the evidence, including any evidence that might have been offered with respect to Patterson's mental state at the time of the crime, raised a reasonable doubt about his guilt as a murderer; and clearly the evidence failed to convince the jury that Patterson's affirmative defense had been made out. It seems to us that the State satisfied the mandate of Winship that it prove beyond a reasonable doubt every fact necessary to constitute the crime with which (Patterson was) charged. 397 U.S., at 364, 90 S.Ct., at 1073.
In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant's mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.
The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them, *207 39 N.Y.2d, at 302, 383 N.Y.S.2d, at 582, 347 N.E.2d, at 907, does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson's conviction must be sustained.
[4] Headnote Citing References We are unwilling to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment. Here, in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance, a substantially expanded version of the older heat-of-passion concept; but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many persons deserving treatment as murderers would escape that punishment if the evidence need merely raise a reasonable doubt about the defendant's emotional state. It has been said that the new criminal code of New York contains some 25 affirmative defenses which exculpate or mitigate but which must be established by the defendant to be operative.FN10 The Due **2326 Process Clause, as we see it, does not *208 put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.
FN10. The State of New York is not alone in this result:Since the Model Penal Code was completed in 1962, some 22 states have codified and reformed their criminal laws. At least 12 of these jurisdictions have used the concept of an affirmative defense and have defined that phrase to require that the defendant prove the existence of an affirmative defense by a preponderance of the evidence. Additionally, at least six proposed state codes and each of the four successive versions of a revised federal code use the same procedural device. Finally, many jurisdictions that do not generally employ this concept of affirmative defense nevertheless shift the burden of proof to the defendant on particular issues. Low & Jeffries, DICTA: Constitutionalizing the Criminal Law ?, 29 Va.Law Weekly, No. 18, p. 1 (1977) (footnotes omitted).Even so, the trend over the years appears to have been to require the prosecution to disprove affirmative defenses beyond a reasonable doubt. See W. LaFave & A. Scott, Criminal Law s 8, p. 50 (1972); C. McCormick, Evidence s 341, pp. 800-802 (2d ed. 1972). The split among the various jurisdictions varies for any given defense. Thus, 22 jurisdictions place the burden of proving the affirmative defense of insanity on the defendant, while 28 jurisdictions place the burden of disproving insanity on the prosecution. Note, Constitutional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 56 B.U.L.Rev. 499, 503-505 (1976).
The requirement of proof beyond a reasonable doubt in a criminal case is bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. Winship, 397 U.S., at 372, 90 S.Ct., at 1077 (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan's aphorism provides little guidance for determining what those limits are. Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.
[5] Headnote Citing References It is said that the common-law rule permits a State to *209 punish one as a murderer when it is as likely as not that he acted in the heat of passion or under severe emotional distress and when, if he did, he is guilty only of manslaughter. But this has always been the case in those jurisdictions adhering to the traditional rule. It is also very likely true that fewer convictions of murder would occur if New York were required to negative the affirmative defense at issue here. But in each instance of a murder conviction under the present law New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonably certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.FN11
FN11. The drafters of the Model Penal Code would, as a matter of policy, place the burden of proving the nonexistence of most affirmative defenses, including the defense involved in this case, on the prosecution once the defendant has come forward with some evidence that the defense is present. The drafters recognize the need for flexibility, however, and would, in some exceptional situations, place the burden of persuasion on the accused.Characteristically these are situations where the defense does not obtain at all under existing law and the Code seeks to introduce a mitigation. Resistance to the mitigation, based upon the prosecution's difficulty in obtaining evidence, ought to be lowered if the burden of persuasion is imposed on the defendant. Where that difficulty appears genuine and there is something to be said against allowing the
defense at all, we consider it defensible to shift the burden in this way. ALI Model Penal Code s 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955).Other writers have recognized the need for flexibility in allocating the burden of proof in order to enhance the potential for liberal legislative reforms. See, e. g., Low & Jeffries, supra, n. 10; Christie & Pye, Presumptions and Assumptions in the Criminal Law: Another View, 1970 Duke L.J. 919, 933-938. See also Allen, Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law An Examination of the Limits of Legitimate Intervention, 55 Texas L.Rev. 269 (1977).
**2327 [6] Headnote Citing References *210 We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. (I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime. McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 86, 36 S.Ct. 498, 500, 60 L.Ed. 899 (1916). The legislature cannot validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1246, 87 L.Ed. 1519 (1943). See also Speiser v. Randall, 357 U.S., at 523-525, 78 S.Ct., at 1340-1341. Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), also makes the point with sufficient clarity.
*211 Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the
defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution's burden that a new constitutional rule was required. FN12 This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses for whatever reasons mean that those States that strike a different balance are in violation of the Constitution.FN13
FN12. Whenever due process guarantees are dependent upon the law as defined by the legislative branches, some consideration must be given to the possibility that legislative discretion may be abused to the detriment of the individual. See Mullaney v. Wilbur, 421 U.S., at 698-699, 95 S.Ct. at 1889. The applicability of the reasonable-doubt standard, however, has always been dependent on how a State defines the offense that is charged in any given case; yet there has been no great rush by the States to shift the burden of disproving traditional elements of the criminal offenses to the accused.
FN13. As Chief Judge Breitel cogently stated in concurring in the judgment and opinion below:A preliminary caveat is indicated. It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime. Indeed, a by-product of such abuse might well be also to undermine the privilege against self-incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.Nevertheless, although one should guard against such abuses, it may be misguided, out of excess caution, to forestall or discourage the use of affirmative defenses, where defendant may have the burden of proof but no greater than by a preponderance of the evidence. In the absence of affirmative defenses the impulse to legislators, especially in periods of concern about the rise of crime, would be to define particular crimes in unqualifiedly general terms, and leave only to sentence the adjustment between offenses of lesser and greater degree. In times when there is also a retrogressive impulse in legislation to restrain courts by mandatory sentences, the evil would be compounded.The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense. The instant homicide case is a good example. Absent the affirmative defense, the crime of murder or manslaughter could legislatively be defined simply to require an intent to kill, unaffected by the spontaneity with which that intent is formed or the provocative or mitigating circumstances which should legally or morally lower the grade of crime. The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant's
knowledge or access to the evidence other than his own on the issue. To require the prosecution to negative the element of mitigating circumstances is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning, and is easily avoided by the likely legislative practice mentioned earlier.In sum, the appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology. 39 N.Y.2d 288, 305-307, 383 N.Y.S.2d 573, 583-585, 347 N.E.2d 898, 909-910 (1976).
*212 **2328 IV It is urged that Mullaney v. Wilbur necessarily invalidates Patterson's conviction. In Mullaney the charge was murder,FN14 which the Maine statute defined as the unlawful killing of a human being with malice *213 aforethought, either express or implied. The trial court instructed the jury that the words malice aforethought were most important because malice aforethought is an essential and indispensable element of the crime of murder. Malice, as the statute indicated and as the court instructed, could be implied and was to be implied from any deliberate, cruel act committed by one person against another suddenly . . . or without a considerable provocation, in which event an intentional killing was murder unless by a preponderance of the evidence it was shown that the act was committed in the heat of passion, on sudden provocation. The instructions emphasized that malice aforethought and heat of passion on sudden provocation are two inconsistent things'; thus, by proving the latter the defendant would negate the former. 421 U.S., at 686-687, 95 S.Ct. at 1883 (citation omitted).
FN14. The defendant in Mullaney was convicted under Me.Rev.Stat.Ann., Tit. 17, s 2651 (1964), which provided:Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life.
Wilbur's conviction, which followed, was affirmed. The Maine Supreme Judicial Court held that murder and manslaughter were varying degrees of the crime of felonious homicide and that the presumption of malice arising from the unlawful killing was a mere policy presumption operating to cast on the defendant the burden of proving provocation if he was to be found guilty
of manslaughter rather than murder a burden which the Maine law had allocated to him at least since the mid-1800's.
The Court of Appeals for the First Circuit then ordered that a writ of habeas corpus issue, holding that the presumption unconstitutionally shifted to the defendant the burden of proof with respect to an essential element of the crime. The Maine Supreme Judicial Court disputed this interpretation of Maine law in State v. Lafferty, 309 A.2d 647 (1973), declaring that malice aforethought, in the sense of premeditation, **2329 was not an element of the crime of murder and that the federal court had erroneously equated the presumption of malice with a presumption of premeditation.
Maine law does not rely on a presumption of premeditation (as Wilbur v. Mullaney assumed) to prove an essential element of unlawful homicide punishable as murder. *214 Proof beyond a reasonable doubt of malice aforethought (in the sense of premeditation) is not essential to conviction. . . . (T)he failure of the State to prove premeditation in this context is not fatal to such a prosecution because, by legal definition under Maine law, a killing becomes unlawful and punishable as murder on proof of any deliberate, cruel act, committed by one person against another, suddenly without any, or without a considerable provocation. State v. Neal, 37 Me. 468, 470 (1854). Neal has been frequently cited with approval by our Court. Id., at 664-665. (Emphasis added; footnote omitted.)
When the judgment of the First Circuit was vacated for reconsideration in the light of Lafferty, that court reaffirmed its view that Wilbur's conviction was unconstitutional. This Court, accepting the Maine court's interpretation of the Maine law, 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.
Mullaney's holding, it is argued, is that the State may not permit the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.FN15 In our view, *215 the Mullaney holding should not be so broadly read. The concurrence of two Justices in Mullaney was necessarily contrary to such a reading; and a majority of the Court refused to so understand and apply Mullaney when Rivera was dismissed for want of a substantial federal question.
FN15. There is some language in Mullaney that has been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting the degree of criminal culpability. See, e. g., Note, Affirmative Defenses After Mullaney v. Wilbur: New York's Extreme Emotional Disturbance, 43 Brooklyn L.Rev. 171 (1976); Note, Affirmative Defenses in Ohio After Mullaney v. Wilbur, 36 Ohio St.L.J. 828 (1975); Comment, Unburdening the Criminal Defendant: Mullaney v. Wilbur and the Reasonable Doubt Standard, 11 Harv.Civ.Rights-Civ.Lib.L.Rev. 390 (1976). It is said that such a rule would deprive legislatures of any discretion whatsoever in allocating the burden of proof, the practical effect of which might be to undermine legislative reform of our criminal justice system. See Part II, supra; Low & Jeffries, supra, n. 10. Carried to its logical extreme, such a reading of Mullaney might also, for example, discourage Congress from enacting pending legislation to change the felony-murder rule by permitting the accused to prove by a preponderance of the evidence the affirmative defense that the homicide committed was neither a necessary nor a reasonably foreseeable consequence of the underlying felony. See Senate bill S. 1, 94th Cong., 1st Sess., 118 (1975). The Court did not intend Mullaney to have such farreaching effect.
[7] Headnote Citing References Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State's practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
It was unnecessary to go further in Mullaney. The Maine Supreme Judicial Court made it clear that malice aforethought, which was mentioned in the statutory definition of the crime, was not equivalent to premeditation and that the presumption of malice traditionally arising in intentional homicide cases carried no factual meaning **2330 insofar as premeditation was concerned. Even so, a killing became murder in Maine when it resulted from a deliberate, cruel act committed by one person against another, suddenly without any, or without a considerable provocation. State v. Lafferty, supra, at 665. Premeditation was not within the definition of murder; but *216 malice, in the sense of the absence of provocation, was part of the definition of that crime. Yet malice, i. e., lack of provocation, was presumed and could be rebutted by the defendant only by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation. In Mullaney we held that however traditional this mode of proceeding might have
been, it is contrary to the Due Process Clause as construed in Winship.
As we have explained, nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The judgment of the New York Court of Appeals is
Affirmed.
Mr. Justice REHNQUIST took no part in the consideration or decision of this case.
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
In the name of preserving legislative flexibility, the Court today drains In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), of much of its vitality. Legislatures do require broad discretion in the drafting of criminal laws, but the Court surrenders to the legislative branch a significant part of its responsibility to protect the presumption of innocence.
I An understanding of the import of today's decision requires a comparison of the statutes at issue here with the statutes and practices of Maine struck down by a unanimous Court just two years ago in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
A Maine's homicide laws embodied the common-law distinctions along with the colorful commonlaw language. Murder *217 was defined in the statute as the unlawful killing of a human being with malice aforethought, either express or implied. Manslaughter was a killing in the heat of passion, on sudden provocation, without express or implied malice aforethought. Id., at 686,
and n. 3, 95 S.Ct., at 1883. Although express malice at one point may have had its own significant independent meaning, see Perkins, A Re-Examination of Malice Aforethought, 43 Yale L.J. 537, 546-552 (1934), in practice a finding that the killing was committed with malice aforethought had come to mean simply that heat of passion was absent. Indeed, the trial court in Mullaney expressly charged the jury that malice aforethought and heat of passion on sudden provocation are two inconsistent things. 421 U.S., at 686-687, 95 S.Ct., at 1883. And the Maine Supreme Judicial Court had held that instructions concerning express malice (in the sense of premeditation) were unnecessary. The only inquiry for the jury in deciding whether a homicide amounted to murder or manslaughter was the inquiry into heat of passion on sudden provocation. State v. Lafferty, 309 A.2d 647, 664-665 (Me.1973). See 421 U.S., at 686, n. 4, 95 S.Ct. at 1883.
Our holding in Mullaney found no constitutional defect in these statutory provisions. Rather, the defect in Maine practice lay in its allocation of the burden of persuasion with respect to the crucial factor distinguishing murder from manslaughter. In Maine, juries were instructed that if the prosecution proved that the homicide was both intentional and unlawful, the crime was to be considered murder unless the defendant proved by a preponderance of **2331 the evidence that he acted in the heat of passion on sudden provocation. Only if the defendant carried this burden would the offense be reduced to manslaughter.
New York's present homicide laws had their genesis in lingering dissatisfaction with certain aspects of the common-law framework that this Court confronted in Mullaney. Critics charged that the archaic language tended to obscure the factors*218 of real importance in the jury's decision. Also, only a limited range of aggravations would lead to mitigation under the commonlaw formula, usually only those resulting from direct provocation by the victim himself. It was thought that actors whose emotions were stirred by other forms of outrageous conduct, even conduct by someone other than the ultimate victim, also should be punished as manslaughterers rather than murderers. Moreover, the common-law formula was generally applied with rather strict objectivity. Only provocations that might cause the hypothetical reasonable man to lose control could be considered. And even provocations of that sort were inadequate to reduce the crime to manslaughter if enough time had passed for the reasonable man's passions to cool, regardless of whether the actor's own thermometer had registered any decline. See generally W. LaFave & A. Scott, Criminal Law 528-530, 539-540, 571-582 (1972); Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum.L.Rev. 1425, 1446 (1968); ALI, Model Penal Code s 201.3, Comment (Tent. Draft No. 9, 1959); Perkins, supra. Cf. B. Cardozo, Law and Literature and Other Essays 99-101 (1931).
The American Law Institute took the lead in moving to remedy these difficulties. As part of its
commendable undertaking to prepare a Model Penal Code, it endeavored to bring modern insights to bear on the law of homicide. The result was a proposal to replace heat of passion with the moderately broader concept of extreme mental or emotional disturbance. The proposal first appeared in a tentative draft published in 1959, and it was accepted by the Institute and included as s 210.3 of the 1962 Proposed Official Draft.
At about this time the New York Legislature undertook the preparation of a new criminal code, and the Revised Penal Law of 1967 was the ultimate result. The new code adopted virtually word for word the ALI formula for distinguishing murder from manslaughter. N.Y.Penal Law ss 125.20(2), *219 125.25(1)(a) (McKinney 1975).FN1 Under current New York law,FN2 those who **2332 kill intentionally are guilty of murder. But there is an affirmative defense left open to a defendant: If his act was committed under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the crime is reduced to manslaughter. The supposed defects of a formulation like Maine's have been removed. Some of the rigid objectivity of the common law is relieved, since reasonableness is to be determined from the viewpoint of a person in the defendant's situation under the circumstances*220 as the defendant believed them to be. s 125.25(1)(a). The New York law also permits mitigation when emotional disturbance results from situations other than direct provocation by the victim. And the last traces of confusing archaic language have been removed. There is no mention of malice aforethought, no attempt to give a name to the state of mind that exists when extreme emotional disturbance is not present. The statute is framed in lean prose modeled after the ALI approach, giving operative descriptions of the crucial factors rather than attempting to attach the classical labels.
FN1. There are also other forms of manslaughter set forth in the New York statute, not all of which conform to the ALI recommendations. Those provisions are not implicated in this case.
FN2. The 1967 provisions marked a considerable departure from the prior New York statutes defining manslaughter. As we noted in Mullaney v. Wilbur, 421 U.S. 684, 694, 95 S.Ct. 1881, 1887, 44 L.Ed.2d 508 (1975), the grounds for distinguishing murder from manslaughter developed along two distinct paths in this country. Prior to the 1967 change New York, with a handful of other jurisdictions, see ALI, Model Penal Code, s 201.3, Comment, p. 43 (Tent. Draft No. 9, 1959), pursued the first path: to establish malice (and hence to convict of murder) the prosecution bore the burden of persuasion, being required to establish a substantive element of intent that the defendant possessed a design to effect death. See 39 N.Y.2d 288, 299, 383 N.Y.S.2d 573, 580, 347 N.E.2d 898, 905 (1976) (case below); Stokes v. People, 53 N.Y. 164 (1873). Maine, in contrast, followed the second path, marked out most prominently by Chief
Justice Shaw's opinion in Commonwealth v. York, 50 Mass. 93 (1845): malice was presumed unless the defendant established that he acted in the heat of passion.This difference between the old New York practice and the York approach was substantial as noted by the Court of Appeals below. But that court placed entirely too much weight on this distinction as a basis for concluding that Mullaney's holding was inapplicable. The statute at issue here is the 1967 Revised Penal Law, not the earlier formulation. In 1967, New York broke from the first branch and aligned itself with York, although casting its statute in more modern language. No matter how extensive the differences between the pre-1967 practice and the Maine statutes found deficient in Mullaney, this case must be decided on the basis of current New York law.
Despite these changes, the major factor that distinguishes murder from manslaughter in New York extreme emotional disturbance is undeniably the modern equivalent of heat of passion. The ALI drafters made this abundantly clear. They were not rejecting the notion that some of those who kill in an emotional outburst deserve lesser punishment; they were merely refining the concept to relieve some of the problems with the classical formulation. See ALI, Model Penal Code, s 201.3, Comment, pp. 46-48 (Tent. Draft No. 9, 1959). The New York drafters left no doubt about their reliance on the ALI work. See 39 N.Y.2d 288, 300-301, 383 N.Y.S.2d 573, 580-581, 347 N.E.2d 898, 906 (1976). Both the majority and the dissenters in the New York Court of Appeals agreed that extreme emotional disturbance is simply a new formulation for the traditional language of heat of passion. Id., at 301, 383 N.Y.S.2d, at 581, 347 N.E.2d, at 906; id., at 312, 383 N.Y.S.2d, at 588, 347 N.E.2d, at 913-914 (Cooke, J., dissenting).
But in one important respect the New York drafters chose to parallel Maine's practice precisely, departing markedly from the ALI recommendation. Under the Model Penal Code the prosecution must prove the absence of emotional disturbance beyond a reasonable doubt once the issue is properly raised. See ALI, Model Penal Code, ss 1.12, 210.3 (Proposed Official Draft 1962); id., s 1.13, Comment, pp. 108-118 (Tent. Draft No. 4, 1955). In New York, however, extreme emotional disturbance constitutes an affirmative defense rather *221 than a simple defense. Consequently the defendant bears not only the burden of production on this issue; he has the burden of persuasion as well. N.Y. Penal Law s 25.00 (McKinney 1975).
B Mullaney held invalid Maine's requirement that the defendant prove heat of passion. The Court today, without disavowing the unanimous holding of Mullaney, approves New York's requirement that the defendant prove extreme emotional disturbance. The Court manages to run a constitutional boundary line through the barely visible space that separates Maine's law from
New York's. It does so on the basis of distinctions in language that are formalistic rather than substantive.
This result is achieved by a narrowly literal parsing of the holding in Winship: (T)he 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. 397 U.S., at 364, 90 S.Ct. at 1073. The only facts necessary to constitute a crime are said to be those that appear on the face of the statute as a part **2333 of the definition of the crime.FN3 Maine's statute was invalid, the Court reasons, because it defined (murder) as the unlawful killing of a human being with malice aforethought, either express or implied. Ante, at 2328. (M)alice, the Court reiterates, in the sense of the absence of provocation, was part of the definition of that crime. Ante, at 2330. Winship was violated only because this fact malice was presumed unless the defendant persuaded the jury otherwise by showing that he acted in the heat of passion.FN4 New York, in form presuming *222 no affirmative fact against Patterson,FN5 and blessed with a statute drafted in the leaner language of the 20th century, escapes constitutional scrutiny unscathed even though the effect on the defendant of New York's placement of the burden of persuasion is exactly the same as Maine's. See 39 N.Y.2d, at 312-313, 383 N.Y.S.2d, at 588-589, 347 N.E.2d, at 913-914 (Cooke, J., dissenting).
FN3. The Court holds that the prosecution must prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Ante, at 2327 (emphasis added).
FN4. The Court explains: Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. Ante, at 2330. I must point out, however, that this is a less than faithful reading of Maine law. The Maine Supreme Judicial Court, rejecting a recent holding to the contrary by the Court of Appeals for the First Circuit, emphatically insisted that the words malice aforethought appearing in the Maine statute did not connote a fact to be presumed in the sense the latter terms are customarily used:As we read the (First Circuit) case, the Federal Court was of the impression that (murder) includes, in addition to an intentional and unlawful killing, the independent element of malice aforethought. Such is not, and never has been, the law in Maine. As we said in (State v. Rollins, 295 A.2d 914, 920 (1972) ): (T)he malice (said to be presumed) is not a designation of any subjective state of mind existing as a fact. Similarly, the presumption (of malice) arising from the fact of an intentional killing is not a designation of any probative relationship between the fact of intention relating to the killing and any further facts . . . . State v. Lafferty, 309 A.2d 647, 664 (1973) (emphasis in
original).See id., at 672 (concurring opinion); Mullaney v. Wilbur, 421 U.S., at 689, 699, 95 S.Ct. at 1884, 1889.
FN5. The crime of murder is defined by the (New York) statute . . . as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. . . .. . . (The) affirmative defense (of extreme emotional disturbance) . . . does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. Ante, at 2324-2325.
This explanation of the Mullaney holding bears little resemblance*223 to the basic rationale of that decision.FN6 But this is not the cause of greatest concern. The test the Court today establishes allows a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those sections that provide for an affirmative defense.FN7
FN6. In Mullaney we made it clear that Winship is not limited to a State's definition of the elements of a crime. 421 U.S., at 699 n.24, 95 S.Ct., at 1890.
FN7. Although the Court never says so explicitly, its new standards appear to be designed for application to the language of a criminal statute on its face, regardless of how the state court construes the statute. The Court, in explaining Mullaney, persistently states that in Maine malice was part of the definition of that crime (murder), ante, at 2330, even though the Maine Supreme Judicial Court, construing its own statute, had ruled squarely to the contrary. See n.4, supra. In the usual case it is well established that an authoritative construction by the State's highest court puts (appropriate) words in the statute as definitely as if it had been so amended by the legislature. Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). See Mullaney, supra, 421 U.S. at 690-691, 95 S.Ct. at 1885; Hebert v. Louisiana, 272 U.S. 312, 316-317, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926); Murdock v. City of Memphis, 20 Wall. 590, 635, 22 L.Ed. 429 (1875). Why an apparent exception should be engrafted on that doctrine today goes unexplained.The result, under the Court's holding, is that only the legislature can remedy any defects that come to light as a result of the Court's decision. No matter how clear the legislative intent that defendants bear the burden of persuasion on an issue an ultimate result the Court approves state courts may not effectuate that intent until the right verbal formula
appears in the statute book.
**2334 Perhaps the Court's interpretation of Winship is consistent with the letter of the holding in that case. But little of the spirit survives. Indeed, the Court scarcely could distinguish this case from Mullaney without closing its eyes to the constitutional values for which Winship stands. As Mr. Justice Harlan observed in Winship, a standard of proof represents an attempt to instruct the factfinder concerning the degree of *224 confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. 397 U.S., at 370, 90 S.Ct. at 1076 (concurring opinion). See Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1322, 1341-1342, 2 L.Ed.2d 1460 (1958). Explaining Mullaney, the Court says today, in effect, that society demands full confidence before a Maine factfinder determines that heat of passion is missing a demand so insistent that this Court invoked the Constitution to enforce it over the contrary decision by the State. But we are told that society is willing to tolerate far less confidence in New York's factual determination of precisely the same functional issue. One must ask what possibly could explain this difference in societal demands. According to the Court, it is because Maine happened to attach a name malice aforethought to the absence of heat of passion, whereas New York refrained from giving a name to the absence of extreme emotional disturbance. See 39 N.Y.2d, at 313, 383 N.Y.S.2d, at 589, 347 N.E.2d, at 914 (Cooke, J., dissenting).
With all respect, this type of constitutional adjudication is indefensibly formalistic. A limited but significant check on possible abuses in the criminal law now becomes an exercise in arid formalities. What Winship and Mullaney had sought to teach about the limits a free society places on its procedures to safeguard the liberty of its citizens becomes a rather simplistic lesson in statutory draftsmanship. Nothing in the Court's opinion prevents a legislature from applying this new learning to many of the classical elements of the crimes it punishes.FN8 It would be preferable, if the Court has found *225 reason to reject the rationale of Winship and Mullaney, simply and straightforwardly to overrule those precedents.
FN8. For example, a state statute could pass muster under the only solid standard that appears in the Court's opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim's death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant's state of mind, provided only that the fact of the statute meets the Court's drafting formulas.To be sure, it is unlikely that legislatures will rewrite their criminal laws in this extreme form. The Court seems to think this likelihood of restraint is an added reason for limiting review largely to formalistic
examination. Ante, at 2327. But it is completely foreign to this Court's responsibility for constitutional adjudication to limit the scope of judicial review because of the expectation however reasonable that legislative bodies will exercise appropriate restraint.
The Court understandably manifests some uneasiness that its formalistic approach will give legislatures too much latitude in shifting the burden of persuasion. And so it issues a warning that there are obviously constitutional limits beyond which the States may not go in this regard. Ante, at 2327. The Court thereby concedes **2335 that legislative abuses may occur and that they must be curbed by the judicial branch. But if the State is careful to conform to the drafting formulas articulated today, the constitutional limits are anything but obvious. This decision simply leaves us without a conceptual framework for distinguishing abuses from legitimate legislative adjustments of the burden of persuasion in criminal cases.FN9
FN9. I have no doubt that the Court would find some way to strike down a formalistically correct statute as egregious as the one hypothesized in n.8, supra. Cf. Morissette v. United States, 342 U.S. 246, 250-263, 72 S.Ct. 240, 243-249, 96 L.Ed. 288 (1952). But today's ruling suggests no principled basis for concluding that such a statute falls outside the obvious constitutional limits the Court invokes.
II It is unnecessary for the Court to retreat to a formalistic test for applying Winship. Careful attention to the Mullaney decision reveals the principles that should control in this and like cases. Winship held that the prosecution must bear the burden of proving beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged. 397 U.S., at 363, 90 S.Ct. at 1073 quoting Davis v. United States, 160 U.S. 469, 493, 16 S.Ct. 353, 360, 40 L.Ed. 499 (1895). In Mullaney we concluded that heat of passion was one of the facts described in Winship that is, a *226 factor as to which the prosecution must bear the burden of persuasion beyond a reasonable doubt. 421 U.S., at 704, 95 S.Ct. at 1892. We reached that result only after making two careful inquiries. First, we noted that the presence or absence of heat of passion made a substantial difference in punishment of the offender and in the stigma associated with the conviction. Id., at 697-701, 95 S.Ct. at 1888. Second, we reviewed the history, in England and this country, of the factor at issue. Id., at 692-696, 95 S.Ct. at 1886-1888. Central to the holding in Mullaney was our conclusion that heat of passion has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. Id., at 696, 95 S.Ct. at 1888.
Implicit in these two inquiries are the principles that should govern this case. The Due Process Clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the factor at issue makes a substantial difference in punishment and stigma. The requirement of course applies a fortiori if the factor makes the difference between guilt and innocence. But a substantial difference in punishment alone is not enough. It also must be shown that in the Anglo-American legal tradition FN10 the factor in question historically has held that level of importance.FN11 If either branch *227 of the test is not met, then the legislature retains its traditional authority over matters of proof. But to permit a shift in the burden of persuasion when both branches of this test are satisfied would invite the undermining of the presumption of innocence, that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. In re Winship, 397 U.S., at 363, 90 S.Ct. at 1072, quoting from Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895). See Cool v. United States, 409 U.S. 100, 104, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972); Ivan **2336 V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972); Lego v. Twomey, 404 U.S. 477, 486-487, 92 S.Ct. 619, 625, 30 L.Ed.2d 618 (1972); Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952); Bailey v. Alabama, 219 U.S. 219, 236, 31 S.Ct. 145, 55 L.Ed. 191 (1911); Davis v. United States, supra. This is not a test that rests on empty form, for Winship is concerned with substance rather than . . . formalism. Mullaney v. Wilbur, 421 U.S., at 699, 95 S.Ct. at 1890.
FN10. Cf. Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949):Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
FN11. As the Court acknowledges, ante, at 2326 n.10, the clear trend over the years has been to require the prosecutor to carry the burden of persuasion with respect to all important factors in a criminal case, including traditional affirmative defenses. See W. LaFave & A. Scott, Criminal Law 50 (1972); C. McCormick, Evidence s 341, pp. 800-802 (1972).
I hardly need add that New York's provisions allocating the burden of persuasion as to extreme emotional disturbance are unconstitutional when judged by these standards. Extreme emotional disturbance is, as the Court of Appeals recognized, the direct descendant of the heat
of passion factor considered at length in Mullaney. I recognize, of course, that the differences between Maine and New York law are not unimportant to the defendant; there is a somewhat broader opportunity for mitigation. But none of those distinctions is relevant here. The presence or absence of extreme emotional disturbance makes a critical difference in punishment and stigma, and throughout our history the resolution of this issue of fact, although expressed in somewhat different terms, has distinguished manslaughter from murder. See 4 W. Blackstone, Commentaries *190-193, 198-201.
III The Court beats its retreat from Winship apparently because of a concern that otherwise the federal judiciary will intrude*228 too far into substantive choices concerning the content of a State's criminal law.FN12 The concern is legitimate, see generally Powell v. Texas, 392 U.S. 514, 533-534, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (plurality opinion); Leland v. Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952) (Frankfurter, J., dissenting), but misplaced. Winship and Mullaney are no more than what they purport to be: decisions addressing the procedural requirements that States must meet to comply with due process. They are not outposts for policing the substantive boundaries of the criminal law.
FN12. See Low & Jeffries, DICTA: Constitutionalizing the Criminal Law?, 29 Va. Law Weekly, No. 18, p. 1 (1977); Tushnet, Constitutional Limitation of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B.U.L.Rev. 775 (1975).
The Winship/Mullaney test identifies those factors of such importance, historically, in determining punishment and stigma that the Constitution forbids shifting to the defendant the burden of persuasion when such a factor is at issue. Winship and Mullaney specify only the procedure that is required when a State elects to use such a factor as part of its substantive criminal law. They do not say that the State must elect to use it. For example, where a State has chosen to retain the traditional distinction between murder and manslaughter, as have New York and Maine, the burden of persuasion must remain on the prosecution with respect to the distinguishing factor, in view of its decisive historical importance. But nothing in Mullaney or Winship precludes a State from abolishing the distinction between murder and manslaughter and treating all unjustifiable homicide as murder.FN13 In this significant*229 respect, neither Winship nor Mullaney eliminates the substantive**2337 flexibility that should remain in legislative hands.
FN13. Perhaps under other principles of due process jurisprudence, certain factors are so fundamental that a State could not, as a substantive matter, refrain from recognizing them so long as it chooses to punish given conduct as a crime. Cf. Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191 (1911) (holding a criminal-law presumption invalid procedurally and also finding a substantive defect under the Thirteenth Amendment and the Anti-Peonage Act). But substantive limits were not at issue in Winship or Mullaney, and they are not at issue here.Even if there are no constitutional limits preventing the State, for example, from treating all homicides as murders punishable equally regardless of mitigating factors like heat of passion or extreme emotional disturbance, the Winship/Mullaney rule still plays an important role. The State is then obliged to make its choices concerning the substantive content of its criminal laws with full awareness of the consequences, unable to mask substantive policy choices by shifts in the burden of persuasion. See Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 894 (1968) (The burden of persuasion has proved to be a subtle, low-visibility tool for adjusting the interests of competing classes of litigants). The political check on potentially harsh legislative action is then more likely to operate. Cf. Tot v. United States, 319 U.S. 463, 472, 63 S.Ct. 1241, 1247, 87 L.Ed. 1519 (1943); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).Romano involved a challenge to a federal statute that authorized the jury to infer possession, custody, and control of an illegal still from mere presence at the site. The Government contended that the statute should be sustained since it was merely Congress' way of broadening the substantive provisions in order to make a crime of mere presence. The Court rejected this argument, serving notice that Congress could not work a substantive change of that magnitude in such a disguised form. Id., at 144, 86 S.Ct. at 283. See Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165, 177-178 (1969); Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark.L.Rev. 429, 461 (1976).
Moreover, it is unlikely that more than a few factors although important ones for which a shift in the burden of persuasion seriously would be considered will come within the Mullaney holding. With some exceptions, then, the State has the authority to recognize a factor that mitigates the degree of criminality or punishment without having to prove its nonexistence in each case in which the fact is put in issue. Ante, at 2326. New ameliorative affirmative defenses,FN14 about *230 which the Court expresses concern, generally remain undisturbed by the holdings in Winship and Mullaney and need not be disturbed by a sound holding reversing Patterson's conviction.FN15
FN14. Numerous examples of such defenses are available: New York subjects an armed robber to lesser punishment than he would otherwise receive if he proves by a preponderance of
the evidence that the gun he used was unloaded or inoperative. N.Y. Penal Law s 160.15 (McKinney 1975). A number of States have ameliorated the usual operation of statutes punishing statutory rape, recognizing a defense if the defendant shows that he reasonably believed his partner was of age. E. g., Ky.Rev.Stat.Ann. ss 500.070, 510.030 (1975); Wash.Rev.Code Ann. s 9.79.160(2) (Supp.1975). Formerly the age of the minor was a strict-liability element of the crime. The Model Penal Code also employs such a shift in the burden of persuasion for a limited number of defenses. For example, a corporation can escape conviction of an offense if it proves by a preponderance of the evidence that the responsible supervising officer exercised due diligence to prevent the commission of the offense. s 2.07(5) (Proposed Official Draft 1962).
FN15. A number of commentators have suggested that the Constitution permits the States some latitude in adjusting the burden of persuasion with respect to new ameliorative affirmative defenses that result from legislative compromise, but not with respect to other factors. See, e. g., W. LaFave & A. Scott, supra, n. 11, at 49; 1 National Commission on Reform of Federal Criminal Laws, Working Papers 18-19 (1970); ALI, Model Penal Code s 1.13, Comment, p. 113 (Tent. Draft No. 4, 1955) (quoted, ante, at 2327 n. 11); Note, 51 Wash. L.Rev. 953, 964 (1976); Osenbaugh, supra, n. 13, at 459-467. Cf. Fletcher, supra, n. 13, at 928-929.
Furthermore, as we indicated in Mullaney, 421 U.S., at 701-702, n. 28, 95 S.Ct. at 1890-1891, even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production, FN16 that is, the burden of going forward**2338 with sufficient *231 evidence to justify (a reasonable) doubt upon the issue. FN17 ALI, Model Penal Code s 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955). If the defendant's evidence does not cross this threshold, the issue be it malice, extreme emotional disturbance, self-defense, or whatever will not be submitted to the jury.FN18 See Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Stevenson v. United States, 162 U.S. 313, 314-316, 16 S.Ct. 839, 840, 40 L.Ed. 980 (1896). Ever since this Court's decision in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production. See, e. g., Blake v. United States, 407 F.2d 908, 910-911 (CA5 1969) (en banc) (insanity); Frank v. United States, 42 F.2d 623, 629 (CA9 1930) (self-defense); United States v. Alexander, 152 U.S.App.D.C. 371, 389-395, 471 F.2d 923, 941-947, cert. denied sub nom. Murdock v. United States, 409 U.S. 1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972) (provocation). I know of no indication that this *232 practice has proven a noticeable handicap to effective law enforcement. FN19
FN16. There are outer limits on shifting the burden of production to a defendant, limits articulated in a long line of cases in this Court passing on the validity of presumptions. Most important are the rational connection requirement of Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910), and Bailey v. Alabama, supra, 219 U.S., at 238-239, 31 S.Ct. at 150, and also the comparative convenience criterion of Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934). See also, e. g., Tot v. United States, supra, 319 U.S., at 467-468, 63 S.Ct. at 1244; Speiser v. Randall, 357 U.S. 513, 523-524, 78 S.Ct. 1322, 1340-1341, 2 L.Ed.2d 1460 (1958); Leary v. United States, 395 U.S. 6, 33-34, 89 S.Ct. 1532, 1546, 123 L.Ed.2d 57 (1969); Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973). Caution is appropriate, however, in generalizing about the application of any of these cases to a given procedural device, since the term presumption covers a broad range of procedural mechanisms having significantly different consequences for the defendant. See C. McCormick, n. 11, supra, 802-806; Evans v. State, 28 Md.App. 640, 675678, 349 A.2d 300, 324-325 (1975).
FN17. This does not mean that the defendant must introduce evidence in every case. In some instances the prosecution's case may contain sufficient evidence in support of the defendant's position to generate a jury issue.
FN18. On many occasions this Court has sustained a trial court's refusal to submit an issue to the jury in a criminal case when the defendant failed to meet his burden of production. See, e. g., Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 277-278, 39 L.Ed. 343 (1895); Andersen v. United States, 170 U.S. 481, 510-511, 18 S.Ct. 689, 696, 42 L.Ed. 1116 (1898); Battle v. United States, 209 U.S. 36, 38, 28 S.Ct. 422, 423, 52 L.Ed. 670 (1908). Cf. Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458 (1943).
FN19. Dean McCormick emphasized that the burden of production is a critical and important mechanism in a jury trial. In his view, this mechanism has far more influence upon the final outcome of cases than does the burden of persuasion, which has become very largely a matter of the technique of the wording of instructions to juries. C. McCormick, Evidence s 307, pp. 638639, and n. 2 (1st ed. 1954). Cf. Fletcher, supra, n. 13, at 930.
To be sure, there will be many instances when the Winship/Mullaney test as I perceive it will be more difficult to apply than the Court's formula. Where I see the need for a careful and
discriminating review of history, the Court finds a brightline standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend.
U.S.N.Y., 1977. Patterson v. New York 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
Briefs and Other Related Documents (Back to top)
1977 WL 189848 (Appellate Brief) Reply Brief for the Appellant (Feb. 24, 1977) 1977 WL 189846 (Appellate Brief) Brief for the Appellee (Jan. 10, 1977) 1976 WL 181724 (Appellate Brief) Brief for the Appellant (Dec. 03, 1976) END OF DOCUMENT
268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904
Supreme Court of the United States. YEE HEM v. UNITED STATES.
No. 303. Argued March 19, 1925. Decided April 27, 1925.
In Error to the District Court of the United States for the Northern District of Ohio.
Yee Hem was convicted of concealing a quantity of smoking opium after importation with knowledge that it had been imported unlawfully, and he brings error. Affirmed.
West Headnotes
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Act Feb. 9, 1909, as amended by Act Jan. 17, 1914, 2, 3 (Comp.St. 8801, 8801a), declaring that smoking opium found within the country more than four years after passage of the act should be presumed to have been unlawfully imported, and that possession of such opium should create a presumption of guilt, in absence of satisfactory explanation, held not unconstitutional.
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Congress may prohibit importation of opium and make concealment of importation crime.
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Rules of evidence fixed by act prohibiting importation of opium held not violative of compulsory self-incrimination clause of Constitution.
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Statute creating legitimate statutory presumption of unlawful importation from possession of smoking opium not unconstitutional.
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Rules of evidence fixed by act prohibiting importation of opium held not violative of due process clause.
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Rules of evidence fixed by act prohibiting importation of opium held not unconstitutional.
**470 *178 Messrs. Gerard J. Pilliod and Joseph C. Breitenstein, both of Cleveland, Ohio, for plaintiff in error.
*181 Mr. Assistant Attorney General Donovan, for the United States.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
Plaintiff in error was convicted in the court below of the offense of concealing a quantity of smoking opium after importation, with knowledge that it had been imported in violation of Act Feb. 9, 1909, c. 100, 35 Stat. 614, as amended by Act Jan. 17, 1914, c. 9, 38 Stat. 275 (Comp. St. 8800-8801f). Sections 2 and 3 of the act as amended (Comp. St. 8801, 8801a) are challenged as unconstitutional, on the ground that they contravene the due process of law and the compulsory self-incrimination clauses of the Fifth Amendment of the federal Constitution.
Section 1 of the Act (Comp. St. 8800) prohibits the importation into the United States of opium in any form after April 1, 1909, except that opium and preparations and derivatives thereof, other than smoking opium or opium prepared for *182 smoking, may be imported for **471 medicinal purposes only, under regulations prescribed by the Secretary of the Treasury. Section 2 provides,
among other things, that if any person shall conceal or facilitate the concealment of such opium, etc., after importation, knowing the same to have been imported contrary to law, the offender shall be subject to fine or imprisonment or both. It further provides that whenever the defendant on trial is shown to have, or to have had, possession of such opium, etc., such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury. Section 3 provides that on and after July 1, 1913:
All smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after the first day of April, nineteen hundred and nine, and the burden of proof shall be on the claimant or the accused to rebut such presumption.
The plaintiff in error, at the time of his arrest in August, 1923, was found in possession of and concealing a quantity of smoking opium. The lower court overruled a motion for an instructed verdict of not guilty, and, after stating the foregoing statutory presumptions, charged the jury in substance that the burden of proof was on the accused to rebut such presumptions; and that it devolved upon him to explain that he was rightfully in possession of the smoking opium-at least explain it to the satisfaction of the jury. The court further charged that the defendant was presumed to be innocent until the government had satisfied the minds of the jurors of his guilt beyond a reasonable doubt; that the burden to adduce such proof of guilt beyond the existence of a reasonable doubt rested on the government at all times and throughout the trial; and that a conviction could not be had while a rational doubt remains in the minds of the jury.
[1] *183 The authority of Congress to prohibit the importation of opium in any form and, as a measure reasonably calculated to aid in the enforcement of the prohibition, to make its concealment with knowledge of its unlawful importation a criminal offense, is not open to doubt. Brolan v. United States, 236 U. S. 216, 35 S. Ct. 285, 59 L. Ed. 544; Steinfeldt v. United States, 219 F. 879, 135 C. C. A. 549. The question presented is whether Congress has power to enact the provisions in respect of the presumptions arising from the unexplained possession of such opium and from its presence in this country after the time fixed by the statute.
In Mobile, etc., R. R. v. Turnipseed, 219 U. S. 35, 42, 43, 31 S. Ct. 136, 137, 138 (55 L. Ed. 78, 32 L. R. A. [N. S.] 226, Ann. Cas. 1912A, 463), this court, speaking through Mr. Justice Lurton, said:
The law of evidence is full of presumptions either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. * * *
Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. * * *
That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact provided and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under a guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.
*184 See, also, Luria v. United States, 231 U. S. 9, 25, 34 S. Ct. 10, 58 L. Ed. 101; State v. Moriarty, 50 Conn. 415, 417; Commonwealth v. Williams, 6 Gray (Mass.) 1, 3; State v. Sheehan, 28 R. I. 160, 66 A. 66.
[2] The legislative provisions here assailed satisfy these requirements in respect of due process. They have been upheld against similar attacks, without exception so far as we are advised, by the lower federal courts. Charley Toy v. United States (C. C. A.) 266 F. 326, 329; Gee Woe v. United States, 250 F. 428, 162 C. C. A. 498; Ng Choy Fong v. United States, 245 F. 305, 157 C. C. A. 497; United States v. Yee Fing (D. C.) 222 F. 154; United States v. Ah Hung (D. C.) 243 F. 762, 764. We think it is not an illogical inference that opium, found in this country more than 4 years (in the present case, more than 14 years) after its importation had been prohibited, was unlawfully imported. Nor do we think the further provision, that possession of such opium in the absence of a satisfactory explanation shall create a presumption of guilt, is so unreasonable as to be a purely arbitrary mandate. By universal sentiment, and settled policy as evidenced by state and local legislation for more than half a century, opium is an illegitimate commodity, the use of which, except as a medicinal agent, is rigidly condemned. Legitimate possession, unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity, since you are bound to know that it cannot be brought into this country at all,
except under regulation for **472 medicinal use, you must at your peril ascertain and be prepared to show the facts and circumstances which rebut, or tend to rebut, the natural inference of unlawful importation, or your knowledge of it, is not such an unreasonable requirement as to cause it to fall outside the constitutional power of Congress.
[3] Every accused person, of course, enters upon his trial clothed with the presumption of innocence. But that presumption may be overcome, not only by direct proof, but, in many cases, when the facts standing alone are *185 not enough, by the additional weight of a countervailing legislative presumption. If the effect of the legislative act is to give to the facts from which the presumption is drawn an artificial value to some extent, it is no more than happens in respect of a great variety of presumptions not resting upon statute. See Dunlop v. United States, 165 U. S. 486, 502, 503, 17 S. Ct. 375, 41 L. Ed. 799; Wilson v. United States, 162 U. S. 613, 619, 16 S. Ct. 895, 40 L. Ed. 1090. In the Wilson Case the accused, charged with murder, was found, soon after the homicide, in possession of property that had belonged to the dead man. This court upheld a charge of the trial court to the effect that such possession required the accused to account for it, to show that as far as he was concerned the possession was innocent and honest, and that if not so accounted for it became the foundation for a presumption of guilt against the defendant.
[4] The point that the practical effect of the statute creating the presumption is to compel the accused person to be a witness against himself may be put aside with slight discussion. The statute compels nothing. It does no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create but which is inherent in the case. The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.
Judgment affirmed.
U.S. 1925
YEE HEM v. UNITED STATES 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904
END OF DOCUMENT
442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777
Briefs and Other Related Documents Supreme Court of the United States COUNTY COURT OF ULSTER COUNTY, NEW YORK, et al., Petitioners, v. Samuel ALLEN et al.
No. 77-1554. Argued Feb. 22, 1979. Decided June 4, 1979.
State prisoners sought habeas corpus, contending that they were denied due process by the application of New York's statutory presumption that presence of firearm in automobile is evidence of its illegal possession by all occupants. The United States District Court for the Southern District of New York, Richard Owen, J., granted relief and state officials appealed. The Second Circuit Court of Appeals, 568 F.2d 998, affirmed, finding statute to be unconstitutional on its face, and certiorari was granted. The Supreme Court, Mr. Justice Stevens, held that: (1) the district court had jurisdiction to entertain claim that the presumption was unconstitutional; (2) where instructions directed jury to consider all circumstances tending to support or contradict inference that all four occupants of automobile had possession of two loaded handguns, presumption was permissive rather than mandatory, and thus Court of Appeals should not have passed on constitutionality of statute on its face, and (3) New York's statutory presumption of possession was constitutional as applied.
Reversed.
Mr. Chief Justice Burger filed a concurring opinion.
Mr. Justice Powell filed a dissenting opinion in which Mr. Justice Brennan, Mr. Justice Stewart and Mr. Justice Marshall joined.
West Headnotes
Key Number Symbol197 Habeas Corpus Key Number Symbol197I In General Key Number Symbol197I(D) Federal Court Review of Petitions by State Prisoners Key Number Symbol197I(D)6 State's Reliance on or Waiver of Procedural Bar or Want of Exhaustion Key Number Symbol197k423 k. State court consideration of merits. Most Cited Cases (Formerly 197k45.1(4))
Where prosecution never argued to any state court that procedural default had occurred, trial court ruled on the merits when it denied state prisoners' motion to set aside the verdict, and the New York Court of Appeals did not ignore constitutional claim in its opinion but summarily rejected claim on its merits, New York court did not decide prisoners' constitutional claim on procedural ground, based on fact that prisoners made claim for first time only after jury had announced its verdict, and thus question of constitutionality of New York statute which provides that, with certain exceptions, presence of firearm in automobile is presumptive evidence of its illegal possession by all occupants was properly before the district court in habeas proceeding. Penal Law N.Y. 265.15, subd. 3; 28 U.S.C.A. 2254.
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There is no statutory requirement of an appeal to the Supreme Court as a predicate to habeas jurisdiction. 28 U.S.C.A. 1257(2), 2254.
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Where neither state legislature nor state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the state by entertaining the claim in a habeas proceeding. 28 U.S.C.A. 2254.
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Federal courts, which are courts of limited jurisdiction, have authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction and, in exercise of that authority, they have duty to decide constitutional questions when necessary to
dispose of litigation before them, but they have equally strong duty to avoid constitutional issues that need not be resolved in order to determine parties' rights.
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In criminal cases, ultimate test of any evidentiary device's constitutional validity in a given case is whether device undermines fact finder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.
Because permissive presumption, which allows but does not require trier of fact to infer elemental fact from proof by prosecutor of basic one and which places no burden of any kind on defendant, leaves trier of fact free to credit or reject inference and does not shift burden of proof, it affects application of beyond a reasonable doubt standard only if, under facts of case, there is no rational way trier could make connection permitted by inference, since it is only in that situation that there is any risk that explanation of permissible inference to a jury or its use by jury has caused fact finder to make erroneous factual determination.
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In deciding what type of inference or presumption is involved in a case, jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it.
In analyzing constitutional validity of mandatory presumption, which may affect not only strength of the state's no reasonable doubt burden but also the placement of that burden, and which tells trier of fact that he or they must find elemental fact upon proof of basic fact, at least unless defendant has come forward with some evidence to rebut the proposed connection between the two facts, it is irrelevant that there is ample evidence in the record other than the presumption to support a conviction.
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Where state court trial judge's instructions made it clear that statutory presumption that presence of firearm in automobile was evidence of its illegal possession by all occupants was merely a part of prosecution's case, giving rise to permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that presumption could be ignored by jury even if there was no affirmative proof offered in rebuttal, Court of Appeals should not have passed on constitutionality of New York statute on its face. Penal Law N.Y. 265.15, subd. 3.
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Where it was highly improbable that 16-year-old female passenger in the company of three adult men was solely responsible for two, heavy handguns being in her purse when automobile was stopped, and it was rational to assert that each occupant was fully aware of presence of guns and had both ability and intent to exercise dominion and control over weapons, there was rational connection between basic facts that prosecution proved and presumed ultimate fact of occupants' possession, and thus New York's statutory presumption that presence of firearm in
automobile is presumptive evidence of its illegal possession by all occupants was constitutional as applied. Penal Law N.Y. 265.15, subd. 3.
In case of mandatory presumption which jury must accept even if it is sole evidence of element of offense, prosecution, since it bears burden of establishing guilt, may not rest its case on presumption unless fact proved is sufficient to support inference of guilt beyond a reasonable doubt, but in case of permissive presumption, prosecution may rely on all the evidence in the record to meet reasonable doubt standard and thus, as long as it is clear that presumption is not sole and sufficient basis for finding of guilt, presumption need only satisfy more likely than not standard to be constitutionally valid.
**2215 Syllabus FN*
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.
*140 Respondents (three adult males) and a 16-year-old girl (Jane Doe) were jointly tried in a New York state court on charges, inter alia, of illegally possessing two loaded handguns found in an automobile in which they were riding when it was stopped for speeding. The guns had been positioned **2216 crosswise in Jane Doe's open handbag on either the front floor or front seat on
the passenger side where she was sitting. All four defendants objected to the introduction of the guns into evidence, arguing that the State had not adequately demonstrated a connection between the guns and the defendants. The trial court overruled the objection, relying on the presumption of possession created by a New York statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle, except when, inter alia, the firearm is found upon the person of one of the occupants. The trial court also denied respondents' motion to dismiss the charges on the alleged ground that such exception applied because the guns were found on Jane Doe's person, the court concluding that the applicability of the exception was a question of fact for the jury. After being instructed that it was entitled to infer possession from the defendants' presence in the car, to consider all circumstances tending to support or contradict such inference, and to decide the matter for itself without regard to how much evidence the defendants introduced, the jury convicted all four defendants of illegal possession of the handguns. Defendants' post-trial motion in which they challenged the constitutionality of the New York statute as applied to them, was denied. Both the intermediate appellate court and the New York Court of Appeals affirmed the convictions, the latter court holding that it was a jury question whether the guns were on Jane Doe's person, treating this question as having been resolved in the prosecution's favor, and concluding that therefore the presumption applied and that there was sufficient evidence to support the convictions. The court also summarily rejected the argument that the presumption was unconstitutional as applied in this case. Respondents then filed a *141 habeas corpus petition in Federal District Court, contending that they were denied due process of law by the application of the statutory presumption. The District Court issued the writ, holding that respondents had not deliberately bypassed their federal claim by their actions at trial and that the mere presence of two guns in a woman's handbag in a car could not reasonably give rise to the inference that they were in the possession of three other persons in the car. The United States Court of Appeals affirmed, holding that the New York Court of Appeals had decided respondents' constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief and, without deciding whether the presumption was constitutional as applied in this case, that the statute is unconstitutional on its face.
Held :
1. The District Court had jurisdiction to entertain respondents' claim that the statutory presumption is unconstitutional. There is no support in New York law or the history of this litigation for an inference that the New York courts decided such claim on an independent and adequate state procedural ground that bars the federal courts from addressing the issue on habeas corpus. If neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State
by entertaining the claim. Pp. 2219-2223.
2. The United States Court of Appeals erred in deciding the facial constitutionality issue. In analyzing a mandatory presumption, which the jury must accept even if it is the sole evidence of an element of an offense (as opposed to a purely permissive presumption, which allows, but does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant), it is irrelevant that there is ample evidence in the record other than the presumption to support a conviction. Without determining whether the presumption in this case was mandatory, the Court of Appeals analyzed it on its face as if it were, despite the fact that the state trial judge's instructions made it clear that it was not. Pp. 2223-2227.
**2217 3. As applied to the facts of this case, the statutory presumption is constitutional. Under the circumstances, the jury would have been entirely reasonable in rejecting the suggestion that the guns were in Jane Doe's sole possession. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the car's floor or seat in the plain view of respondents, and in such a case it is *142 surely rational to infer that each of the respondents was fully aware of the guns' presence and had both the ability and the intent to exercise dominion and control over them. The application of the presumption in this case thus comports with the standard, Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, that there be a rational connection between the basic facts that the prosecution proved and the ultimate fact presumed, and that the latter is more likely than not to flow from the former. Moreover, the presumption should not be judged by a more stringent reasonable doubt test, insofar as it is a permissive rather than a mandatory presumption. Pp. 2227-2230.
568 F.2d 998, reversed.
Eileen Shapiro, New York City, for petitioners.
Michael A. Young, New York City, for respondents.
Mr. Justice STEVENS delivered the opinion of the Court.
A New York statute provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.FN1 The United States Court of Appeals for the *143 Second Circuit held that respondents may challenge the constitutionality of this statute in a federal habeas corpus proceeding and that the statute is unconstitutional on its face. 568 F.2d 998, 1009. We granted certiorari to review these holdings and also to consider whether the statute is constitutional in its application to respondents. 439 U.S. 815, 99 S.Ct. 75, 58 L.Ed.2d 106.
FN1. New York Penal Law 265.15(3) (McKinney 1967): The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, defaced firearm, firearm silencer, bomb, bombshell, gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckles, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances:(a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his possession a valid license to have and carry concealed the same. In addition to the three exceptions delineated in 265.15(3)(a)-(c) above as well as the stolen-vehicle and publicomnibus exception in 265.15(3) itself, 265.20 contains various exceptions that apply when weapons are present in an automobile pursuant to certain military, law enforcement, recreational, and commercial endeavors.
Four persons, three adult males (respondents) and a 16-year-old girl (Jane Doe, who is not a respondent here), were jointly tried on charges that they possessed two loaded handguns, a loaded machinegun, and over a pound of heroin found in a Chevrolet in which they were riding when it was stopped for speeding on the New York Thruway shortly after noon on March 28, 1973. The two large-caliber handguns, which together with their ammunition weighed approximately six pounds, were seen through the window of the car by the investigating police officer. They were positioned crosswise in an open handbag on either the front floor or the front seat of the car on the passenger side where Jane Doe was sitting. Jane Doe admitted that the handbag was hers.FN2 The **2218 machine *867 gun and the heroin were discovered in the
trunk after the police pried it open. The car had been borrowed from the driver's brother earlier that day; the key to the trunk could not be found in the car or on the person of any of its occupants, although there was testimony that two of the occupants had placed something in the trunk before embarking in the borrowed car.FN3 The jury convicted all four of possession of the handguns and acquitted them of possession of the contents of the trunk.
FN2. The arrest was made by two state troopers. One officer approached the driver, advised him that he was going to issue a ticket for speeding, requested identification, and returned to the patrol car. After a radio check indicated that the driver was wanted in Michigan on a weapons charge, the second officer returned to the vehicle and placed the driver under arrest. Thereafter, he went around to the right side of the car and, in open view, saw a portion of a .45-caliber automatic pistol protruding from the open purse on the floor or the seat. People v. Lemmons, 40 N.Y.2d 505, 508-509, 387 N.Y.S.2d 97, 99-100, 354 N.E.2d 836, 838-839 (1976). He opened the car door, removed that gun, and saw a .38-caliber revolver in the same handbag. He testified that the crosswise position of one or both of the guns kept the handbag from closing. After the weapons were secured, the two remaining male passengers, who had been sitting in the rear seat, and Jane Doe were arrested and frisked. A subsequent search at the police station disclosed a pocket-knife and marihuana concealed on Jane Doe's person. Tr. 187-192, 208-214, 277-278, 291-297, 408.
FN3. Early that morning, the four defendants had arrived at the Rochester, N. Y., home of the driver's sister in a Cadillac. Using her telephone, the driver called their brother, advised him that his car ran hot on the way there from Detroit and asked to borrow the Chevrolet so that the four could continue on to New York City. The brother brought the Chevrolet to the sister's home. He testified that he had recently cleaned out the trunk and had seen no weapons or drugs. The sister also testified, stating that she saw two of the defendants transfer some unidentified item or items from the trunk of one vehicle to the trunk of the other while both cars were parked in her driveway. Id., at 17-19, 69-73, 115-116, 130-131, 193-194.
Counsel for all four defendants objected to the introduction into evidence of the two handguns, the machinegun, and the drugs, arguing that the State had not adequately demonstrated a connection between their clients and the contraband. The trial court overruled the objection, relying on the presumption*145 of possession created by the New York statute. Tr. 474-483.
Because that presumption does not apply if a weapon is found upon the person of one of the occupants of the car, see n. 1, supra, the three male defendants also moved to dismiss the charges relating to the handguns on the ground that the guns were found on the person of Jane Doe. Respondents made this motion both at the close of the prosecution's case and at the close of all evidence. The trial judge twice denied it, concluding that the applicability of the upon the person exception was a question of fact for the jury. Tr. 544-557, 589-590.
At the close of the trial, the judge instructed the jurors that they were entitled to infer possession from the defendants' presence in the car. He did not make any reference to the upon the person exception in his explanation of the statutory presumption, nor did any of the defendants object to this omission or request alternative or additional instructions on the subject.
Defendants filed a post-trial motion in which they challenged the constitutionality of the New York statute as applied in this case. The challenge was made in support of their argument that the evidence, apart from the presumption, was insufficient to sustain the convictions. The motion was denied, id., at 775-776, and the convictions were affirmed by the Appellate Division without opinion. People v. Lemmons, 49 A.D.2d 639, 370 N.Y.S.2d 243 (1975).
The New York Court of Appeals also affirmed. People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976). It rejected the argument that as a matter of law the guns were on Jane Doe's person because they were in her pocketbook. Although the court recognized that in some circumstances the evidence could only lead to the conclusion that the weapons were in one person's sole possession, it held that this record presented a jury question on that issue. Since the defendants had not asked **2219 the trial judge to submit the question to the *146 jury, the Court of Appeals treated the case as though the jury had resolved this fact question in the prosecution's favor. It therefore concluded that the presumption did apply and that there was sufficient evidence to support the convictions. Id., at 509-512, 387 N.Y.S.2d, at 99-101, 354 N.E.2d, at 839-841. It also summarily rejected the argument that the presumption was unconstitutional as applied in this case. See infra, at 2222-2223.
Respondents filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York contending that they were denied due process of law by the application of the statutory presumption of possession. The District Court issued the writ, holding that respondents had not deliberately bypassed their federal claim by their actions at trial and that the mere presence of two guns in a woman's handbag in a car could not reasonably
give rise to the inference that they were in the possession of three other persons in the car. App. to Pet. for Cert. 33a-36a.
The Court of Appeals for the Second Circuit affirmed, but for different reasons. First, the entire panel concluded that the New York Court of Appeals had decided respondents' constitutional claim on its merits rather than on any independent state procedural ground that might have barred collateral relief. Then, the majority of the court, without deciding whether the presumption was constitutional as applied in this case, concluded that the statute is unconstitutional on its face because the presumption obviously sweeps within its compass (1) many occupants who may not know they are riding with a gun (which may be out of their sight), and (2) many who may be aware of the presence of the gun but not permitted access to it. FN4 Concurring separately, Judge *147 Timbers agreed with the District Court that the statute was unconstitutional as applied but considered it improper to reach the issue of the statute's facial constitutionality. 568 F.2d, at 1011-1012.
FN4. The majority continued:Nothing about a gun, which may be only a few inches in length (e. g., a Baretta or Derringer) and concealed under a seat, in a glove compartment or beyond the reach of all but one of the car's occupants, assures that its presence is known to occupants who may be hitchhikers or other casual passengers, much less that they have any dominion or control over it. 568 F.2d, at 1007.
The petition for a writ of certiorari presented three questions: (1) whether the District Court had jurisdiction to entertain respondents' claim that the presumption is unconstitutional; (2) whether it was proper for the Court of Appeals to decide the facial constitutionality issue; and (3) whether the application of the presumption in this case is unconstitutional. We answer the first question in the affirmative, the second two in the negative. We accordingly reverse.
I [1] Headnote Citing References[2] Headnote Citing References This is the sixth time that respondents have asked a court to hold that it is unconstitutional for the State to rely on the presumption because the evidence is otherwise insufficient to convict them.FN5 No **2220 court has refused to hear the claim or *148 suggested that it was improperly presented. Nevertheless, because respondents made it for the first time only after the jury had announced its
verdict, and because the state courts were less than explicit in their reasons for rejecting it, the question arises whether the New York courts did so on the basis of an independent and adequate state procedural ground that bars the federal courts from addressing the issue on habeas corpus.FN6 See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594; *149 Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837. We conclude that there is no support in either the law of New York or the history of this litigation for an inference that the New York courts decided respondents' constitutional claim on a procedural ground, and that the question of the presumption's constitutionality is therefore properly before us. See Franks v. Delaware, 438 U.S. 154, 161-162, 98 S.Ct. 2674, 2679-2680 , 57 L.Ed.2d 667; Mullaney v. Wilbur, 421 U.S. 684, 704-705, 95 S.Ct. 1881, 1892-1893, 44 L.Ed.2d 508. (REHNQUIST, J., concurring).FN7
FN5. Respondents first made the argument in a memorandum of law in support of their unsuccessful post-trial motion to set aside the verdict. App. 36a-38a. That memorandum framed the argument in three parts precisely as respondents would later frame it in their briefs in the Appellate Division and Court of Appeals, see id., at 41a-44a, 50a-52a, and in their petition for a writ of habeas corpus. See id., at 6a-10 a: First, [t]he only evidence relied upon to convict them was their presence in an automobile in which the two handguns were found. Id., at 35a. Second, but for the presumption of possession, this evidence was totally insufficient to sustain the conviction. Id., at 38a. And third, that presumption is unconstitutional as applied (or, arbitrary, and hence unconstitutional) under Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, a case in which this Court established standards for determining the validity under the Due Process Clauses of statutory presumptions in criminal cases. App. 36a. This sufficiency-focused argument on the presumption is amply supported in our case law. E. g., Turner v. United States, 396 U.S. 398, 424, 90 S.Ct. 642, 656, 24 L.Ed.2d 610 ([A] conviction resting on [an unconstitutional] presumption cannot be deemed a conviction based on sufficient evidence). See also Rossi v. United States, 289 U.S. 89, 90, 53 S.Ct. 532, 533, 77 L.Ed. 1051. Although respondents' memorandum did not cite the provision of the Constitution on which they relied, their citation of our leading case applying that provision, in conjunction with their use of the word unconstitutional, left no doubt that they were making a federal constitutional argument. Indeed, by its responses to that argument at every step of the way, the State made clear that it, at least, understood the federal basis for the claim. E. g., Respondent's Brief and Appendix in the Court of Appeals of the State of New York, p. 9.
FN6. Petitioners contend that, in addition to the timing of respondents' claim and the alleged silence of the New York courts, there is another basis for concluding that those courts rejected
respondents' claim on procedural grounds. Petitioners point out that respondents-having unsuccessfully argued to the trial court (as they would unsuccessfully argue on appeal) that the upon the person exception applied as a matter of law in their case-failed either to ask the trial court to instruct the jury to consider the exceptions or to object when the court omitted the instruction. They further point out that the majority of the New York Court of Appeals, after concluding that the exception's application was a jury question in this case, refused to review the trial court's omission of an instruction on the issue because of respondents' failure to protest that omission. 40 N.Y.2d, at 512, 387 N.Y.S.2d, at 101, 354 N.E.2d, at 841. Petitioners argue that we should infer from the Court of Appeals' explicit treatment of this state-law claim-a claim never even pressed on appeal-how that court implicitly treated the federal claim that has been the crux of respondents' litigation strategy from its post-trial motion to the present. There is no basis for the inference. Arguing on appeal that an instruction that was never requested should have been given is far more disruptive to orderly judicial proceedings than arguing in a post-trial motion that the evidence was insufficient to support the verdict. Moreover, that the Court of Appeals felt compelled expressly to reject, on procedural grounds, an argument never made is hardly proof that they would silently reject on similar grounds an argument that was forcefully made. As we discuss, infra, at 2222-2223, it is clear that the court did address the constitutional question and did so on the merits, albeit summarily. Petitioners also contend that respondents, having failed to seek a jury determination based on state law that the presumption does not apply, may not now argue that the presumption is void as a matter of federal constitutional law. The argument is unpersuasive. Respondents' failure to demand an instruction on the state-law exception is no more and no less than a concession on their part that as a matter of state law the guns were not found upon the person of any occupant of the car is that phrase is interpreted by the New York courts, and therefore, again as a matter of state law, that the presumption of possession is applicable. The New York Court of Appeals reviewed the case in that posture, and we do the same.
FN7. Petitioners advance a second reason why there is no federal jurisdiction in this case. Respondents were convicted on the basis of a statutory presumption they argue is unconstitutional. Following the Court of Appeals' affirmance of their conviction, they could have appealed that decision to this Court under 28 U.S.C. 1257(2) and thereby forced a binding federal disposition of the matter. Because respondents failed to do so, petitioners argue that respondents waived any right to federal review of the decision on habeas corpus. In Fay v. Noia, 372 U.S. 391, 435-438, 83 S.Ct. 822, 847-848, 9 L.Ed.2d 837, we rejected a similar argument that habeas corpus review was unavailable in advance of a petition for certiorari. See also Stevens v. Marks, 383 U.S. 234, 86 S.Ct. 788, 15 L.Ed.2d 724, in which the Court entertained a challenge to a state statute in a federal habeas corpus proceeding even though the defendant had not pursued that challenge on appeal to this Court prior to filing his petition for habeas corpus.
The analysis of the federal habeas statute that led us to our conclusion in Fay is equally applicable in the present situation. That statute gives federal courts jurisdiction to entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court if that custody allegedly violates the Constitution or laws or treaties of the United States. 28 U.S.C. 2254(a). The only statutory exception to this jurisdiction arises when the petitioner has failed to exhaust the remedies available in the courts of the State. 2254(b). As was said in Fay with regard to petitions for certiorari under 28 U.S.C. 1257(3), direct appeals to this Court under 1257(2) are not remedies available in the courts of the State. 372 U.S., at 436, 83 S.Ct., at 847. Accordingly, there is no statutory requirement of an appeal to this Court as a predicate to habeas jurisdiction.
*150 **2221 New York has no clear contemporaneous-objection policy that applies in this case.FN8 No New York court, either in this litigation or in any other case that we have found, has ever expressly refused on contemporaneous-objection grounds to consider a post-trial claim such as the one respondents made. Cf. Wainwright v. Sykes, supra, 433 U.S., at 74, 97 S.Ct., at 2499. Indeed, the rule in New York appears to be that insufficiency of the evidence claims may be raised at any time until sentence has been *151 imposed.FN9 Moreover, even if New York's contemporaneous-objection rule did generally bar the type of postverdict insufficiency claim that respondents made, there are at least two judicially created exceptions to that rule that might nonetheless apply in this case. FN10
FN8. New York's cautious contemporaneous-objection policy is embodied in N.Y.Crim.Proc.Law 470.05(2) (McKinney 1971): For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same (emphasis added). That policy is carefully limited by several statutory qualifications in addition to the one italicized above. First, the form of the protest is not controlling so long as its substance is clear. Ibid. Second, such protests may be made expressly or impliedly. Ibid. Third, once a protest is made, it need not be repeated at each subsequent disposition of the matter. Ibid. And finally, the Appellate Division of the New York Supreme Court is authorized in its discretion to consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant, even if not previously objected to. 470.15(1). See, e. g., People v. Fragale, 60 A.D.2d 972, 401 N.Y.S.2d 629 (1978); People v. Travison, 59 A.D.2d 404, 408, 400 N.Y.S.2d 188, 191 (1977).
FN9. E. g., People v. Ramos, 33 A.D.2d 344, 308 N.Y.S.2d 195 (1970); People v. Walker, 26 Misc.2d 940, 206 N.Y.S.2d 377 (1960). Cf. Fed.Rule Crim.Proc. 29(c) (It shall not be necessary to the making of [a motion for judgment of acquittal] that a similar motion has been made prior to the submission of the case to the jury); Burks v. United States, 437 U.S. 1, 17-18, 98 S.Ct. 2141, 2150-2151, 57 L.Ed.2d 1 (under federal law a post-trial motion for a new trial based on insufficiency of the evidence is not a waiver of the right to acquittal at that point if the evidence is found to be insufficient).
FN10. First, the New York Court of Appeals has developed an exception to the State's contemporaneous-objection policy that allows review of unobjected-to errors that affect a fundamental constitutional right. People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, 848 (1965). Accord, People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968); People v. DeRenzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97 (1966). Indeed, this Court recognized that exception in concluding that an ambiguously presented federal claim had been properly raised in New York trial and appellate courts and was therefore cognizable by this Court on appeal. Street v. New York, 394 U.S. 576, 583-584, 89 S.Ct. 1354, 1361-1362, 22 L.Ed.2d 572. Although this exception has been narrowed more recently, e. g., People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975), it continues to have currency within the State where there has been a denial of a fair trial. E. g., La Rocca v. Lane, 37 N.Y.2d 575, 584, 376 N.Y.S.2d 93, 338 N.E.2d 606, 613 (1975); People v. Bennett, 29 N.Y.2d 462, 467, 329 N.Y.S.2d 801, 280 N.E.2d 637, 639 (1972); People v. White, 86 Misc.2d 803, 809, 383 N.Y.S.2d 800, 804 (1976). The relevance of this exception is apparent from the Second Circuit opinion in this case which held that respondents were denied a fair trial when the jury was charged that they could rely on the presumption . . . . 568 F.2d, at 1011. Second, the New York courts will also entertain a federal constitutional claim on appeal even though it was not expressly raised at trial if a similar claim seeking similar relief was clearly raised. E. g., People v. De Bour, 40 N.Y.2d 210, 214-215, 386 N.Y.S.2d 375, 378-379, 352 N.E.2d 562, 565-566 (1976); People v. Robbins, 38 N.Y.2d 913, 382 N.Y.S.2d 977, 346 N.E.2d 815 (1976); People v. Arthur, supra. Cf. United States v. Mauro, 436 U.S. 340, 364-365, 98 S.Ct. 1834, 1849-1850, 56 L.Ed.2d 329 (failure to invoke Interstate Agreement on Detainers time limit in a speedy trial motion is not a waiver of the former argument). In this case, respondents made two arguments based on the unavailability of the presumption and the consequent total absence, in their view, of proof of the crime. The first, that the statutory upon the person exception to the presumption should apply in this case, was made in the middle of trial at the close of the prosecutor's case and then repeated at the close of the defendants' case. Tr. 554-590; App., 12a17a. Indeed, respondents arguably made this claim even earlier, during the middle of the
government's case, when they unsuccessfully objected to the introduction of the handguns in evidence on the ground that there was nothing [in the record up to that point] to connect this weapon with the . . . defendants. Tr. 474-502. Although the constitutional counterpart to this argument was not made until just after the verdict was announced, the earlier objection to the State's reliance on the presumption might suffice under these cases as an adequate contemporaneous objection. See N.Y.Crim.Proc.Law 470.05(2) (McKinney 1971); n. 8, supra. The logical linkage between the two objections is suggested by legislative history and case law in New York indicating that the upon the person exception was included in the presumption statute to avoid constitutional problems. See People v. Logan, 94 N.Y.S.2d 681, 684 (Sup.Ct., 1949); Report of the New York State Joint Legislative Committee on Firearms and Ammunition, N.Y.Leg.Doc. No. 29, p. 21 (1962).
*152 **2222 The conclusion that the New York courts did not rely on a state procedural ground in rejecting respondents' constitutional claim is supported, not only by the probable unavailability in New York law of any such ground, but also by three aspects of this record. First, the prosecution never argued to any state court that a procedural default had occurred. This omission surely suggests that the New York courts were not thinking in procedural terms when they decided the issue. Indeed, the parties did not even apprise the appellate courts of the timing of respondents' objection to the presumption; a procedural default would not have been discovered, therefore, unless those courts combed the transcript themselves. If they did so without any prompting from the parties and based their decision on what they found, they surely would have said so.
Second, the trial court ruled on the merits when it denied respondents' motion to set aside the verdict. Tr. 775-776. Because it was not authorized to do so unless the issue was preserved for appeal, the trial court implicitly decided that *153 there was no procedural default.FN11 The most logical inference to be drawn from the Appellate Division's unexplained affirmance is that that court accepted not only the judgment but also the reasoning of the trial court.
FN11. Section 330.30(1) of the N.Y.Crim.Proc.Law (McKinney 1971) authorizes a trial court to grant a motion to set aside the verdict [a]t any time after rendition of a verdict of guilty and before sentence on [a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
Third, it is apparent on careful examination that the New York Court of Appeals did not ignore respondents' constitutional claim in its opinion. Instead, it summarily rejected the claim on its merits. That court had been faced with the issue in several prior cases and had always held the presumption constitutional. Indeed, the State confined its brief on the subject in the Court of Appeals to a string citation of some of those cases. Respondents' Brief in the Court of Appeals, p. 9. It is not surprising, therefore, that the Court of Appeals confined its discussion of the issue to a reprise of the explanation that its prior cases have traditionally given for the statute in holding it constitutional and a citation of two of those cases. 40 N.Y.2d, at 509-511, 387 N.Y.S.2d, at 99-100, 354 N.E.2d, at 839-840, citing **2223 People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136 (1969); People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975). Although it omits the word constitutional, the most logical interpretation of this discussion is that it was intended as a passing and summary disposition of an issue that had already been decided on numerous occasions. This interpretation is borne out by the fact that the dissenting members of the Court of Appeals unequivocally addressed the merits of the constitutional claim FN12 and by the fact that three Second Circuit Judges, whose experience with New York *154 practice is entitled to respect, concluded that the State's highest court had decided the issue on its merits. 568 F.2d, at 1000. See Bishop v. Wood, 426 U.S. 341, 345-346, 96 S.Ct. 2074, 2077-2078, 48 L.Ed.2d 684; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246.
FN12. 40 N.Y.2d, at 514-515, 387 N.Y.S.2d, at 99-100, 354 N.E.2d, at 842-843 (Wachtler, J., concurring and dissenting); id., at 516, 387 N.Y.S.2d, at 103-104, 354 N.E.2d, at 843-844 (Fuchsberg, J., concurring and dissenting).
[3] Headnote Citing References Our conclusion that it was proper for the federal courts to address respondents' claim is confirmed by the policies informing the adequate state ground exception to habeas corpus jurisdiction. The purpose of that exception is to accord appropriate respect to the sovereignty of the States in our federal system. Wainwright v. Sykes, supra, 433 U.S., at 88, 97 S.Ct., at 2507. But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim. FN13
FN13. Moreover, looking beyond its position as an adversary in this litigation, it is arguable that the State of New York will benefit from an authoritative resolution of the conflict between its own courts and the federal courts sitting in New York concerning the constitutionality of one of its statutes.
II [4] Headnote Citing References Although 28 U.S.C. 2254 authorizes the federal courts to entertain respondents' claim that they are being held in custody in violation of the Constitution, it is not a grant of power to decide constitutional questions not necessarily subsumed within that claim. Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration. E. g., New York Transit Authority v. Beazer, 440 U.S. 568, 582583, 99 S.Ct. 1355, 1363-1364, 59 L.Ed.2d 587.
[5] Headnote Citing References A party has standing to challenge the constitutionality of *155 a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (and cases cited). A limited exception has been recognized for statutes that broadly prohibit speech protected by the First Amendment. Id., at 611-616, 93 S.Ct., at 2915-2918 . This exception has been justified by the overriding interest in removing illegal deterrents to the exercise of the right of free speech. E. g., Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408; Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. That justification, of course, has no application to a statute that enhances the legal risks associated with riding in vehicles containing dangerous weapons.
In this case, the Court of Appeals undertook the task of deciding the constitutionality of the New York statute on its face. **2224 Its conclusion that the statutory presumption was arbitrary rested entirely on its view of the fairness of applying the presumption in hypothetical situationssituations, indeed, in which it is improbable that a jury would return a conviction,FN14 or that a
prosecution would ever be instituted.*156 FN15156 We must accordingly inquire whether these respondents had standing to advance the arguments that the Court of Appeals considered decisive. An analysis of our prior cases indicates that the answer to this inquiry depends on the type of presumption that is involved in the case.
FN14. Indeed, in this very case the permissive presumptions in 265.15(3) and its companion drug statute, N.Y.Penal Law 220.25(1) (McKinney Supp. 1978), were insufficient to persuade the jury to convict the defendants of possession of the loaded machinegun and heroin in the trunk of the car notwithstanding the supporting testimony that at least two of them had been seen transferring something into the trunk that morning. See n. 3, supra. The hypothetical, even implausible, nature of the situations relied upon by the Court of Appeals is illustrated by the fact that there are no reported cases in which the presumption led to convictions in circumstances even remotely similar to the posited situations. In those occasional cases in which a jury has reached a guilty verdict on the basis of evidence insufficient to justify an inference of possession from presence, the New York appellate courts have not hesitated to reverse. E. g., People v. Scott, 53 App.Div.2d 703, 384 N.Y.S.2d 878 (1976); People v. Garcia, 41 App.Div.2d 560, 340 N.Y.S.2d 35 (1973). In light of the improbable character of the situations hypothesized by the Court of Appeals, its facial analysis would still be unconvincing even were that type of analysis appropriate. This Court has never required that a presumption be accurate in every imaginable case. See Leary v. United States, 395 U.S., at 53, 89 S.Ct., at 1557.
FN15. See n. 4, supra, and accompanying text. Thus, the assumption that it would be unconstitutional to apply the statutory presumption to a hitchhiker in a car containing a concealed weapon does not necessarily advance the constitutional claim of the driver of a car in which a gun was found on the front seat, or of other defendants in entirely different situations.
[6] Headnote Citing References Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime-that is, an ultimate or elemental fact-from the existence of one or more evidentiary or basic facts. E. g., Barnes v. United States, 412 U.S. 837, 843-844, 93 S.Ct. 2357, 2361-2362, 37 L.Ed.2d 380; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed.2d 1519; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 137, 55 L.Ed. 78. The value of these evidentiary devices, and their validity under the Due Process
Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368; Mullaney v. Wilbur, 421 U.S., at 702-703 n. 31, 95 S.Ct., at 1891-1892 n. 31.
[7] Headnote Citing References *157 The most common evidentiary device is the entirely permissive inference or presumption, which allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e. g., Barnes v. United States, supra, 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e. g., Turner v. United States, 396 U.S. 398, 402 n. 2, 90 S.Ct. 642, 645, n. 2, 24 L.Ed.2d 610. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. E. g., Barnes v. United States, supra, 412 U.S., at 845, 93 S.Ct., at 2362; Turner v. United States, supra, 396 U.S., at 419-424, 90 S.Ct., at 653-656. See also **2225 United States v. Gainey, 380 U.S. 63, 67-68, 69-70, 85 S.Ct. 754, 757-758, 758-759, 13 L.Ed.2d 658. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the beyond a reasonable doubt standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.
[8] Headnote Citing References[9] Headnote Citing References A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the no reasonable doubt burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. E.g., Turner v. United States, supra, at 401-402, and n. 1, 90 S.Ct., at 644-645, and n. 1; Leary v. United States, 395 U.S. 6, 30, 89 S.Ct. 1532, 1545, 23 L.Ed.2d 57; United States v. Romano, 382 U.S. 136, 137, and n. 4, 138, 143, 86 S.Ct. 279, 280, and n. 4, 281, 283, 15 L.Ed.2d 210; Tot v. United States, supra, 319 U.S., at 469, 63 S.Ct., at 1245. FN16 In this **2226 situation, the Court *158 has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. E. g., Turner v. United States, supra, 396 U.S., at 408-418, 90
S.Ct., at 648-653; *159 Leary v. United States, supra, 395 U.S., at 45-52, 89 S.Ct., at 1552-1553; United States v. Romano, supra, 382 U.S., at 140-141, 86 S.Ct., at 281-282; Tot v. United States, 319 U.S., at 468, 63 S.Ct., at 1245. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases. FN17 It is for this reason that the *160 Court has held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction. E. g., Turner v. United States, 396 U.S., at 407, 90 S.Ct., at 647; Leary v. United States, 395 U.S., at 31-32, 89 S.Ct., at 1545-1546; United States v. Romano, 382 U.S., at 138-139, 86 S.Ct., at 280-281.
FN16. This class of more or less mandatory presumptions can be subdivided into two parts: presumptions that merely shift the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution; and presumptions that entirely shift the burden of proof to the defendant. The mandatory presumptions examined by our cases have almost uniformly fit into the former subclass, in that they never totally removed the ultimate burden of proof beyond a reasonable doubt from the prosecution. E. g., Tot v. United States, 319 U.S., at 469, 63 S.Ct., at 1245. See Roviaro v. United States, 353 U.S. 53, 63, 77 S.Ct. 623, 629, 1 L.Ed.2d 639, describing the operation of the presumption involved in Turner, Leary, and Romano. To the extent that a presumption imposes an extremely low burden of production- e. g., being satisfied by any evidence-it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such. See generally Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892 n. 31, 44 L.Ed.2d 508. In deciding what type of inference or presumption is involved in a case, the jury instructions will generally be controlling, although their interpretation may require recourse to the statute involved and the cases decided under it. Turner v. United States, provides a useful illustration of the different types of presumptions. It analyzes the constitutionality of two different presumption statutes (one mandatory and one permissive) as they apply to the basic fact of possession of both heroin and cocaine, and the presumed facts of importation and distribution of narcotic drugs. The jury was charged essentially in the terms of the two statutes. The importance of focusing attention on the precise presentation of the presumption to the jury and the scope of that presumption is illustrated by a comparison of United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, with United States v. Romano. Both cases involved statutory presumptions based on proof that the defendant was present at the site of an illegal still. In Gainey the Court sustained a conviction for carrying on the business of the distillery in violation of 26 U.S.C. 5601(a)(4), whereas in Romano, the Court set aside a conviction for being in possession, or custody, or . . . control of such a distillery in violation of 5601(a)(1). The difference in outcome was attributable to two important differences between the cases.
Because the statute involved in Gainey was a sweeping prohibition of almost any activity associated with the still, whereas the Romano statute involved only one narrow aspect of the total undertaking, there was a much higher probability that mere presence could support an inference of guilt in the former case than in the latter. Of perhaps greater importance, however, was the difference between the trial judge's instructions to the jury in the two cases. In Gainey, the judge had explained that the presumption was permissive; it did not require the jury to convict the defendant even if it was convinced that he was present at the site. On the contrary, the instructions made it clear that presence was only a circumstance to be considered along with all the other circumstances in the case. As we emphasized, the jury was thus specifically told that the statutory inference was not conclusive. 380 U.S., at 69-70, 85 S.Ct., at 758-759. In Romano, the trial judge told the jury that the defendant's presence at the still shall be deemed sufficient evidence to authorize conviction. 382 U.S., at 138, 86 S.Ct., at 281. Although there was other evidence of guilt, that instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence at the site. This Court's holding that the statutory presumption could not support the Romano conviction was thus dependent, in part, on the specific instructions given by the trial judge. Under those instructions it was necessary to decide whether, regardless of the specific circumstances of the particular case, the statutory presumption adequately supported the guilty verdict.
FN17. In addition to the discussion of Romano in n. 16, supra, this point is illustrated by Leary v. United States. In that case, Dr. Timothy Leary, a professor at Harvard University, was stopped by customs inspectors in Laredo, Tex., as he was returning from the Mexican side of the international border. Marihuana seeds and a silver snuffbox filled with semirefined marihuana and three partially smoked marihuana cigarettes were discovered in his car. He was convicted of having knowingly transported marihuana which he knew had been illegally imported into this country in violation of 21 U.S.C. 176a (1964 ed.). That statute included a mandatory presumption: possession shall be deemed sufficient evidence to authorize conviction [for importation] unless the defendant explains his possession to the satisfaction of the jury. Leary admitted possession of the marihuana and claimed that he had carried it from New York to Mexico and then back. Mr. Justice Harlan for the Court noted that under one theory of the case, the jury could have found direct proof of all of the necessary elements of the offense without recourse to the presumption. But he deemed that insufficient reason to affirm the conviction because under another theory the jury might have found knowledge of importation on the basis of either direct evidence or the presumption, and there was accordingly no certainty that the jury had not relied on the presumption. 395 U.S., at 31-32, 89 S.Ct., at 1545-1546. The Court therefore found it necessary to test the presumption against the Due Process Clause. Its analysis was facial. Despite the fact that the defendant was well educated and had recently traveled to a country that is a major exporter of marihuana to this country, the Court found the presumption of
knowledge of importation from possession irrational. It did so, not because Dr. Leary was unlikely to know the source of the marihuana, but instead because a majority of possessors were unlikely to have such knowledge. Id., at 53, 89 S.Ct., at 1557. Because the jury had been instructed to rely on the presumption even if it did not believe the Government's direct evidence of knowledge of importation (unless, of course, the defendant met his burden of satisfying the jury to the contrary), the Court reversed the conviction.
[10] Headnote Citing References Without determining whether the presumption in this case was mandatory,FN18 the Court of Appeals analyzed it on its face as if it were. In fact, it was not, as the New York Court of Appeals had earlier pointed out. 40 N.Y.2d, at 510-511, 387 N.Y.S.2d, at 100, 354 N.E.2d, at 840.
FN18. Indeed, the court never even discussed the jury instructions.
The trial judge's instructions make it clear that the presumption was merely a part of the prosecution's case,FN19 that *161 it gave **2227 rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal. FN20 The judge explained that possession could be actual or constructive, but that constructive possession could not exist without the intent and ability to exercise control or dominion over the weapons.FN21 He also carefully instructed the jury that *162 there is a mandatory presumption of innocence in favor of the defendants that controls unless it, as the exclusive trier of fact, is satisfied beyond a reasonable doubt that the defendants possessed the handguns in the manner described by the judge. FN22 In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.FN23
FN19. It is your duty to consider all the testimony in this case, to weigh it carefully and to test the credit to be given to a witness by his apparent intention to speak the truth and by the accuracy of his memory to reconcile, if possible, conflicting statements as to material facts and in such ways to try and get at the truth and to reach a verdict upon the evidence. Tr. 739-
740.To establish the unlawful possession of the weapons, again the People relied upon the presumption and, in addition thereto, the testimony of Anderson and Lemmons who testified in their case in chief. Id., at 744. Accordingly, you would be warranted in returning a verdict of guilt against the defendants or defendant if you find the defendants or defendant was in possession of a machine gun and the other weapons and that the fact of possession was proven to you by the People beyond a reasonable doubt, and an element of such proof is the reasonable presumption of illegal possession of a machine gun or the presumption of illegal possession of firearms, as I have just before explained to you. Id., at 746.
FN20. Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced. Id., at 743.The presumption or presumptions which I discussed with the jury relative to the drugs or weapons in this case need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case. Id., at 760.
FN21. As so defined, possession means actual physical possession, just as having the drugs or weapons in one's hand, in one's home or other place under one's exclusive control, or constructive possession which may exist without personal dominion over the drugs or weapons but with the intent and ability to retain such control or dominion. Id., at 742.
FN22. [Y]ou are the exclusive judges of all the questions of fact in this case. That means that you are the sole judges as to the weight to be given to the evidence and to the weight and probative value to be given to the testimony of each particular witness and to the credibility of any witness. Id., at 730. Under our law, every defendant in a criminal trial starts the trial with the presumption in his favor that he is innocent, and this presumption follows him throughout the entire trial and remains with him until such time as you, by your verdict, find him or her guilty
beyond a reasonable doubt or innocent of the charge. If you find him or her not guilty, then, of course, this presumption ripens into an established fact. On the other hand, if you find him or her guilty, then this presumption has been overcome and is destroyed. Id., at 734. Now, in order to find any of the defendants guilty of the unlawful possession of the weapons, the machine gun, the .45 and the .38, you must be satisfied beyond a reasonable doubt that the defendants possessed the machine gun and the .45 and the .38, possessed it as I defined it to you before. Id., at 745.
FN23. The verdict announced by the jury clearly indicates that it understood its duty to evaluate the presumption independently and to reject it if it was not supported in the record. Despite receiving almost identical instructions on the applicability of the presumption of possession to the contraband found in the front seat and in the trunk, the jury convicted all four defendants of possession of the former but acquitted all of them of possession of the latter. See n. 14, supra.
Our cases considering the validity of permissive statutory presumptions such as the one involved here have rested on *163 an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute on its face. It was error for the Court of Appeals to make such a determination in this case.
**2228 III [11] Headnote Citing References As applied to the facts of this case, the presumption of possession is entirely rational. Notwithstanding the Court of Appeals' analysis, respondents were not hitchhikers or other casual passengers, and the guns were neither a few inches in length nor out of [respondents'] sight. See n. 4, supra, and accompanying text. The argument against possession by any of the respondents was predicated solely on the fact that the guns were in Jane Doe's pocketbook. But several circumstances-which, not surprisingly, her counsel repeatedly emphasized in his questions and his argument, e. g., Tr. 282-283, 294-297, 306-made it highly improbable that she was the sole custodian of those weapons.
Even if it was reasonable to conclude that she had placed the guns in her purse before the car was stopped by police, the facts strongly suggest that Jane Doe was not the only person able to
exercise dominion over them. The two guns were too large to be concealed in her handbag.FN24 The bag was consequently open, and part of one of the guns was in plain view, within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat.FN25
FN24. Jane Doe's counsel referred to the .45-caliber automatic pistol as a cannon. Tr. 306.
FN25. The evidence would have allowed the jury to conclude either that the handbag was on the front floor or front seat.
Moreover, it is highly improbable that the loaded guns belonged to Jane Doe or that she was solely responsible for their being in her purse. As a 16-year-old girl in the company of three adult men she was the least likely of the four *164 to be carrying one, let alone two, heavy handguns. It is far more probable that she relied on the pocketknife found in her brassiere for any necessary self-protection. Under these circumstances, it was not unreasonable for her counsel to argue and for the jury to infer that when the car was halted for speeding, the other passengers in the car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. The inference is surely more likely than the notion that these weapons were the sole property of the 16-year-old girl.
Under these circumstances, the jury would have been entirely reasonable in rejecting the suggestion-which, incidentally, defense counsel did not even advance in their closing arguments to the jury FN26-that the handguns were in the sole possession of Jane Doe. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over *165 the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S., at 467, 63 S.Ct., at 1244, and restated in Leary v. United States, supra, 395 U.S., at 36, 89 S.Ct., at 1548. For there is a rational connection between the basic facts that the prosecution **2229 proved and the ultimate fact presumed, and the latter is more likely than not to flow from the former. FN27
FN26. Indeed, counsel for two of the respondents virtually invited the jury to find to the contrary: One more thing. You know, different people live in different cultures and different societies. You may think that the way [respondent] Hardrick has his hair done up is unusual; it may seem strange to you. People live differently. . . . For example, if you were living under their times and conditions and you traveled from a big city, Detroit, to a bigger city, New York City, it is not unusual for people to carry guns, small arms to protect themselves, is it? There are places in New York City policemen fear to go. But you have got to understand; you are sitting here as jurors. These are people, live flesh and blood, the same as you, different motives, different objectives. Id., at 653-654 (emphasis added). See also id., at 634. It is also important in this regard that respondents passed up the opportunity to have the jury instructed not to apply the presumption if it determined that the handguns were upon the person of Jane Doe.
FN27. The New York Court of Appeals first upheld the constitutionality of the presumption involved in this case in People v. Russo, 303 N.Y. 673, 102 N.E.2d 834 (1951). That decision relied upon the earlier case of People v. Terra, 303 N.Y. 332, 102 N.E.2d 576 (1951), which upheld the constitutionality of another New York statute that allowed a jury to presume that the occupants of a room in which a firearm was located possessed the weapon. The analysis in Terra, which this Court dismissed for want of a substantial federal question, 342 U.S. 938, 72 S.Ct. 561, 96 L.Ed. 698, is persuasive:[T]here can be no doubt about the sinister significance of proof of a machine gun in a room occupied by an accused or about the reasonableness of the connection between its illegal possession and occupancy of the room where it is kept. Persons who occupy a room, who either reside in it or use it in the conduct and operation of a business or other ventureand that is what in its present context the statutory term occupying signifies . . .-normally know what is in it; and, certainly, when the object is as large and uncommon as a machine gun, it is neither unreasonable nor unfair to presume that the room's occupants are aware of its presence. That being so, the legislature may not be considered arbitrary if it acts upon the presumption and erects it into evidence of a possession that is conscious' and knowing. 303 N.Y., at 335-336, 102 N.E.2d, at 578-579. See also Interim Report of Temporary State Commission to Evaluate the Drug Laws, N.Y.Leg.Doc.No. 10, p. 69 (1972), in which the drafters of the analogous automobile/narcotics presumption in N.Y. Penal Law 220.25 (McKinney Supp. 1978), explained the basis for that presumption: We believe, and find, that it is rational and logical to presume that all occupants of a vehicle are aware of, and culpably involved in, possession of dangerous drugs found abandoned or secreted in a vehicle when the quantity of the drug is such that it would be extremely unlikely for an occupant to be unaware of its presence. . . . We do not believe that persons transporting dealership quantities of contraband are likely to go driving about with innocent friends or that they are likely to pick up strangers. We do not doubt that this
can and does in fact occasionally happen, but because we find it more reasonable to believe that the bare presence in the vehicle is culpable, we think it reasonable to presume culpability in the direction which the proven facts already point. Since the presumption is an evidentiary one, it may be offset by any evidence, including the testimony of the defendant, which would negate the defendant's culpable involvement. Legislative judgments such as this one deserve respect in assessing the constitutionality of evidentiary presumptions. E. g., Leary v. United States, 395 U.S., at 39, 89 S.Ct., at 1549; United States v. Gainey, 380 U.S., at 67, 85 S.Ct., at 757.
*166 Respondents argue, however, that the validity of the New York presumption must be judged by a reasonable doubt test rather than the more likely than not standard employed in Leary.FN28 Under the more stringent test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference is sufficient for a rational jury to find the inferred fact beyond a reasonable doubt. See Barnes v. United States, 412 U.S., at 842843, 93 S.Ct., at 2361-2362. Respondents' argument again overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.FN29
FN28. The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as irrational or arbitrary, and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. 395 U.S., at 36, 89 S.Ct., at 1548.
FN29. The dissenting argument rests on the assumption that the jury [may have] rejected all of the prosecution's evidence concerning the location and origin of the guns. Post, at 2234. Even if that assumption were plausible, the jury was plainly told that it was free to disregard the presumption. But the dissent's assumption is not plausible; for if the jury rejected the testimony describing where the guns were found, it would necessarily also have rejected the only evidence in the record proving that the guns were found in the car. The conclusion that the jury attached significance to the particular location of the handguns follows inexorably from the acquittal on the charge of possession of the machinegun and heroin in the trunk.
[12] Headnote Citing References *167 In the latter situation, since the prosecution bears the burden of establishing **2230 guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.
The permissive presumption, as used in this case, satisfied the Leary test. And, as already noted, the New York Court of Appeals has concluded that the record as a whole was sufficient to establish guilt beyond a reasonable doubt.
The judgment is reversed.
So ordered.
Mr. CHIEF JUSTICE BURGER, concurring.
I join fully in the Court's opinion reversing the judgment under review. In the necessarily detailed step-by-step analysis of the legal issues, the central and controlling facts of a case often can become lost. The underbrush of finely tuned legal analysis of complex issues tends to bury the facts.
On this record, the jury could readily have reached the same result without benefit of the challenged statutory presumption; here it reached what was rather obviously a compromise verdict. Even without relying on evidence that two people had been seen placing something in the car trunk shortly before respondents occupied it, and that a machinegun and a package of heroin were soon after found in that trunk, the jury apparently decided that it was enough to hold the passengers to knowledge of the two handguns which were in *168 such plain view that the
officer could see them from outside the car. Reasonable jurors could reasonably find that what the officer could see from outside, the passengers within the car could hardly miss seeing. Courts have long held that in the practical business of deciding cases the factfinders, not unlike negotiators, are permitted the luxury of verdicts reached by compromise.
Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court's conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual's mere presence in an automobile where there is a handgun does not even make it more likely than not that the individual possesses the weapon.
I In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved.FN1 See, e. g., Barnes v. United States, 412 U.S. 837, 840 n. 3, 93 S.Ct. 2357, 2360 n. 3, 37 L.Ed.2d 380 (1973); United States v. Romano, 382 U.S. 136, 138, 86 S.Ct. 279, 280, 15 L.Ed.2d 210 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors' thinking in considering the evidence laid before them. *169 Once in the juryroom, jurors necessarily **2231 draw inferences from the evidenceboth direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.
FN1. Such encouragement can be provided either by statutory presumptions, see, e. g., 18 U.S.C. 1201(b), or by presumptions created in the common law. See, e. g., Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Unless otherwise specified, presumption will be used herein to permissible inferences, as well as to true presumptions. See F. James, Civil Procedure 7.9 (1965).
Legitimate guidance of a jury's deliberations is an indispensible part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils
for defendants' constitutional rights. The Court accurately identifies the first of these as being the danger of interference with the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. Ante, at 2224. If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred.FN2
FN2. The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. Ante, at 2229. As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them. It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here.
But I do not agree with the Court's conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion, see ante, at 2224, n. 16; instead, they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution's evidence, see Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed.2d 1519 (1943), or merely have been suggestions to the *170 jury that it would be sensible to draw certain conclusions on the basis of the evidence presented.FN3 See Barnes v. United States, supra, 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based-not on the constitutional requirement that the State be put to its proof-but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society.
FN3. The Court suggests as the touchstone for its analysis a distinction between mandatory and permissive presumptions. See ante, at 2224-2225. For general discussions of the various forms of presumptions, see Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979); F. James, Civil Procedure 7.9 (1965). I have found no recognition in the Court's prior decisions that this distinction is important in analyzing presumptions used in criminal cases. Cf. ibid. (distinguishing true presumptions from
permissible inferences).
This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of 2(f) of the Federal Firearms Act. That statute provided in part that possession of a firearm or ammunition by any . . . person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce]. As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, if reason and experience support the inference, **2232 319 U.S., at 467, 63 S.Ct., at 1244, the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they *171 may be based upon a view of relation broader than that a jury might take in a specific case, id., at 468, 63 S.Ct., at 1245. To provide due process, however, there must be at least a rational connection between the fact proved and the ultimate fact presumed-a connection grounded in common experience. Id., at 467-468, 63 S.Ct., at 1245. In Tot, the Court found that connection to be lacking. FN4
FN4. The analysis of Tot v. United States, was used by the Court in United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), and United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).
Subsequently, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury. After reviewing the Court's decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded that a criminal statutory presumption must be regarded as irrational or arbitrary, and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. 395 U.S., at 36, 89 S.Ct., at 1548 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely
than not to know that it was imported illegally.FN5
FN5. Because the statute in Leary v. United States was found to be unconstitutional under the more likely than not standard, the Court explicitly declined to consider whether criminal presumptions also must follow beyond a reasonable doubt from their premises, if an essential element of the crime depends upon the presumption's use. 395 U.S., at 36 n. 64, 89 S.Ct., at 1548 n. 64. See n. 2, supra. The Court similarly avoided this question in Turner v. United States, 396 U.S. 398, 416, 90 S.Ct. 642, 652, 24 L.Ed.2d 610 (1970).
*172 Most recently, in Barnes v. United States, we considered the constitutionality of a quite different sort of presumption-one that suggested to the jury that [p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference . . . that the person in possession knew the property had been stolen. 412 U.S., at 840 n. 3, 93 S.Ct., at 2360 n. 3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being clearly sufficient to enable the jury to find beyond a reasonable doubt that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845, 93 S.Ct., at 2363.
In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof.FN6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections**2233 of what history, common sense, and experience tell us about the relations between events in our society. Generally, this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.
FN6. The Court apparently disagrees, contending that the factfinder's responsibility . . . to find the ultimate facts beyond a reasonable doubt is the only constitutional restraint upon the use of criminal presumptions at trial. See ante, at 2224.
*173 II In the present case, the jury was told:
Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.
Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile upon proof of the presence of the machine gun and the hand weapon and proof that respondents occupied the automobile at the time such instruments were found. I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not more likely than not the possessors of those weapons.
Under New York law, to possess is to have physical possession or otherwise to exercise dominion or control over tangible property. N.Y.Penal Law 10.00(8) (McKinney 1975). Plainly, the mere presence of an individual in an automobile-without more-does not indicate that he exercises dominion or control over everything within it. As the *174 Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile.
In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that [p]resence is relevant and admissible evidence in a trial on a
possession charge; but absent some showing of the defendant's function at the [illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt-the inference of the one from proof of the other is arbitrary . . .. Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed.2d 1519. United States v. Romano, 382 U.S., at 141, 86 S.Ct., at 282. We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society, I cannot say that the presumption charged is more likely than not to be true. Accordingly, respondents' due process rights were violated by the presumption's use.
**2234 As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts proved by the prosecution *175 as well. The Court suggests that this is the proper approach when reviewing what it calls permissive presumptions because the jury was urged to consider all the circumstances tending to support or contradict the inference. Ante, at 2227.
It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence in the automobile.FN7 Ante, at 2225 n. 16. The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the permissive presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored.
FN7. In commending the presumption to the jury, the court gave no instruction that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe's handbag, ante, at 2227-2228; that the guns accordingly were in the plain view of respondents, ibid.; that the weapons were within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat, ibid.; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse, ibid.; or that the case was tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the
three other occupants of the automobile. Ante, at 2228.
I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence *176 concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile.FN8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case. See Bollenbach v. United States, 326 U.S. 607, 613, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946); cf. Leary v. United States, 395 U.S., at 31, 89 S.Ct., at 1545.
FN8. The Court is therefore mistaken in its conclusion that, because respondents were not hitchhikers or other casual passengers, and the guns were neither a few inches in length nor out of [respondents'] sight, reference to these possibilities is inappropriate in considering the constitutionality of the presumption as charged in this case. Ante, at 2227. To be sure, respondents' challenge is to the presumption as charged to the jury in this case. But in assessing its application here, we are not free, as the Court apparently believes, to disregard the possibility that the jury may have disbelieved all other evidence supporting an inference of possession. The jury may have concluded that respondents-like hitchhikers-had only an incidental relationship to the auto in which they were traveling, or that, contrary to some of the testimony at trial, the weapons were indeed out of respondents' sight.
The Court's novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court's analysis, whenever it is determined that an inference is permissive, the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in **2235 this manner. Quite the contrary, the Court has required that the evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact . . .. Barnes v. United States, 412 U.S., at 843, 93 S.Ct., at 2362 (emphasis supplied). See Turner v. United States, 396 U.S. 398, 407, 90 S.Ct. 642, 647, 24 L.Ed.2d 610 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents-an inference that is plainly irrational.
*177 In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference-no matter how irrational in itself-provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court-applying an unarticulated harmless-error standard-simply finds that the respondents were guilty as charged. They may well have been but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant's right to a fair trial. Accordingly, I dissent.
U.S.N.Y.,1979. County Court of Ulster County, New York v. Allen 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777
1979 WL 199599 (Appellate Brief) Reply Brief (Feb. 17, 1979) 1979 WL 213658 (Appellate Brief) Reply Brief (Feb. 17, 1979) 1978 WL 207034 (Appellate Brief) Brief for Respondents (Dec. 30, 1978) 1978 WL 223668 (Appellate Brief) Brief for Respondents (Dec. 30, 1978) 1978 WL 207033 (Appellate Brief) Brief for Petitioners (Nov. 30, 1978) 1978 WL 207030 (Appellate Brief) Brief for Respondents (Jul. 06, 1978) END OF DOCUMENT
Supreme Court of the United States David SANDSTROM, Petitioner, v. State of MONTANA.
No. 78-5384. Argued April 18, 1979. Decided June 18, 1979.
Defendant was convicted in the Third District Court, Deer Lodge County, of deliberate homicide, and he appealed. The Montana Supreme Court, 176 Mont. 492, 580 P.2d 106, affirmed, and certiorari was granted. The Supreme Court, Mr. Justice Brennan, held that because the jury, which was instructed that the law presumes a person intends the ordinary consequences of his voluntary acts, may have interpreted the presumption as conclusive or as shifting the burden of persuasion, 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 given was unconstitutional.
Reversed and remanded.
Mr. Justice Rehnquist, with whom Mr. Chief Justice Burger joined, filed a concurring opinion.
West Headnotes
Key Number Symbol110 Criminal Law Key Number Symbol110XX Trial Key Number Symbol110XX(G) Instructions: Necessity, Requisites, and Sufficiency Key Number Symbol110k778 Presumptions and Burden of Proof Key Number Symbol110k778(2) k. Sufficiency in General. Most Cited Cases
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.
Key Number Symbol110 Criminal Law Key Number Symbol110XX Trial Key Number Symbol110XX(G) Instructions: Necessity, Requisites, and Sufficiency Key Number Symbol110k778 Presumptions and Burden of Proof Key Number Symbol110k778(6) k. Intent and Motive. Most Cited Cases
A reasonable juror could easily have viewed as mandatory the trial court's instruction that the law presumes a person intends the ordinary consequences of his voluntary acts, notwithstanding state's argument that the instruction merely described a permissive inference, i. e., allowed but did not require the jury to draw conclusions about defendant's intent from his actions. Rules of Evidence, rule 301(a).
Key Number Symbol170B Federal Courts Key Number Symbol170BVI State Laws as Rules of Decision
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Key Number Symbol170B Federal Courts Headnote Citing References KeyCite Citing References for this Headnote Key Number Symbol170BVI State Laws as Rules of Decision Key Number Symbol170BVI(C) Application to Particular Matters Key Number Symbol170Bk433 k. Other Particular Matters. Most Cited Cases
Supreme Court of Montana is 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 which a jury could have given a Montana trial court's instruction.
Key Number Symbol110 Criminal Law Key Number Symbol110XVII Evidence Key Number Symbol110XVII(B) Presumptions and Inferences Key Number Symbol110k305 Presumptions Key Number Symbol110k324 k. Operation and Effect. Most Cited Cases
Conclusive presumptions conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, and they invade the fact-finding function which in a criminal case the law assigns to the jury.
Upon finding proof of one element of the crime of deliberate homicide (causing death) and of facts insufficient to establish the second, the voluntariness and ordinary consequences of defendant's action, the jurors could reasonably have concluded, in light of the instruction that a person intends the ordinary consequences of his voluntary acts, 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, and defendant was deprived of his constitutional rights. U.S.C.A.Const. Amend. 14; M.C.A.45-5-102.
Key Number Symbol110 Criminal Law Key Number Symbol110XX Trial Key Number Symbol110XX(G) Instructions: Necessity, Requisites, and Sufficiency Key Number Symbol110k778 Presumptions and Burden of Proof Key Number Symbol110k778(5) k. Shifting Burden of Proof. Most Cited Cases
If, in respect to instruction that the law presumes a person intends the ordinary consequences of his voluntary acts, the jury interpreted the presumption as having the effect of shifting the burden of persuasion to the defendant, it could have concluded, in violation of defendant's constitutional rights, that upon proof by the state of the homicide by defendant, and of additional facts not themselves establishing the element of intent, the burden was then shifted to defendant to prove that he lacked the requisite mental state to commit deliberate homicide. U.S.C.A.Const. Amend. 14; M.C.A.45-5-102.
Key Number Symbol92 Constitutional Law Key Number Symbol92XXVII Due Process Key Number Symbol92XXVII(H) Criminal Law Key Number Symbol92XXVII(H)4 Proceedings and Trial Key Number Symbol92k4635 Instructions Key Number Symbol92k4638 k. Presumptions, Inferences, and Burden of Proof. Most Cited Cases (Formerly 92k268(11))
Because the jury, which, in prosecution for deliberate homicide, was instructed that the law presumes a person intends the ordinary consequences of his voluntary acts, might have interpreted the presumption as conclusive or as shifting the burden of persuasion, 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 was unconstitutional. U.S.C.A.Const. Amend. 14; M.C.A.45-5-102.
While the state, in respect to jury instruction that the law presumes a person intends the ordinary consequences of his voluntary acts, argued that the jury might not have relied upon the tainted
presumption at all since it could have interpreted the word intends as referring only to defendant's purpose and could have convicted him of deliberate homicide solely for his knowledge without considering purpose, it was unclear that a jury would interpret the word intends as bearing solely upon purpose, and, more significantly, even if the jury could have ignored the presumption and found defendant guilty because he acted knowingly, it was uncertain that this was what the jury did do, as its verdict was a general one.
Key Number Symbol170B Federal Courts Key Number Symbol170BVII Supreme Court Key Number Symbol170BVII(E) Review of Decisions of State Courts Key Number Symbol170Bk511 Scope and Extent of Review Key Number Symbol170Bk511.1 k. In General. Most Cited Cases (Formerly 170Bk511)
Since whether the jury's reliance upon an unconstitutional instruction, that the law presumes a person intends the ordinary consequences of his voluntary acts, constituted, or could have ever constituted, harmless error were issues not considered by the Montana Supreme Court, the United States Supreme Court would not reach them as an initial matter. U.S.C.A.Const. Amend. 14.
**2451 Syllabus FN*
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
*510 Based upon a confession and other evidence, petitioner was charged under a Montana**2452 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, 72 S.Ct. 240, 96 L.Ed. 288, and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854, or as shifting the burden of persuasion, like that in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, 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. 2454-2460 .
(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. 2454-2455, 2456.
(b) Conclusive presumptions conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, Morissette, supra, at 275, 72 S.Ct. at 255, and they invad[e the] factfinding function, United States Gypsum Co., supra, at 446, 98 S.Ct. at 2878, which in a criminal case the law assigns to the jury. The presumption announced to petitioner's jury may well have had exactly *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, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, and petitioner was deprived of his
constitutional rights. Pp.
2458-2459
(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. Pp. 2459-2460 .
(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,**2453 it cannot be certain that this is what it did do, as its verdict was a general one. Pp. 24592460 .
(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. 2460-2461 .
176 Mont. 492, 580 P.2d 106, reversed and remanded.
Byron W. Boggs, Helena, Mont., for petitioner.
Michael T. Greely, Atty. Gen., Helena, Mont., for respondent.
*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. 45-5-102 (1978), in that he purposely or knowingly caused the death of Annie Jessen. App. 3.FN1 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 68. 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. FN2
FN1. 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 . . . .
FN2. 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.
*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, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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 **2454 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (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 *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.FN3 We granted certiorari, 439 U.S. 1067, 99 S.Ct. 832, 59 L.Ed.2d 31 (1979), to decide the important question of the instruction's constitutionality. We reverse.
FN3. 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, 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.
II [1] Headnote Citing References 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, 442 U.S. 140, 157-163, 99 S.Ct. 2213, 2224-2227, 60 L.Ed.2d 777 (1979). That determination requires careful attention to the words actually spoken to the jury, see id., at 157-159, n. 16, 99 S.Ct., at 2225, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.
[2] Headnote Citing References 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 *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. 293, 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).FN4
FN4. 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.)
In the alternative, respondent urges that, even if viewed as a mandatory presumption rather than as a permissive inference, the **2455 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 *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.FN5
FN5. 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, 72 n. 7, 91 S.Ct. 1294, 1299, 28 L.Ed.2d 601 (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, 572-573, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977); Carpenters v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947); Mims v. United States, 375 F.2d 135, 148 (CA5 1967).
[3] Headnote Citing References 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*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 **2456 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); *518 State v. War britton, 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).FN6 Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the issue of intent.FN7
FN6. 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.
FN7. 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, 703 n. 31, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (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).
*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**2457 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.FN8 Ulster County Court v. Allen, 442 U.S., at 159-160, n. 17, 99 S.Ct., at 2226, and at 175-176, 99 S.Ct., at 2234 (POWELL, J., dissenting); Bachellar v. Maryland, 397 U.S. 564, 570-571, 90 S.Ct. 1312, 1315-1316, 25 L.Ed.2d 570 (1970); Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532, 1545-1546, 23 L.Ed.2d 57 (1969); Carpenters v. United States, 330 U.S. 395, 408-409, 67 S.Ct. 775, 782, 91 L.Ed. 973 (1947); Bollenbach v. United States, 326 U.S. 607, 611-614, 66 S.Ct. 402, 404-405, 90 L.Ed. 350 (1946). It is the line of cases urged by petitioner, and exemplified by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that provides the appropriate mode of constitutional analysis for these kinds of presumptions.FN9
FN8. 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.
FN9. Another line of our cases also deals with the validity of certain kinds of presumptions. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). These cases did not, however, involve presumptions of the conclusive or persuasion-shifting variety. See Ulster County Court v. Allen, 442 U.S., at 157, and n. 16, 99 S.Ct., at 2224-2225, and n. 16; and at 169, 99 S.Ct., at 2231 (POWELL, J., dissenting); Mullaney v. Wilbur, supra, 421 U.S., at 703 n. 31, 95 S.Ct., at 1892 (1975); Leary v. United States, supra, 395 U.S., at 35, 89 S.Ct., at 1547; Roviaro v. United States, supra, 353 U.S., at 63, 77 S.Ct., at 629; 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, 50, 17 S.Ct 235, 240, 41 L.Ed. 624 (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, 45, 74 S.Ct. 323, 338, 98 L.Ed. 455 (1954); Cramer v.
United States, 325 U.S. 1, 31, 65 S.Ct. 918, 933, 89 L.Ed. 1441 (1945). See also Reynolds v. United States, 98 U.S. 145, 167, 25 L.Ed. 244 (1879) (religious objection to polygamy law not a defense).
*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 364, 90 S.Ct. at 1073 (emphasis added).
Accord, Patterson v. New York, 432 U.S., at 210, 97 S.Ct. at 2327. 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.FN10 Indeed, it was *521 the lone **2458 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.FN11 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.
FN10. The statute is set out at n. 1, supra. In State v. McKenzie, 177 Mont. 280, 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).
FN11. 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 Part IV, infra.
[4] Headnote Citing References 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, 72 S.Ct. 240, 96 L.Ed. 288 (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 249, 72 S.Ct. at 243. After first concluding that intent was in fact an element of the crime charged, and after declaring that [w]here intent of the accusedis *522 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 274-275, 72 S.Ct. at 255-256. (Emphasis added; footnote omitted.)
[5] Headnote Citing References Just last Term, in United States v. United States Gypsum Co.,
438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (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 430, 98 S.Ct., at 2869.
*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 . . . .
***
**2459 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 435, 446, 98 S.Ct. at 2872, 2878 (emphasis added).
See also Hickory v. United States, 160 U.S. 408, 422, 16 S.Ct. 327, 332, 40 L.Ed. 474 (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 364, 90 S.Ct. at 1073, and defendant was deprived of his constitutional rights as explicated in Winship.
[6] Headnote Citing References *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, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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 686, 95 S.Ct. at 1883. 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 214, 97 S.Ct. at 2329. 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 215, 97 S.Ct. at 2330.
[7] Headnote Citing References 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.
*525 IV [8] Headnote Citing References 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 **2460 that deliberate homicide may be committed purposely or knowingly. FN12 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.
FN12. The jurors were instructed: INSTRUCTION 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. INSTRUCTION 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.
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 445, 98 S.Ct. at 2877, [t]he element of intent in the criminal law has traditionally*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.FN13 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, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Leary v. United States, 395 U.S., at 31-32, 89 S.Ct. at 1545-1546. See Ulster County Court v. Allen, 442 U.S., at 159-160, n. 17, 99 S.Ct., at 2226, and at 175-176, 99 S.Ct., at 2234 (POWELL, J., dissenting); Bachellar v. Maryland, 397 U.S., at 570-571, 90 S.Ct. at 1315-1316; Brotherhood of Carpenters v. United States, 330 U.S., at 408409, 67 S.Ct. at 782; Bollenbach v. United States, 326 U.S., at 611-614, 66 S.Ct. at 404-405.
FN13. 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.
[9] Headnote Citing References 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, 87 S.Ct. 824, 17 L.Ed.2d 705 (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 *527 Carpenters v. United States, supra, 330 U.S., at 408 -409, 67 S.Ct., at 782; Bollenbach v. United States, supra, 326 U.S., at 614, 615, 66 S.Ct., at 405-406. As **2461 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, 232, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387 (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.
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, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). And surely if this charge had, in the words of the Court, merely described a permissive inference, ante at 2454, 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 2454, 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 2454.
*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.
U.S.Mont.,1979. Sandstrom v. Montana 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39
1979 WL 197571 (Appellate Brief) Brief of Respondent (Mar. 26, 1979) 1979 WL 199750 (Appellate Brief) Brief of Respondent (Mar. 26, 1979) 1979 WL 214034 (Appellate Brief) Brief of Respondent (Mar. 26, 1979) 1979 WL 197570 (Appellate Brief) Brief for Petitioner (Feb. 26, 1979)
1979 WL 199747 (Appellate Brief) Brief for Petitioner (Feb. 26, 1979) 1979 WL 214033 (Appellate Brief) Brief for Petitioner (Feb. 26, 1979) END OF DOCUMENT

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520 F.

No. 75-1034. Argued May 5, 1975. Decided June 30, 1975.

Levin H. Campbell, Circuit Judge, filed concurring opinion.

Peter Mills, U. S. Atty., for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge (concurring).

160 U.S. at 488, 16 S.Ct. at 358 (Emphasis supplied).

C.A.Me. 1975. U. S. v. Dube, 520 F.2d 250

432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281

No. 75-1861. Argued March 1, 1977. Decided June 17, 1977.

**2320 *197 Syllabus FN*

39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898, affirmed.

Victor J. Rubino, New York City, for the appellant.

*198 Mr. Justice WHITE delivered the opinion of the Court.

not a constitutional ruling, however, as Leland v. Oregon, supra, made clear.FN9

been, it is contrary to the Due Process Clause as construed in Winship.

appears in the statute book.

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268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904

Supreme Court of the United States. YEE HEM v. UNITED STATES.

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Key Number Symbol110 Criminal Law Key Number Symbol110XVII Evidence

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Mr. Justice SUTHERLAND delivered the opinion of the Court.

442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777

No. 77-1554. Argued Feb. 22, 1979. Decided June 4, 1979.

Mr. Chief Justice Burger filed a concurring opinion.

Key Number Symbol92 Constitutional Law

**2215 Syllabus FN*

by entertaining the claim. Pp. 2219-2223.

568 F.2d 998, reversed.

Eileen Shapiro, New York City, for petitioners.

Michael A. Young, New York City, for respondents.

Mr. Justice STEVENS delivered the opinion of the Court.

The judgment is reversed.

Mr. CHIEF JUSTICE BURGER, concurring.

than not to know that it was imported illegally.FN5

*173 II In the present case, the jury was told:

three other occupants of the automobile. Ante, at 2228.

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Reversed and remanded.

**2451 Syllabus FN*

constitutional rights. Pp.

176 Mont. 492, 580 P.2d 106, reversed and remanded.

Byron W. Boggs, Helena, Mont., for petitioner.

Michael T. Greely, Atty. Gen., Helena, Mont., for respondent.

*512 Mr. Justice BRENNAN delivered the opinion of the Court.

*520 III In Winship, this Court stated:

U.S.Mont.,1979. Sandstrom v. Montana 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39

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**2320 197 Syllabus FN