JUSTICE REHNQUIST delivered the opinion of the Court.
The issue here is whether the Due Process Clause of the Fourteenth Amendment requires the vacation of respondent's Ohio murder conviction. The United States Court of Appeals for the Sixth Circuit, which granted respondent's petition for a writ of habeas corpus, Lonberger v. Jago, 635 F.2d 1189 (1980), and Lonberger v. Jago, 651 F.2d 447 (1981), held that it did. The Court of Appeals held that respondent's plea of guilty to a previous Illinois felony charge, offered and admitted into evidence at his Ohio murder trial, was invalid under Boykin v. Alabama, 395 U.S. 238 (1969). It went on to hold that the admission into evidence of the Illinois conviction at the Ohio trial rendered respondent's ensuing conviction in that proceeding unconstitutional under this Court's decision in Burgett v. Texas, 389 U.S. 109 (1967). The State claims that the Court of Appeals exceeded its authority, under our holding in Sumner v. Mata, 449 U.S. 539 (1981), in concluding that the prior Illinois conviction was invalid. It also contends that even if the Court of Appeals were warranted in so concluding, the admission of that conviction at the Ohio murder trial did not render the Ohio conviction constitutionally infirm. We granted certiorari to consider, inter alia, the interrelationship between Boykin v. Alabama, supra, and Henderson v. Morgan, 426 U.S. 637 (1976).
There is apparently no dispute with respect to the operative facts which led to respondent's indictment and conviction
The morning after the murder, the victim's children told police that respondent, Robert Lonberger, had been at their home the previous evening. After the children had been sent to their upstairs bedroom, they heard their mother scream. When there was no response to his questions, the older child left his bedroom and went downstairs. The lights were out and when the child attempted to turn them on respondent grabbed his hand; he ordered the child back to bed. A pack of cigarettes of respondent's brand was found in the house and blood-stained articles of clothing were discovered in his possession.
Respondent was indicted by a state grand jury on two counts of "aggravated murder." The first count charged that respondent had murdered Lanier with "prior calculation and design," in violation of Ohio Rev. Code Ann. § 2903.01(A) (1975). The second count charged respondent with murder while committing rape, in violation of Ohio Rev. Code Ann. § 2903.01(B) (1975).
Respondent pleaded not guilty to the charges, and the State sought at trial to prove the specification of prior conviction for attempt to kill by introducing the record of a conviction of respondent in the Circuit Court of Cook County, Ill. It is the introduction of this conviction into evidence in the Ohio murder trial which has been the focus of constitutional objection on the part of respondent since that time, and upon which the Court of Appeals for the Sixth Circuit based its conclusion that respondent's conviction was constitutionally infirm. Because of its central role in this litigation, we find it desirable to describe in some detail the evidence before the Ohio court relating to this prior conviction.
It is fair to say that from the time the State first offered the record of the Illinois conviction until the present time, the opposing parties have never agreed as to the historical facts surrounding the acceptance of respondent's plea of guilty to an indictment returned by a grand jury in the Circuit Court of Cook County, Ill., some three years before he was tried on the Ohio murder charge. The State offered in evidence at the Ohio trial a copy of the grand jury indictment forming the basis for the Illinois charge, a certified copy of an Illinois record called a "conviction statement," and the transcript of a hearing in the Circuit Court of Cook County occurring at the time respondent pleaded guilty.
Before respondent's trial on the aggravated murder charges, the Ohio trial court conducted a hearing in limine to determine whether respondent's guilty plea to the Illinois attempted murder charge was voluntary. The Illinois records were offered, and respondent took the stand and submitted himself to direct and cross-examination primarily as to his recollection of the Illinois proceedings which had taken place three years earlier. At the conclusion of this hearing, the trial court made the following findings:
Evidence of respondent's Illinois conviction was admitted at his Ohio trial, subject to an instruction that it be considered only in connection with the specification, and not as probative of guilt on the underlying murder count. The jury returned a verdict of guilty on the second count of aggravated murder, one including the specification of the prior charge of attempted murder; after a sentencing hearing in accordance with Ohio law, the trial court imposed a sentence of death.
Respondent's appeal to the Ohio Court of Appeals was partially successful; that court found as a matter of state law that the jury's finding that respondent had not only murdered Charita Lanier, but raped her as well, did not satisfy the Ohio rule relating to proof of crime by circumstantial evidence. App. to Pet. for Cert. A-38. It did uphold the jury finding that respondent was guilty of the murder of Lanier, and that the specification based on the prior Illinois conviction was adequately proved. It reversed the judgment imposing a death penalty, and directed imposition of a sentence based solely on the conviction of murder. With respect to the admissibility and evidence of the prior Illinois conviction, the Ohio Court of Appeals said:
It was the record of these proceedings in the Ohio state courts that formed the basis of respondent's application for federal habeas in the United States District Court for the Northern District of Ohio. The District Court denied relief, finding that "from a review of the record, this Court is satisfied that an ordinary person would have understood the nature of the charges to which petitioner was pleading guilty." Id., at A-31. The Court of Appeals for the Sixth Circuit reversed the judgment of the District Court, and ordered that a writ of habeas corpus issue. Lonberger v. Jago, 635 F.2d 1189 (1980). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for reconsideration in the light of Sumner v. Mata, 449 U.S. 539 (1981). Marshall v. Lonberger, 451 U.S. 902 (1981). On remand the Court of Appeals adhered to its previous decision. Lonberger v. Jago, 651 F.2d 447 (1981). We again granted certiorari, 454 U.S. 1141 (1982), and we now reverse the judgment of the Court of Appeals.
The Court of Appeals, referring to its earlier opinion, stated:
We entirely agree with the Court of Appeals for the Sixth Circuit that the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law, Henderson v. Morgan, 426 U.S. 637 (1976); Boykin v. Alabama, 395 U.S. 238 (1969), and not a question of fact subject to the requirements of 28 U. S. C. § 2254(d). But the questions of historical fact which have dogged this case from its inception — what the Illinois records show with respect to respondent's 1972 guilty plea, what other inferences regarding those historical facts the Court of
Section 2254(d) establishes a presumption of correctness for "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia. . . ." One of the eight exceptions to this presumption of correctness, and the one relied upon by the Court of Appeals in this case, is where the federal habeas court, reviewing the state-court record offered to support the factual finding, "on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record." 28 U. S. C. § 2254(d)(8).
In its treatment of the state courts' factual findings, the Court of Appeals failed in at least one major respect to accord those determinations the "high measure of deference," Sumner v. Mata, supra, to which they are entitled. This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court's findings lacked even "fair support" in the record. The Court of Appeals' treatment of the issue of respondent's credibility failed to satisfy this standard. Following a recital of the findings of the Ohio trial court, the Court of Appeals for the Sixth Circuit states that "[n]o explicit findings were made concerning Lonberger's credibility as a witness." 651 F. 2d, at 448. Likewise, the Court of Appeals wrote:
Finally, the Court of Appeals explicitly credited Lonberger's testimony in a footnote rejecting the State's reliance on Henderson v. Morgan, supra. 651 F. 2d, at 450, n. 3.
We are unsure whether the Court of Appeals' reassessment of the effect of respondent's testimony at the Ohio state trial court hearing was undertaken because of the failure of the trial court to make express findings as to respondent's credibility, or whether the Court of Appeals for the Sixth Circuit felt that it should assess for itself the weight that such evidence should have been accorded by the state trial court. In either event, we hold that it erroneously applied the "fairly supported by the record" standard enunciated in 28 U. S. C. § 2254(d).
In LaVallee v. Delle Rose, 410 U.S. 690 (1973), we dealt with a state-court hearing in which the trial judge likewise failed to make express findings as to the defendant's credibility. We held that because it was clear under the applicable federal law that the trial court would have granted the relief sought by the defendant had it believed the defendant's testimony, its failure to grant relief was tantamount to an express finding against the credibility of the defendant. We think the same is true in the present case. The assumption referred to in Townsend v. Sain, 372 U.S. 293, 314-315 (1963), quoted in LaVallee v. Delle Rose, supra, at 694, "that the state trier of fact applied correct standards of federal law to the facts . . ." leads inevitably to a similar conclusion here. Had the Ohio trial court credited respondent's insistence that he had only been advised of or been aware of the battery charge at the time he pleaded guilty in Illinois, the Ohio trial court would have surely refused to allow the record of the Illinois conviction in evidence to prove the specification of
The Court of Appeals' reliance on respondent's testimony, discussed above, and the fact that "the state produced no contrary evidence," are quite wide of the mark for purposes of deciding whether factual findings are fairly supported by the record. Title 28 U. S. C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them. In United States v. Oregon Medical Society, 343 U.S. 326 (1952), commenting on the deference which this Court gave to the findings of a District Court on direct appeal from a judgment in a bench trial, we stated:
We greatly doubt that Congress, when it used the language "fairly supported by the record" considered "as a
Thus, the factual conclusions which the federal habeas courts were bound to respect in assessing respondent's constitutional claims were the contents of the Illinois court records, the finding of the Ohio trial court that respondent was "an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel in Illinois," supra, at 428, and the similar conclusion of the Ohio Court of Appeals, and the inferences fairly deducible from these facts.
It is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Smith v. O'Grady, 312 U.S. 329, 334 (1941), quoted in Henderson v. Morgan, 426 U. S., at 645. In Henderson v. Morgan, we went on to make the following observations:
Applying this standard
I join JUSTICE STEVENS' dissent. I write separately only to emphasize that more is subject to question in the Court's
The bulk of the Court's opinion is devoted not to defending Spencer v. Texas, 385 U.S. 554 (1967), but rather to establishing that this case is not governed on all fours by Burgett v. Texas, 389 U.S. 109 (1967). Burgett held, notwithstanding Spencer, that it was inherently prejudicial to admit an unconstitutional, uncounseled prior conviction against a defendant at a trial on a new offense, regardless of the purpose for which it had been introduced or of any limiting instructions given to the jury. 389 U. S., at 115.
The proceedings below concerned themselves exclusively with the question whether respondent's 1972 conviction for attempted murder in Illinois was the type of conviction which, under Burgett, could not have been admitted against him in the later Ohio trial for any purpose, regardless of the curative instructions or procedural protections Ohio might
Both JUSTICE REHNQUIST's opinion for the Court, ante, at 426-430, and JUSTICE STEVENS' dissent, post, at 457, show why the factual correctness of the Court of Appeals for the Sixth Circuit's conclusion as to notice is a close question. The records of respondent's guilty plea and conviction in Illinois leave the matter in considerable doubt. The formal statement of conviction preserved in Illinois records states only that respondent was found guilty of "AGGRAVATED BATTERY, ETC." App. 5. The transcript of respondent's guilty plea proceedings shows that the trial judge asked him to admit, "that you did on August 25, 1968, commit the offense of aggravated battery on one Dorothy Maxwell, and that you did on the same date attempt on Dorothy Maxwell, with a knife," and he answered, "Yes, sir." Id., at 8. The judge also mentioned the possible sentence for "attempt." Id., at 9. In the absence of more, neither of these records
The Court resolves this tension on the basis of rules of law derived from Sumner v. Mata, 449 U.S. 539 (1981), and on dictum in Henderson v. Morgan, supra. Henderson states that in cases such as this, where the record does not clearly show that the defendant received notice, "it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit." Id., at 647. The Court thus holds:
Under Sumner v. Mata, supra, and 28 U. S. C. § 2254(d) (8), the Court of Appeals for the Sixth Circuit may have been required to accept the inference that respondent was informed of the charges against him, if it was drawn by the Ohio Court of Appeals, as fairly supported by the record.
Testifying at a pretrial hearing in Ohio, respondent claimed that he was told of a plea bargain whereby he would plead guilty only to aggravated battery and be sentenced accordingly. He testified that his Illinois lawyer told him "[t]hat he had talked it over with the State's attorney and that again we would go out and the judge would say a lot of things but it was just for the record's sake and that we was copping out to aggravated battery from two to four, that was the agreement." App. 24; cf. id., at 84-85. It is hard to judge respondent's credibility on a cold record, but this statement is hardly incredible on its face. The State made no effort to impeach it, unlike respondent's claim that he was never told he had been charged with attempted murder, see id., at 27-75, and the Ohio Court of Appeals did not address it, see App. to Pet. for Cert. A-40 — A-42; ante, at 429-430. Apart from the Illinois trial judge's ambiguous reference to "attempt . . . with a knife," nothing at respondent's guilty plea proceeding would have informed him that he was doing more than going forward with the deal that had been proposed to him. He was sentenced to two to four years in prison — two years is the minimum sentence for aggravated battery
More importantly, respondent's understanding that he was pleading guilty only to aggravated battery was perfectly reasonable, despite the judge's mention of "attempt." Since at least 1958, Illinois has had a state statutory and constitutional rule forbidding convictions — not merely punishments — for two offenses based on a single act. See People v. King, 66 Ill.2d 551, 560-566, 363 N.E.2d 838, 842-843 (1977) (discussing development of Illinois law); Illinois Criminal Code of 1961, § 1-7(m) (current version at Ill. Rev. Stat., ch. 38, ¶ 1005-8-4(a) (1979)). This rule has been applied several times to vacate one conviction when a defendant, in a single trial, has been convicted of both aggravated battery and attempted murder resulting from the same act.
Under Illinois law, therefore, respondent could not have been convicted of both "aggravated battery" and "etc." if the "etc." referred to the attempted murder of Dorothy Maxwell. Upon hearing the reference to "attempt . . . with a knife," respondent would have been warranted in thinking that the
The Court of Appeals for the Sixth Circuit held that the transcript of respondent's Illinois guilty plea was inadequate to show that he was aware that he was pleading guilty to attempted murder as well as aggravated battery. The Ohio Court of Appeals reached a different conclusion about the same transcript. But in finding that respondent had made a knowing and intelligent plea, the Ohio court relied completely on the facts that respondent answered "Yes" to the question described above, that he stated that he understood he was waiving his right to trial, and that his lawyers stipulated that there were sufficient facts to prove the charges in the indictment. App. to Pet. for Cert. A-42; see ante, at 429-430. The Court of Appeals for the Sixth Circuit's result is perfectly consistent with Sumner's "presumption of correctness," see 449 U. S., at 550-551, because the Ohio Court of Appeals' findings, read in light of Illinois law or of respondent's unimpeached testimony in the Ohio trial court, fall short of establishing that respondent knew that he was pleading guilty to attempted murder.
This Court now slips a new rationale beneath the flawed determination of the Ohio court. It holds that respondent's guilty plea must have been valid if at some point, under Henderson, it is likely that he learned of all the charges against him.
A simple, but unanswerable question of fact and a simple question of law are central to this case. Did respondent have actual knowledge that he was pleading guilty to attempted murder as well as aggravated battery in 1972? At this point, more than 10 years later and in the face of an ambiguous record, no factfinder could be completely certain that a particular answer is correct. So the crucial question becomes what makes an ambiguous record sufficient to support a state court's finding that a plea was knowing, voluntary, and intelligent. Under Henderson, mere absence of a recitation of all the charges at a guilty plea hearing may not be enough to render a plea unconstitutional, but in this case respondent had good reason to believe he was pleading guilty only to aggravated battery.
By dismissing part of the record, failing to confront the difference between notice of charges and notice of the charges to which one is pleading guilty, and disregarding the law of Illinois, the Court manages to fit this case within a rule of law that permits it to reverse the judgment below. And to what end this Procrustean effort? To uphold the great principle that the unique record before us was not so ambiguous as to forbid an inference that at some point respondent may have known what the charges against him were? To reaffirm that a conviction obtained under such circumstances is not so fundamentally
JUSTICE BLACKMUN, dissenting.
I join JUSTICE STEVENS' dissenting opinion, for I, too, would affirm the judgment of the United States Court of Appeals for the Sixth Circuit. It is enough for me in this case to note the utter absence of a legitimate state interest once the prosecution refused to accept respondent's proffered stipulation. That refusal revealed that the prosecution believed the indictment had prejudicial value, and it rendered nonexistent any otherwise legitimate interest the State might have had in introducing the indictment.
Criminal prosecution involves two determinations: whether the defendant is guilty or innocent, and what the appropriate punishment should be if he is guilty. In most cases, these determinations are made in two stages. At the first stage, strict rules of procedure govern the order in which evidence is offered, the quality of the evidence that may be admitted, and the burden of proof that is required to establish the defendant's guilt. At the second stage, however, the rules are relaxed; a wide range of evidence concerning the defendant's character may be received by the sentencing authority even though it is entirely extraneous to the particular offense that has just been proved.
This case involves the unfairness that may result from an attempt to merge the two stages. At issue is a highly prejudicial item of evidence: an Illinois indictment charging that in 1968 the respondent had "intentionally and knowingly attempted
The Court finds no constitutional objection to this procedure because it is satisfied that the evidence could legitimately be used in determining the appropriate penalty, and because the jury was instructed not to consider the evidence as probative of the respondent's guilt. In my opinion the constitutional question is more difficult than the Court acknowledges. It requires, I believe, a re-examination of this Court's decision in Spencer v. Texas, 385 U.S. 554 (1967), as well as more attention to the prosecutorial tactics disclosed by this record.
The structure for constitutional analysis in this area was established in 1967, when this Court twice considered the constitutionality of convictions under the Texas recidivist statute. Under the Texas procedure, the prosecutor was allowed to offer evidence of the defendant's guilt and evidence of his prior criminal record in a single proceeding, so long as the jury was instructed that the defendant's past convictions were not to be taken into account in assessing his guilt or innocence under the current indictment.
In Spencer v. Texas, a bare majority of the Court concluded that such a procedure did not "fall below the minimum level the Fourteenth Amendment will tolerate." Id., at 569 (Stewart, J., concurring). The Court acknowledged
The majority noted that, under the rule of Delli Paoli v. United States, 352 U.S. 232 (1957), a hearsay statement that was inadmissible against a defendant could nevertheless be introduced into evidence when the defendant was being tried jointly with the declarant, provided that the jury was instructed not to consider the statement in evaluating the defendant's guilt. The Court observed that under Delli Paoli "all joint trials, whether of several codefendants or of one defendant charged with multiple offenses, furnish inherent opportunities for unfairness when evidence submitted as to one crime (on which there may be an acquittal) may influence the jury as to a totally different charge." 385 U. S., at 562. This unfairness was deemed acceptable for two reasons:
The Court conceded that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent "a less cogent state interest" than the state interest promoted by Delli Paoli. 385 U. S., at 563. Nevertheless, it held that this distinction should not lead to a different constitutional result. Ibid.
Two cases decided within 18 months of Spencer called its analytic structure into question. Burgett v. Texas, 389 U.S. 109 (1967), also involved a conviction under the Texas
The opinions in Burgett and Bruton demolished one of the two pillars that had supported the holding in Spencer. After Burgett and Bruton, it was plainly no longer appropriate to presume that a jury will ignore prejudicial evidence presented to it, even if the court tells it to do so. Moreover, given Spencer's suggestion that the State's interest in holding a one-stage sentence enhancement proceeding may be "less cogent" than the state interest promoted in Delli Paoli, the other pillar was shaky at best. The case before the Court today requires us to consider what is left of that other pillar. More concretely, the question before us is whether the unfair prejudice that Ohio imposed on the respondent is justified by any valid state interest in prosecuting him in the manner it chose to employ.
Under Ohio law, a person convicted of murder may not be sentenced to death unless (a) the murder was "aggravated," Ohio Rev. Code Ann. § 2929.03 (1975), (b) a "specification" is included in the indictment, § 2929.04(A), and (c) the "specification" is proved beyond a reasonable doubt, ibid. In this
Before trial, the respondent moved to dismiss the specification, citing Burgett and arguing that the prior conviction was void because it had been based on an involuntary guilty plea. At a hearing on that motion, the State produced the Illinois indictment, the transcript of the Illinois proceedings, and the Illinois "conviction statement." It argued that the respondent must have known he was pleading guilty to attempted murder, even though the indictment was never read to him, the words "attempted murder" were never mentioned at the hearing, he was never told that he was pleading guilty to everything alleged in the indictment, he was sentenced to only two to four years of imprisonment, and the conviction statement showed only a conviction for "AGGRAVATED BATTERY, ETC." The Ohio trial judge found that the respondent had knowingly and voluntarily pleaded guilty to attempted murder.
At trial, the prosecutor sought to introduce the conviction statement and the indictment to prove the specification. The respondent moved for a bifurcated trial in order to prevent the jury from receiving this evidence until after guilt had been established. He argued that since the prior indictment alleged an attack on a woman with a knife, it would be especially prejudicial in this case, because he was again charged with assaulting a female with a knife. The trial judge agreed that it would be wrong to consider the evidence regarding the earlier conviction for the purpose of establishing the current offense, and he so instructed the jury.
The Ohio Court of Appeals reversed the aggravated murder conviction on the ground that the State had failed to prove rape, or even intercourse with the respondent, beyond a reasonable doubt. However, the court rejected the argument that the jury's finding that the respondent was guilty of murder had been unfairly contaminated by its receipt of the Illinois indictment. On remand, the trial court imposed a sentence of 15 years to life.
In retrospect, it is quite obvious that the highly prejudicial Illinois indictment should never have been admitted into evidence for any purpose at all. The indictment was relevant only to the specification, the specification was relevant only if the murder was aggravated, and the State failed to produce enough evidence of aggravation even to justify sending the charge to the jury.
Even if there had been enough evidence of aggravation to reach the jury, there was no legitimate reason for the State to give the Illinois indictment to the jury until after it had found an aggravated murder beyond a reasonable doubt. Sixteen years ago, the Spencer Court upheld such a procedure by stressing that state procedures varied widely and
Even under the holding in Spencer, the Court should take note of the fact that the prejudice associated with a one-stage procedure increases whenever the written record of the earlier proceeding is not sufficient on its face to foreclose a challenge to the validity of the prior conviction. Such a challenge often requires a discussion of the details of a prior offense or of an unproved charge, thereby increasing the danger that the jury may draw the inference that has been universally recognized as impermissible throughout our history. See n. 1, supra. I would adopt a simple rule that a one-stage enhancement procedure is constitutionally intolerable whenever the documentary evidence of the prior conviction fails to establish its validity and its relevance beyond debate. Cf. Spencer, 385 U. S., at 562 ("The evidence itself is usually, and in recidivist cases almost always, of a documentary kind, and in the cases before us there is no claim that its presentation was in any way inflammatory"). The documentary evidence in this case plainly failed to satisfy that test.
I would affirm the judgment of the Court of Appeals for the Sixth Circuit.
JUSTICE STEVENS' dissent appears to rest on a view that the common law regarded the admission of prior convictions as grossly unfair and subject to some sort of blanket prohibition. In fact, the common law was far more ambivalent. See, e. g., Stone, Exclusion of Similar Fact Evidence:
America, 51 Harv. L. Rev. 988 (1938). Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, 1 J. Wigmore, Evidence § 194 (3d ed. 1940), the common law developed broad, vaguely defined exceptions — such as proof of intent, identity, malice, motive, and plan — whose application is left largely to the discretion of the trial judge, see Spencer v. Texas, 385 U. S., at 560-561. In short, the common law, like our decision in Spencer, implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification.
Here, as in Spencer, the trial judge gave a careful and sound instruction requiring the jury to consider respondent's prior conviction only for purposes of the specification. The extent to which the jury can and does consider limiting instructions, or for that matter any instructions, has been fully considered in cases such as Spencer, supra, Bruton, supra, Parker, supra, and Burgett v. Texas, 389 U.S. 109 (1967). The matter was put to rest for cases such as this by our decision in Spencer, supra, in which the Court quoted the remark of Justice Cardozo in Snyder v. Massachusetts, 291 U. S., at 105, that a state rule of law "does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar."
Remarking on the state of the law of evidence with respect to reputation in criminal cases, the Court in Michelson v. United States, 335 U.S. 469, 486 (1948), said:
"We concur in the general opinion of the courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one mis-shapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice."
If this Court was thus willing to defer to "accumulated judicial experience" at the expense of "abstract logic," id., at 487, in a case such as Michelson which arose in the federal court system, the Due Process Clause as construed in Spencer surely cannot require a State to do more.
"[O]n August 25th, 1968, . . . Robert Lonberger committed the offense of aggravated battery, in that he, in committing a battery on Dorothy Maxwell used a deadly weapon . . . .
"[O]n August 25th, 1968, . . . Robert Lonberger committed the offense of attempt, in that he, with intent to commit the offense of murder, intentionally and knowingly attempted to kill Dorothy Maxwell by cutting Dorothy Maxwell with a knife without lawful justification. . . ." App. 2-3.
The objection to such evidence is not that the proposed inference is illogical. The objection is rather that the inference is so attractive that it will overwhelm the factfinder and create an unwarranted presumption of guilt. As Professor Wigmore explained:
"The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." 1 J. Wigmore, Evidence § 194 (3d ed. 1940).
In Michelson v. United States, 335 U.S. 469 (1948), this Court observed:
"Not that the law invests the defendant with a presumption of good character. . . but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a logical perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." Id., at 475-476 (footnotes omitted).
"Of course it flouts human nature to suppose that a jury would not consider a defendant's previous trouble with the law in deciding whether he has committed the crime currently charged against him. As Mr. Justice Jackson put it in a famous phrase, `[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.' Krulewitch v. United States, 336 U.S. 440, 453 (concurring opinion) (1949). United States v. Banmiller, 310 F.2d 720, 725 (CA3 1962). Mr. Justice Jackson's assessment has received support from the most ambitious empirical study of jury behavior that has been attempted, see H. Kalven & H. Zeisel, The American Jury 127-130, 177-180 (1966).
"Recognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the requirement of our criminal law that the State prove beyond a reasonable doubt the commission of a specific criminal act. It is surely engrained in our jurisprudence that an accused's reputation or criminal disposition is no basis for penal sanctions. Because of the possibility that the generality of the jury's verdict might mask a finding of guilt based on an accused's past crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in circumstances where it tends to prove something other than general criminal disposition." 385 U. S., at 575.
"We do not overlook or minimize the consideration that `the jury almost surely cannot comprehend the judge's limiting instruction,' which disturbed the Court of Appeals. The refinements of the evidentiary rules on this subject are such that even lawyers and judges, after study and reflection, often are confused, and surely jurors in the hurried and unfamiliar movement of a trial must find them almost unintelligible. However, limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects; for example, instructions that admissions of a co-defendant are to be limited to the question of his guilt and are not to be considered as evidence against other defendants, and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of inquiry, unless defendant thought the net advantage from opening it up would be with him." 335 U. S., at 484-485.
It is ironic that the Court should pluck one sentence out of the Michelson opinion in ostensible support of its "crucial assumption" that juries always mechanically follow the instructions given them by trial judges. See ante, at 438-439, n. 6.
"Now, the evidence presented to you concerning a prior conviction of this Defendant, Robert Lonberger, for the offense of attempted murder in Illinois in 1968 is not introduced for the purpose of proving that the Defendant committed the offenses, or either of them, for which he is being tried this week . . . you may not consider it for the purpose of proving, in any way, that the Defendant committed the offenses for which he is being tried today." Tr. 1178-1180.
The District of Columbia and 13 States (Alaska, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Oregon, Rhode Island, West Virginia, and Wisconsin) have no capital punishment statutes at all.
Three States have capital punishment statutes limited to certain precise categories of "aggravated" murder, where the existence of prior convictions is not an aggravating circumstance. N. Y. Penal Law § 125.27(1) (a)(iii) (McKinney 1975) (see People v. Davis, 43 N.Y.2d 17, and n. 3, 371 N.E.2d 456, and n. 3 (1977), cert. denied, 435 U.S. 998 and 438 U.S. 914 (1978)); Vt. Stat. Ann., Tit. 13, § 2303(c) (Supp. 1982); Wash. Rev. Code § 10.95.020 (1981). It is significant that under the "habitual criminal" statutes in all three States, where prior convictions are in effect "aggravating circumstances," bifurcated proceedings are used. See N. Y. Crim. Proc. Law §§ 400.20, 400.21 (McKinney Supp. 1982); State v. Angelucci, 137 Vt. 272, 405 A.2d 33 (1979); State v. Gear, 30 Wn.App. 307, 633 P.2d 930 (1981).
Thirty-three States have capital punishment statutes with bifurcated proceedings so that evidence of aggravating circumstances is not introduced until after the jury has determined guilt or innocence. Ala. Code § 13A-5-45 (Supp. 1982); Ariz. Rev. Stat. Ann. § 13-703B (Supp. 1982); Ark. Stat. Ann. § 41-1301 (1977); Cal. Penal Code Ann. § 190.1 (West Supp. 1982); Colo. Rev. Stat. §§ 16-11-103, 18-1-105(4) (1978 and Supp. 1982); Conn. Gen. Stat. § 53a-46a (Supp. 1982); Del. Code Ann., Tit. 11, § 4209(b) (1979); Fla. Stat. § 921.141 (Supp. 1982); Ga. Code Ann. § 17-10-31 (1982); Idaho Code § 19-2515 (1979); Ill. Rev. Stat., ch. 38, ¶ 9-1(d) (1979); Ind. Code § 35-50-2-9(d) (1979); Ky. Rev. Stat. § 532.025 (Supp. 1982); La. Code Crim. Proc. Ann., Art. 905 (West Supp. 1982); Md. Ann. Code, Art. 27, § 413(a) (1982); Miss. Code Ann. § 99-19-101 (Supp. 1982); Mo. Rev. Stat. § 565.006 (Supp. 1982); Mont. Code Ann. § 46-18-301 (1981); Neb. Rev. Stat. § 29-2520 (1979); Nev. Rev. Stat. § 175.552 (1981); N. H. Rev. Stat. Ann. § 630:5 (Supp. 1981); N. J. Stat. Ann. § 2C:11-3.c (West 1982); 1982 N. J. Laws, ch. 111; N. M. Stat. Ann. § 31-18-14(A) (1981); N. C. Gen. Stat. § 15A-2000 (Supp. 1981); Okla. Stat., Tit. 21, § 701.10 (Supp. 1982); 42 Pa. Cons. Stat. § 9711 (Supp. 1982); S. C. Code § 16-3-20 (1982); S. D. Comp. Laws Ann. § 23A-27A-2 (1979); Tenn. Code Ann. § 39-2404 (Supp. 1981); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981); Utah Code Ann. § 76-3-207 (1978); Va. Code § 19.2-264.4 (Supp. 1982); Wyo. Stat. §§ 6-4-101, 6-4-102 (1977).
Only Ohio considers prior convictions as aggravating circumstances without a fully bifurcated proceeding. Today, Ohio's system is half bifurcated: guilt and aggravating circumstances are considered together in one phase, mitigating circumstances in a second. Ohio Rev. Code Ann. § 2929.03 (1982).