Sandstrom v. Montana

PETITIONER:Sandstrom
RESPONDENT:Montana
LOCATION:C and P Telephone Baltimore Headquarters

DOCKET NO.: 78-5384
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Montana Supreme Court

CITATION: 442 US 510 (1979)
ARGUED: Apr 18, 1979
DECIDED: Jun 18, 1979

ADVOCATES:
Byron W. Boggs – for petitioner
Michael T. Greely – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1979 in Sandstrom v. Montana

Warren E. Burger:

We’ll hear arguments in Sandstrom against Montana.

Mr. Boggs you may proceed whenever you’re ready.

Byron W. Boggs:

Mr. Chief Justice and may it please the Court.

The law of this nation has always been at the criminal defendant is entitled to the presumption of innocence.

This Court has ruled at the Fourteenth Amendment Due Process Clause protects the criminal defendant against conviction except upon proof of guilt beyond the reasonable doubt as to each fact necessary to constitute the charge.

The Court has further held at the state carrying this burden may not shift the burden to the defendant such as by presumption.

Warren E. Burger:

That has not prevented the courts generally from holding that the possession — evidence of the possession of recently stolen property for example permits a jury to draw the inference that the possessor was also the thief, has it?

Byron W. Boggs:

No, Mr. Chief Justice, but there is a difference between permitting a jury to infer and telling them that they are to presume or telling them that the law presumes and the difference is critical to the right for trial by jury upon proof beyond the reasonable doubt.

William H. Rehnquist:

Mr. Boggs, I’m sure that all of us trained as lawyers would probably agree with you that there is a difference between the statement that “you may presume” and “you may infer.”

Do you think the average juror really gets much of a difference between those two sentences?

Byron W. Boggs:

I think that any juror or literate layperson knows the difference between the word “may” and the word “shall” or the difference between the word “may infer” and the phrase “the law presumes.”

I think they know there is a difference.

They might differ as to exactly how they would describe that difference.

But in general the difference between those terms would be a difference significant and at the heart of the reasoning process of a jury.

They may infer, allowing them to reason as you were inviting them to reason.

They shall, or the law presumes phrase prohibiting them from reasoning.

Petitioner was charged with the crime deliberate homicide.

The crime deliberate homicide under Montana law has the element that the defendant shall have caused a death and that he shall have caused that death purposely or knowingly.

And the Montana Supreme Court has said that those terms purposely or knowingly embody the concept (Inaudible).

It stood admitted in the case both by written confession and by myself in open court as petitioner’s attorney that there had been a doubt that had resulted as a consequence of the acts of petitioner.

Warren E. Burger:

You don’t find any fault with that kind of an instruction in the civil case, I take it although that question is not before us?

Byron W. Boggs:

I would see no fault with the instruction in a civil case Mr. Chief Justice.

However, I would note that the instruction as given in this case would not conform that the federal rules of evidence pertaining to civil trials.

As I read rule 301.2 pertain the civil trials the most that could be instructed under the circumstances of this case was that the jury may infer a presumed fact.

But that is strictly aside from the argument that I present to you which is based on this Court’s rulings as to criminal trials and proof beyond the reasonable doubt.

The only question in the case if I may say, the reason where the jury is being invited to the courtroom listen to the evidence was to determine the factual question as to the mental state of the petitioner at the time he engaged in the fatal acts.

The question of whether he had acted purposely or knowingly was fairly raised by the evidence in the written confession which constituted the state’s case together with collaborating evidence while admitting that the death had been caused by the petitioner.

In no instance states that he intended to kill her, that he wanted to kill her, that he knew that she was dying.

Not once is the word death mentioned.

The facts of the confession stood as the basis for the opinion from a psychiatrist and a psychologist both of whom examined petitioner and informed opinions concerning his personality, his intelligence and informed opinions as to his mental state at the time of the fatal acts.

Byron W. Boggs:

And their opinions offered for the jury’s benefit were that he had not intended to cause the death.

That he did not have the death in his view at that time.

William H. Rehnquist:

Mr. Boggs, let me take you back once more to the instruction which you complain of which is I guess on the bottom of page 5 of your brief.

The law presumes that a person intends the ordinary consequences of his voluntary acts.

What if instead of that the court had instructed, you may infer that a person intends the ordinary consequences of his voluntary acts?

Do you think there will be constitutional question raised?

Byron W. Boggs:

I don’t think so.

Let me say in that regard that the instruction was given in addition to the instruction of which I complain which said in its Instruction No. 9 on page 36 of the appendix.

That purpose and knowledge are manifested by the circumstances connected with the offense.

Purpose and knowledge may not be proved by direct evidence but may be inferred from acts, conduct and circumstances appearing in evidence and I would say that would be substantially the same as the instruction that you just raised.

William H. Rehnquist:

You’d have no objection to Instruction No. 9?

Byron W. Boggs:

I have only one objection to it.

It’s not a constitutional dimensions.

The objection I have is the word “are” in the first line rather than the word “maybe”.

John Paul Stevens:

Counsel, I take it that this crime could have been proved if the jury found beyond reasonable doubt that he just knowingly as distinguishing purposefully causes death.

Byron W. Boggs:

Yes, knowingly in the sense that he was aware at that time.

Mr. Justice —

Byron R. White:

But this Instruction No. 5 hasn’t really any connection with that.

Let’s assume that the instruction had been that to find the defendant guilty you must find that he knowingly caused this death.

Instruction No. 5 wouldn’t bother you on that, would it?

Byron W. Boggs:

Well, —

Byron R. White:

Isn’t it just in connection with purpose?

Byron W. Boggs:

It is most clearly identified with purpose, Mr. Justice White, but it would bother me as to knowingly also —

Byron R. White:

Why would it have —

Byron W. Boggs:

— and for this reason.

Byron R. White:

Well, I guess that — I guess you can say that there was a general verdict here, wasn’t there?

So you don’t know whether the jury found purposely or knowingly?

Byron W. Boggs:

That’s true.

Byron R. White:

And if they found purposely you say this instruction is fatal to the case.

Byron W. Boggs:

That’s true.

Byron R. White:

Yes.

Byron W. Boggs:

But Mr. Justice White, if I could pursue that for a moment the crime is the liberate homicide.

The verdict was guilty of deliberate homicide.

Byron R. White:

Well maybe but the instruction told them what it was.

Byron W. Boggs:

But the official code comment to the section states that this section deals only with acts done deliberately that is purposely or knowingly.

Byron R. White:

That maybe but that isn’t what the jury was told and you know, say that they told them wrong.

Byron W. Boggs:

No, I don’t say that but what I’m trying to say is this, the concept of knowingly in the context of deliberate homicide must surely be that the individual has an awareness that he is causing the death at the time he is causing it in such circumstances as he might turn away from the consequence.

Byron R. White:

And you don’t say — you say knowingly and purposely then are the same?

Byron W. Boggs:

They are certainly related.

Byron R. White:

Well, they may be but certainly the instruction has defined them separately.

Byron W. Boggs:

Yes, the —

Byron R. White:

The statutes define them separately.

Byron W. Boggs:

I think there are two attempts at getting at the same concept albeit different evidence.

Warren E. Burger:

Does it purposely have some kind of notations of motivation to a greater extent than knowingly?

Byron W. Boggs:

Yes, I would agree with that Mr. Chief Justice.

Warren E. Burger:

So the — it is appropriate to define them separately or not?

Byron W. Boggs:

I don’t disagree with that but I only say that the instruction — the argument of course is not necessary for my position because if the jury followed the instruction and presumed purpose then they didn’t have to ask themselves the question did he act knowingly?

For they had found sufficiency on that basis of that presumption to convict.

But supposing as Mr. Justice White had said that the crime did not even contain the term purposely and the only question was did this instruction prejudice the issue unknowingly, I think it tends to prejudice that issue because the concept of intent and knowledge are interrelated.

That’s — that was the only point I wanted to make in that regard.

The — as I had stated, the question was fairly presented as a question of fact for jury determination.

The instruction complaint of spoke directly to that question.

The meaning of the instruction is that the jury should not reason from the evidence to a conclusion of guilt beyond reasonable doubt but rather should accept the fact presumed without proof.

I believe that that would be closed if not I think that’s a very fair statement of the common understanding of the term presume.

The — of course the law of presumptions is not simple and jurisdictions differ as to it.

But the law of the State of Montana as to presumptions is clear and direct and it is setout in the rules of evidence that were applicable to this trial.

It is stated in Rule 301 at the Montana Rules of Evidence that a presumption is an assumption of fact that the law requires to be made.

This presumption is stated to be a disputable presumption and as to disputable presumptions, the rule in Montana, in Rule 301 (b) is that 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.

Thurgood Marshall:

Was this instruction given to the jury which you now read?

Byron W. Boggs:

No.

Thurgood Marshall:

Well, I guess that’s immaterial.

Byron W. Boggs:

If there is any question as to how the public mind might interpret presumptions.

If it is brought that the purpose — the interpretations of a law might have influenced the jury’s consideration of the meaning of the instruction then I believe the rule states what that meaning would be.

Thurgood Marshall:

But how is that part of the jury?

The jury uses its own — each one of the jurors uses his individual interpretation of purpose, doesn’t it?

Byron W. Boggs:

We cannot assume that the jury knew what this rule was.

Thurgood Marshall:

Yes, that’s what it mean.

Byron W. Boggs:

On the other hand, we cannot be sure that at least one of them didn’t know that.

Warren E. Burger:

Well, is the subject of rebuttable presumptions in the legal context something that we would ever expect that generally known to the public members of the juries unless the judge has instructed them on it as Mr. Justice, my colleague has just suggested to you?

Byron W. Boggs:

I feel confident in saying Mr. Chief Justice that a jury is not going to know the convolutions and details of the law of rebuttable presumptions.

Warren E. Burger:

It’s difficult and to offer them to grasp the ones they are instructed about, isn’t it?

Byron W. Boggs:

I wouldn’t think that this particular instruction would be difficult for them to grasp.

Some would perhaps be, but this one would not.

But I certainly would say that they would not know the law of presumptions.

That does not mean however that they would not be somehow influenced by the clear statement of what a presumption means in the State of Montana as it is contained in Rule 301 which was a codification of the prior existing statutes and stated the case law rule as well.

Warren E. Burger:

And you don’t think the Instructions 13 and 14 on the others that you must be convinced beyond the reasonable doubt offsets and takes care of this presumption?

Byron W. Boggs:

No, I don’t Mr. Chief Justice and I believe that the Montana Supreme Court itself in its second opinion in State of Montana v. McKenzie stated better than I could why that instruction would not cure the air contained in Instruction No. 5 and that is when they said that yes, the state carries the burden of proof beyond a reasonable doubt.

But the presumption is a means by which that proof can be shouldered and paraphrasing not quoting.

Mr. Boggs, you have going for you another presumed — presumption instruction, don’t you?

Byron W. Boggs:

Yes.

You are instructed that the law presumes a person innocent until he’s proven guilty.

Byron W. Boggs:

Yes.

You don’t think that approach the balance of the one of which you complain?

Byron W. Boggs:

Again, I think it is likely that the jury would believe that the Instruction No. 4, followed directly by Instruction No. 5 were compatible in the law that they were believed as I believe that the court was capable of stating a blatant contradiction one right after the other would shake their belief in the consistency and fairness of the law.

And I believe that they would think that Instruction No. 5 was to be read as compatible.

It was to be read as a means by which Instruction No. 4 could be satisfied.

William H. Rehnquist:

Is there a harmless error doctrine in Montana as — does the Montana Supreme Court ever hold that the failure to give of our giving an improper instruction was harmless error?

Byron W. Boggs:

Yes, Mr. Justice Rehnquist.

William H. Rehnquist:

Your client confessed and this confession was introduced against him, was he?

Byron W. Boggs:

Yes.

William H. Rehnquist:

But what was the theory of your defense?

Byron W. Boggs:

The theory of the defense was that the statements that as contained in the confession were not proof beyond the reasonable doubt but he acted purposely or knowingly.

William H. Rehnquist:

Well, I’m looking at page 11 of the appendix with the paragraph, “and she started to wheel her wheelchair and I got scared and didn’t know what to do, there was a knife laying on the counter so I grabbed that and stabbed her.

I stabbed her in the back five times.”

Now with a confession like that does it really make too much difference how finally tuned the instruction of the judges?

Byron W. Boggs:

Your Honor, Mr. Justice Rehnquist based on that same language, two court appointed mental health experts acting independently of one another came to a conclusion that he did not act purposely or knowingly.

William H. Rehnquist:

That all I was submitted to the jury for their decision.

Byron W. Boggs:

Yes.

Beyond that, might I say that this Court has ruled in a different case or a man was stabbed 30 times that no matter how strongly the court may believe that the elements of the crime are made out, that cannot deprive the defendant of the right of a properly instructed jury.

But that’s not the same case as we have because as I told you those same facts were the basis of two independent assessments that said the elements of the crime were not made out.

Warren E. Burger:

At what stage in the proceeding was the insanity defense abandoned?

Byron W. Boggs:

The insanity defense was of course first raised at the time of arraignment.

We had a preparing before the court of the issue of insanity at which time the experts stated their view of the man was sane and for all intents and purposes at that time the defense was abandoned.

And I informed the jury and the court that it was formally — I formally informed it was abandoned at the time I opened the remarks.

Warren E. Burger:

Well, if you relied during the extent now on the psychiatric testimony or on his conviction, are you then indirectly suggesting a diminished responsibility idea?

Byron W. Boggs:

No.

And I am admitting that petitioner have the capacity to form the mental elements required.

The defenses that he did not form those elements that is that he was sane, now, he was — had a certain personality makeup that led itself perhaps to the situation.

But I am not saying that it was such that it pervaded him from having a capacity to form the mental elements required for this crime.

And the court specifically saw Instruction No. 12?

Byron W. Boggs:

I believe that’s correct, Your Honor, they were instructed that they could not consider the defense of insanity.

Right.

And you have no objection to that instruction?

Byron W. Boggs:

I was bound by it.

I had invited it by my own remarks.

The jury was assembled to determine the factual question, the presumption told them that the law presumed what their conclusion was to be and by so instructing them it deprived petitioner of due process of law in depriving him of a jury determination of guilt based on all of the evidence upon proof beyond a reasonable doubt.

And that is my case.

Warren E. Burger:

Mr. Greely, Mr. Attorney General.

Michael T. Greely:

Mr. Chief Justice and may it please the Court.

Certainly, the State of Montana is not unarmored with this instruction.

Michael T. Greely:

And since the beginnings of this case we have informed the prosecutors of State of Montana not to use it.

That’s not to say that we do not believe the instruction as used in this particular case that we do believe the instruction used in this particular case is unconstitutional.

We have told the prosecutors not to use it essentially for the problems that are for reason and I call your attention to the main instruction and I believe it’s the Kiontees (ph) case of the Fifth Circuit which had a lot of problem, its instruction similar to this.

Rather, in trying to draft some kind of instruction that would meet all the different opinions that we receive from all the different circuits, we decided to inform the prosecutors that this instruction probably wasn’t needed.

And indeed in the key in this particular case our position is essentially that the instruction was superfluous.

Now in Montana, there are essentially three elements of the crime.

Deliberate homicide, one of the elements is that it has to be a voluntary act, and another element is that the defendant had to have caused the death of his victim, and thirdly, the act had to be committed either purposely or knowingly.

Now that is in the alternative.

You don’t think that’s insanity?

Michael T. Greely:

Absolutely not.

Purpose, if you are going to try and prove purposely you will have to prove specific intent to kill.

If you’re going to prove knowingly you can prove that the defendant had a high probability that the acts that he was committing would create in this case death.

This — the actual stabbing by the defendant.

(Voice Overlap) in.

Would you — if you ever found purpose, you will always find knowingly too or not?

Michael T. Greely:

Probably, I suspect that rather than always — if you will find purpose, always find knowingly I think probably the likelihood of ever finding a purpose isn’t too great unless you really have a — if you have a premeditated, the old premeditated, now is the forethought situation you probably could find a purpose.

Byron R. White:

Well, why would you ever put purpose or knowingly then?

Why wouldn’t it always just be knowingly if you always?

Michael T. Greely:

I’m not certain of the justification for it that our criminal code was adopted largely from the —

Byron R. White:

And they do — and that they do define them separately?

Michael T. Greely:

They are defined separately.

Byron R. White:

And you don’t know what — which the jury found in this case, do you?

Michael T. Greely:

No, but I think it’s pretty clear in this case as far as —

Byron R. White:

Well, you don’t know, you don’t know.

Let’s assume that there was something wrong with the instruction on purpose unconstitutional.

Say that the instruction on purpose defining it or somehow was unconstitutional.

Then you have a problem wouldn’t you because you wouldn’t know which ground the jury rested on whether it’s purpose or knowing because it’s a general verdict.

Michael T. Greely:

Well, obviously you would always have that problem in determining what the jury actually, what they relied upon.

But I think the — I think the court could look at the facts in this case and the attempts by the defendant and its proof would indicate that the jury in this case could probably — more likely than not have found knowingly as opposed the purpose.

I think the — I think defendant produced evidence to indicate to the jury that the defendant didn’t do it on purpose.

Michael T. Greely:

As far as their understanding of the instruction is concerned.

I think that’s fairly clear when you read the confession in the transcript and so forth.

Potter Stewart:

But the judge thought there was a jury case for purpose — on purpose, didn’t he?

Michael T. Greely:

Well he instructed on purpose and of course the alternative, the way the law has defined that the statute itself would always require that both the instructions be given and both knowingly and on purpose would be used.

I suspect in a given situation that the judge within his discretion could say that purpose is not possible — (Voice Overlap) supposed he —

Byron R. White:

Suppose he —

Michael T. Greely:

— said that in this case.

Byron R. White:

Suppose he had instructed unknowingly at all in this case he just said — just the purpose instruction?

Michael T. Greely:

Then I think there would be some — there would be more of a difficult, more difficult in holding our position than it would be otherwise.

Byron R. White:

Oh really?

You mean just on the evidence or on this — or would you think that your problem — the problem would be rooted in Instruction 5?

Michael T. Greely:

I think that the fact that the jury possibly could have found that the use of presumption of course, we’re suggesting to the Court —

Byron R. White:

So you — so your answer is yes, Instruction 5 would give you real trouble if all the judges had instructed on this purpose?

Michael T. Greely:

I think that’s correct, Your Honor.

William H. Rehnquist:

But what — which is the more aggravated of the two crimes, purposely or knowingly?I don’t know that they can be —

Michael T. Greely:

I don’t know if they can be separated

William H. Rehnquist:

Which requires the more specific degree of intent?

Michael T. Greely:

Well, the — purposely would require the element of specific intent and obviously knowingly does not.

William H. Rehnquist:

What does an indictment charge, just deliberate homicide?

Michael T. Greely:

Deliberate homicide, committed purposely or knowingly, they charge this case of course always describes the fact that the defendant had killed the victim and was whatever manner he did it.

William H. Rehnquist:

Well, so what difference does it make whether the jury finds it was — in this case the jury didn’t make any finding as to purposely or knowingly.

Is it –does a judge sometimes require them to find that it was done either purposely or knowingly?

Michael T. Greely:

I don’t believe that’s ever happened, Your Honor.

I obviously don’t know I’ve never it was in my experience in any cases that have brought before the Supreme Court that I am directly familiar with, I’m not aware of any instruction ever be given just on one or the other.

It’s almost — it’s always — it always has been given in the alternative just as the wording of the statute.

Warren E. Burger:

But the information, Mr. Attorney General, is in the disjunctive purposely or knowingly.

Michael T. Greely:

That’s correct, Your Honor.

William H. Rehnquist:

And it’s a finding of either one sufficient to support and in the sentence is simply the minimum or maximum sense is provided for the offense of deliberate homicide?

Michael T. Greely:

That’s correct.

And also purposely and knowingly also is required as a part of mitigated deliberate homicide even though the instruction in this case was given to the jury was wrong.

Well, assume — let’s just assume that if there has been an instruction on purpose alone that this conviction would have to reverse because of Instruction No. 5.

Let’s just assume that.

There wasn’t an instruction on purpose alone, there’s an instruction on the purpose or knowledge and you think the — or knowledge would save the case?

Michael T. Greely:

Yes.

Because you think the evidence is — it’s so likely that the jury went on that ground?

Michael T. Greely:

Correct.

Is that what the case turns on or not?

Michael T. Greely:

Well no, I think the case turns on if there is the alternative to that of course in this case is that the question is whether or not if the jury have taken a shortcut.

And had accepted the purpose instruction and used the presumption in the meaning or the awareness described in Montana Law that they would raise a serious constitutional question and that’s the primary reason why we have suggested the prosecutor is not to use it anymore because it could happen the case that would come that would cause that problem.

But as far as the state is concerned that the presumption as it was given in this case had a similar effect to the inference it forms that the fact that it wasn’t fully described in any of the other instructions.

Now usually in Montana you will find that this presumption is given that other instructions are given that would qualify it.

In this particular case I didn’t have it for whatever reason, so there was no qualifying instruction saying that the defendant had to be — that the — if it were an inference that the jury could or could not find that presumption.

But obviously in any situation when you’re proving an intention, you’ve got the problem of an inference or presumption because you can’t really prove intent by direct evidence.

Basically, the state is aware of the constitutional questions that are — that arise here and essentially as we understand the history of this court in the various cases that have been cited in the brief, namely the series of cases, Gainey, Tot, and other cases which relate to specific intent crimes.

The problem here is whether or not the burden of proof has shifted to the defendant and that the defendant is in a position of having to prove a specific element or disprove a specific element of crime.

And I think this case relates in that respect to Mullaney but in the Mullaney case, the aspect of malice which was an element of that crime, the aspect of malice was presumed and the defendant was in the position of having to disprove that.

Now on the State of Montana mitigated deliberate homicide has the same elements as deliberate homicide except that it can be mitigated by an affirmative defense of extreme emotional or mental distress.

The presumption in this case and I used the term “loosely” because we’re all aware that presumption and inference has had become tremendously confused.

I do not agree with the defense counsel that the legal description of a presumption in the State of Montana applies in this case because those instructions were not given to the jury.

So the effect in the presumption — of the term a person is presumed to intend the ordinary consequences of his act has some other meaning in this case.

And we’re suggesting that the meaning in this case is that the presumption had the effect of an inference, an inference very similar to that of Barnes.

Warren E. Burger:

In Instruction — Mr. Attorney General in No. 15, they cleanup the final catchall instruction.

You are to draw no conclusions or inferences from the fact that the defendant is not testified of the — went through the process of analysis that we perhaps mistakenly assumed that they do, wouldn’t they get some ideas under Instruction No. 15 but they could not draw any conclusions or inferences or presumptions from the fact the defendant didn’t take the witness stand.

Michael T. Greely:

I think that’s probably true, Your Honor, I don’t know what effect that would have had as far as the jury is looking at Instruction No. 5.

The thrust of the defendant’s case apparently was in essence to prove that he could not have proved the intent kill and mistakenly the instruction was offered to suggest that if the jury did not find knowing or purpose that he would be — he could be convicted to mitigate deliberate homicide.

Now, that’s an incorrect instruction.

However, it is clear I believe that the jury had an opportunity to look at the knowing and purpose instructions.

And I suspect that the way this case came about to the jury believe the testimony of the defendant’s witnesses that the defendant indeed did not have the intent to kill.

And therefore they were forced into, if they’re going to find deliberate homicide they were forced to look at the knowingly provisions and the definitions that he should have understood the high probability of the consequences of stabbing the deceased.

And I think that’s indeed what happened in this particular case.

You mean, I want to make sure I understand the rest of your position.

Your opponent has conceded in response to Mr. Justice Rehnquist if this instruction had said “you may infer” instead “of the law presumes” it would have been alright.

Are you arguing that in effect the jury may have still understood the instruction?

Michael T. Greely:

Yes, we’re arguing that they could have — that the instruction itself since the facts of the case indicated that the jury could have found him guilty of deliberate homicide based on the knowingly aspect of the element of proof that the jury could have disregarded the instruction or if they had looked at the instruction that they could have taken the position that it wasn’t in inference like that in Barnes.

In other words —

That they could not —

Michael T. Greely:

— that they could not decide that because he stabbed this person that he intended to kill her.

Then I believe the facts of the case indicate the jury came to the conclusion that he did not intend to kill this person.

I think that’s probably what they came to do, obviously, it appears almost more likely than not that that’s what happened.

Potter Stewart:

Well, except that the jury is the judge of the facts which it determines on all the admissible evidence in the case.

But it — 2as to the law it gets his instruction from the trial judge.

And this instruction wasn’t that the law allows you to presume or permits you to infer, it says the law presumes and that was the law as the jury was instructed.

The law presumes that a person intends the ordinary consequences of his voluntary acts and that would require them.

If they were — that their duty as jurors to take the law, it was given to him by the trial judge to find this person guilty of intentional, purposeful homicide, if the law presumes it.

Michael T. Greely:

It could if they didn’t have the alternative of accepting the knowingly aspect.

Potter Stewart:

Well, why would they even turn to the alternative after being told this by the trial judge if the law presumes this?

Michael T. Greely:

I think that the reason that they would turn it to us because the facts of the case would have suggested to them that possibly the defendant did not intend to kill.

Potter Stewart:

But the law — we’re told that the law presumes it, that a person intends and these were voluntary acts, — there’s no question on that.

Michael T. Greely:

Certainly the — there were no —

Potter Stewart:

And they were told that that was the required result of the law of Montana as given to them by the trial judge in these instructions.

Michael T. Greely:

That’s true, but there was no follow up instructions to explain to them what the effect of a presumption was and whether or not —

Potter Stewart:

And that’s to make it even — does that make it better?

Michael T. Greely:

I think that if they had treated that as an inference that would certainly make it (Voice Overlap).

Thurgood Marshall:

(Voice Overlap)

Potter Stewart:

The law tells you to do this?

The law presumes it.

Not the law entitles you to presume it or authorizations you —

Michael T. Greely:

True.

Potter Stewart:

— to infer it but that the law itself presumes it.

Michael T. Greely:

True, that’s true, that instruction is possible it could be interpreted that way.

Warren E. Burger:

There was the risk, I take it you concede.

Michael T. Greely:

Exactly.

Warren E. Burger:

There is the risk that once the jury has found that the act was voluntary which they would find from defining that it was purposeful.

Then the next step is as Mr. Justice Stewart suggested almost automatic.

At least, that is the risk that they would think it out that way if the juries indeed do for that sort of process.

Michael T. Greely:

Certainly, there is the — certainly, we could not deny that there is no risk at this case and essentially that is why the instruction has created some difficulties.

And I think it’s clear in this case that the prosecution could prove a deliberate homicide beyond reasonable doubt based on the knowing aspect of the elements of proof.

And possibly even by an inference such as a Barnes inference could have prove purpose of beyond reasonable doubt.

But obviously the broader position to stand with and the better approach to take as far as what the jury actually did was that they found that the defendant did this knowingly.

And even that they may have found that they accepted the defense evidence and found that he did not intend to kill so purposely did not become a part of their deliberation.

Basically, the state is also arguing that the effect of the Instruction No. 5 acting as an inference rather than a presumption that if there was any shifting that was taking place as far as the defendant was concerned that it was a shifting of the burden of production and not the shifting of a burden of persuasion.

Although admittedly Montana law suggests that a presumption does not suggest the state that a presumption requires, first it’s to overcome that presumption by the preponderance of the evidence.

In this case, if the — if that instruction were treated as an inference, the effect according to the ruling by our Montana Supreme Court in this case would be that the defendant would be required to come forward with some evidence.

Just as in the Barnes case when the inference was used to state that the defendant knew that recently received treasury notes were stolen.

The inference in that case was that the mere possession of those recently stolen notes would create the presumption or inference and those terms I use interchangeably although I think most scholars understand what the difference between those are.

But in that case, essentially you’re requiring the defendant possibly to testify in violation of his Fifth Amendment rights.

But that’s a very strong inference that you’re require him to take upon himself to come forth with some evidence to explain his possession of recently stolen property.

And I think probably that inference is even stronger than the effect this presumption may have had in the instant case.

Warren E. Burger:

That’s more subtle though, isn’t it?

Michael T. Greely:

More subtle because there were not any qualifying instructions.

If there’s no further questions, thank you.

Warren E. Burger:

Thank you Mr. Attorney General.

Do you have anything further Mr. Boggs?

Byron W. Boggs:

If I may.

I wanted to pursue a point that Mr. Justice Rehnquist raised and if I understood you correctly, you asked which was the worst crime?

To purposely take a life or knowingly take a life?

And the commentators to the Code enacted in 1973, originated this language state that purposely is the worst crime.

It is the equivalent of the premeditated homicide in the common law.

William H. Rehnquist:

What operative effect does it have when the jury comes on and simply finds a verdict of deliberate homicide, no separate verdicts are requested as whether it was purposeful or deliberate, what operative effect does it have on your client?

Byron W. Boggs:

Well, this is the reason I wanted to pursue that point.

William H. Rehnquist:

Go ahead.

Byron W. Boggs:

Because, I think it has due process implications.

William H. Rehnquist:

What I’m telling about is practical effect on your client.

Byron W. Boggs:

Yes.

With the general verdict, guilty of deliberate homicide based on the information stated in the disjunctive, the sentencing judge then is prepared or may sentence either a minimum or the maximum.

That’s I believe you observed.

And of course the maximum was 100 years in prison.

Now, if I understood the Attorney General correctly, he has said that he thought the jury probably concluded that petitioner did not intend to kill and I would say, well he did not act purposely then, and that is the worst crime.

But under the general verdict, the judge could sentence to the maximum and I argue to the judge at sentencing that there was not the elements of premeditation and the premeditated murder have been considered the worst crime in our tradition.

And that he should consider a lesser penalty than the maximum penalty based on that proposition.

And he sentenced him to the maximum penalty —

Potter Stewart:

You don’t have capital —

Byron W. Boggs:

— 100 years.

You don’t have capital punishment?

Byron W. Boggs:

It is not applicable under the facts I stated.

The prosecution attempted to place the case within the context of the capital punish —

Yes, we do.

Byron W. Boggs:

But the judge took it away from the jury.

Potter Stewart:

So in this case?

Byron W. Boggs:

In this case it was not — it was not within in his (Voice overlap).

That sense, could not have been imposed.

Byron W. Boggs:

That’s right.

William H. Rehnquist:

Does Montana practice permit the requesting of separate — of a submission of a verdict asking the jury to decide whether they find it to be purposeful or knowingly?

Byron W. Boggs:

I know of no precedent for that.

Although after arguing this case I think I might pursue one.

Now, with respect to the suggestion by the Attorney General that the instruction the law presumes, the person intends you under consequences and voluntary act shifted the burden of production and this is in the opinion, the Montana Supreme Court.

The — unfortunately, it doesn’t make sense in this case.

The burden of production would have required in the Montana Supreme Court said it would have required the defendant to have produced some evidence contrary to effect presumed.

But in characterizing the defense evidence, it characterized it as being to the effect that the defendant may not have intended the death.

So by it’s own characterization it certainly called it some evidence contrary to the fact presumed.

Byron W. Boggs:

So there was a contradiction inherent in that position.

Finally, of course in that regard the jury was not told that that was the requirement under that instruction.

If I understand the law of those jurisdictions that interpret presumptions are shifting the burden of production and requiring the production of some evidence and we have some of those with regard to affirmative defenses in Montana.

It is that once the — some evidence has been produced, then the jury is directed to weigh the evidence according to the applicable burden of persuasion which of course would have proof beyond reasonable doubt and there would have been no instruction as to the presumption.

But in this case of course the jury was instructed.

Potter Stewart:

The Attorney General has told us that this instruction is no longer given in criminal cases in Montana.

Did you acknowledge the truth in the accuracy of that statement?

Byron W. Boggs:

It may have been that he has directed the county attorneys to discontinue the use but as it’s always the case and circumstances of this kind —

Potter Stewart:

It doesn’t help your client?

Byron W. Boggs:

It doesn’t help mine, and it will be continued to be used until each one of them is ultimately brought in line.

Warren E. Burger:

It isn’t binding on the trial judges I suppose the Attorney General can’t enforce that?

Byron W. Boggs:

No.

Warren E. Burger:

In request, he can merely direct his county attorneys.

Byron W. Boggs:

Yes.

Potter Stewart:

The cases you cite in your brief from the federal courts of appeals as I saw them, all indicated disapproval with this sort of instruction and said to the district courts in their respective circuits, don’t do this anymore but didn’t reverse the convictions, is that right?

Byron W. Boggs:

Some reverse the convictions Mr. Justice Stewart.

There has been a mix of cases that either reverse or didn’t reverse.

The cases in general predate this Court’s ruling in Mullaney and in many cases predate this Court’s ruling In re Winship.

Potter Stewart:

I’m looking at page 21, it’s not the Second Circuit and the Third Circuit, the Ninth Circuit, they’ve all been just admonitions not to do it anymore, haven’t they?

Byron W. Boggs:

I think both the Ninth Circuit cases were reversals.

Potter Stewart:

On the — on that ground?

Byron W. Boggs:

On that ground.

And I think that may be also true, at least one if not both of the Second Circuit cases.

The two supervisory opinions as it were in the Fifth Circuit and the Third Circuit did not reverse.

Warren E. Burger:

Very well.

Thank you gentlemen.

The case is submitted.