Alex M. Azar, II*
The Supreme Court's 1995-1996 Term was by any measure an excellent
year for the states and the federal government in criminal cases.
While the forfeiture cases and the habeas reform decision perhaps
garnered greater attention, several other criminal decisions from
that Term are worth examining as well.
Montana v. Egelhoff, 116 S. Ct. 2013 (1996), presented an important
question about the ability of states to regulate their own criminal
justice systems within the confines of the Due Process Clause. In
Egelhoff, a due process challenge was brought against a Montana
statute providing that voluntary intoxication may not be taken into
consideration in determining the mens rea element of a criminal
offense.
Writing for a plurality including Chief Justice Rehnquist and Justices
Kennedy and Thomas, Justice Scalia found that the exclusion of evidence
regarding a defendant's voluntary intoxication from the mens rea
inquiry does not violate due process. The plurality first derided
the notion (disclaimed even by Egelhoff) that due process requires
that a defendant be able to present all relevant evidence to all
elements of the offense charged, highlighting the many well-established
evidentiary and procedural rules preventing the admission of "relevant"
evidence.
The plurality next addressed whether Egelhoff had met his burden
of showing that a defendant's right to have a jury consider such
evidence is "so rooted in the traditions and conscience of
our people as to be ranked as fundamental . . . at the time of the
Fourteenth Amendment (or perhaps has become so deeply rooted since)."
Justice Scalia's opinion traced through the historical treatment
of evidence of voluntary inebriation in the mens rea determination.
Although by the end of the nineteenth century the early English
and American common law rule excluding evidence of voluntary inebriation
to counter a showing of specific intent had been rejected in most
American jurisdictions, Justice Scalia noted that today one-fifth
of the states either never adopted the new rule or have recently
abandoned it. Thus, while the ancient rule was no longer deeply
rooted in our traditions and conscience, neither was the new rule
advocated by Egelhoff. And far from being without justification,
the old exclusion of evidence of inebriation was fully warranted
by the need to deter both drunkenness and irresponsible/illegal
behavior while drunk. As such, the plurality concluded, Egelhoff
failed to meet his burden. In the inimitable words of Justice Scalia,
"not every widespread experiment with a procedural rule favorable
to criminal defendants establishes a fundamental principle of justice."
Justice Ginsburg provided the fifth vote for the result on the
theory advanced by the Solicitor General as amicus curiae that the
Montana statute was not an evidentiary rule, but rather was instead
a redefinition of the mental-state element of the offense. All but
Justice Breyer (who would reserve the question) agreed the state
could simply redefine the mens rea element to make irrelevant evidence
of voluntary intoxication, but they viewed the Montana Supreme Court's
decision as precluding such a reading of the statute.
Justice O'Connor wrote the principal dissent (joined by Justices
Stevens, Souter, and Breyer). While she generally agreed with the
plurality's historical analysis regarding the admission of evidence
of intoxication as to the mens rea element, Justice O'Connor viewed
the Montana statute as implicating a separate "fundamental
principle" -- a defendant's right to a fair opportunity to
put forward his defense. Central to her analysis was her view that
the statute removed from the jury's consideration an entire category
of evidence relevant to determination of mental state, where that
mental state is an essential element of the offense. As such, she
viewed the statute as reducing the state's burden of proof, which
she felt must have been the sole purpose of the statute. Justice
O'Connor did not respond to the plurality's point that many rules
of evidence, such as the hearsay rule, similarly exclude entire
categories of relevant evidence and yet are without infirmity so
long as they are selected on a basis that has good and traditional
policy support.
The Court in Whren v. United States, 116 S. Ct. 1769 (1996), faced
the question whether the Fourth Amendment prohibits the pulling
over of a motorist who the police have probable cause to believe
has committed a traffic violation unless a reasonable officer would
have been motivated to stop the car by a desire to enforce the traffic
laws.
In Whren, the District of Columbia police officers concededly had
probable cause to pull over the defendants for minor traffic infractions.
The defendants argued, however, that in the case of traffic enforcement,
probable cause is not enough under the Fourth Amendment. Given the
extensive regulation of the use of automobiles, the defendants claimed
that almost any motorist could be pulled over for a technical violation,
leading to the temptation for officers to use traffic stops as a
means of investigating other law violations, as to which probable
cause does not exist, or to use an impermissible factor such as
race as the basis for deciding which motorists to stop. To avoid
these dangers, the defendants urged that the Fourth Amendment test
should be whether a police officer, acting reasonably, would have
made the stop for the reason given.
Writing for a unanimous court, Justice Scalia rejected this purportedly
"objective," "reasonable officer" test as little
more than a proxy for divining the subjective intent of the arresting
officer, a factor even the defendants had conceded is entirely irrelevant
under the Court's precedent in evaluating the constitutional reasonableness
of traffic stops. As the Court noted, instead of looking directly
to the individual officer's state of mind, the defendants would
have courts ask whether (based on general police practices) it is
plausible to believe that the individual officer had the proper
state of mind.
Moreover, such a test would have caused the Fourth Amendment's
protections to vary with local police practices (assuming they could
practicably be assessed by a judge), a result the Court found improbable.
As to the defendants' concerns about selective enforcement based
on race, Justice Scalia directed the defendants to the Equal Protection
Clause.
Look for further development of the Court's Fourth Amendment traffic
stop jurisprudence in October Term 1996 with the consideration of
Maryland v. Wilson, No. 95-1268, and Ohio v. Robinette, No. 95-891.
Wilson presents the question whether an officer may order all passengers
to get out of the vehicle after stopping the car for a traffic violation
(the Court has already ruled that the driver may be ordered out).
Recent press reports indicate that Attorney General Reno may make
her Supreme Court debut in Wilson, arguing for the United States
as amicus curiae. Robinette raises the important issue whether the
police must tell motorists they are free to go before engaging in
an unrelated consensual interrogation or seeking permission to search
a vehicle.
The Court in Whren demonstrated sensitivity to the practical problems
that would result if the Fourth Amendment were read to require that
criminal proceedings be bogged down with collateral litigation aimed
at divining the subjective intent of arresting officers. In United
States v. Armstrong, 116 S. Ct. 1480 (1996), the Court faced a similar
issue in the context of the Equal Protection Clause's ban on selective
prosecutions.
In Armstrong, the defendants faced drug conspiracy charges related
to the possession and distribution of crack cocaine and firearms
charges. The District Court granted the defendants' motion for extensive
discovery on a race-based selective prosecution claim even though
the defendants had produced no evidence that similarly situated
defendants of different races could have been prosecuted but were
not.
The Supreme Court considered the critical question of the showing
necessary to obtain discovery on a selective prosecution claim.
Chief Justice Rehnquist wrote the opinion of the Court, which was
joined by Justices O'Connor, Scalia, Kennedy, Souter, Thomas, and
Ginsburg. The Court first rejected the defendants' claim that they
were entitled to automatic discovery on their claim under the provision
in Federal Rule of Criminal Procedure 16 that permits discovery
of documents held by the government that are material to the preparation
of the defendant's defense. The Court held that the "defendant's
defense" means only the defendant's response to the government's
case-in-chief, not the defendant's preparation of selective prosecution
claims. Justices Souter and Ginsburg wrote separately to emphasize
that the Court was simply holding that selective prosecution claims
are not part of a "defendant's defense" within the meaning
of the rule, and Justice Breyer refused to join this part of the
opinion, fearing that it created a "major limitation"
on the scope of criminal discovery. What reading of Armstrong the
lower courts will follow on this fundamental point remains to be
seen.
Assuming, however, that upon a sufficient showing, discovery would
be available (perhaps under a court's inherent powers), the Court
emphasized that almost a century of its cases had held that a successful
claim of selective prosecution requires clear evidence of discriminatory
purpose and discriminatory effect, the latter of which must be established
by showing that similarly situated individuals of a different race
were not prosecuted.
As for discovery, the Court held that a rigorous standard would
have to be met to justify the severe disruption that would result
from discovery on a selective prosecution claim. While not explicitly
setting out a uniform standard for discovery in such cases, the
Court did approve what it described as the consensus standard in
the Courts of Appeals -- that a defendant produce "some evidence"
tending to show discriminatory intent and discriminatory effect,
including some evidence that similarly situated defendants of other
races could have been prosecuted, but were not. Finally, the Court
found that the defendants in Armstrong had not met this standard.
Justice Stevens dissented, arguing that while these defendants had
failed to demonstrate they were entitled to discovery, the District
Court had inherent power and discretion to order discovery on the
selective prosecution issue.
One short note about the Court's decision in Bailey v. United States,
116 S. Ct. 501 (1995), where the Court considered the meaning of
the term "use" in 18 U.S.C. § 924(c)(1), which punishes
anyone who "uses or carries" a firearm during and in relation
to any crime of violence or drug trafficking crime. The Court held
that "use" requires active employment of a firearm during
the commission of an offense, not simply possession, access, or
proximity. While this decision was a considerable blow to federal
law enforcement authorities -- affecting hundreds of convictions
-- the opinion by Justice O'Connor for a unanimous Court demonstrates
an admirably textualist approach to statutory construction in which
language, context, and statutory (but not legislative) history are
dispositive.
For those with an interest in federal gun control and regulation
issues, keep an eye on the important consolidated cases in the coming
Term of Printz v. United States, No. 95-1478, and Mack v. United
States, No. 95-1503, which present the question whether the Brady
Act violates the Tenth Amendment by requiring local officials to
check the background of prospective gun buyers.
*Alex M. Azar II clerked for Justice Antonin Scalia and recently
served as an Associate Independent Counsel on the Whitewater investigation.
The views expressed are solely those of Mr. Azar.
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