The Appellate Corner


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.


2001 The Federalist Society