Garrell S. MULLANEY et al., Petitioners,
Mr. Justice POWELL delivered the opinion of the Court.
The State of Maine requires a defendant charged with murder to prove that he acted 'in the heat of passion on sudden provocation' in order to reduce the homicide to [p. 685] manslaughter. We must decide whether this rule comports with the due process requirement, as defined in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.
In June 1966 a jury found respondent Stillman E. Wilbur, Jr., guilty of murder. The case against him rested on his own pretrial statement and on circumstantial evidence showing that he fatally assaulted Claude Hebert in the latter's hotel room. Respondent's statement, introduced by the prosecution, claimed that he had attacked Hebert in a frenzy provoked by Hebert's homosexual advance. The defense offered no evidence, but argued that the homicide was not unlawful since respondent lacked criminal intent. Alternatively, Wilbur's counsel asserted that at most the homicide was manslaughter rather than murder, since it occurred in the heat of passion provoked by the homosexual assault.
The trial court instructed the jury that Maine law recognizes
two kinds of homicide, murder and manslaughter, and that these offenses
are not subdivided into different degrees. The common elements of both
are that the homicide be unlawful--i.e., neither justifiable nor excusable
[n. 1]--and that it be intentional. [n. 2] The prosecution is required
to prove these elements by proof beyond a reasonable doubt, and only if
they are [p. 686] so proved is the jury to consider the distinction between
murder and manslaughter.
2. The court elaborated that an intentional homicide required the jury to find 'either that the defendant intended death, or that he intended an act which was calculated and should have been understood by (a) person of reason to be one likely to do great bodily harm and that death resulted.' Id., at 37.
4. The trial court also explained the concept of express malice aforethought, which required a 'premeditated design to kill' thereby manifesting a 'general malignancy and disregard for human life which proceeds from a heart void of social duty and fatally bent on mischief.' App. 40--42. Despite this instruction, the court repeatedly made clear that express malice need not be established since malice would be implied unless the defendant proved that he acted in the heat of passion. Hence, the instruction on express malice appears to have been wholly unnecessary, as the Maine Supreme Judicial Court subsequently held. State v. Lafferty, 309 A.2d 647 (1973). See also n. 10, infra.
5. 'Heat of passion . . . means that at the time of the act the reason is disturbed or obscured by passion to an extent which might (make) ordinary men of fair, average disposition liable to act irrationally without due deliberation or reflection, and from passion rather than judgment.' App. 47.
6. '(H)eat of passion will not avail unless upon sudden provocation. Sudden means happening without previous notice or with very brief notice; coming unexpectedly, precipitated, or unlooked for. . . . It is not every provocation, it is not every rage of passion that will reduce a killing from murder to manslaughter. The provocation must be of such a character and so close upon the act of killing, that for a moment a person could be-- that for a moment the defendant could be considered as not being the master of his own understanding.' Id., at 47--48.
Respondent appealed to the Maine Supreme Judicial Court, arguing that he had been denied due process because he was required to negate the element of malice aforethought by proving that he had acted in the heat of passion on suden provocation. He claimed that under Maine law malice aforethought was an essential element of the crime of murder--indeed that it was the sole element distinguishing murder from manslaughter. Respondent contended, therefore, that this Court's decision in Winship requires the prosecution to prove the existence of that element beyond a reasonable doubt.
[p. 688] The Maine Supreme Judicial Court rejected this contention,
[n. 7] holding that in Maine murder and manslaughter are not distinct crimes
but, rather, different degrees of the single generic offense of felonious
homicide. State v. Wilbur, 278 A.2d 139 (1971). The Court further stated
that for more than a century it repeatedly had held that the prosecution
could rest on a presumption of implied malice aforethought and require
the defendant to prove that he had acted in the heat of passion on sudden
provocation in order to reduce murder to manslaughter. With respect to
Winship, which was decided after respondent's trial, [n. 8] the court noted
that it did not anticipate the application of the Winship principle to
a factor such as the heat of passion on sudden provocation.
8. The Maine court concluded that Winship should not be applied retroactively. We subsequently decided, however, that Winship should be given complete retroactive effect. Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972).
[p. 689] The Court of Appeals for the First Circuit Affirmed, subscribing in general to the District Court's analysis and construction of Maine law. 473 F.2d 943 (1973). Although recognizing that 'within broad limits a state court must be the one to interpret its own laws,' the court nevertheless ruled that 'a totally unsupportable construction which leads to an invasion of constitutional due process is a federal matter.' Id., at 945. The Court of Appeals equated malice aforethought with 'premeditation,' id., at 947, and concluded that Winship requires the prosecution to prove this fact beyond a reasonable doubt.
Following this decision, the Maine Supreme Judicial Court decided
the case of State v. Lafferty, 309 A.2d 647 (1973), in which it sharply
disputed the First Circuit's view that it was entitled to make an independent
determination of Maine law. The Maine court also reaffirmed its earlier
opinion that murder and manslaughter are punishment categories of the signle
offense of felonious homicide. Accordingly, if the prosecution proves a
felonious homicide the burden shifts to the defendant to prove that he
acted in the heat of passion on sudden provocation in order to receive
the lesser penalty prescribed for manslaughter. [n. 9]
Because of the importance of the issues presented, we again granted certiorari. 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974). We now affirm.
We reject at the outset respondent's position that we follow the
analysis of the District Court and the initial opinion of the First Circuit,
both of which held that murder and manslaughter are distinct crimes in
Maine, and that malice aforethought is a fact essential to the former and
absent in the latter. Respondent argues that the Maine Supreme Judicial
Court's construction of state law should not be deemed binding on this
Court since it marks a radical departure from prior law, [n. 10] leads
to internally [p. 691] inconsistent results, and is a transparent
effort to circumvent Winship. This Court, however, repeatedly has held
that state courts are the ultimate expositors of state law, see, e.g.,
Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875); Winters
v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), and that
we are bound by their constructions except in extreme circumstances not
present here. [n. 11] Accordingly, we accept as binding the Maine Supreme
Judicial Court's construction of state homicide law.
11. On rare occasions the Court has re-examined a state-court interpretation of state law when it appears to be an 'obvious subterfuge to evade consideration of a federal issue.' Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129, 65 S.Ct. 1475, 1480, 89 L.Ed. 2092 (1945). See Ward v. Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751 (1921); Terre Haute & I.R. Co. v. Indiana ex rel. Ketcham, 194 U.S. 579, 24 S.Ct. 767, 48 L.Ed. 1124 (1904). In this case the Maine court's interpretation of state law, even assuming it to be novel, does not frustrate consideration of the due process issue, as the Maine court itself recognized, State v. Wilbur, 278 A.2d, at 146, and as the remainder of this opinion makes clear. See Generally Comment, Due Process and Supremacy as Foundations for the Adequacy Rule: The Remains of Federalism After Wilbur v. Mullaney, 26 Me.L.Rev. 37 (1974).
The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder--i.e., by life imprisonment--unless the defendant proves [p. 692] by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter--i.e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the hear of passion on sudden provocation accords with due process.
Our analysis may be illuminated if this issue is placed in historical context. [n. 12]
12. Much of this history was set out in the Court's opinion in McGautha v. California, 402 U.S. 183, 197--198, 91 S.Ct. 1454, 1462-- 1463, 28 L.Ed.2d 711 (1971). See also 3 J. Stephen, A History of the Criminal Law of England 1--107 (1883); 2 F. Pollock & F. Maitland, The History of English Law 478--487 (2d ed. 1909).
At early common law only those homicides ommitted in the enforcement
of justice were considered justifiable; all others were deemed unlawful
and were punished by death. Gradually, however, the severity of the common-law
punishment for homicide abated. Between the 13th and 16th centuries the
class of justifiable homicides expanded to include, for example, accidental
homicides and those committed in self-defense. Concurrently, the widespread
use of capital punishment was ameliorated further by extension of the ecclesiastic
jurisdiction. Almost any person able to read was eligible for 'benefit
of clergy,' a procedural device that effected a transfer from the secular
to the ecclesiastic jurisdiction. And under ecclesiastic law a person who
committed an unlawful homicide was not executed; instead he received a
one-year sentence, had his thumb branded and was required to forfeit has
goods. At the turn of the 16th century, English rulers, concerned with
the accretion of ecclesiastic jurisdiction at the expense of the secular,
enacted a series of statutes eliminating the benefit of [p. 693] clergy
in all cases of 'murder of malice prepensed.' [n. 13] Unlawful homicides
that were committed without such malice were designated 'manslaughter,'
and their perpetrators remained eligible for the benefit of clergy.
15. Thus it appears that the concept of express malice aforethought was surplusage since if the homicide resulted from sudden provocation it was manslaughter; otherwise it was murder. In this respect, Maine law appears to follow the old common law. See generally Comment, The Constitutionality of the Common Law Presumption of Malice in Maine, 54 B.U.L.Rev. 973, 986--999 (1974).
16. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden- of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 904--907 (1968), disputes this conclusion, arguing that the reliance on Oneby's case was misplaced. In Oneby the jury returned a special verdict making specific findings of fact. No finding was made with respect to provocation. Absent such a finding the court held that the homicide was murder. Fletcher maintains that in the context of a special verdict it is impossible to determine whether the defendant failed to satisfy his burden of going forward with 'some evidence' or the ultimate burden of persuading the jury. See also n. 20, infra.
18. Justice Wilde dissented, arguing that the Commonwealth was required to prove all facts necessary to establish murder, including malice aforethought, which in turn required it to negate the suggestion that the killing occurred in the heat of passion on sudden provocation. He also rejected the doctrine of implied malice on the ground that '(n)o malice can be inferred from the mere act of killing. Such a presumption, therefore, is arbitrary and unfounded.' 50 Mass., at 128.
19. State v. Knight, 43 Me. 11 (1857).
20. See cases cited in Fletcher, supra, n. 16. at 903 nn. 77--79. Some confusion developed, however, as to precisely what Youk required. Contemporary writers divide the general notion of 'burden of proof' into a burden of producing some probative evidence on a particular issue and a burden of persuading the factfinder with respect to that issue by a standard such as proof beyond a reasonable doubt or by a fair preponderance of the evidence. See, e.g., E. Cleary, McCormick on Evidence s 336 (2d ed. 1972). This distinction apparently was not well recognized at the time York was decided, and thus in some jurisdictions it was unclear whether the defendant was required to bear the production burden or the persuasion burden on the issue of heat of passion. See, e.g., cases discussed in People v. Morrin, 31 Mich.App. 301, 315--323, 187 N.W.2d 434, 441--446 (1971). Indeed, 10 years after the decision in York, Chief Justice Shaw explained that 'the doctrine of York's case was that where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder.' Commonwealth v. Hawkins, 69 Mass. 463, 465 (1855) (emphasis in original). He further noted that this presumption did not govern when there was evidence indicating that the defendant might have acted in the heat of passion. In that situation, 'if the jury, upon all the circumstances, are satisfied, beyond a reasonable doubt, that (the homicide) was done with malice, they will return a verdict of murder; otherwise, they will find the defendant guilty of manslaughter.' Id., at 466. Thus, even the author of York quickly limited its scope to require only that the accused produce some evidence on the issue of passion; that is, that he satisfy the production but not the persuasion burden. Other jurisdictions blurred the distinction between these two burdens by requiring the defendant to prove 'to the satisfaction of the jury' that he acted in the heat of passion. See, e.g., State v. Willis, 63 N.C. 26 (1868).
21. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the Court declined to apply the specific holding of Davis--that the prosecution must prove sanity beyond a reasonable doubt--to the States.
22. See also State v. Cuevas, 53 Haw. 110, 488 P.2d 322 (1971) (Winship requires the prosecution to prove malice aforethought beyond a reasonable doubt). England also now requires the prosecution to negate heat of passion on sudden provocation by proof beyond a reasonable doubt. Mancini v. Director of Public Prosecutions, (1942) A.C. 1; see Woolmington v. Director of Public Prosecutions, (1935) A.C. 462.
Petitioners, the warden of the Maine Prison and the State of Maine,
argue that despite these considerations [p. 697] Winship should not be
extended to the present case. They note that as a formal matter the absence
of the heat of passion on sudden provocation is not a 'fact necessary to
constitute the crime' of felonious homicide in Maine. In re Winship, 397
U.S., at 364, 90 S.Ct., at 1073 (emphasis supplied). This distinction is
relevant, according to petitioners, because in Winship the facts at issue
were essential to establish criminality in the first instance, whereas
the fact in question here does not come into play until the jury
already has determined that the defendant is guilty and may be punished
at least for manslaughter. In this situation, petitioners maintain, the
defendant's critical interests in liberty and reputation are no longer
of paramount concern since, irrespective of the presence or absence of
the heat of passion on sudden provocation, he is likely to lose his liberty
and certain to be stigmatized. [n. 23] In short, petitioners would limit
Winship to those facts which, if not proved, would wholly exonerate the
The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.
Moreover, if Winship were limited to those facts that constitute
a crime as defined by state law, a State could undermine many of the interests
that decision sought to protect without effecting any substantive change
in its law. It would only be necessary to redefine the elements that constitute
different crimes, characterizing them as factors that bear solely on the
extent of punishment. An extreme example of this approach can be fashioned
from the law challenged in this case. Maine divides the single generic
offense of felonious homicide into three distinct punishment categories--murder,
voluntary manslaughter, and involuntary manslaughter. Only the first two
of these categories require that the homicidal act either be [p. 699] intentional
or the result of criminally reckless conduct. See State v. Lafferty, supra,
at 670--672 (concurring opinion). But under Maine law these facts of intent
are not general elements of the crime of felonious homicide. See Brief
for Petitioners 10 n. 5. Instead, they bear only on the appropriate punishment
category. Thus, if petitioners' argument were accepted, Maine could impose
a life sentence for any felonious homicide--even one that traditionally
might be considered involuntary manslaughter--unless the defendant
was able to prove that his act was neither intentional nor criminally reckless.
It has been suggested, State v. Wilbur, 278 A.2d at 145, that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.
Indeed, the Main Supreme Judicial Court itself acknowledged that
most States require the prosecution to prove the absence of passion beyond
a reasonable doubt. Id., at 146. [n. 28] Moreover, the difficulty of meeting
such an [p. 702] exacting burden is mitigated in Maine where the fact at
issue is largely an 'objective, rather than a subjective, behavioral criterion.'
State v. Rollins, 295 A.2d, at 920. In this respect, proving that the defendant
did not act in the heat of passion on sudden provocation is similar to
proving any other element of intent; it may be established by adducing
evidence of the factual circumstances surrounding the commission of the
homicide. And although intent is typically considered a fact peculiarly
within the knowledge of the defendant, this does not, as the Court has
long recognized, justify shifting the burden to him. See Tot v. United
States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943); Leary
v. United States, 395 U.S. 6, 45, 89 S.Ct. 1532, 1552, 23 L.Ed.2d 57 (1969).
30. In Millett the Maine Supreme Judicial Court adopted the 'majority rule' regarding proof of self-defense. The burden of producing 'some evidence' on this issue rests with the defendant, but the ultimate burden of persuasion by proof beyond a reasonable doubt remains on the prosecution.
31. This conclusion is supported by consideration of a related line
of cases. Generally in a criminal case the prosecution bears both the production
burden and the persuasion burden. In some instances, however, it is aided
by a presumption, see Davis v. United States, 160 U.S. 469, 16 S.Ct. 353,
40 L.Ed. 499 (1895) (presumption of sanity), or a permissible inference,
see United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658
(1965) (inference of knowledge from presence at an illegal still). These
procedural devices require (in the case of a presumption) or permit (in
the case of an inference) the trier of fact to conclude that the prosecution
has met its burden of proof with respect to the presumed or inferred fact
by having satisfactorily established other facts. Thus, in effect they
require the defendant to present some evidence contesting the otherwise
presumed or inferred fact. See Barnes v. United States, 412 U.S. 837, 846
n. 11, 93 S.Ct. 2357, 2363, 37 L.Ed.2d 380 (1973). Since they shift the
production burden to the defendant, these devices must satisfy certain
due process requirements. See e.g., Barnes v. United States, supra; Turner
v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
In each of these cases, however, the ultimate burden of persuasion by proof beyond a reasonable doubt remained on the prosecution. See, e.g., Barnes v. United States, supra, 412 U.S., at 845 n. 9, 93 S.Ct., at 2362; Davis v. United States, supra, 160 U.S., at 484--488, 16 S.Ct., at 356--358. Shifting the burden of persuasion to the defendant obviously places an even greater strain upon him since he no longer need only present some evidence with respect to the fact at issue; he must affirmatively establish that fact. Accordingly, the Due Process Clause demands more exacting standards before the State may require a defendant to bear this ultimate burden of persuasion. See generally Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 78 Yale L.J. 165 (1969).
Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser [p. 704] crime of manslaughter. In re Winship, 397 U.S., at 372, 90 S.Ct., at 1076 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Accordingly, the judgment below is affirmed.
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring.
* * *
I agree with the Court that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant.
The Court noted in Leland that the issue of insanity as a defense
to a criminal charge was considered by the jury only after it had found
that all elements of the offense, including the mens rea, if any, required
by state law, had been proved beyond a reasonable doubt. Id., at 792, 795,
72 S.Ct., at 1004--1005. Although as the state court's instructions in
Leland recognized, Id., at 794--795, 72 S.Ct., at 1005--1006, evidence
relevant [p. 706] to insanity as defined by state law may also be relevant
to whether the required means rea was present, the existence or nonexistence
of legal insanity bears no necessary relationship to the existence or nonexistence
of the required mental elements of the crime. For this reason, Oregon's
placement of the burden of proof of insanity on Leland, unlike Maine's
redefinition of homicide in the instant case, did not effect an unconstitutional
shift in the State's traditional burden of proof beyond a reasonable doubt
of all necessary elements of the offense. Id., at 795, 72 S.Ct., at 1005.
Both the Court's opinion and the concurring opinion of Mr. Justice Harlan
in In re Winship, supra, stress the importance of proof beyond a reasonable
doubt in a criminal case as 'bottomed on a fundamental value determination
of our society that it is far worse to convict an innocent man than to
let a guilty man go free.' 397 U.S., at 372, 90 S.Ct., at 1077 (Harlan,
J., concurring). Having once met that rigorous burden of proof that, for
example, in a case such as this, the defendant not only killed a fellow
human being, but did it with malice aforethought, the State could quite
consistently with such a constitutional principle conclude that a defendant
who sought to establish the defense of insanity, and thereby escape any
punishment whatever for a heinous crime, should bear the laboring oar on
such an issue.