No. 95-566

In the Supreme Court of the United States

OCTOBER TERM, 1995

STATE OF MONTANA, PETITIONER

v.

JAMES ALLEN EGELHOFF

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONER

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN 
Deputy Solicitor General

MIGUEL A. ESTRADA
Assistant to the Solicitor General

NINA GOODMAN
Attorney

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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   QUESTION PRESENTED

Whether the Due Process Clause of the Fourteenth
Amendment bars a state from providing that the jury
in a criminal ease may not consider evidence of the
defendant's voluntary intoxication in determining
whether he possessed the mental state required for
the charged offense.

(I)

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TABLE OF CONTENTS

Page

Interest of the United States  . . . . 1
Statement  . . . . 2
Summary of argument  . . . . 6
Argument:
Due process does not require states to recognize
voluntary intoxication or any other form of dimin-
ished capacity as a basis on which defendants, may
avoid or limit punishment for homicide  . . . . 8 
Conclusion . . . .  27

     TABLE OF AUTHORITIES

Cases:

Bethea V. United States, 365 A.2d 64 (D.C. App.
  1976), cert. denied, 433 U.S. 911 (1977)  . . . . 11 
Caban V. Mohammed, 441 U.S. 380 (1979)  . . . . 14
California V. Trombetta, 467 U.S. 479 (1984 ). . . . 26
Campbell V. Wainwright, 738 F.2d 1573 (11th Cir.
  1984), cert. denied, 475 U.S. 1126 (1986)  . . . . 13
Chambers V. Mississippi, 410 U.S. 284 (1973) . . . .  4, 26
Colbath V. State, 4 Tex. Crim. 76 (1878 ) . . . .  21
Coleman V. California, 317 U.S. 596 (1942) . . . . 12, 14, 19, 22
Cool v. United States, 409 U.S. 100 (1972)  . . . . 23
Crane v. Kentucky, 476 U.S. 683 (1986) . . . .  26
Daubert V. Merrell Dow Pharmaceuticals, 113 S. Ct.
2786 (1993) . . . .  26
Eaglin V. Welborn, 57 F.3d 496 (7th Cir.), cert.
denied, 116 S. Ct. 421 (1995)  . . . . 9
Engle V. Isaac, 456 U.S. 107 (1982) . . . .  24
Fisher V. United States:

149 F.2d 28 (D.C. Cir. 1945), aff'd, 328 U.S.
  463 (1946) . . . .  15
328 U.S. 463 (1946)  . . . . passim

       (III)

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IV

Cases-Continued:           

Page

Foucha V. Louisiana, 504 U.S. 71 (1992) . . . . 8 
Gilmore V. Taylor, 113 S. Ct. 2112 (1993) . . . .  7, 26
Griffin V. United States, 336 U.S. 704 (1949) . . . . 18
Haas V. Abrahamson, 910 F.2d 384 (7th Cir. 1990 ). . . .  12
Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . 9, 19
Hicks V. Miranda, 422 U.S. 332 (1975)  . . . . 13
Hopt V. People, 104 U.S. 631 (1881)  . . . . 17, 20
Huddleston V. United States, 485 U.S. 681 (1988 ) . . . . 25
Jackson V. Virginia, 443 U.S. 307 (1979) . . . . 20, 24, 26
Leland V. Oregon, 343 U.S. 730 (1952)  . . . . 23
Martin V. Ohio, 480 U.S. 228 (1987)  . . . . 4, 5, 7, 23, 25
McMillan V. Pennsylvania, 477 U.S. 79 (1986) . . . . 8, 10, 23, 24
Medina V. California, 505 U.S. 437 (1992) . . . . 6, 9, 10, 20
Michigan v, Lucas, 500 U.S. 145 (1991) . . . .  26
Miles V. United Mates, 103 U.S. 304 (1881)  . . . .  19
Muench v. Israel, 715 F.2d 1124 (1983), cert.
  denied, 467 U.S. 1228 (1984)  . . . .  12, 15
Patterson V. New York, 432 U.S. 197 (1977) . . . . 9, 19, 20, 23
People V. Coleman, 126 P.2d 349 (1942) . . . .   14
People V. DelGuidice, 606 P.2d 840 (Colo. 1979) . . . . 11
People v. Troche, 273 P. 767 (Cal. 1928) . . . .  13
Powell v. Texas, 392 U.S. 514 (1968)  . . . .  9, 10
Robinson V. Ponte, 933 F.2d 101 (1st Cir. 1991),
  cert. denied, 503 U.S. 922 (1992) . . . .  17
Rock V. Arkansas, 483 U.S. 44 (1987)  . . . . 26
Rodriguez de Quijas V. Shearson/American Ex-
  press, Inc., 490 U.S. 477 (1989)  . . . . 13
Sandstrom V. Montana, 442 U.S. 510 (1979) . . . . 24
Schad V. Arizona, 501 U.S. 624 (1991) . . . .  10
Sollars V. State, 316 P.2d 917 (Nev. 1957) . . . .  11
Staples V. United States, 114 S. Ct. 1793 (1994 ). . . . 24
State V. Brom, 463 N.W.2d 758 (Minn. 1990),
  cert. denied, 499 U.S. 940 (1991)  . . . . 13
State V. Ramos, 648 P.2d 119 (Ariz. 1982) . . . . 11
State V. Shipman, 189 S.W.2d 273 (Mo. 1945) . . . .  22
State V. Souza, 813 P.2d 1384 (Hawaii 1991)  . . . . 11
State V. Stacy, 160 A. 257 (1932)  . . . .    22
Troche V. California, 280 U.S. 524 (1929)  . . . . ..12, 14, 19, 22
United States V. Gaudin, 115 S. Ct. 2310 (1995) . . . . 24

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V

Cases-Continued:            

Page

United States V. Pohlot, 827 F.2d 889 (3d Cir.
  1987), cert. denied, 484 U.S. 1011 (1988) . . . .  16
United States V. Pomponio, 429 U.S. 10 (1976) . . . . 15
Walker V. Sauvinet, 92 U.S. 90 (1876)  . . . . 19
Welcome V. Blackburn, 793 F.2d 672 (5th Cir.
  1986), cert. denied, 481 U.S. 1042 (1987) . . . .  15
Winship, In re, 397 U.S. 358 (1970)  . . . . 5, 6, 19, 20, 24, 25

Constitution, statutes and rules:

Us. Const. :
  Amend. VI  . . . . 26
  Amend. VIII  . . . .  10, 19
  Amend. XIV (Due Process Clause)  . . . . 10, 11, 18, 26
Insanity Reform Act of 1984,18 U.S.C. . . . .17, 16
Mont. Code Ann. (1993):
  45-2-203 . . . .  4, 5, 11,24 
   45-5-102 (1) (a) . . . . 2
Fed. R. Evid.:
  Rule 105  . . . . 1
  Rule 401  . . . . 25
    Advisory Committee Note . . . . 25
  Rule 404 (b)  . . . . 26
  Rule 501 . . . . 1
  Rule 609  . . . .   26
  Rule 702  . . . .  26
  Rule 704 (b)  . . . . 1
  Rule 802  . . . . 1

Miscellaneous:

ALI, Model Penal Code (1985)  . . . .   21
4 William Blackstone, Commentaries  . . . .  21
1 Matthew Hale, History of the Pleas of the
  Crown . . . . 21
Jerome Hall, Intoxication and Criminal Responsi-
  bility, 57 Harv. L. Rev. 1045 (1944) . . . . 21 
Wayne R. LaFave & Austin W. Scott, Substantive
  Criminal Law (1986)  . . . . 22

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In the Supreme Court of the United States

     OCTOBER TERM, 1995

       No. 95-566

   STATE OF MONTANA, PETITIONER

         v.

     JAMES ALLEN EGELHOFF

  ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA

   BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

  INTEREST OF THE UNITED STATES

The Montana Supreme Court concluded that a de-
fendant in a criminal case has a "due process right
to present and have considered by the jury all rele-
vant evidence to rebut the State's evidence on all
elements of the offense charged." Pet. App. 16a.
The Federal Rules of Evidence contain a number of
exclusionary provisions whose validity might be sub-
ject to challenge if this Court were to endorse such
a broad due process right. See Fed. R. Evid. 501
(privilege), 704 (b) (expert testimony on defendant's
mental state when an element of a crime or defense) ;
802 (hearsay). In addition, Rule 105 provides that
when, as a result of those rules, evidence is admitted

         (1)

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         2

only for a limited purpose "the court * * * shall
restrict the evidence to its proper scope and instruct
the jury accordingly." The United States therefore
has an interest in the proper resolution of this case.

       STATEMENT

1. Respondent spent most of July 12, 1992, drink-
ing with two companions, Roberta Pavola and John
Christianson. That evening, witnesses saw Christian-
son's station wagon being driven erratically. Around
midnight, officers-found the station wagon in a ditch.
The bodies of Pavola and Christianson were in the
front seat; each had been shot in the head. Respond-
ent was lying in the rear cargo area, yelling obscen-
ities. A handgun belonging to respondent was found
in the station wagon; forensics testing identified gun-
shot residue on respondent's hands. Pet. App. 3a-6a.
2. Respondent was charged with two counts of
deliberate homicide. Pet. App. 3a. Under Montana
law, to convict a defendant of that offense, the State
is required to prove that the defendant "purposely
or knowingly cause [d] the death of another human
being." Mont. Code Ann.  45-5-102(1) (a) (1993).
At trial, the government introduced evidence that
respondent was capable of purposeful action on the
night of the murders. For example, while sitting in
the back seat of the moving car, respondent appar-
ently used a stick to depress the accelerator so that he
could drive. He `made an attempt to flee when the
station wagon ran off the road, tried to avoid detec-
tion by witnesses who approached the vehicle, and
kicked a camera out of the hands of a police officer
who was attempting to take his picture. Pet, App.
11a-12a; see id. at 5a.

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         3

Respondent was allowed to introduce evidence of
his intoxication on the night of the murders in order
to explain his purported inability to remember the
events, and in support of a claim that he lacked the
level of physical coordination required to drive Chris-
tianson's car or to commit the crimes, thus leading
to the inference that "a fourth person was respon-
sible for the shootings." Br. in Opp. 1; Pet. App.
10a. Evidence at trial showed that respondent's blood
alcohol level was measured at .36 when he was treated
at a hospital shortly after the bodies of Pavola and
Christianson were discovered. A doctor who ex-
amined respondent at the hospital testified that based
on respondent's blood alcohol level and his behavior,
it was likely that he had suffered an alcoholic "black-
out" around the time of the murders. Respondent
testified that he remembered almost nothing of what
took place that night. Pet. App. 5a-7a.
The trial court instructed the jury that respondent
was presumed innocent, that his plea of not guilty
was a denial of "every allegation of the charges
against him," and that the State was required to
prove his guilt beyond a reasonable doubt-that is,
adduce "proof of such a convincing character that a
reasonable person would rely and act upon it in the
most important of his own affairs." Pet. App. 27a-
28a; see also J.A. 13-14. The court also told the jury
that it could not consider evidence of respondent's
voluntary intoxication in determining whether he
acted "purposely or knowingly":
A person who is in an intoxicated condition is
criminally responsible for his conduct and an
intoxicated condition is not a defense to any of-
fense and may not be taken into consideration in

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       4

determining the existence of a mental state
which is an element of the offense unless the De-
fendant proves that he did not know that it was
an intoxicating substance when he consumed the
substance causing the condition.

Pet. App. 7a-8a.

That instruction was based on a state statute,
Mont. Code Ann. $45-2-203 (1993), which provides:

Responsibility y-intoxicated condition. A person
who is in an intoxicated condition is criminally
responsible for his conduct and an intoxicated
condition is not a defense to any offense and
may not be taken into consideration in determin-
ing the existence of a mental state which is an
element of the offense unless the defendant
proves that he did not know that it was an in-
toxicating substance when he consumed, smoked,
injected, or otherwise ingested the substance
causing the condition.

The jury convicted respondent of two counts of delib-
erate homicide. Pet. App. 3a.

3. The Supreme Court of Montana reversed re-
spondent's convictions, holding that he "was denied
due process when the jury was instructed that volun-
tary intoxication may not be taken into consideration
in determining the existence of a mental state which
is an element of the offense." Pet. App. 16a. While
the court noted in passing that Chambers v. Missis-
sippi, 410 U.S. 284 (1973), recognized a defendant's
due process "right to present a defense," Pet. App.
12a, the court relied principally on Martin v. Ohio,
480 U.S. 228 (1987), where this Court upheld Ohio's
rule requiring the defendant to prove self-defense.

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         5

The court noted that Martin emphasized that the
jury in that case was permitted to consider, in deter-
mining whether there was reasonable doubt about the
State's case, the evidence offered by the defendant in
support of a claim of self-defense, and that Martin
stated that an instruction precluding the jury from
considering the self-defense evidence for that pur-
pose would "plainly run afoul" of In re Winship, 397
U.S. 358 (1970). Pet. App. 13a (quoting Martin,
480 U.S. at 233-234).
In light of that passage from Martin, the court
concluded that the defendant in a criminal ease has
"a due process right to present and have considered
by the jury all relevant evidence to rebut the State's
evidence on all elements of the offense charged." Pet.
App. 16a. Precluding the jury from considering rele-
vant evidence, the court believed, lessens the State's
burden under Winship of proving guilt beyond a
reasonable doubt, because a jury that is allowed
to consider such evidence could entertain a reasonable
doubt as to whether the defendant acted " `knowingly'
and [sic, or] `purposely.' " Pet. App. 14a; see also
id. at 14a-15a ("The burden * * * is lessened be-
cause the defendant is precluded from presenting ar-
guments concerning the prosecution's `failure of proof'
of the subjective mental state element."). The court
reasoned that "[b] y allowing the jury to consider
such evidence, we permit the jury to make its deci-
sion on all of the relevant evidence as required under
Martin." Id. at 14a. Accordingly, the court declared
unconstitutional the portion of Mont. Code Ann.
$45-2-203 (1993) that provides that a defendant's
intoxicated condition "may not be taken into con-
sideration in determining the existence of a mental
state which is an element of the offense." Ibid.

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6

SUMMARY OF ARGUMENT

The Montana legislature has made a policy deter-
mination that persons who engage in antisocial con-
duct, including homicide, while voluntarily intoxi-
cated should be held criminally responsible to the
same extent as if they had been sober when they
committed the criminal acts. Nothing in the Winship
line of cases, under which the State must prove each
element of a criminal charge beyond a reasonable
doubt, forecloses that policy choice. To the contrary,
those cases make clear that the applicability of the
reasonable-doubt standard has always been dependent
on how a State defines the offense in the first instance.
The State's policy decisions in that regard are subject
to due process challenge only if the defendant demon-
strates that those decisions "off end [] some principle
of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental,"
Medina v. California, 505 U.S. 437, 445 (1992).
There is no settled tradition that a State may not
define its criminal offenses so as to preclude excuses
based on any form of diminished capacity, including
voluntary intoxication. Under the common law of
England, voluntary intoxication afforded no excuse
for the crime of murder, even though intoxication
might be thought logically "relevant" to one's ability
to act with the required element of "malice afore-
thought." In this country, many States that classi-
fied murder into degrees in the mid-nineteenth cen-
tury departed from the common-law rule and accepted
the relevance of intoxication evidence for those mur-
ders that required proof of "specific intent." Other
States, however, followed the common-law rule on

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         7

intoxication even with respect to "specific intent"
crimes well into this century.
Moreover, some States precluded defendants from
making an analytically indistinguishable claim-i.e.,
that, as a result of a mental defect not amounting to
legal insanity, the defendant could not form the "spe-
cific intent" required to commit the crime. In three
cases this century, this Court rejected pleas from
defendants who claimed that they should have been
permitted to rely on that type of diminished capacity
to negate the intent element of their murders. In the
third of those cases, Fisher v. United States, 328 U.S.
463 (1946), the Court not only failed to see any due
process problem, but also declined to prescribe a dif-
ferent rule under its supervisory authority over the
courts of the District of Columbia. In light of that
history, respondent cannot sustain his burden of dem-
onstrating that Montana's policy choice violates a
deeply rooted tradition of our people.
This Court's decision in Martin v. Ohio, 480 U.S.
228 (1987 ), lends no support to the decision below.
Martin does not create a rule of constitutionally rele-
vant evidence, see Gilmore v. Taylor, 113 S. Ct. 2112
(1993), and recognition of such a broad due process
principle could cast unwarranted doubt on the validity
of numerous exclusionary rules of evidence. Martin
does indicate that Winship limits a State's ability to
preclude defendants from attempting to create a "rea-
sonable doubt about the State's case." That state-
ment, however, does not aid respondent, because the
State's "case" consists of. proving only those facts
that the legislature has made pertinent to criminal
liability. Martin therefore cannot fairly be invoked
to" invalidate the legislature's policy judgment that

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         8

intoxication is irrelevant to culpability. That con-
clusion is not changed in any way by the Montana
Supreme Court's observation that the defendant's
"purpose" or "knowledge" is an "element" of murder
that must be proved beyond a reasonable doubt under
Winship. The court's observation simply begs the
question, because the Montana legislature is free to
provide that "purpose" and "knowledge" must be
determined without regard to a defendant's voluntary
intoxication. Because the Montana Supreme Court's
misreading of Martin led to the unwarranted invali-
dation of that policy choice, the judgment of that
court should be reversed.

       ARGUMENT

DUE PROCESS DOES NOT REQUIRE STATES TO
RECOGNIZE VOLUNTARY INTOXICATION OR ANY
OTHER FORM OF DIMINISHED CAPACITY AS A
BASIS ON WHICH DEFENDANTS MAY AVOID OR.
LIMIT PUNISHMENT FOR HOMICIDE

1. The Supreme Court of Montana held that fed-
eral constitutional law bars the legislature from mak-
ing the policy judgment to exclude consideration of
voluntary intoxication from the mental state that is
necessary for the commission of a crime. That analy-
sis is fundamentally mistaken. This Court has made
clear that it is for legislatures to prescribe the condi-
tions for criminal punishment for antisocial conduct,
see, e.g., Medina v. California, 505 U.S. 437, 445-446
(1992) ; McMillan v. Pennsylvania, 477 U.S. 79, 85-
86 (1986); Fowcha v. Louisiana, 504 U.S. 71, 94
(1992) (Kennedy, J., dissenting), and that courts
therefore "should not lightly construe the Constitu-
tion so as to intrude upon the administration of jus-

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         9

tice by the individual States." Medina v. California,
505 U.S. at 445 (quoting Patterson v. New York,
432 U.S. 197, 201-202 (1977)). As Justice Marshall
explained in Powell v. Texas, 392 U.S. 514, 536
(1968) (plurality opinion), "[t]he doctrines of
actus reus, mens rea, insanity, mistake, justification
and duress have historically provided the tools for a
constantly shifting adjustment of the tension between
the evolving aims of the criminal law and changing
religious, moral, philosophical, and medical views of
the nature of man. This process of adjustment has
always been thought to be the province of the states."
See also id. at 545 (Black, J., concurring) ( "legisla-
tures have always been allowed wide freedom to de-
termine the extent to which moral culpability should
be a prerequisite to conviction of a crime" since it
would be "indefensible]" to "impos[e] on the States
any particular test of criminal responsibility");
Harmelin v. Michigan, 501 U.S. 957, 999 (1991)
(Kennedy, J., concurring in judgment) ("The fed-
eral and state criminal systems have accorded differ-
ent weights at different times to the penological goals
of retribution, deterrence, incapacitation, and reha-
bilitation"); Eaglin v. Welborn, 57 F.3d 496, 502
(7th Cir.) (en banc) (state may provide defense of
entrapment only to those defendants who admit com-
mitting the crime, despite contrary rule in the federal
system, since "[t] he Constitution does not require the
states to adopt the latest and best thinking on crim-
inal procedure or any other subject"), cert. denied,
116 S. Ct. 421 (1995).
That principle has been applied in a variety of
contexts. In Powell v. Texas, supra, the plurality
relied on it to reject a challenge to the State's power
to criminalize public intoxication, which, because of

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         10

the defendant's compulsion to drink, was asserted to
constitute "cruel and unusual punishment" barred
by the Eighth Amendment. The plurality emphasized
that "whatever may be the merits of such a doctrine
of criminal responsibility," 392 U.S. at 533, this
Court has "never articulated a general constitutional
doctrine of mens rea." Id. at 535. In McMillan v.
Pennsylvania, supra, the Court upheld against a due
process challenge the State's decision to provide for
increased punishment on the basis of a fact that it
proved only by a preponderance of the evidence at
sentencing, and expressly "reject [cd] the view that
anything in the Due Process Clause bars States from
making changes in their criminal law that have the
effect of making it easier for the prosecution to ob-
tain convictions." 477 U.S. at 89 n.5; accord Medina
v. California, 505 U.S. at 451. And, more recently,
in Schad v. Arizona, 501 U.S. 624 (1991), the Court
upheld the power of the State to provide that the de-
fendant could be convicted of murder upon proof of
either of two alternative mental states, neither of
which required jury unanimity. Speaking for the
plurality, Justice Souter explained (id. at 638) that
"[decisions about what facts are material and what
are immaterial, or, in terms of Winship * * * what
`fact [s] [are] necessary to constitute the crime,' and
therefore must be proved individually, * * * repre-
sent value choices more appropriately made in the
first instance by a legislature than by a court." See
also id. at 651-652 ( Scalia, J., concurring in judg-
ment).
The Montana statute invalidated by the court
below represents an equally valid value choice about
what facts are "material" to criminal responsibility
and punishment, The Montana legislature has deter-

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         11

mined that "[a] person who is in an intoxicated
condition is criminally responsible for his conduct"
and that, accordingly, intoxication "may not be taken
into consideration in determining the existence of
a mental state" that otherwise is necessary to commit
the crime. Mont. Code Ann.  45-2-203 (1993). The
combined effect of Montana's statutes is therefore
to require proof of purposeful or knowing conduct,
apart  from voluntary intoxication, as a prerequisite
to a conviction for deliberate homicide. It may well
be that the mental state that the prosecution is re-
quired to prove under state law "is a watered down
mens rea; however, this is the prerogative of the
legislature." State v. Ramos, 648 P.2d 119, 121
(Ariz. 1982) (upholding statute barring evidence
of intoxication on the issue whether the defendant
acted "knowingly"); accord People v. DelGuidice,
606 P.2d 840, 842-844 ( Colo. 1979) (same; rejecting
Win-ship challenge); see also State v. Souza, 813 P.2d
1384, 1386 (Hawaii 1991).
Nothing in the Due Process Clause requires a leg-
islature that makes certain forms of intent relevant
to criminal culpability also to recognize excuses based
on claims of diminished capacity at the time of the
offense. A legislature is free to conclude, for ex-
ample, that a claim of mental abnormality short of
insanity does not diminish the moral blameworthi-
ness of the criminal act or bear on the justness of
its criminal punishment. Cf. Bethea v. United States,
365 A.2d 64, 87 (D.C. App. 1976), cert. denied, 433
U.S. 911 ( 1977).1 The same is true about the state

___________________(footnotes)

 1  As the court noted in Sollars V. State, 316 P.2d 917, 919
(Nev. 1957), "[t]he existence of mental disorder may well be
a fact. * * * It is quite another thing, however, to qualify as

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         12

of voluntary intoxication, And, where the substantive
law of the State makes such a mental condition
irrelevant to the defendant's responsibility, there can
be no constitutional error in excluding such evidence
when offered for that purpose, or in instructing the
jury in accordance with state law.
2. This Court's cases bearing on the due process
limits on a State's ability to preclude a defendant's
claim that he lacked the mental capacity to commit
the offense were thoroughly explored by the Seventh
Circuit in Muench v. Israel, 715 F.2d 1124 (1983)
(upholding Wisconsin rule that limits psychiatric
evidence to insanity stage of bifurcated trial), cert.
denied, 467 U.S. 1228 (1984) ; see also Haas v.
Abrahamson, 910 F.2d 384, 391-397 (7th Cir. 1990).
The Seventh Circuit correctly noted that this Court
rejected similar claims in Fisher v. United States,
328 U.S. 463 (1946), for cases arising in the Dis-
trict of Columbia, as it had earlier rejected them as
a rule of due process for the States in Troche v.
California, 280 U.S. 524 (1929) (per curiam), and
Coleman v. California, 317 U.S. 596 (1942) (per
curiam). In our view, those eases are inconsistent
with the broad due process theory espoused by the
Montana Supreme Court in this case.
Troche involved the validity of state statutes pro-
viding for a bifurcated trial in murder cases where
the defendant asserted the defense of insanity. A
trial was first held on the defendant's guilt, at which
he was presumed to be sane and all matters of fact
tending to establish insanity were inadmissible. The

___________________(footnotes)

factual the determination that a certain state of disorder
ought to relieve one from responsibility. This is a moral, not
a factual, judgment."

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         13

sanity issue was determined only after the jury found
the defendant guilty. See People v. Troche, 273
P. 767, 769-770 (Cal. 1928). In holding that the
trial judge properly excluded evidence of Troche's
mental illness at the first stage of the proceedings,
the California Supreme Court relied on the fact that
California criminal law did not recognize an excuse
from criminal responsibility based on a mental defect
other than insanity. Id. at 772. Troche appealed to
this Court, challenging the statutory presumption of
sanity and the exclusion of the insanity evidence at
the guilt stage. He contended that those rulings
"conclusively presum[ed] one of the main elements
of a crime against the defendant, said element being
that of intent." 715 F.2d at" 1138 (quoting from
appellant's brief in this Court). This Court dis-
missed for want of a substantial federal question.
280 U.S. at 524.2

___________________(footnotes)

2 Such a dismissal is a ruling on the merits of the question
that is binding on the lower courts until squarely overruled
by this Court. See Hicks V. Miranda, 422 U.S. 332, 343-345
(1975); cf. Rodriguez de Quijas V. Shearson/American Ex-
press, Inc., 490 U.S. 477, 484 (1989). See also Campbell v.
Wainwright, 738 F.2d 1573, 1580-1582 (11th Cir. 1984) (up-
holding exclusion of psychiatric evidence offered to negate
specific intent; Troche and Coleman "are decisions on the
merits of this question binding on the circuits courts to the
extent that they have not been overruled"), cert. denied, 475
U.S. 1126 (1986); State V. Brom,, 463 N.W.2d 758,764 (Minn.
1990) (relying on Troche and Coleman to conclude that "a
bifurcated trial procedure in which psychiatric testimony is
inadmissible on the issue of premeditation does not violate the
federal due process guarantee"), cert. denied, 499 U.S. 940
(1991). That dismissal is also entitled to precedential weight
in this Court, though not "to the same deference given a rul-
ing after briefing, argument, and a written opinion." Caban

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         14

Coleman also involved a challenge to the California
scheme for proving insanity. The defendant in Cole-
man challenged his conviction on the ground that the
jury should be permitted to consider "mental abnor-
malities not amounting to a complete defense of legal
insanity, but which still may show the lack of capac-
ity to form the specific intent to commit first degree
murder." People v. Coleman, 126 P.2d 349, 353
(1942). The California Supreme Court rejected that
claim, noting that such a view was more properly
addressed "to the desirability of the legislative policy,
rather than to the question of deprivation of consti-
tutional rights under the established system." Id.
at 353. Citing. its prior summary disposition in
Troche, this Court dismissed Coleman's ensuing ap-
peal. Coleman, 317 U.S. at 596.
Shortly thereafter, this Court reached the same
conclusion, after briefing and argument, in a murder
case prosecuted by the Unite-d States in the local
courts of the District of Columbia. See Fisher v.
United States, 328 U.S. 463 (1946). After a unitary
trial, the defendant in Fisher was convicted and sen-
tenced to death for first degree murder, an offense
for which "[d]eliberation and premeditation [were]
necessary elements." Id. at 464-466. At his trial, he
was permitted to introduce testimony of his mental
infirmities in support of an insanity defense, but the
trial court refused to instruct the jury that such
evidence should be considered in deciding whether the

___________________(footnotes)

V. Mohammed, 441 U.S. 380, 390 n.9 (1979). As we explain
below, Fisher rejected similar claims after briefing and
argument.

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15

killing was deliberate and premeditated.3 This Court
agreed with Fisher's submissions that the jury "could
have determined from the evidence [of his mental
deficiency] that the homicide was not the result of
premeditation and deliberation," id. at 467, and that
"[t]he jury might not have reached the result it did
if the theory of partial responsibility for his acts
which the petitioner urges had been submitted." Id.
at 470.4 The Court nonetheless affirmed, emphasizing

___________________(footnotes)

3 The instruction requested by the defendant provided: "The
jury is instructed that in considering the question of intent
or lack of intent to kill on the part of the defendant, the
question of premeditation or no premeditation, deliberation
or no deliberation, whether or not the defendant at the time
of the fatal acts was of sound memory and discretion, it
should consider the entire personality of the defendant, his
mental, nervous, emotional and physical characteristics as
developed by the evidence in the case." Fisher- V. United
States, 149 F.2d 28, 29 (D.C. Cir. 1945), aff'd, 328 U.S. 463
(1946) .
4 That recognition indicates that the Court's affirmance was
not based on the view that the defendant's theory of defense
was adequately covered by the balance of the trial court's
instructions, compare United States V. Pomponio, 429 U.S.
10, 12-13 (1976) (per curiam), but on the view that the
applicable substantive law, which did not recognize the de-
fendant's theory of excuse, would have made the giving of the
proposed instruction error. See also Fisher, 328 U.S. at 491
(Murphy, J., dissenting) ("The issue here is narrow yet
replete with significance. Stated briefly, it is this: May mental
deficiency not amounting to complete insanity properly be
considered by the jury in determining whether a homicide
has been committed with the deliberation and premeditation
necessary to constitute first degree murder?"); Muench v.
Israel, 715 F.2d at 1142 ("Under Fisher, it seems inescapable
that it would have been proper to instruct the jury that the
evidence it did in fact hear concerning the defendant's mental

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         16

(id. at 476) that recognition of any doctrine excusing
criminal acts on the ground of "partial responsibility"
would be "a radical departure from common law con-
cepts * * * [and] more properly a subject for the
exercise of legislative power or at least for the dis-
cretion of the courts of the District." As the Court
noted:

[T]here was sufficient evidence to support a ver-
dict of murder in the first degree, if petitioner
was a normal man in his mental and emotional
characteristics. But the defense takes the posi-
tion that the petitioner is fairly entitled to be
judged as to deliberation and premeditation, not
by a theoretical normality but by his own per-
sonal traits. In view of the status of the defense
of partial responsibility in the District and the
nation no contention is or could be made of the
denial of due process.

328 U.S. at 466 (citation omitted). Indeed, the Court
did not even find it appropriate to exercise its super-
visory power to require the instruction sought by
the defendant. Id. at 476-477.5

___________________(footnotes)

illness could not be considered by it in reaching its verdict
on the mens rea question, but only in its deliberation on the
insanity question."); Welcome V. Blackburn, 793 F.2d 672,
674 (5th Cir. 1986) (upholding, as "a proper statement of
Louisiana law" which is "permissible as a matter of federal
constitutional law" under Fisher, an instruction telling the
jury that "any mental disability short of legal insanity * * *
cannot serve to negate specific intent and reduce the degree
of the crime"), cert. denied, 481 U.S. 1042 (1987).
5 A similar issue has arisen in the lower courts under the
Insanity Reform Act of 1984, 18 U.S.C. 17, which not only
restricted the defense of insanity, but also provided that
"[m]ental disease or defect does not otherwise constitute a

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         17

Significantly for this case, the defendant in Fisher
relied on this Court's earlier decision in Hopt v.
People, 104 U.S. 631 (1881), in which this Court
had "reversed the Supreme Court of the Territory of
Utah for failure to give a partial responsibility charge
upon evidence of drunkenness." 328 U.S. at 475.6
The Fisher Court did not disagree that, insofar as
Fisher's and Hopt's crimes each required proof of
deliberation and premeditation, the issues were an-
alytically identical. See 328 U.S. at 491-493 (Murphy,
J., dissenting) (arguing that Hopt controlled, and
that the lower courts were under a "duty * * * to
fashion rules to permit the jury to utilize all relevant
evidence directed toward" the existence of delibera-
tion and premeditation) .7" The Court distinguished

___________________(footnotes)

defense." Ibid. Several courts of appeals have concluded that,
in enacting that Act, Congress did not intend to preclude
claims of mental defect (short of insanity) when the pur-
ported mental abnormalities would negate the intent element
of a crime. See, e.g., United States V. Pohlot, 827 F.2d 889,
900-903 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988);
see also id. at 902 n.12. In our view, if Congress concludes
that those courts have misread its intent on that question, it
clearly would have the constitutional authority to preclude
admission of such evidence on the issue of mens rea.

6 Respondent also relied on Hopt in opposing the, State's
petition for a writ of certiorari. See Br. In Opp. 8-9.

7 See also Robinson V. Ponte, 933 F.2d 101, 104-105 (1st
Cir. 1991) (noting the First Circuit's reluctance to hold that
"federal constitutional law compels an instruction, where war-
ranted by the evidence, that evidence of intoxication may be
considered in deciding whether the prosecution has proved
specific intent beyond a reasonable doubt," and citing, inter
alia, Fisher), cert. denied, 503 U.S. 92,2 (1992). Indeed, Fisher
argued that his claim was far more compelling than Hopt's:

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18

Hopt, however, on the ground that "the Territory
of Utah had a statute specifically establishing such
a rule." 328 U.S. at 475; see also id. at 473 n.11
("The Court was there considering intoxication under
a statutory requirement that the intoxication should
be taken into consideration by the jury in determin-
ing the degree of the offense."). Neither Congress
nor the local courts of the District of Columbia, to
which "[m]atters relating to law enforcement in the
District [were] entrusted," had made an analogous
policy choice with respect to Fisher's theory of re-
duced responsibility resulting from mental deficiency.
Id. at 476.8

___________________(footnotes)

"If intoxication voluntarily induced and carried to such a
degree that the accused is incapable of deliberating can reduce
the crime from murder in the first degree to murder in the
second degree, it certainly would appear that disease and
congenital defects which the accused can neither prevent nor
cure should have under similar circumstances no less effect."
Petition for a Writ of Certiorari at 14, Fisher v. United States,
328 U.S. 463 (1946) (No. 122) .

8 That the Court regarded the issue as one of policy is
underworld by its response to Fisher's observation that "evi-
dence of intoxication to a state where one guilty of the crime
of murder may not be capable of deliberate premeditation
requires in the District of Columbia an instruction to that
effect," Fisher, 328 U.S. at 473-475. Fisher argued that it
necessarily followed that mental deficiency evidence warranted
a similar instruction. While not disputing Fisher's suggestion
that mental deficiency evidence was logically just as relevant
as intoxication evidence, id. at 475, the Court determined that
whether the jury should be instructed to consider mental defi-
ciency evidence was not a matter of due process, id. at 466,
but was a matter "more properly a subject for the exercise
of legislative power or at least for the discretion of the courts
of the District." Id. at 476; see also Griffit V. United States,

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19

The teaching of Troche, Coleman, and Fisher is
that the substantive judgments about what sorts of
mental characteristics-particularly claims of dimin-
ished capacity-will be deemed legally significant to
excuse an individual's responsibility for criminal con-
duct are to be made by lawmaking bodies, not by
application of the Due Process Clause. Within broad
limits set by other constitutional guarantees, such as
any proportionality inquiry required under the cir-
cumstances by the Eighth Amendment, cf. Harmelin
v. Michigan, supra, it is within the competence of
legislative powers to punish crimes based on proof
of a mental state that assumes a defendant's "theoret-
ical normality [apart from] his own personal traits."
Fisher, 328 U.S. at 466. Because that is precisely
the effect of the Montana statute that makes intoxica-
tion irrelevant to a defendant's mens rea, the court
below erred in invalidating it.
3. Nothing in In re Winship, 397 U.S. 358 (1970),
or its progeny, requires a different conclusion. Win-
ship accorded substantive due process protection to
the longstanding common law rule that prohibited a
defendant's conviction "except upon proof beyond a
reasonable doubt of every fact necessary to constitute
the crime with which he is charged." Id. at 364;
see also Miles v. United States, 103 U.S. 304, 312
(1881). That was far from a radical development,
since "[l]ong before Winship, the universal rule in
this country was that the prosecution must prove

___________________(footnotes)

336 U.S. 704, 717 (1949) ("The conviction in [Fisher] was
affirmed essentially on the principle that the law of evidence
and procedure governing criminal trials in the District of
Columbia is in the keeping of the Court of Appeals for the
District and is not to be exercised by this Court").

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20

guilt beyond a reasonable doubt." Patterson v. New
York, 432 U.S. at 211; see also Winship, 397 U.S.
at 361 (noting "virtually unanimous adherence to
the reasonable-doubt standard in common-law juris-
dictions" ).9 And, as subsequent decisions have made
clear, Winship did not alter the antecedent under-
standing that the proof that is sufficient for convic-
tion "must be gauged in light of the applicable [state]
law." Jackson v. Virginia, 443 U.S. 307, 324 (1979);
Patterson v. New York, 432 U.S. at 211 n.12 ("The
applicability of the reasonable-doubt standard * * *
has always been dependent on how a State defines
the offense that is charged in any given case"). A
State's decisions in this regard are not subject to due
process challenge unless they " `offend [] some princi-
ple of justice so rooted in the traditions and con-
science of our people as to be ranked as funda-
mental.' " Medina v. California, 505 U.S. at 445
(quoting Patterson v. New York, 432 U.S. at 201-
202). 
Here, there is "no historical basis for concluding"
(Medina v. California, 505 U.S. at 448) that there
is "a settled tradition" (id. at 446) that prevents a
State from defining its criminal offenses so as to
preclude excuses based on any form of diminished

___________________(footnotes)

9 Thus, where the reasonable-doubt right was recognized
as applicable, failure of the State to respect it would amount
to a due process violation, even before Winship. See 397 U.S.
at 386 (Black, J., dissenting) ("as long as a particular juris-
diction requires proof beyond a reasonable doubt, then the
Due Process Clause commands that every trial in the juris-
diction must adhere to that standard"); cf. Walker v.
Sauvinet, 92 U.S. 90, 93 (1876). Winship arose only because
the state law at issue did not extend the same right to juvenile
adjudications. 397 U.S. at 360.

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 21

capacity, including voluntary intoxication. As the
Court noted in Hopt v. People, supra, "[a] t common
law, indeed, as a general rule, voluntary intoxication
afford [cd] no excuse, justification, or extenuation of
a crime committed under its influence." 104 U.S. at
633; see also Jerome Hall, Intoxication and Criminal
Responsibility, 57 Harv. L. Rev. 1045, 1046 (1944)
("The early common law apparently made no
concession whatever because of intoxication, however
gross"); Colbath v. State, 4 Tex. Crim. 76, 77-79
(1878).10  It was not until the mid-nineteenth cen-
tury that some States began relaxing that rule, but
even then only with respect to statutory crimes re-
quiring "specific intent" for their commission. See
Hall, 57 Harv. L. Rev. at 1049-1050.11 Some States,

___________________(footnotes)

10 As the court noted in Colbath, "[w]e find it laid down as
early as the reign of Edward VI. (1548), that `if a person
that is drunk kills another, this shall be a felony, and he shall
be hanged for it, and yet he did it through ignorance, for-
when he was drunk he had no understanding nor memory;
but inasmuch as that ignorance was occasioned by his own act
and folly, he might have avoided it, he shall not be privileged
thereby.' Plowd. l9." 4 Tex. Crim. at 77-78; see also id. at
78 (noting Hale's view that "such a person shall have no
privilege by his voluntary contracted madness, but shall have
the same judgment as if he were in his right senses") (quot-
ing 1 Matthew Hale, History of the Pleas of the Crown 32);
4 William Blackstone, Commentaries *26 ("The law of Eng-
land, considering how easy it is to contract this excuse, and
how weak an excuse it is (though real), will not suffer any
man thus to privilege one crime by another.").

11 The Model Penal Code recognizes intoxication as an ex-
cuse when it "negatives an element of the offense" other than
recklessness. See Model Penal Code  2.08(1) (1985). As the
drafters recognized, the Code's distinction turns purely on
policy choices since " [as] a matter of logic the fact of acute

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 22

however, retained the common law rule even with
respect to "specific intent" offenses well into this cen-
tury. See State v. Shipman, 189 S.W.2d 273, 274-
275 (Me. 1945); State v. Stacy, 160 A. 257, 268-269
(Vt. 1932).
Indeed, as demonstrated by Troche, Coleman, and
Fisher, there was no widely-shared understanding-
late into this century-that a defendant's purported
lack of mental capacity to form a "specific intent"
to commit murder inherently precluded his criminal
responsibility, even with respect to the far more
sympathetic cases posed by defendants whose asserted
lack of capacity stemmed from mental abnormality
rather than from their own voluntary conduct. The
defendant in Fisher specifically urged that his pro-
posed rule followed from Congress's decision to de-
part from the common law by recognizing degrees
of murder. 328 U.S. at 472-473. In rejecting that
claim, the Court noted that common-law murder
required "malice aforethought, either express or im-
plied," and explained that " [a]s capacity of a defend-
ant to have malice would depend upon the same kind
of evidence and instruction which is urged here, it
cannot properly be said that the separation of murder
into degrees introduced a new situation into the
law * * *." Id. at 473 (footnotes omitted).12

___________________(footnotes)

alcoholic intoxication may ground an inference that the actor
did not act with the knowledge or purpose or recklessness
required as an element of the crime." Id. at 352 n.7 (emphasis
added).

12 Whether or not "most of the modern [state] criminal
codes provide either that intoxication is a defense if it nega-
tives a mental state or that it is admissible in evidence when-
ever relevant to negate an element of the offense charged,"

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         23

The Montana Supreme Court erred in reading this
Court's decision in Martin v. Ohio, supra, as requir-
ing a different conclusion. Martin did state that it
would be error under Winship to instruct the jury
"that self-defense evidence could not be considered in
determining whether there was a reasonable doubt
about the State's case." 480 U.S. at 233; see also
Leland v. Oregon, 343 U.S. 790, 794-795 (1952).
That statement, however, has meaning only with ref-
erence to what "the State's case" is.  It therefore
cannot be divorced from the settled rule that " [t]he
applicability of the reasonable-doubt standard * * *
has always been dependent on how a State defines
the offense that is charged in any given case." Pat-
terson v. New York, 432 U.S. at 211 n.12; McMillan
v. Pennsylvania, 477 U.S. at 85.13 Martin's obser-

___________________(footnotes)

see 1 Wayne R. LaFave & Austin W. Scott, Substantive Crimi-
nal Law  410 (a), at 551 n.8 (1986), the issue remains one of
legislative policy. There is no uniform rule in this country that
evidence of voluntary intoxication must always be admitted,
see 95-566 Amicus Br. of Delaware et al. at 4 n.1 (filed Nov. 6,
1995) (listing ten States with provisions comparable to Mon-
tana's), or that all purported "diminished capacity" evidence
must be admitted. See also Martin V. Ohio, 480 U.S. at 236
(that all but two States had abandoned common law rule of
requiring the defendant to prove self-defense did not render
the rule of those two States unconstitutional).

13 Indeed, the statement that followed the one we quote in
the text indicates that the Court was concerned about an
entirely different problem: "i.e., [an instruction] that self-
defense evidence must be put aside for all purposes unless it
satisfied the preponderance standard." 480 U.S. at 233-234.
That type of "discrimination" against defense evidence has
long been held to burden the reasonable-doubt  standard, and
therefore to violate Winship, See Cool V. United States, 409
U.S. "100, 102-104 (1972) (instruction directing jury to con-

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         24

vation was correct so far as it went, but only because
it was not disputed in that case that Ohio law defined
the intent element of murder in a way that made the
"self-defense evidence" relevant to whether the State
had proved that element beyond a reasonable doubt.
Compare Jackson v. Virginia, supra, where the Court
considered evidence of the defendant's intoxication
in determining whether he acted with premeditation
(443 U.S. at 325), but only after carefully noting
that " [u]nder Virginia law, voluntary intoxication
* * * is material to the element of premeditation and
may be found to have negated it." Id. at 311 n.12.
It is true, as the Montana Supreme Court observed,
that mens rea-i.e., "purpose" or "knowledge''-is
an "element" of the crime with which respondent
was charged and that this mental element must there-
fore be proved beyond a reasonable doubt under
Winship. See also Sandstrom v. Montana, 442 U.S.
510, 520-521 n.10 (1979). But that observation
simply begs the question, because the Montana legis-
lature is free to define what "purpose" and "knowl-
edge" mean by regulating the factors that bear on
proof of a "mental state which is an element of the
offense." Mont. Code Ann. $45-2-203. See, e.g., Mc-
Millan v. Pennsylvania, 477 U.S. at 85; see also
Staples v. United States, 114 S. Ct. 1793, 1796
(1994); United .States v. Gaudin, 115 S, Ct. 2310,
2321 (1995) (Rehnquist, C. J., concurring), Winship
requires the prosecutor to prove the elements of the
crime as those elements have been defined by the
entire corpus of state law, cf. Martin, 480 U.S. at
235; Engle v. Isaac, 456 U.S. 107, 120-121 (1982),

___________________(footnotes)

sider testimony of defense witness only if satisfied of its truth
beyond a reasonable doubt).

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25

including all relevant statutes passed by the state
legislature. Winship does not require that courts as-
sume the quite different task that the Montana Su-
preme Court undertook here-viz., to invalidate a
statute that makes a particular mental condition irrel-
evant to a defendant's responsibility, without even
considering that the state legislature is free to make
policy choices in the definition `of crimes by refining
the state of mind required for conviction. As an
interpretation of Winship and its progeny, the analy-
sis of the court below amounts to putting the cart
before the proverbial horse.
The circularity of the Montana Supreme Court's
reasoning is well illustrated by its conclusion that
Martin and Winship require "the jury to make its
decision on all of the relevant evidence." Pet. App.
14a. Relevance is not ordinarily understood as "an
inherent characteristic of any item of evidence but
exists only as a relation between an item of evidence
and a matter properly provable in a case." Hud-
dleston v. United States, 485 U.S. 681, 689 (1988)
(quoting Advisory Committee's Notes on Fed. R.
Evid. 401). Because the matters "properly provable"
in a state criminal case traditionally have been
thought to be in the province of the legislature, it is
anomalous to invoke the criterion of "relevance" to
invalidate a state statute that purports to provide
that some matters are not "properly provable" in a
case. Moreover, apart from begging the question of what
matters were properly provable to establish respond-
ent's crime, there is no support in this Court's cases
for the proposition that due process requires admis-
sion of "all relevant evidence" (Pet. App. 14a, 16a)

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26

that theoretically could create a reasonable doubt
about the State's case. If accepted, such a broad
view of a defendant's due process rights could ef-
fectively preclude application in criminal cases of
many exclusionary rules of evidence the validity of
which has never before been doubted.14 Winship,
however, did not establish any doctrine of "constitu-
tionally relevant evidence." Gilmore v. Taylor, 113
S. Ct. 2112, 2118-2119 (1993) ; accord Michigan v.
Lucas, 500 U.S. 145, 149 (1991 ) (the fact that
state evidentiary rules "operate [] to prevent a crim-
inal defendant from presenting relevant evidence
* * * does not necessarily render [them] unconstitu-
tional" under-the Sixth Amendment).15 

___________________(footnotes)

14 Under the broad due process principle articulated by the
Montana Supreme Court, a criminal defendant could claim an
absolute right to impeach government witnesses with ancient
convictions, see Fed. R. Evid. 609, to introduce logically rele-
vant expert testimony that is insufficiently reliable to amount
to "scientific knowledge," see Fed. R. Evid. 702; Daubert V.
Merrell Dow Pharmaceuticals, 113 S. Ct. 2786, 2795 (1993),
or to introduce evidence of his co-defendant's "other wrongs"
to demonstrate that cc-defendant's "propensity" to commit
crimes and thus the likelihood that he, rather than the defend-
ant, was the guilty party, see Fed. R. Evid. 404(b).
15 That is not to say, of course, that there are no due process
limits to the State's ability to exclude evidence from a criminal
case. The Due Process Clause "guarantees criminal defendants
`a meaningful opportunity to present a complete defense.'"
Crane V. Kentucky, 476 U.S. 683, 690 (1986) (quoting Cali-
fornia V. Trombetta, 467 U.S. 479, 485 (1984)); see Rock V.
Arkansas, 483 U.S. 44, 55-56 (1987); Chambers V. Mississippi,
410 U.S. 284, 294 (1973); see also Jackson V. Virginia, 443
U.S. at 314-315 (distinguishing Winship right from the due
process right of "a meaningful opportunity to defend"). In
our view, that separate due Process right is not at issue here,

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         27

       CONCLUSION

The judgment of the Supreme Court of Montana
should be reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DreEBEN
Deputy Solicitor General

MIGUEL A. EStradA
Assistant to the Solicitor General

NINA GOODMAN
Attorney

JANUARY 1996

___________________(footnotes)

   because its existence necessarily turns on a recognition by
   the law that defines the crime that the claim being advanced
   by the defendant would provide grounds for an acquittal

* U.S. GOVERNMENT PRINTING OFFICE; 1996     405017   40045

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