Procedural Changes and Ex Post Facto Laws

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Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

The Supreme Court has often, but not universally, denied ex post facto challenges to laws changing procedures in criminal trials. At times, the Court has suggested that the application of the Ex Post Facto Clauses depends on whether a challenged law is substantive or procedural, and that a procedural change cannot be ex post facto.1 More recently, however, the Court has rejected a rigid distinction between substance and procedure and instead focused on whether a law falls within the four categories identified in Calder v. Bull.2 Thus, in Collins v. Youngblood, the Court held that “by simply labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause.” 3

The Supreme Court has explained, “[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” 4 Rather, the legislature retains full authority to establish trial procedures, “subject only to the condition that [it] may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments.” 5 Thus, several Supreme Court cases have allowed the application of laws enacted after an offense that changed the place or mode of trial for that offense. For instance, in Gut v. Minnesota, the Court held that “[a]n ex post facto law does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its commission.” 6 In Beazell v. Ohio, the Court rejected an ex post facto challenge to a statute providing for criminal defendants jointly indicted for a felony to be tried jointly rather than separately.7 In Gibson v. Mississippi, the Court rejected a challenge to a post-offense statute implementing new jury selection procedures.8 In Mallett v. North Carolina, the Court denied an ex post facto challenge to a post-offense statute providing the state a right of appeal when a criminal defendant was granted a new trial.9

Under the fourth category identified in Calder v. Bull, a statute that alters the rules of evidence after an offense was committed so it is easier to convict an offender is ex post facto.10 However, not every change to evidentiary procedures in criminal cases violates the Ex Post Facto Clauses. In Thompson v. Missouri, the Supreme Court rejected an ex post facto challenge to a post-offense statute that allowed prosecutors to introduce certain evidence related to the authenticity of a disputed letter in a murder trial.11 The Thompson Court held that the statute did not fit within any of the Calder categories and was not “so unreasonable as materially to affect the substantial rights of one put on trial for crime.” 12 In Splawn v. California, the Court rejected an ex post facto challenge to a post-offense statute that altered jury instructions related to the consideration of evidence in an obscenity trial.13 The Court emphasized that the substantive criminal law governing the challenger’s conduct “was in full force and effect at all times relevant to [the] conduct.” 14 By contrast, the newly enacted statute did “not create any new substantive offense, but merely declare[d] what type of evidence may be received and considered.” 15 Accepting a state court’s conclusion that the new statute did not allow admission of previously inadmissible evidence, the Court held that the law was not ex post facto.16

Two cases about witness testimony illustrate the difference between laws that merely change trial procedures and those that alter the legal standards for conviction. In Hopt v. Utah, the Supreme Court denied an ex post facto challenge to a post-offense statute that allowed convicted felons to testify as witnesses in murder trials.17 The Court held that the amendment did not fall within any of the Calder categories and that changes in the law that “only remove[ ] existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right.” 18 The Court later distinguished Hopt in the 2000 case Carmell v. Texas.19 In Carmell, the Court accepted an ex post facto challenge to a post-offense law that removed a requirement for corroborating evidence and authorized conviction of certain sexual offenses based on the victim’s testimony alone.20 Unlike in Hopt, the Carmell Court held that the challenged statute did not simply determine who was competent to testify but was instead “a sufficiency of the evidence rule” that lowered the burden to convict and thus fell within the fourth category of prohibited laws identified in Calder.21

1: See, e.g., Dobbert v. Florida, 432 U.S. 282, 293 (1977) ( “Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” ); cf. Thompson v. Missouri, 171 U.S. 380, 388 (1898) ( “[T]he statute is to be regarded as one merely regulating procedure, and may be applied to crimes committed prior to its passage without impairing the substantial guaranties of life and liberty that are secured to an accused by the supreme law of the land.” ).
2: 3 U.S. 386, 390 (1798).
3: 497 U.S. 37, 46 (1990).
4: Gibson v. Mississippi, 162 U.S. 565, 590 (1896).
5: Id.
6: 76 U.S. 35, 38 (1870). See also Cook v. United States, 138 U.S. 157, 183 (1891); cf. Duncan v. Missouri, 152 U.S. 377, 382–83 (1894) (rejecting ex post facto challenge to state constitutional amendment separating the state supreme court into divisions and assigning certain cases to one division of the court).
7: 269 U.S. 167, 169–70 (1925).
8: 162 U.S. at 588–89.
9: 181 U.S. 589, 593 (1901).
10: 3 U.S. 386, 390 (1798).
11: 171 U.S. 380, 381 (1898).
12: Id. at 387. See also id. at 388 ( “We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the . . . statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.” ).
13: 431 U.S. 595, 599–600 (1977).
14: Id. at 600.
15: Id.
16: Id. at 601.
17: 110 U.S. 574, 589 (1884).
18: Id. at 590.
19: 529 U.S. 513, 531–53 (2000).
20: Id. at 516.
21: Id. at 545.