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No. 95-566

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MONTANA, PETITIONER v. JAMES ALLEN EGELHOFF

on writ of certiorari to the supreme court of montana

[June 13, 1996]

Justice Souter, dissenting.

I have no doubt that a State may so define the mental element of an offense that evidence of a defendant's voluntary intoxication at the time of commission does not have exculpatory relevance and, to that extent, may be excluded without raising any issue of due process. I would have thought the statute at issue here (Mont. Code Ann. §45-2-203 (1995)) had implicitly accomplished such a redefinition, but I read the opinion of the Supreme Court of Montana as indicating that it had no such effect, and I am bound by the state court's statement of its domestic law.

Even on the assumption that Montana's definitions of the purposeful and knowing culpable mental states were untouched by §45-2-203, so that voluntary intoxication remains relevant to each, it is not a foregone conclusion that our cases preclude the State from declaring such intoxication evidence inadmissible. A State may typically exclude even relevant and exculpatory evidence if it presents a valid justification for doing so. There may (or may not) be a valid justification to support a State's decision to exclude, rather than render irrelevant, evidence of a defendant's voluntary intoxication. Montana has not endeavored, however, to advance an argument to that effect. Rather, the State has effectively restricted itself to advancing undoubtedly sound reasons for defining the mental state element so as to make voluntary intoxication generally irrelevant (though its own Supreme Court has apparently said the legislature failed to do that) and to demonstrating that evidence of voluntary intoxication was irrelevant at common law (a fact that goes part way, but not all the way, to answering the due process objection). In short, I read the State Supreme Court opinion as barring one interpretation that would leave the statutory scheme constitutional, while the State's failure to offer a justification for excluding relevant evidence leaves us unable to discern whether there may be a valid reason to support the statute as the State Supreme Court appears to view it. I therefore respectfully dissent from the Court's judgment.

The plurality opinion convincingly demonstrates that when the Fourteenth Amendment's Due Process Clause was added to the Constitution in 1868, the common law as it then stood either rejected the notion that voluntary intoxication might be exculpatory, ante, at 5-7, or was at best in a state of flux on that issue. See also ante, at 9-11 (O'Connor, J., dissenting). That is enough to show that Montana's rule that evidence of voluntary intoxication is inadmissible on the issue of culpable mental state contravenes no principle " `so rooted in the traditions and conscience of our people,' " as they stood in 1868, " `as to be ranked as fundamental,' " ante, at 9 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). But this is not the end of the due process enquiry. Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U.S. 497, 542 (1961), teaches that the "tradition" to which we are tethered "is a living thing." ^[n.1] What the historical practice does not rule out as inconsistent with "the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), must still pass muster as rational in today's world. Cf. Medina v. California, 505 U.S. 437, 454 (1992) (O'Connor, J., concurring in judgment) (although "historical pedigree can give a procedural practice a presumption of constitutionality . . ., the presumption must surely be rebuttable").

In this case, the second step of the due process enquiry leads to a line of precedent discussed in Justice O'Connor's dissent, ante, at 2-9, involving the right to present a defense. See, e.g., Washington v. Texas, 388 U.S. 14, 22 (1967) (a State cannot arbitrarily bar "whole categories of defense witnesses from testifying"); id., at 25 (Harlan, J., concurring in result) (State may not "recogniz[e] [testimony as] relevant and competent [but] arbitrarily ba[r] its use by the defendant"); Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (defendant entitled to a "fair opportunity to defend against the State's accusations"); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (States may not exclude "competent, reliable evidence" that is "central to the defendant's claim of innocence" absent an adequate justification). Collectively, these cases stand for the proposition, as the Court put it in Chambers, supra, at 295, that while the right to present relevant evidence may be limited, the Constitution "requires that the competing interest [said to justify the limitation] be closely examined."

Given the foregoing line of authority, Montana had at least one way to give effect to its judgment that defendants should not be permitted to use evidence of their voluntary intoxication to defeat proof of culpable mental state, and perhaps a second. First, it could have defined culpable mental state so as to give voluntary intoxication no exculpatory relevance. While the Due Process Clause requires the government to prove the existence of every element of the offense beyond a reasonable doubt, In re Winship, 397 U.S. 358, 364 (1970), within fairly broad limits the definition of those elements is up to the State. We thus noted in Patterson v. New York, supra, at 211, n. 12, that the various "due process guarantees are dependent upon the law as defined in the legislative branches," particularly on the legislature's enumeration of the elements of an offense, see id., at 210 ("the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged"). See also McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) ("in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive"); Martin v. Ohio, 480 U.S. 228, 233 (1987) (same).

While I therefore find no apparent constitutional reason why Montana could not render evidence of voluntary intoxication excludable as irrelevant by redefining "knowledge" and "purpose," as they apply to the mental state element of its substantive offenses, or by making some other provision for mental state, ^[n.2] I do not believe that I am free to conclude that Montana has done so here. Our view of state law is limited by its interpretation in the State's highest court, see R. A. V. v. St. Paul, 505 U.S. 377, 381 (1992); Murdock v. Memphis, 20 Wall. 590 (1875), and I am not able to square the State Supreme Court's opinion in this case with the position advanced by the State here (and supported by the United States, as amicus curiae), that Montana's legislature changed the definition of culpable mental states when it enacted §45-2-203. See 272 Mont. 114, 122, 900 P. 2d 260, 265 (1995) ("It is clear that such evidence [of intoxication] was relevant to the issue of whether Egelhoff acted knowingly and purposely"); id., at 263-265 (noting and not disputing Egelhoff's claim that §45-2-203 removes from the jury's consideration facts relevant to a determination of mental state, an essential element of the offense).

A second possible (although by no means certain) option may also be open. Even under a definition of the mental state element that would treat evidence of voluntary intoxication as relevant and exculpatory, the exclusion of such evidence is typically permissible so long a State presents a " `valid' reason," ante, at 7 (O'Connor, J., dissenting), to justify keeping it out. Chambers and its line of precedent certainly recognize that such evidence may often properly be excluded. See Chambers, supra, at 295. As the plurality notes, ante, at 4, Federal Rules of Evidence 403 (addressing prejudice, confusion, misleading the jury, waste of time, etc.) and 802 (hearsay) provide two examples of an adequate reason for excluding relevant evidence.

Hence, I do not rule out the possibility of justifying exclusion of relevant intoxication evidence in a case like this. At the least, there may be reasons beyond those actually advanced by Montana that might have induced a state to reject its prior law freely admitting intoxication evidence going to mental state.

A State (though not necessarily Montana) might, for example, argue that admitting intoxication evidence on the issue of culpable mental state but not on a defense of incapacity (as to which it is widely assumed to be excludable as generally irrelevant ^[n.3] ) would be irrational since both capacity to obey the law and purpose to accomplish a criminal result presuppose volitional ability. See Model Penal Code §4.01 ("A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity . . . to conform his conduct to the requirements of law") and Model Penal Code §2.02(2)(a)(i) ("A person acts purposely with respect to a material element of an offense when . . . it is his conscious object to engage in conduct of that nature or to cause such a result"). And quite apart from any technical irrationality, a State might think that admitting the evidence in question on culpable mental state but not capacity (when each was a jury issue in a given case) would raise too a high a risk of juror confusion. See Brief for State of Hawaii et. al as Amici Curiae ("[U]se of [intoxication] evidence runs an unacceptable risk of potential manipulation by defendants and [will lead to] confusion of juries, who may not adequately appreciate that intoxication evidence is to be used for the question of mental state, not for purposes of showing an excuse"). While Thomas Reed Powell reportedly suggested that "learning to think like a lawyer is when you learn to think about one thing that is connected to another without thinking about the other thing it is connected to," Teachout, Sentimental Metaphors, 34 UCLA L. Rev. 537, 545 (1986), a State might argue that its law should be structured on the assumption that its jurors typically will not suffer from this facility. ^[n.4]

Quite apart from the fact that Montana has made no such arguments for justification here, however, I am not at all sure why such arguments would go any further than justifying redefinition of mental states (the first option above). I do not understand why they would justify the state in cutting the conceptual corner ^[n.5] by leaving the definitions of culpable mental states untouched but excluding evidence relevant to this proof. Absent a convincing argument for cutting that corner, Chambers and the like constrain us to hold the current Montana statute unconstitutional. I therefore respectfully dissent.

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Notes

1 "The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint." Poe v. Ullman, 367 U. S., at 542 (Harlan, J., dissenting).

2 See State v. Souza, 72 Haw. 246, 249, 813 P. 2d 1384, 1386 (1991) ("The legislature was entitled to redefine the mens rea element of crimes and to exclude evidence of voluntary intoxication to negate state of mind").

3 See American Law Institute, Model Penal Code §2.08(4) (1985), which deems intoxication relevant for this purpose only where by reason of "pathological intoxication" an "actor at the time of his conduct lacks substantial capacity . . . to conform his conduct to the requirements of law." The Model Penal Code further defines "pathological intoxication" as "intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible." Id., §2.08(5)(c).

4 Teachout notes that Powell acknowledged that this concept was not explicitly described in his essay entitled A Comment on Professor Sabine's "Pragmatic Approach to Politics," 81 Pol. Sci. Q. 52, 59 (1966), but in a letter wrote:

"If you think you can think about a

thing that is hitched to other

things without thinking about the

things that it is hitched to, then

you have a legal mind."

Quoted in Teachout, Sentimental Metaphors, 34 UCLA L. Rev., at 545, n. 17.

5 Cf. Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143 (1920) ("Men must turn square corners when they deal with the Government").