*1 v. TEXAS. SPENCER January 23, 1967.* 17-18, 1966. Decided Argued October No. to the Court Texas, on certiorari Bell 69, with No. *Together 70, and No. argued Texas, October Appeals of Criminal United States Director, on certiorari Corrections Beto, Reed 18, 1966. argued, October Circuit, Fifth Appeals for Court *2 Michael D. Matheny, by appointment of the Court, post, p. 896, argued the cause for appellant in No. 68. With him on the Tom, brief was Joe B. Goodwin. R. Scott argued the cause and filed briefs for petitioner No. 69. Emmett Colvin, Jr., argued the cause for peti- tioner in No. 70. With him on the brief were Charles W. Tessmer and Clyde W. Woody.

Leon Douglas argued the cause for appellee in No. 68. With him on the brief were Waggoner Carr, Attorney General of Texas, and Hawthorne Phillips, First Assistant Attorney General. Mr. Phillips argued the cause for re- spondent in No. 69. With him on the briefs were Mr. Carr, T. B. Wright, Executive Assistant Attorney Gen- eral, and Lonny F. Zwiener, Gilbert J. Pena and Howard M. Fender, Assistant Attorneys General. Mr. Fender argued the cause for respondent in No. 70. With him on the brief were Messrs. Carr, Phillips, Wright, Pena and Zwiener.

T. W. Bruton, Attorney General, pro se, and Ralph Moody, Deputy Attorney General, filed a brief for the Attorney General of North Carolina, as amicus curiae, in No. 69.

Mr. Justice Harlan delivered the opinion of the Court.

Texas, reflecting widely established policies in the criminal law of this country, has long had on its books Their statutes. habitual-criminal so-called guilty found those punishment enhance is to effect convicted shown also are who crime hand at cases The three past. in the crimes other Texas by employed procedures challenge the statutes.1 of such enforcement be- convictions time at recently, Until that, was procedures those essence us,

fore introduc- indictment allegations through convictions, past a defendant’s respecting proof tion fully was charge criminal pending trying also was derelictions, but previous such informed were matters such the court charged *3 defendant’s the assessing in account into taken indictment.2 current the under innocence 63, 64 62, 1 are Articles involved here statutes The (1952). Pen. Code Texas of the felony less of a the trial on it be shown “If provides: 62 Article the convicted before has been defendant the capital that than on such punishment nature, the same the offense, or one same highest which be the shall conviction subsequent or other second ordinary cases.” in offenses of such commission to the affixed con- times three shall provides: “Whoever 63 Article conviction third on such capital shall felony than less of a victed penitentiary.” the in life imprisoned for be any time second convicted person “A provides: 64 Article pun- an alternate is affixed as of death penalty to which offense punishment a less conviction second such on not receive shall ishment penitentiary.” in the for life imprisonment than Art. Proe. Crim. Texas Code in embodied were procedures These any in impaneled being jury “A follows: providing (1941), The order: 1. following in the proceed shall action, cause criminal attorney jury by read to be shall or information indictment shall State part of the testimony on The 4. ... prosecuting. noncapital in that, least appears at gloss it judicial By be offered.” keep could prior convictions his by stipulating cases, a defendant State, Pitcock v. jury. See away from knowledge of them Spencer, 389 in below decision But see the 2d S. W. stipulation rule inapplicability 304, for the 2d S. W. The facts the cases now here are these. In Spencer (No. 68), the petitioner3 was indicted for murder, malice, of his common-law wife. The indictment alleged the defendant had previously been convicted of murder with malice, factor which if proved would en- title jury to sentence the defendant to death or to prison for not less than life under Texas Pen. Code Art. n. supra, if whereas conviction was not proved the jury could fix the penalty at death aor prison term of not less than two years, see Texas Pen. Code Art. 1257. Spencer made timely objections to the reading to the jury of portion of the indictment, and ob- jected as well to the introduction of evidence to show his prior conviction. The jury was charged that if it found that Spencer had maliciously killed the victim, and that he had previously been convicted of murder with malice, the jury was to “assess his punishment at death or con- finement in the penitentiary for life.” jury The was in- eapital eases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that open course was any petitioners. of the Subsequent present to the convictions Texas passed a new law respecting governing recidivist cases, the effect of which seems to except capital cases given is not the recidivist issue until it has first found the guilty defendant under the principal charge. Texas Code Crim. Proc. *4 Art. 36.01, January effective 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us. 3The question Spencer of whether properly here as an appeal, a matter which postponed we to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U. 282; S. Hart Wechsler, & The Federal Courts and the Federal System 565-567 (1953). Rather than undertake to it, resolve we think it profitable more to dismiss this appeal, petition treat it as a for certiorari, 28 U. S. 2103, C. grant § and the petition, particularly as there is pending in the Spencer's Court timely filed alternative petition for certiorari, which has been held to await the outcome of appeal. this Accordingly we in opinion referred to Spencer “petitioner.” as a prior the consider not it should that well as structed the on guilt defendant’s of the any evidence as conviction found was Spencer tried. being was he which on charge death. to sentenced and guilty for indicted was petitioner the 69), (No. Bell In been had he that alleged indictment the and robbery, United the in robbery bank of convicted previously Texas. of District the Southern for Court District States ground, the on indictment the quash to moved Bell read- and allegation the that Spencer, in that to similar and prejudicial was offense prior aof jury the ing to objections Similar trial. fair aof him deprive would to documentary offer the of. made were jury the charge court’s The conviction. prior the prove considered not should conviction prior the that stated the on innocence issue upon passing non- in this sentencing procedure The charge. primary Spencer. that from different somewhat was case capital the defendant if it found that instructed was jury The fix it could charge, robbery present only guilty than more nor years five than less not at his sentence found if it But Art. Code Pen. Texas See life. alleged convicted previously also Bell had guilty a bring in verdict should indictment, finding a further assault robbery by offense for conviction a final “charging allegations found, so The true.” are robbery bank for such law set punishment, fixed judge See penitentiary. in the imprisonment life at offender, supra. note Art. Code Pen. Texas a third-offender involving 70),4 (No. case Reed The come Bell cases Spencer and case, unlike Reed 4 The from Texas, here Appeals of of Criminal Court from us Fifth Appeals Court States United of the judgment of habeas a writ dismissal Court’s District affirming the Circuit procedure did Texas ground corpus on *5 723. F. 2d Constitution. States United offend prosecution for burglary, see Texas Code Pen. 63, Art. n. 1, supra, entailed the same practice as followed in Bell.

The common and sole constitutional claim made in these cases is that Texas’ use of convictions in the current criminal trial of petitioner each was so egregi- ously unfair upon the issue of or innocence as to offend the provisions of the Fourteenth Amendment no State shall “deprive any person of life, liberty, property, without process due of law . . . .” We took these cases for review, 382 U. S. 1022, 1023, 1025, be- cause the courts of appeals have divided on the issue.5 For reasons now to follow we affirm the judgments below.

The road to decision, it seems to us, is clearly indi- cated both by what the petitioners in these cases do not contend and by the course of the authorities closely related fields. No claim is made here that re- cidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws, and procedures designed to im- plement their underlying policies, have been enacted in all the States,6 the Federal Government as well. See, e. g., 18 U. S. C. § 2114; Fed. Rule Crim. Proc. 5 The Third Circuit in United States v. Banmiller, 720, F. 2d held a Pennsylvania similar procedure, applied when in capital cases, unconstitutional. The Fourth Circuit held comparable Maryland practice unconstitutional in all cases. Lane v. Warden, 320 F. 2d 179. The Fifth Circuit in Breen Beto, 96, F. 2d again in the Reed case before today, us 343 F. 2d 723, and the Eighth Circuit Nash, 313 F. Wolfe 2d have held such procedures constitutional. The Ninth Circuit in Powell v. United States, 35 F. 2d 941, sustained in the context of a second offense under 29 of § the National Prohibition Act, 41 Stat. 6See annotations at 58 A. L. R. 82 A. L. R. 345, 79 A. L. R. 2d 826; Note, Recidivist Procedures, 40 N. Y. U. L. (1965). Rev. 332 *6 560 statutes, Such (1961). §22-104 Code C.D. (c)(2);

32 here circumstances procedural precise in not though several on Court in sustained been have involved, constitu- they violate contentions against occasions post ex jeopardy, double dealing strictures tional process, due punishment, unusual and cruel laws, facto Moore immunities. and privileges protection, equal Massachusetts, v. McDonald 673; S. Missouri, U. 159 v. 616; S.U. Virginia, West v. Graham 311; S.U. S. Boles, 368 U. v. Oyler 728; S.U. Burke, 334 v. Gryger for is unconstitutional it contended it isNor to a out meted be to punishment assess to jury make toor case, criminal other capital in a defendant con- prior not or was was there whether to findings as be is left punishment enhanced though even viction always have The States judge. imposed between responsibility dividing leeway wide given Davis, Hallinger v. cases. criminal jury judge cf. 581; S.U. Dow, 176 v. Maxwell 314; S. 146 U. Pennsylvania, v. Giaccio 3;S. Fretag, 348 U. v. Chandler 8.n. 405, 399, S. 382 U. arguing to be appear even do Petitioners de- of a is told if a infringed is the Constitution concerning evidence rules The crimes. prior fendant's jurisdiction vary from and' complex, are offenses broadly. summarized they can but jurisdiction, recognized generally such Because except usually excluded prejudice, potentiality things showing such probative particularly it is when States, S. 336 U. v. United Nissen Nye & intent, W. 2d S. 117, 282 R. Tex. Cr. State, 162 v. Ellisor Tex. State, Doyle v. crime, in the an element 393; State, v. Chavira identity, 1131; W. 126 S. Cr. R. v. Moss malice, 115; 2d S. W. 197, 319 R. Cr. 167 Tex. Tex. State, 168 Moses motive, 389; 2d State, W. 364 S. Cr. R. 409, 328 S. W. 2d 885; a system of criminal ac- tivity, Haley v. State, 87 Tex. Cr. R. 519, 223 S. 202;W. or when the defendant has raised the issue of his char- acter, Michelson v. United States, 335 S.U. 469, Perkins State, 152 Tex. Cr. R. 321, 213 S. W. 681; 2d or when the defendant has testified and the State seeks to impeach *7 his credibility, Giacone State, v. 124 Tex. Cr. R. 62 141, S. 2dW. 986.7

Under Texas law convictions of the defend- ants in the three cases before the Court today might have been admissible for any one or more of these uni- versally accepted reasons. In all these situations, as under the recidivist statutes, the jury learns- of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to be outweighed by the validity of the State’s purpose in permitting intro- duction of the evidence. The defendants’ interests are protected by limiting instructions, see Giacone State, supra, by and the discretion residing with the trial judge to limit or forbid the admission of particularly prejudi- cial evidence even though admissible under an accepted rule of evidence. See Spears v. State, 153 Tex. Cr. R. 7These Texas cases reflect the rules prevailing in nearly all jurisdictions. common-law See generally McCormick, Evidence §§ 157-158 (1954); 1 Wharton’s Criminal Evidence §§221-243 (Anderson ed. 1955); 1 Wigmore, Evidence (3d §§ 215-218 ed. 1940 and 1964 Supp.); Note, Other Crimes Evidence Trial, at 70 Yale L. J. 763 (1961). For English rules, substantially similar, see Cross, Evidence (2d 292-333 1963). ed. Recent commentators have criticized the rule of general exclusion, and have suggested a range broader of admissibility. Model Code of Evidence, Rule 311; Carter, The Admissibility of Evidence of Similar Facts, 69 Q. L. Rev. 80 (1953), 70 Q. L. Rev. 214 (1954); Note, Procedural Pro tections of the Criminal Defendant, 78 Harv. L. Rev. 435-451 (1964). For the use of type this of evidence in juris continental dictions, see Glanville Williams, The Proof of (2d Guilt 181 ed. 1958); 1 Wigmore, supra, 193. § ed. (3d 29a§ Evidence Wigmore, 812; 2dW. S. Code Model 45; Evidence Rule Uniform 1940); 303. Evidence, Rule law sufficiently indicates survey general This developed chiefly has evidence, reconcile designed of rules a set evolved has States, will information type this possibility usefulness admitted effect prejudicial some one any by the considered factor aas itself evidence The purposes. valid number large aof aof always, almost cases usually, is there us before cases in the kind, documentary inflam- way any inwas presentation its claim no S. States, U. United Marshall Compare matory. infringed Constitution States United say the To prejudi- may be type because simply *8 prej- vitiate inadequate instructions limiting and cial com- entire this into inroads make would effects, udicial would and law, evidentiary criminal of state code plex ex- For jurisprudence. of trial areas large other threaten codefendants of several whether trials, joint all ample, furnish offenses, multiple charged with defendant of one sub- evidence when for unfairness opportunities inherent acquit- an bemay there (on which crime to one mitted charge. totally different as to jury may influence tal) Opper cf. 232; States, S. U. United Paoli v. Delli See v. United Krulewitch 84; States, 348 U. S. United is effect prejudicial type This States, 336 U. S. it is but practice, criminal inhere acknowledged to expected (1) the grounds on justified to its limiting instructions follow dif- trying the convenience (2) function, proper connected person, same against crimes ferent trial same in the defendants, different against crimes interest. governmental valid Such an approach was in fact taken by the Court Michelson v. United States, 335 U. S. 469. There, in a federal prosecution, the Government was permitted cross-examine defense witnesses as to the defendant’s character and to question them about a prior conviction. The Court, recognizing the prejudicial effect of this evi- dence, noted that “limiting instructions on this subject are no more‘difficult to comprehend or apply than those upon various other subjects,” id., at 485, and held that this Court was not the best forum for developing rules of evidence, and would, therefore, not proscribe the long- standing practice at issue. A fortiori, this reasoning applies in the cases before us today which arise not under what has been termed the supervisory power of this Court over proceedings in the lower federal courts, see Cheff Schnackenberg, 384 U. S. 373, but in the form of a con- stitutional claim that would require us to fashion rules of procedure and evidence in state courts. It is noteworthy that nowhere in Michelson did the Court or dissenting opinions approach the issue in constitutional terms. It is contended nonetheless that in this instance the Due Process Clause of the Fourteenth Amendment re- quires the exclusion of prejudicial evidence of prior con- victions even though limiting instructions are given and even though a valid state purpose —enforcement of the habitual-offender statute —is served. We recognize that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent a less cogent state interest than does its use for other purposes, in that other *9 procedures for applying enhancement-of-sentence stat- utes may be available to the State that are not suited in the other situations in which such evidence is intro- duced. We do not think that this distinction should lead to a different constitutional result.

Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental Tumey g., e. See, trial. criminal ain fairness of elements 455; S. 316 U. Brady, v. Betts 510; S.U. Ohio, v. v. Estes see 335; S. U. Wainwright, v. Gideon cf. S. U. Maxwell, v. Sheppard 532; S. Texas, 381 U. has it But 12. S.U. Illinois, 351 v. cf. 333; Griffin Court this establish cases such that thought been never state of promulgation the organ rule-making aas spe the of none And procedure. criminal of rules Court ordains Constitution of the provisions cific state legitimate the of face the In authority. such that use widespread and long-standing the purpose im it find we here, attack under procedure the attend some of possibility of because say to possible un rendered is procedure Texas prejudice collateral has Clause Process Due under constitutional Mr. As cases. past in our applied interpreted been rule a state remark, to occasion had Cardozo Justice Amendment Fourteenth foul run “does law be to thinking our to may seem method another because protection promise surer a give toor wiser fairer S.U. Massachusetts, 291 v. Snyder bar.” at prisoner 427. S.U. York, 319 Newv. Buchalter also See 105. S.U. Denno, 378 v. Jackson on reliance Petitioners’ unconstitu- held the Court There misplaced. trial leaving to York the New tional con- challenged aof voluntariness issue alone characterized of law area an fession, rules. constitutional stiff particularly development Miranda 534; S. Richmond, 365 U. Rogers See judicial held Court The S. Arizona, 384 U. mat- aas whether determine required first ruling was confession law—the constitutional law—federal ter a requirement This voluntary. deemed could question federal on a judge before hearing threshold argument support solid no lends of voluntariness when- required trial two-stage jury here —that made *10 ever a State seeks to invoke an habitual-offender statute. It is true that the Court in Jackson supported its hold- ing by reasoning that a general jury verdict was not a “reliable” vehicle for determining the issue of voluntari- ness jurors because might have difficulty in separating the issues of voluntariness from that of guilt or inno- cence. But the emphasis there was on protection of a specific constitutional right, and the Jackson procedure was designed as a specific remedy to ensure that an in- voluntary confession was not in fact relied upon by the jury. In the procedures before inus, contrast, no specific federal right —such that dealing with confessions —is involved; reliance is placed solely on a general “fairness” approach. In this area the Court has always moved with caution before striking down state procedures. It would be extravagant in the extreme to take Jackson as evinc- ing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as stand- ing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose. Compare Opper v. United States, 348 U. S. 84; Leland v. Oregon, 343 U. S. 790.8

It is fair to say that neither the Jackson ease nor any other due process decision of this Court even remotely supports the proposition that the States are not free to enact habitual-offender statutes of the type Texas

8 Indeed the most recent scholarly study of jury behavior does not sustain the premise juries are especially prone prejudice prior-crime when evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges juries and concludes that “Neither the one nor the other can be said to be distinctively gullible or skeptical.” Id., at 180. *11 tending trial during to admit and chosen

has statutory scheme. under required allegations prove dealing procedures state a spectrum for Tolerance especially enforcement lawof problem common with a is acknowl of recidivism rate The here. appropriate dealing methods variety of wide a high,9 to be edged prog is in experimentation exists, and problem with applying The common-law ress. us, which before cases in the by Texas used

statutes, in convictions past proof and allegations requires known best and simplest course, is, trial, current the recidivist deal jurisdictions Some procedure.10 v. g., Oyler e. see, proceeding, totally separate ain issue 2, (n. already observed 448, and Boles, S. 368 U. changed to recently some extent Texas supra) can proceeding such In some States course. substantive the new on conviction after even instituted Graham (1959); 168.040 § Stat. Rev. offense, see Ore. for deter method S. 616. The Virginia, 224 U. West jurisdictions between also varies mining prior convictions Ann. g., Stat. e. Fla. issue, on this affording a trial to the leaving question those (1965); and § 775.11 Mo. (a); Proc. 32 Crim. g., court, see, e. Fed. Rule procedure, Another (2) (1959).11 §556.280 Rev. Stat. 9 in survey Uniform Crime,” collected “Careers statistical See (Dept, Justice, p. 1965, 27 Reports for the Crime United States — States, 1966, reveals 1966). Abstract of the United The Statistical year end prisons in the prisoners to federal committed 62% Id., at 163. previously committed. 1965, ing 30, had been June procedures, survey analysis various recidivist For a (1965); Procedures, 40 N. Y. U. L. Rev. Note, see Recidivist Note, Pleading Proof of Convictions The Prior also see (1958). Prosecutions, L. Rev. 210 33 N. Y. U. Criminal Habitual impose punishment since authority juries have had Texas power judge. See held 11 States this but in all but Procedure, Rev. 44 Tex. L. Reid, of Criminal The Texas Code (1966). 1008-1009

used Great Britain and Connecticut, see Coinage Offences Act, 1861, 24 & 25 Viet., c. 99; State Ferrone, 96 Conn. 160, 113 A. 452, requires that the indictment allege both the substantive crime and convic- tion, that both parts be read to the defendant prior to trial, but that only the allegations relating to the substan- tive crime be read to the jury. If the defendant is con- victed, the prior-offense elements are then read to the jury which any considers factual issues raised. Yet an- other system relies upon parole authorities to with- *12 hold parole in accordance with their findings as to prior convictions. g., See, e. N. J. Stat. Ann. § 30:4-123.12 (1964). And within each broad approach described, other variations occur. A determination of the “best” recidivist trial pro-

cedure necessarily involves a consideration of a wide variety of criteria, such as which provides method most adequate notice to the defendant and an opportunity to challenge the accuracy and validity of the alleged prior convictions, which method best meets the particu- lar jurisdiction’s allocation of responsibility between court and jury, which method is best accommodated to the State’s established trial procedures, and of course which method is apt to be the least prejudicial in terms of the effect of prior-crime evidence on the ultimate issue of guilt or innocence. To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have sug- gested,12 and with which we might well agree were the

12See, g., e. Lane v. Warden, 320 F. 2d 170; Note, 40 N. Y. U. L. Rev. 332, 348 (1965). Other commentators have against cautioned a too hasty adoption of the two-stage trial. See the Second Circuit de cision in United States v. Curry, 358 F. 2d 904, 914-915, where court procedure discussed the as applied it in capital federal cases, and concluded: “Given the many considerations may affect the necessity for a two-stage trial in each case, and considering the context, rule-making or legislative in a us before matter this determination constitutional a from cry far ais by compelled problem handling the method rare are trials Two-part Amendment. Fourteenth by compelled been never have they jurisprudence; our in aas even law, of constitutional matter aas Court this major recidivism With procedure.13 federal matter procedure in trial changes substantial is, problem be country would around courts local countless made contentions to sustain Court this were required To do. unwilling to are This we petitioners. these this pale beyond quite step would such take would It system. federal our function proper Court’s Court by this encroachment unjustifiable wholly abe it best think technique, we desirability this untested questionable See also trial court.” of the discretion to the question to leave disadvantages of administrative practical discussion App. C.D. S. States, U. Frady United such opinion). We (dissenting 84, 114-115 F. 2d 108-109, 348 experience concerning actual information positive no presented decision on a bear would procedure that penalty separate awith law. One of constitutional a matter States *13 the upon all impose it not a such matter practical aas suggests that study dating back experience, California “The helpful defendants: to proved neglected to often have counsel defense rather been 1957, has to a lack exhibited phase and penalty adequately the prepare miti- advanced should concerning what facts sophistication to lawyers has defense approach Apparently, gating. guilt and issue substantive to the efforts of their bulk devote hand, other On the role. a phase minor to penalty relegate the phase penalty advantage complete has taken prosecution jury all present to the marshal attempted to and has Clemency in Note, Executive exist.” circumstances aggravating (1964). 136, 167 L. Rev. Y.N. U. Cases, 39 Capital penalty, fixes itself Spencer, a where, as In cases opinion separate Justice’s emphasis in The Chief effect require, as reality tobe stipulation would aof upon use For jury trial. two-stage law, a constitutional of federal matter fact bring the proof would evidentiary than no stipulation less jury. trial before the prior convictions upon the constitutional power of States to promulgate their own rules of evidence try their own state-created crimes in their own state courts, so long as their rules are prohibited by any provision of the United States Constitution, which these rules are not. The judgments in these cases are Affirmed.

Mr. Justice Stewart, concurring. If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own no- tions of enlightened policy, I would not join the Court’s opinion. For it is clear to me that the recidivist pro- cedures adopted in years recent by many other States1— by Texas herself since January 1 of year2 last —are far superior to those utilized in the cases now before us. But the question for decision is not whether we applaud or even whether we personally approve procedures followed in these recidivist eases. The question is whether those procedures fall below the minimum level the Four- teenth Amendment will tolerate. Upon that question I am constrained to join the opinion and judgment of the Court.

Mr. Chief Justice Warren, with whom Mr. Justice Fortas concurs, dissenting in Nos. 68 and 69, and con- curring in No. 70. It seems to me that the only argument made Court which might support its disposition of these cases is the amorphous one that this Court proceed should

hesitantly in dealing with courtroom procedures which are alleged to violate the Due Process Clause of the Fourteenth Amendment. It attempts to bolster its de- *14 cision with arguments about the conceded validity of the purpose of recidivist statutes and by pointing to occa- 1See opinion of The Chief Justice, post, at 586, n. II.

2See opinion of the Court, ante, at 556, n. 2. traditionally ad- is crimes of evidence when sions finding guilt related purpose specific to serve mitted I do discuss, I shall reasons the For or innocence. decision. the for support arguments two in these find not toward attitude cautious its by I persuaded am Nor decision for criteria the recognize I procedure. this necessarily drawn are cases process due procedural in legal our of attitudes jurisprudential traditional the from constitu- relatively specific from than rather system recog- long Court this However, command. tional in procedures of courtroom importance central the nized Justice As Mr. liberties. our constitutional maintaining individual history of us, reminded often Frankfurter observ- history of coincident largely liberty is Refugee Anti-Fascist Joint safeguards, procedural ance of concurring opinion S. McGrath, 341 U. Committee at J., Frankfurter, of evi- prior-convictions the use to me seems

It odds with at fundamentally is cases in these dence proce- this because process, notions due traditional legiti- conflicting but resolution nicest not the dure because accused, but the State and mate interests advancing without accused needlessly prejudices wrong If I am State. of the legitimate interest any evi- prior-convictions introduction thinking that for the alone, I am not purpose no valid dence serves is advanced State what interest Court never states my view, under- failure, And this procedure. this opinion. logic of the Court’s mines of en- purpose valid said about is much There offenders, with which repeating for punishment hanced criminal variety of occasions in I agree, and about as hav- admitted prior-crimes in which trials or innocence. question ing some relevance support I either But cannot find by analogy to the of recidivist statutes purposes *15 traditional occasions where prior-crimes evidence is ad- mitted. And the Court never up faces to the problem of trying justify on the ground the State would not process violate due if it prior used simply convictions guilt evidence of because criminal showed propensity.

Recidivist statutes have never thought been to allow the State to show probability of guilt because of prior convictions. Their justification is only that a defendant’s prior crimes should lead to punishment enhanced any for subsequent offenses. Recidivist statutes embody four traditional rationales for penal imposing sanctions.1 A man’s prior crimes are thought aggravate his subsequent crimes, greater and thus than usual retribu- tion is warranted. Similarly, policies of insulating society from persons whose past conduct indicates their propensity to criminal behavior, of providing deterrence from future crime, rehabilitating criminals are all theoretically by served enhanced punishment according to recidivist statutes.' None these four traditional justifications for recidivist statutes is related in any way to the burden of proof to which the State is put to prove that a crime has currently by committed alleged recidivist. The fact of prior convictions is not intended recidivist statutes to make it any easier for the State to prove the commission of a subsequent crime. The State does not argue in these cases that its statutes are, or constitutionally be, could intended to allow the prosecutor introduce convictions to show the accused’s criminal disposition. But the Court’s opinion seems to accept, without discussion, that this use of prior- crimes evidence would be consistent with due process.

The amended Texas procedure is the nearest demon- stration that none of the interests served by recidivist

1 See generally Note, Recidivist Procedures, 40 N. Y. U. L. Rev. 332 (1965). evi- prior-crimes by presentation is advanced

statutes guilty. Under found has been the defendant dence before January since effective statutory law,2 current *16 felony cases cases, in these involved not therefore innocence guilt or question the decides first jury the only after the de- charged, and currently crime of the crime is evidence of the current guilty is found fendant of whether entirely separate question on the presented a crime convicted previously has been the defendant statute of a recidivist scope the him within places Texas the old Under punishment. enhanced requiring the new as under cases, just in these involved only is relevant prior fact of convictions procedure, Recidivist punishment. enhanced question to the method nothing to do with the statutes have whatever has committed by which State shows that an accused a crime.

Whether or not a State has recidivist statutes on its books, prior is well con- established that evidence may by victions not be used the State to show a criminal disposition accused has and that probability that he currently committed the crime charged is increased.3 While this Court held has never

2 36.01, January 1, Texas Code Crim. Proc. Art. effective two-stage procedure apply capital The new cases, does not apparently being capital reason for the distinction because in cases jury punishment applicable a choice of under the validity statute. The of this distinction will be discussed below. 3Professor McCormick states: prosecution may “The rule is that not introduce evidence substantially other criminal acts of the accused unless the evidence is purpose probability relevant for some other than to show a that he committed the crime on trial he man of char- because is a criminal McCormick, (1954 ed.). acter.” Evidence 157§ Wigmore agrees general Dean with this statement of the rule of exclusion, 1 Wigmore, (3d 1940). Wig- Evidence As 193-194 ed. §§ points out, prior more objectionable, evidence of be- crimes likely cause it is not probative, somewhat but because the to use of convictions to show nothing more than disposition to commit crime violate would Due Process Clause of the Fourteenth Amendment, our exercising decisions supervisory power over criminal trials in courts,4 federal as well as by decisions courts give it more weight than it might deserves and decide that the de- punished fendant deserves past because of the crime without regard to guilty whether he is currently crime charged. 4See, g., e. Marshall States, v. United (1959); U. S. 310 Michelson v. States, United Boyd U. 469 (1948); S. v. United States, 142 (1892). U. S.

In Michelson, the Court stated: “Courts that follow the common-law tradition unanimously almost come disallow prosecution resort any kind of evidence of a defendant’s evil character to establish probability *17 of guilt. his Not that the law invests the defendant pre with a sumption good of character, Greer States, v. United 245 U. S. simply but it closes the whole of character, disposition matter and reputation prosecution’s on the may The case-in-chief. state not show prior defendant’s trouble law, specific with the acts, criminal or ill among name his neighbors, though even might such facts logically persuasive be by that he is propensity probable a perpe trator the of inquiry crime. The rejected not is because character irrelevant; is on the contrary, it weigh is said to much too with the jury overpersuade and to so them prejudge as to one with a general bad deny record and him a opportunity fair to defend against particular a charge. overriding The policy excluding of such evidence, despite probative its admitted value, practical is the experience that its prevent disallowance tends to issues, confusion of surprise unfair prejudice.” and undue S., 335 U. at 475-476. In Marshall, the Court reversed a conviction where it was shown newspaper accounts of the prior defendant’s convictions had by been seen a substantial jurors. number of The Court stated: “. . . have exposure We here the jurors of to information of a judge character which the trial prejudicial ruled was so it could not directly be offered as prejudice evidence. The to the defendant is almost certain great to be as when that evidence reaches the through news accounts as when part it is a of prosecution’s the S., 360 evidence.” at U. 312-313. Boyd, In the defendants charged were with following murder an attempt rob, to prosecution the introduced evidence that the defendants had committed other robberies before the one involved 574 of evidence courts,6 suggest of state appeals5 to show than other purpose for no introduced crimes Clause. Process Due the violate would disposition criminal Mr. first by the opinion Court, an in charged. The crime the

in inadmissible: crimes other of evidence the Harlan, held Justice by the defendants committed may been have robberies Those . “. . of murder of innocent may they yet March, and prejudice to only tended them Proof April. Dansby in real away from the minds their draw to jurors, defendants whose they wretches were impression produce issue, and entitled not community, were and who value of no were lives trial for law prescribed the rules benefit full to the punishment involving the crime charged with beings human S., at 142 U. death.” (C. A. 386, 389 States, 2d F. Lovely United g., See, e. 1948): Cir. 4th of other of evidence introduction thus forbids rule which “The charged, crime prove the tendency to having no reasonable offenses tendency on criminal may a they establish except so far It law. arises rule mere technical accused, not part of lies fairness justice and demand fundamental out allowed, were If such jurisprudence. our the basis at of collateral trial in the be wasted of courts time only would prejudiced greatly be would of crime accused persons issues, but their presenting embarrassed otherwise would be juries and before really on trial.” issues on the defenses 1942): 5th (C. Cir. A. States, F. 2d v. United Railton concluded, that apt very conclude, and logical to It . . certainly again. It is will steal he once was dishonest man because *18 an were if ho than did steal official crooked probable’ that ‘more It cannot very premises. forbids these our law Yet one. upright crimes similar other committed the accused that be shown charged.” one he committed probable it is show (C. 9th Cir. A. States, 737 F. 2d 118 United Tedesco v. also Cf. 1952); 4th (C. A. Cir. States, 195 F. 2d 689 v. United 1941); Swann 1960). (C. 3d Cir. A. Jacangelo, F. 2d 574 281 v. United States State, 6 2d Seay 395 S. W. rule, v. general recognizes Texas 264, Molineux, 168 N. Y. People v. are decisions typical Other 1016 9, 2d Scott, 111 Utah 175 P. State v. (1901); 286 61 N. E. 485 P. 2d Myrick, Kan. also State (1947). See (1948). 2d 748 487, 37 So. State, 204 Miss. Scarbrough (1957); Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged. A jury might punish an accused for being guilty of a previous offense, or feel that incarcera tion is justified because the accused is a man,” “bad with regard out to his of the crime currently charged. Of course it flouts human nature to suppose that a would not consider a defendant’s previous trouble with law in deciding whether he has committed the crime currently charged against him. As Mr. Justice Jackson put it in a famous phrase, naive “[t]he assumption that prejudicial can effects overcome instructions to the jury ... all practicing lawyers know to be unmitigated fiction.” Krulewitch v. United States, 336 U. S. 440, 453 (concurring opinion) (1949). United States v. Ban miller, 310 F. 2d (C. 3dA. 1962). Cir. Mr. Justice Jackson’s assessment has received support from the most ambitious empirical study of jury behavior that has been attempted, see Kalven & Zeisel, The Jury American 127-130, 177-180.

Recognition of the prejudicial effect of prior-convictions evidence has traditionally been related to the require- ment of our criminal law prove State beyond a reasonable doubt the commission of a specific crim- inal act. It surely engrained in our jurisprudence that an accused’s reputation or criminal disposition is no basis penal sanctions. Because of the possibility that the generality of the jury’s verdict might amask finding of guilt based on an past accused’s crimes or unsavory reputation, state and federal courts have consistently refused to admit evidence of past crimes except in cir- cumstances where it tends prove something other than general criminal disposition.

As I have I stated, do not understand the opinion to assert this Court would find consistent with due process the admission of prior-crimes evidence for no *19 bearing has it value probative what than other purpose currently crime a commit to disposition accused’s an on evi- that out points issue, this ignores It charged. been not has contexts other in crimes prior of dence to admitted be it cannot that prejudicial so thought may crimes past Thus, purpose. valid particular a serve crime past a between design a common show to used handi- distinctive show to charged, currently one presently the act that show or to defendant, of work needWe not unintentional.7 probably was at issue convic- of prior of evidence admission disagree are convictions past these, because such cases in tions of innocence of question to the directly relevant its because admitted It is charged. currently crime charges, current of elements going value, probative in inherent prejudice outweighs it strong is so further Court as the Also, crimes. prior of evidence traditionally has crimes prior evidence out, points credi- defendant’s impeach either admitted or to counter- behalf, own his he testifies when bility good his toas by the defendant introduced evidence act possibility situations, these In each character. convic- the evidence resulting from prejudice pur- by legitimate outweighed to be thought is tions defendant When a evidence. by the served poses by show- his innocence convince the attempts to it character person he such ing it that charged, the State the crime committed unlikely that he counteracting this interest legitimate has been showing the accused good character has initiated The defendant convicted. previously be al- and the State reputation, his should inquiry into general character evidence as respond to lowed best can. exceptions McCormick, set generally out Evidence § See

Similarly, when prior convictions are introduced to impeach the credibility of a defendant who testifies, specific purpose is thought to be served. The theory is that the State should be permitted to show defendant-witness’ credibility is qualified by past his record of delinquent behavior. In other words, the de- fendant put is to the same credibility test any other witness. A defendant has some control over the State’s opportunity to introduce this evidence in that he may decide whether or not to take the stand. Moreover, the jury hears of the prior convictions following a defend- ant’s testimony, and it may be thought' this trial context combined with the usual limiting instruction re- sults in the jury’s actually behaving in accordance with the theory of limiting instructions: that is, that prior convictions are only taken into account in assessing the defendant’s credibility.

Although the theory justifying admission of evidence of prior convictions to impeach a defendant’s credibility has been criticized,8 all that is necessary for purposes of deciding this case is to accept its theoretical justification note the basic difference between it and the Texas procedure. In the case of impeachment, as all the examples cited the Court, the prior convictions are considered probative for a limited purpose which is relevant to the jury’s finding of guilt or innocence. This purpose is, of course, completely different from the pur- pose for which convictions are admitted in recidivist cases, where there is no connection between the evidence or innocence. In all the situations pointed out by the Court, admission of prior-crimes evidence rests on a conclusion the probative value of the evidence outweighs 8See, g., e. Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L. J. 763 (1961). no middle is There prejudice. possibility conceded exclu- admission alternatives between position purpose serve is to if the because, sion admitted it must probative, considered guilty defendant whether decides before one delicate becomes thus The problem or innocent. possibility against value balancing probative *21 courts federal and most state result the prejudice, supervisory of its exercise in the this Court (including that has been courts) in federal proceedings over power the balance to draw discretion given is judge trial the uniform this of In view trial. the of context in the evidence prior-convictions apparent is tradition, to the relating purposes specific for certain introduced show than to innocence, other guilt determination Due the not violate would disposition, criminal general a Clause. Process prior value of probative the where situations

From these outweigh prejudicial its thought to is evidence convictions conclusion legitimate draws the Court impact, the inherently prejudicial not so is prior-convictions It combines invariably prohibited. is that its admission of recidi- concededly purpose valid the premise following logic: prior- since produce vist statutes aof guilt phase at the may be admitted crimes evidence purpose a serves valid where admission trial valid, prior statutes purpose since guilt phase may of the proven be the course crimes may also assess trial order that whether an if defendant, guilty, should sentenced found I recidivist statutes. be- punishment enhanced under only syllogism plausible lieve this on the be- surface, justify do not combine to cause Court’s its premises I far-reaching result. believe the Court has fallen into logical fallacy fallacy sometimes known middle, because it undistributed has failed examine the supposedly shared principle between admission of prior crimes related to guilt and admission in connection with recidivist statutes.9 That the admission in both situa- tions may serve a valid purpose does not demonstrate the former practice justifies the latter any more than the fact that men and dogs are animals means that men and dogs are the same in all respects.

Unlike the purpose for the admission prior-convictions evidence in all the examples cited by the Court, admission in connection with enhancing punishment for repeating offenders has nothing whatever to do with the question or innocence of the crime currently charged. Because of the complete irrelevance convictions to the question of guilt or innocence, recidivist situation is not one where the trial courts are called upon to balance probative value of prior con- victions against their prejudicial impact. The purpose of admitting prior-convictions evidence should be served and prejudice completely avoided by the simple expedient *22 of a procedure which reflects the exclusive relevance of re- cidivist statutes to the issue of proper punishment. Only after a defendant has been found guilty does the question of whether he fits the recidivist category become relevant to the sentence, and any issue of fact as to his prior convictions should then be decided by the jury. The availability of this procedural alternative, through

which the interests of the State as reflected in its recid- ivist statutes can be fully effectuated while prejudice to the defendant is avoided, means that the only interest the State may offset against the possibility of prejudice to justify introducing evidence of prior crimes in these cases is the inconvenience which would result from post- poning a determination that the defendant falls within a recidivist category until after the jury has found him guilty of the crime currently charged. However, for the

9See Stebbing, A Modern Introduction to Logic (6th ed. 1948). to necessary not is it cases, these deciding of purpose conduct- not in convenience State's the whether consider ensues which prejudice the justifies trial two-stage a ing before jury to a presented are convictions prior when the of guilty defendant the whether decided has it even has Texas that fact the For charged. crime find to used method the convenience matter this the against balance to convictions prior regarding facts prior- this admission the from ensues which prejudice Texas, the Spencer No. In evidence. convictions portion that truth the to stipulate to offered defendant previ- had he alleged which indictment of the the within him put which crime aof convicted ously to refused prosecutor The statute. recidivist aof scope allowed courts Texas the stipulation, this accept jury the to presented to conviction prior the proof dealing statute recidivist the under that, ground the on the between choice jury the crimes, capital with rea- courts The imprisonment. life penalty death infor- was conviction prior the existence the soned determining relevant find would jury the which mation dispensed stipulation offered the course, Of sentence. fact to State need completely whether determine to jury found crimes Instead, defendant. to applied statute stipulation accept refusal justify tries State discretion jury’s relevant was ground on would rationale But penalty. death ordering the determining before hear, letting justify relevant might be kinds all innocence, *23 considered traditionally which sentencing but phase during admitted if extremely prejudicial admitting justify would argument Thus, trial. a about hearsay kinds all reports, probation reports, psychiatric medical past, defendant’s relevant seem might else anything virtually broad discretion exercised in sentencing. The Court evidently believes that it is consistent due process for a State to introduce evidence of a kind traditionally prejudicial considered which is relevant only to sentenc- ing discretion in a single-stage trial before a finding of guilt. This seems to me the only possible ground for affirming No. 68, since it is obvious that the offer of stipu- lation removes the need for a finding of fact to the prior conviction in connection with the recidivist statute.

I would reverse No. 68 and remand for a new trial. For me, the State’s refusal to accept the stipulation removes any vestige of legitimate interest might to balance against prejudice to the accused. To nevertheless admit the evidence seems to me entirely inconsistent with the way evidence of prior convictions is traditionally handled in our legal system.

What I have said about the State’s lack of interest in introducing this evidence when the defendant tries to stipulate to the prior conviction seems to me to apply equally to defendants under the Texas procedure who were not offered the opportunity of stipuláting to their prior convictions. Because of the unclear state of the law in Texas as to the right to have such a stipulation accepted, the failure of a defendant to volunteer a stipu- lation cannot be interpreted as indicative of what would have happened if the State stipulation made a right. The Texas Court, of Criminal Appeals approved a stipu- lation procedure for felony cases in Pitcock State, S. W. 2d 864 (1963), on the convincing ground that, because the recidivist statutes felony provided cases for automatic sentencing, a stipulation resolved all issues for which the prior convictions were relevant. As the put court it: its “[t]o allow introduction, after such stip-

ulation, resolves no issue and may result in prejudice to the accused.” 367 S. W. at 2d, 865. However, two later cases held that refusal by prosecutor to accept a *24 582 jury to the of evidence introduction and the

stipulation, was stipulation, of an offer over convictions prior of 714 2dW. State, 388 S. Sims See error. reversible Thus, (1966). State, 2d S. W. Ross (1965); to procedure stipulation the reduced courts Texas the of refusal allowed and prosecutor, the to an admonition con- only the felony cases though in even stipulation the refusing for have could prosecutor the reason ceivable pre- of impact prejudicial the of benefit the have was to jury. to the convictions senting prior merely become had stipulation the Because in petitioners the discretion, prosecutorial of a matter right any waived have to be said cannot 69 and Nos. me to it seems convictions, prior stipulate their to must they right, stipulation of a in absence that, the No. petitioner as the light same in the regarded defendant’s If a refused. was stipulation offer whose the interest any legitimate removes stipulation offer convic- presenting otherwise might State the makes purposes, for recidivist to the tions it seems then process, due inconsistent introduction Clause Process Due of the protection me to a defendant to according whether limited not be should might prosecutor chance explored actually pro- stipulation Since stipulation. offer an accept state minimal effectuate completely would cedure statutes its recidivist under found having facts interest at while trial, two-part aof inconvenience without prevent chance a defendant offering time same due me that seems prejudice, possibility safeguard. requires process solely evidence prior-convictions admission If the a de- event in the enhancing punishment purpose when process due violates guilty found fendant conceding right given is not defendant admission, peti- its prevent prior-convictions *25 timers’ convictions in Nos. and 69 must be reversed. No. 70, however, raises the question of whether a decision that the old Texas procedure violates due process should be retroactively applied to convictions which are final but which are collaterally attacked in the federal courts by habeas corpus. Considerations of fundamental fairness have led to the opening of final judgments in criminal cases when it has appeared that a conviction was achieved in violation of basic constitutional standards. Thus, in the decisions which have been applied retroactively, Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); v. Illinois, 351 Griffin U. S. 12 (1956); and Jackson v. Denno, 378 U. S. 368 (1964), the Court concluded that the constitutional error perceived undermined “the very integrity of the fact-finding proc- ess,” Linkletter v. Walker, 381 U. S. 618, 639 (1965) and the fundamental fairness of the resulting conviction. On the other hand, our decisions in Linkletter Tehan v. Shott, 382 U. S. 406 (1966), demonstrate that practices found to violate the Due Process Clause of the Fourteenth Amendment need not necessarily be applied to final convictions. The factors adverted to in those cases for determining whether a constitutional decision should be applied to final cases were the State’s reliance on the conduct newly found unconstitutional, whether the purpose of the new rule would be served fully retroactive effect, and the effect of retroactivity on the administration of justice.

In my view, these factors justify limiting the appli- cation of the decision I propose to nonfinal convic- tions. Texas came to rely on the constitutionality of the procedure involved in these cases by this Court’s consistent failure to review practice until the grant of certiorari in these cases. Moreover, there can be no doubt but that application of this rule to final convic- tions would seriously disrupt the administration of crim- which States other as well Texas law inal eases. procedure similar employed Thus, (1966). S.U. Jersey, Newv. Johnson Cf. I which procedure whether becomes question proceeding every infected unconstitutional hold would convict- danger clear part it was seems It Shott, supra. Tehan See innocent. ing Texas impact prejudicial me cases. final application justify toas great so doctrine constitutional where cases all In made was judgment applied, retroactively *26 the of heart the to went erroneous found procedure the con- of danger the raised and conviction the of fairness the Douglas, and Gideon Thus, innocent. the victing to defendant indigent anof failure that concluded Court negated appeal on trial at counsel represented Similarly, proceeding. adversary fair aof possibility be- applied retroactively was Illinois v. of rule Griffin appeal meaningful a forgo to indigent an forcing cause meant transcript pay not could he because for deter- system the State’s part basic of a availability financial on conditioned was innocence guilt mining funda-, obvious an was procedure This resources. convic- leading to process in the fairness denial mental been have rulings new where area final In tion. to prejudice Denno, the v. Jackson retroactively applied, pro- fair aof assured not was he was the defendant confession, his voluntariness determining the cedure a con- account into take might moreover, and, determining coerced to be believed which fession results which prejudice Obviously, guilt. defendant’s obtained confession aof learning jury’s from finding heart directly to unconstitutionally goes Constitution reason one and because guilt; unre- is their confessions involuntary outlaw held (for (1936) 278 S. 297 U. Mississippi, v. Brown liability, g., Rogers e. Richmond, other reasons see, v. S.U. (1961); Culombe Connecticut, 367 U. S. 568 (1961)), held unconstitutional in Jackson involved a danger of convicting the innocent.

In contrast to the unconstitutional procedures involved in the cases discussed above, the admission prior- convictions evidence in connection with a recidivist stat ute does not seem me justify reversal of final convic tions. The prior-convictions fact that evidence has been traditionally admitted when related to or innocence suggests that its prejudice has not been thought great so as to undermine very “the integrity of the fact-finding process” and to involve a “clear danger of convicting the innocent.” See Linkletter v. Walker, 381 U. atS., 639; Shott, Tehan S.,U. at 416. Consequently, I would apply a decision in line with this dissent to final con such victions, as No. 70, a habeas corpus proceeding. The I decision propose is consistent with a large body judicial thought. Two United States Courts of Ap peals adopted the view that procedures which authorize admission of prior-convictions evidence before the jury determines that the defendant guilty *27 violate due process. In Warden, Lane v. 320 F. 2d (C. 179 A. 4th Cir. 1963), the court reasoned that “it patent jurors would likely to find a man guilty of a narcotics violation more readily if aware that he has prior had illegal association with narcotics. . . . Such a prejudice would clearly violate the standards of impartiality required for a fair trial.” 320 2d, F. at In the same vein, the Third Circuit, in United States v. Banmiller, 310 F. 2d 720 (1962), reasoned that a procedure like the one involved in the three cases at bar would cause jury to have in mind the defendant’s previous convictions determining guilt his of the crime currently charged. Both these courts, in fact, went farther than I would, in that they applied their decisions to final 586 results which prejudice England, In

convictions. has finding a before crimes prior proof from rule century, a than for more recognized been in a made crimes prior toas finding guilt.10 finding after hearing separate which procedures adopted have of States majority The cases procedure inherent prejudice cure procedures have recidivist 31 States all, In some bar. at convictions prior the introduction postpone which guilty defendant has found after until others three And at least charged.11 currently crime 10 & 7 99; Act of 6 Vict., c. 25 1861, & Act, 24 Coinage Offences Shuttleworth, K. 375. Reg. v. 3 Car. & 111; 4, c. Will. 11 legislation adopted either which States The con separates the determination judicial decision currently guilt of crime the determination from victions Arkansas, (1962); 12.55.060 Stat. Alaska, Alaska § charged are: Colorado, (1965); 2d 601 W. State, 239 Ark. 836, 394 S. Miller v. Connecticut, (1953); 596 253 P. 2d People, 54, Colo. 127 v. Heinze Delaware, Del. (1921); A. Ferrone, 96 Conn. 160, 113 452 State v. Ann. Stat. Florida, 1964); Fla. (b) (Supp. 11, 3912 Tit. Ann. § Code Idaho, (1958); State, 102 2d 814 Shargaa So. v. (1965), §775.11 Illinois, Ill. (1963); 2d 326 51, P. Johnson, 383 Idaho 86 State v. 38, c. (1963), Rev. Stat. § 22-43 Ill. 38, c. Stat. §§603.1-603.9 Rev. Louisiana, (1949); Ann. 21-107a Stat. Kansas, § Gen. Kan. (1965); Maryland, Md. 1962); (Supp. D 15:529.1 Ann. Stat. § Rev. La. (1954); Ann. Michigan, Stat. 713; §28.1085 Mich. of Proc. Rule Missouri, Stat. Rev. Mo. §609.16; Ann. Minnesota, Stat. Minn. (1964); 29-2221 Stat. Nebraska, Rev. Neb. (1959); § 556.280 § Cox, Mexico, Johnson 1943; New Law York, Y. Pen. § New N. Dakota, N. D. Cent. (1963); North 2d 55, P. M. 72 N. 2961.13 Code Ann. (1960); Ohio, § Ohio Rev. 12-06-23 Code § (Supp. 1964), Tit. Ann. Oklahoma, § 860 Okla. Stat. (1954); Stat. (1962); Oregon, Rev. Ore. State, P. 2d Harris Tit. Ann. Pennsylvania, §5108 Pa. Stat. (1961); 168.065 § Tennessee, (3) (1939); 13.0611 Dakota, S. D. Code (1963); § South — State, Tenn. *28 Harrison (1955), Ann. Code §40-2801 Tenn. Proc. Art. Crim. Texas, Code (1965); Texas 2d 713 S. W. —, 394

587 have substantially mitigated the prejudice of the single- stage recidivist procedure by affording the defendant right to stipulate to his prior crimes to prevent their introduction at the trial.12 Thus, only 16 States still maintain the needlessly prejudicial procedure exemplified in these three cases. The decision I propose would require only a small number of States to make a relatively minor adjustment in their criminal procedure to avoid the manifest unfairness and prejudice which have already been eliminated in England and in 34 of the United States.

I would reverse the convictions in Nos. 68 and 69 and remand for a new trial. In No. 70, I would affirm this final conviction. Justice Brennan, with whom Mr. Mr. Justice

Douglas joins, dissenting. I join the opinion of The Chief Justice insofar as that opinion would reverse in Nos. 68 I would, 36.01 (1966); Utah, Utah Code Ann. §76-1-19 (1953), State Stewart, 110 Utah 203, 171 P. 2d (1946); Virginia, Va. Code Ann. §53-296 (1958); Washington, State v. Kirkpatrick, 181 Wash. 313, 43 P. 2d 44 (1935); West Virginia, W. Va. Code Ann. § (1961). In addition to these 29 States, two States take convictions into account in the determination of when a convict is eligible for parole, and entrust the fact-finding determination to parole boards: Mississippi, Miss. Code Ann. §4004-03 (Supp. 1964), as amended, Miss. Laws 1964, c. 366; New Jersey, N. J. Stat. Ann. §30:4-123.12 (1964), N. J. Rev. Stat. §2A:85-13 (Supp. 1966). Thus, 31 States in all adopted have wholly nonprejudicial procedures in connection with their recidivist statutes. 12The three States which adopted stipulation procedure are: Arizona, Ariz. Rule Crim. Proc. 180, Ariz. Code Ann. 44-1004 § (1939), Montgomery v. Eyman, Ariz. 391 P. 2d 915 (1964); California, Cal. Penal Code 1025, People § v. Hobbs, 37 Cal. App. 2d 8, 98 2dP. 775 (1940); and Wisconsin, State v. Meyer, Wis. 46 N. W. 2d 341 (1951). *29 me that It seems 70. No. reverse also however, very “the undermined involved here error constitutional v. Linkletter process,” fact-finding integrity apply therefore I would 639, Walker, S. 381 U. S. 372 U. Wainwright, v. Gideon retroactively. rule 353; S. 372 U. California, Douglas v. Griffin 335; Denno, 378 S.U. Jackson 12; S. Illinois, 351 U.