*1 MULLANEY et al. v. WILBUR January 15, Argued June No. 74-13. 1975 Decided J., opinion for a unanimous Court. Rehn- delivered the Powell, concurring J., joined, J., opinion, in which C. Burger, filed a quist, post, p. 704. Arey, Attorney Maine,

Vernon I. General Assistant him on the brief petitioners. cause for With argued the Lund, S. Cohen, Jon A. Richard Attorney General, were Leadbetter, Attorney General, and Charles K. Deputy Attorney General. Assistant Rubin, Court, 419 U.

Peter J. by appointment of the respondent. filed a brief for argued the cause and opinion delivered the of the Mr. Powell Justice Court. a defendant requires charged Maine

The State “in the heat of that he acted murder to reduce homicide in order to provocation” com- manslaughter. decide whether rule We must *2 In re ports process in requirement, the due defined Winship, 397 prosecution U. S. that the prove a every necessary to reasonable doubt fact constitute the crime charged.

I In June 1966 a found E. jury respondent Stillman Wilbur, him guilty of murder. Jr., against The case rested on own pretrial his statement and on circumstan- tial evidence he showing fatally that assaulted Claude in Respondent’s Hebert the latter’s hotel room. state- ment, by introduced claimed that he had prosecution, in frenzy provoked attacked by Hebert homo- Hebert’s sexual advance. The offered no evidence, defense but argued that the respond- homicide not unlawful since ent lacked criminal intent. Wilbur’s Alternatively, counsel asserted that at most the homicide was man- slaughter rather murder, than since it occurred of passion provoked heat by the homosexual assault. The jury trial court instructed that Maine recognizes law two kinds of homicide, murder and manslaughter, these offenses are sub divided into different The common degrees. elements of both are that homicide be unlawful —i. neither e., (cid:127) justifiable nor excusable1 —and that be intentional.2 prosecution is required these elements proof beyond a only they reasonable doubt, and if are justifiable examples As homicides, or excusable men- court battle, tioned soldier in policeman circumstances, certain acting an individual App. self-defense. 38. 2 The court elaborated required that an intentional homicide jury to find death, “either intended or that he intended an act which was calculated and have been under- should person stood likely to be one great bodily reason do [a] harm and that death 37. resulted.” proved jury is the so to consider the distinction between murder and manslaughter.

In view of the evidence the trial court particular drew attention the difference between murder and man After slaughter. reading statutory definitions of offenses,3 the court charged both that “malice aforethought indispensable an essential and element of the crime of murder,” App. 40, without which the homicide instructed, would be The iurv was further manslaughter. however, if the established that homicide was both intentional unlawful, malice jand implied was to be unless the conclusively proved by a *3 defendant fair of preponderance the evidence passion that he acted the heat of on provocati sudden emphasized on.4 The' court that “malice aforethought statute, The Ann., 17, murder Maine Me. Rev. Stat. Tit. § (1964), provides: unlawfully being aforethought,

“Whoever kills a human with malice express implied, either guilty or punished of murder and shall be by imprisonment for life.” manslaughter statute, Ann., The Me. Rev. Tit. Stat. §2551 part provides: in relevant unlawfully

“Whoever being a human in the passion, kills of heat provocation, express on sudden implied without or malice afore- thought punished by . . . shall $1,000 be a of not more than fine by imprisonment or years for not more than 20 .. ..” explained The trial court also concept express the malice afore- thought, required “premeditated design thereby which to kill” manifesting “general malignancy disregard and for human life which proceeds duty fatally from a heart void of social bent on mis- App. Despite instruction, repeat- chief.” 40-42. the court edly express made clear that malice need established since implied proved would be unless the malice defendant that he acted Hence, passion. express the heat of the instruction on malice wholly unnecessary, appears to have been Supreme as the Maine Lafferty, subsequently Judicial Court held. 2d 647 A. See also n. infra. passion heat of incon on sudden are two id., 62; thus, sistent things,” at latter byjproving negate would the former and reduce the homi cide from murder to court then con manslaughter. cluded its charge with definitions of “heat of elaborate passion” provocation.” and “sudden

After retiring verdict, jury twice consider its returned request further sought instruction. It first reinstruction on of implied the doctrine malice afore- thought, and later on the definition passion.” of “heat of Shortly after the second found reinstruction, jury » respondent guilty murder. Respondent appealed Judicial to the Maine ..process Court, he arguing that had been denied be-1 due malice; he cause was reqiliFed’TcT negate element hqat’ proving that he had acted in the ^forethought passion provocation. He ..of claimed that under Maine law was an essential element the crime of murder —indeed that sole element murder distinguishing manslaughter, from Respondent contended, therefore, this Court’s de- in Winship cisión requires to prove existence of that element doubt. reasonable

5 “Heat passion . . . means that time the act the' reason is disturbed obscured might an extent which *4 ordinary fair, men average disposition of [make] act to irra- liable tionally reflection, due passion without deliberation and from judgment.” App. rather than 47. passion of not upon will avail unless provocation. sudden “[H]eat happening previous very Sudden means without notice or with brief notice; coming unexpectedly, precipitated, or unlooked for. It ... every every is not provocation, it is rage passion not that will reduce a killing from manslaughter. murder to be of upon must such character and close so of killing, act person for a moment for could be—that moment being could be considered as not the master of his own Id., at 47-48. understanding.” Supreme rejected The Maine Court Judicial this content ion,7 holding manslaughter that in Maine Jhürd'ér and are nofclistinct crimes but, rather, degrees different of the sin Wilbur, gle felonious homicide. State v. generic offense (1971). 278 A. 2d 139 The court further stated century that for more than a it repeatedly had held that prosecution presumption implied could rest on a aforethought require the defendant to prove he passion provo had acted the heat of on sudden cation in order to reduce murder manslaughter. to With respect Winship, which respondent’s was decided aftér trial,8 court noted that it did anticipate not Winship principle application to a factor such passion as the heat of on provocation. sudden

Respondent successfully petitioned next for a writ of habeas Federal District Court. Wilbur v. Rob- corpus bins, Supp. (Me. 1972). F. The District Court ruled that under the Maine statutes murder man- slaughter are distinct offenses, degrees not different of a single “[mjalice offense. The court further held that is made the distinguishing element of the offense of murder, and it is expressly excluded as an element of offense of manslaughter.” at 153. Thus, Winship requires District Court concluded. prom,malice__aforethought beyond a rea- . doubt; rely sonable it cannot on a implied presumption which malice, the defendant he requires prove that acted in the heat of on provocation. 7Respondent object did the relevant at trial. instructions The Maine Judicial Court the issue nevertheless found cognizable appeal implications.” because it had “constitutional Wilbur, State v. 278 A. 2d 8The Maine court Winship applied concluded that should not retroactively.. subsequently We decided, however, Winship given complete should be City retroactive Ivan effect. New York, 407 U. S. 203 *5 Appeals Court of for the affirmed, First Circuit subscribing general analysis in to the District Court’s and construction of Maine law. 473 F. 2d 943 Although recognizing that “within limits state broad court must be the interpret laws,” one to its own court totally nevertheless ruled unsupportable that “a construction which leads to an invasion of constitutional process due is a federal matter.” at 945. The Court of Appeals equated aforethought malice with “pre- id., meditation,” Winship at 947, and concluded re- quires prove this fact a reason- able doubt. decision, the Maine Judicial

Followingjhis Court decided the casé of Lafferty, State 309 A. 2d (1973), in which it sharply disputed the First Circuit’s view that it was entitled to make independent an deter mination of Maine law. The Maine court also reaffirmed opinion its earlier manslaughter that murder and pun are ishment categories single of the offense of felonious homi cide. . prosecution, if the Accordingly, proves a felonious homicide the burden shifts to the defendant to he acted in the heat provocation order to receive the penalty lesser prescribed for manslaughter.9

In view of Lafferty decision we granted certiorari in this case and remanded to the Court Ap- peals for reconsideration. On

9The emphasized that, contrary Maine court to the view of the Appeals Court of Circuit, for the First connotes no (such premeditation), substantive fact solely but rather policy presumption. interpretation law, Under its of state the Maine require proof court would of the same element of intent for both manslaughter, murder and being the distinction the latter case the intent results from sudden which leads the passion. to act 2d, the heat of 309 A. at 670-671 (concurring opinion). *6 again applied Winship, that court this time to remand, Supreme Ju- the Maine law as construed the Maine (1974). Looking 496 2d to the dicial Court. F. 1303 presence law, thatthe the “substance” of that court found passiorucm or absence of the heat of ..sudden-provocation t)enalties...and significant in the results in differences attaching stigma to conviction. For these reasons. Appeals principles held in Court of that enunciated the, murder, prose- control, Winship and that to establish cution must a reasonable doubt that passion in defendant did not act heat of on sudden the. provocation. importance presented,

Because of of the issues we (1974). certiorari. 419 now again granted U. S. 823 We affirm.

II reject respondent’s position We at the outset that we analysis follow the District the initial Court and opinion Circuit, of the First both of which held that mur der and are distinct manslaughter crimes Maine, is a fact essential to the former Respondent argues and absent the latter. Supreme

Maine Judicial Court’s of state construction binding law should not be deemed on this Court since departure prior marks a radical from to in law,10leads City Columbia, Respondent relies on Bowie v. S. 347 Supreme reinterpretation case a Court’s a criminal statute was novel "unforeseeable” and there- so as possible criminality deprived fore of fair notice of defendants they Thus, weré committed. of their acts the time the retro- application interpretation active of the new was itself a denial Hill, Co. process. of due See also Brinkerkoff-Faris case, respondent apparently concedes, In this as S.U. comparable prejudice Respondent Brief for there no proving the burden of heat of respondent since in Maine century. See, for more than on the defendant has rested ternally transparent effort results, inconsistent and is a Winship. Court, however, repeatedly to circumvent This expositors has held that courts are the ultimate state g., Murdock City Memphis, e. 20 Wall. law, state see, York, v. New Winters (1875); U. except that we are bound their ex constructions Accordingly, treme present circumstances here.11 we accept binding Court’s Maine Judicial construction of homicide state law.

Ill The Maine law of homicide, case, as it bears on this can be stated succinctly: Absent justification excuse, or all criminally intentional or killings reckless are felonious homicides. Felonious punished homicide is as murder'— e., by i. life imprisonment the defendant proves —unless g., e. Knight, State v. 11, (1857). sure, 43 Me. 137-138 To be jury trial court instructed the on concept express of malice 4, supra, aforethought, subsequently see n. a concept that was stripped vitality by of its the Maine But Judicial Court. explicitly trial court express stated that need not be shown since implied malice would be from the unlawful homi- v. cide. In considering Cupp whole, these instructions as a see Naughten, 414 141, U. prejudice we discern no respondent. 11On rare occasions the Court has re-examined a state-court inter- pretation of state appears law when it to be an subterfuge “obvious to evade consideration of a federal WOW, issue.” Radio Station Inc. Johnson, v. (1945). U. S. County, See Ward v. Love Terre Haute & I. R. (1920); U. S. 17 v. Co. Indiana ex rel. Ketcham, 194 U. S. 579 In this case Maine court’s in- terpretation law, assuming state even novel, it to be does not frustrate process consideration due issue, as the Maine court recognized, Wilbur, State itself 2d, A. and as the re- opinion mainder of this generally makes Comment, clear. See Due Supremacy Process and as Adequacy Foundations for the Rule: The Remains of Federalism After Wilbur Mullaney, L. Rev. 37 Me. it com- that was of the evidence preponderance a fair provocation, mitted in the heat e., by manslaughter punished in which case is —i. not to by imprisonment $1,000 exceed a fine the Maine rule years. The is whether exceed 20 issue in the heat that he acted requiring due on sudden accords of passion process.

A placed analysis may illuminated if this Our issue only early At common law those in historical context.12 justice were homicides committed in the enforcement unlawful and justifiable; all others were deemed considered Gradually, sever punished by however, death. were ity for homicide abated. punishment of the common-law justi Between the 13th and 16th centuries class for acci expanded include, example, fiable homicides dental homicides and committed self-defense. those capital punishment widespread use Concurrently, further extension of the ecclesiastic ameliorated any jurisdiction. person eligi Almost able to read was *8 procedural clergy,” ble for “benefit of device juris to ecclesiastic effected a transfer from the secular law a com person diction. And under ecclesiastic who executed; mitted an unlawful homicide was not he instead one-year thumb sentence, received a had his branded and his required goods. was forfeit At the turn of the 16th century, concerned with English rulers, the accretion of jurisdiction expense ecclesiastic- of the secular, eliminating enacted a series of statutes the benefit of 12 history opinion was set out in Much of this the Court’s in California, 183, McGautha 197-198 See also History England Stephen, A of the Criminal Law 3 J. 1-107 Maitland, History English (1883); 2 F. F. Pollock & Law 1909). (2d 478-487 ed.

693 13 clergy all cases of “murder of malice prepensed.” Unlawful homicides that were committed without such malice were designated “manslaughter,” and their per petrators remained eligible for the clergy. benefit of

Even after ecclesiastic jurisdiction was eliminated for all secular offenses the distinction between murder and manslaughter persisted. It was said that “manslaughter, when voluntary,[14] arises from the sudden of the heat passions, murder from the wickedness of the 4 heart.” W. Blackstone, Commentaries *190. aforethought Malice was designated as the element distinguished the two crimes, it but was recognized that such malice could be

implied by law as well proved by evidence. Absent proof that an unlawful homicide resulted from “sudden and sufficiently violent provocation,” the homicide was 15 “presumed to be malicious.” at *201. In view of this presumption, early English authorities, relying on the case of The King v. Oneby, Eng. 92 Rep. (K. 465 B. 1727), held that once proved that the accused had committed the homicide, it was “incumbent upon prisoner to make out, satisfaction court and jury” .. “all. circumstances of ex justification, cuse, or alleviation.” 4 W. Blackstone, Commentaries 13 7, (1496); 12 7 8, Hen. e. 4 (1512); Hen. 8, c. 1, Hen. c. 3, (1531); Edw. §§ c. § 14Blackstone also referred a class of homicides involun- called tary manslaughter. Such homicides were committed accident the course of perpetrating unlawful, another although felonious, act. Blackstone, W. Commentaries offense, *192-193. This some elaboration, generally modification and recognized has been country. Perkins, this See R. (2d Criminal 1969). Law 70-77 ed. appears Thus concept express surplusage since if the homicide resulted from provoca- manslaughter; tion it was otherwise it was murder. respect, appears Maine law follow the old common law. generally See *9 Comment, Constitutionality of the Common Law Presumption Maine, 973, Malice 54 L. B. U. Rev. 986-999 694 (1762). Thus, 255 Law Foster, M. Crown

*201. See heat of on proving burden of common law have rested on appears to defendant.16 aforethought of malice country concept

In this jurisdictions in some meanings: on two distinct took intent, requiring element a substantive signify came to intended to to that prosecution harm; jurisdictions in other bodily kill or to great inflict only that policy indicating presumption, it remained presumed contrary a homicide was proof absent to the State passion. in the See not to occurred heat of have Rollins, (Me. 1972). generally 914, 918-919 295 A. 2d See Aforethought, A Perkins, Re-Examination Malice In a land (1934).17 566-568 537, 548-549, L. J. Yale York, Commonwealth Mass. case, mark of the Massachusetts Su (1845), Chief Justice Shaw held the defendant was re preme Judicial Court that by pre- quired proving negate Study 16 Fletcher, Legal Comparative A Rules: Two Kinds of 880, Cases, 77 Yale L. J. Burden-of-Persuasion Practices Criminal copclusion, arguing the reliance disputes 904-907 Oneby’s Oneby jury misplaced. returned a case was finding special making findings fact. specific verdict No finding the provocation. respect made with Absent such Fletcher court was murder. maintains held homicide special impossible in the to deter context of a verdict it is satisfy going mine whether the burden of defendant failed to his persuading forward with “some evidence” the ultimate burden of jury. See also n. infra. jurisdictions degrees, Several also divided into different murder typically limiting capital punishment first-degree murder and requiring prove premeditation and deliberation Keedy, History Pennsyl- order to establish that offense. See of the Creating Degrees Murder, vania Statute Pa. L. Rev. U. (1949); Michael, Wechsler & A the Law of Homicide: Rationale of I, L. Col. Rev. 703-707

695 ponderance of the evidence that he acted in the heat 19 passion.18 in Maine as well Initially, adopted was York in jurisdictions.20 however, as in several other In 1895, 18 dissented, arguing Justice Wilde Commonwealth that the murder, required prove necessary in- was to all facts to establish negate cluding aforethought, required to which in turn it suggestion killing the that the in the heat of occurred rejected implied provocation. He also the doctrine of " ground malice on the malice can be inferred from the that o[n] arbitrary killing. therefore, mere act of and presumption, Such a is Mass., unfounded.” 50 at 128. Knight, v. 11Me. Fletcher, supra, See cases cited in n. at 903 nn. 77-79. Some however, developed, precisely required. confusion York to what Contemporary general proof” writers the notion divide of “burden producing particular into a burden of probative some evidence on a persuading respect issue and a burden of factfinder with to that the beyond by proof issue standard such as reasonable doubt preponderance See, g., Cleary, a fair of the evidence. e. E. Mc (2d 1972). appar Cormick on Evidence ed. This distinction §336 ently decided, recognized was not well at time York the jurisdictions thus in some the defendant was was unclear whether required production persuasion bear the burden on the burden or See, g., People passion. in the issue of heat of e. cases discussed Morrin, App. 301, 315-323, 434, 441-446 187 N. 2d Mich. W. Indeed, York, years after in Chief Justice decision the. explained Shaw that “the of York’s case was that where the doctrine defendant, killing proved is have been committed nothing shown, ma presumption of law is that it was further Hawkins, and an murder.” Commonwealth 69 Mass. licious act of (1855) original). (emphasis in He further noted govern presumption did not when was evidence that there indicating might passion. that the defendant have acted the heat of situation, jury, upon circumstances, “if the all are satis that fied, doubt, a reasonable was done with [the homicide] murder; malice, they otherwise, they will return a verdict of will find guilty manslaughter.” Id., Thus, 466. the defendant even quickly scope require only the author of York limited its produce passion; is, accused some evidence on the issue of satisfy production persuasion but that he burden. Other the context question deciding pro federal criminal cedure, explicitly this Court unanimously considered and rejected York. Davis general approach articulated States, v. United 160 U. S. 469.21 past half And, century, the large majority of States have abandoned York and now require the ab *11 sence of the heat of passion provocation beyond on sudden a reasonable doubt. See Scott, W. LaFave & A. Hand book on Criminal (1972).22 Law 539-540

This historical review important points. establishes two First, the presence fact at issue here —the or absence of the passion heat of provocation been, —has almost from the inception of the common law of homi- the cide, single important most factor in determining the degree of culpability attaching to an unlawful homicide. second, And, the clear trend been has toward requiring prosecution to bear the ultimate burden of proving this fact. Fletcher, supra, generally See 16; Packer, n. H. Limits the Criminal Sanction 137-139

B Petitioners, the warden of the Maine Prison and the State., Maine, argue despite these considerations jurisdictions blurred the distinction between these two burdens requiring prove the defendant to jury” “to the satisfaction of the that he acted in the g., Willis, e. passion. heat of State v. See, N. 26C. 21In Oregon, Leland 343 U. S. 790 the Court declined apply specific to holding prosecution of Davis —that must prove sanity beyond a reasonable doubt —to States. Cuevas, State See 1971) (Winship (Haw. also 488 P. 2d 322 requires prosecution to doubt). reasonable England requires also now to negate passion heat of provocation on sudden by proof beyond a reasonable [1942] A. ^[1935] A.C. C. Director v. doubt. Mancini 462. 1; Woolmington see Director v. Public Public Prosecutions, Prosecutions, case. present should be extended to the Winship not They formal the absence of note that matter “fact passion heat of on sudden is not a necessary to”constitute the crime” of felonious homicide ipMaine. In Winship, (emphasis re at 364 U. S., according supplied). relevant, pe This distinction is titioners, were es because the fact's at issue TTms/wp criminality instance, sential first establish question play whereas the fact in here does not come into until already has determined that the defendant the)jury guilty may punished manslaughter. is at least for situation, petitioners maintain, the defendant’s liberty critical are no reputation longer interests irrespective concern of the since, presence paramount absence of he heat on sudden provocation, likely liberty his and certain be stigmat lose ized,23 In short, petitioners whip would limit IT to those facts if which, wholly would exonerate the proved,. *12 defendant analysis

This fails to criminal law recognize of jurisdictions, like that of other is concerned Maine, only not or in the guilt innocence but also abstract 23Relying York, on Williams New v. 337 U. S. California, McGautha S., 196, petitioners at seek arguing by presence to buttress ab- contention since the only sence of the heat of on affects punishment extent of be it should considered a matter within the sentencing body traditional discretion of the therefore sub- Tucker, ject United States rigorous process due But demands. cf. incompatibility 404 U. S. 443 There is no between our de- today sentencing cision and the traditional discretion afforded bodies. jury given law Under Maine no discretion as to the sentence imposed guilty to be found of If one felonious homicide. murderer, mandatory is found to be a life sentence re- hand, jury guilty only On him sults. the other if the man- finds slaughter the trial its it remains for court in the exercise of statutorily impose discretion a sentence within the limits. defined with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Be cause the former are less “blameworth[y],” v. Laf ty, 2d, 309 A. 673 (concurring they fer opinion), subject are to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish a reasonable doubt fact upon which turns, Maine denigrates the interests found critical in hip. Wins

The safeguards process of due are not rendered unavail- ing simply because a determination may already have been reached that would stigmatize the defendant and that might lead significant to a impairment personal consequences liberty. The fact remains result- ing from, murder, compared a verdict of with a verdict differ significantly. manslaughter, when Indeed, viewed terms oLthe-potential in restrictions differencg liberty personal conviction, attendant to each the dis- tinction established Maine between murder and man- slaughter may be importance greater than the differ- ence guilt, for between many lesser crimes. or..innocence

Moreover, if Winship were limited to those facts that constitute a crime as defined state law, State could many undermine interests that decision sought to protect without effecting any change substantive in its law. It would only necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the punishment. extent of An example extreme approach of this can be fashioned from *13 challenged law in this case. Maine divides the single generic offense of felonious homicide into three distinct punishment categories murder, voluntary manslaughter, — involuntary manslaughter. Only the first two of

these categories require that the act homicidal either be conduct. criminally

intentional or the result of reckless (concurring Lafferty, supra, See v. 670-672 at opinion). But facts of intent are under Maine law these general elements of the crime of felonious homicide. only See Brief for they Petitioners 10 n. 5. bear Instead, on the appropriate punishment Thus, peti if category. argument impose tioners’ accepted, were Maine could life any sentence one that for felonious homicide —even traditionally might involuntary man considered slaughter his prove was able to —unless act was criminally neither intentional nor reckless.24

Winship is concerned with rather than this substance kind of formalism.25 requires The rationale of that case analysis an “operation that looks to the effect of the applied law as State,” and enforced St. Louis S. W. Arkansas, R. Co. v. 235 U. and to the interests of both the State and the defendant as affected by the proof. allocation of the burden of

In Winship the Court emphasized the societal inter reliability ests in the jury verdicts:26 proof beyond “The requirement a reasonable doubt has vital role in our procedure criminal [a] cogent for during reasons. The accused a criminal 24Many statutory impose States different sentences on different Winship degrees If were assault. limited to a definition State’s crime, of the elements of these States could all assaults define single require as a offense and then disprove the defendant aggravation g., elements of intent kill or intent to rob. —e. Ferris, State (Me. But 1969) see 249 A. 2d (prosecution aggravation must elements of by proof in criminal assault case doubt). a reasonable 25 Indeed, Winship itself the Court invalidated the burden of proof juvenile delinquency proceeding though delinquency even formally S., was not considered a law. “crime” under state id., 365-366; . (Harlan, J., at concurring). 373-374 Lego Twomey, See also 404 U. S. *14 im- interests of immense prosecution has at stake may he possibility both because of the portance, liberty of the upon lose his conviction and because certainty by the stigmatized that he would be conviction....

“Moreover, standard use of the reasonable-doubt respect confi- indispensable to command community of in crim- applications dence of the It is force of the inal law. critical that the moral by proof criminal diluted standard law in men people leaves doubt whether innocent being S., 363, are condemned.” 397 U. at 364. implicated greater These interests are in this degree Winship they case were in than itself. Petitioner there sentence, possible faced an 18-month with a maximum extension of years, an additional four and one-half id., 360, respondent whereas here faces a differen in sentencing ranging tial from a fine man nominal to a n datory stigma life sentence. Both the to the defendant community’s and the confidence in the administration of greater consequence the criminal law are also of in this case,27 adjudication delinquency since involved Winship in intention, provide “benevolent” i seeking generously program “a conceived compassionate treat- / ment.” J., dissenting). at 376 C. (Burger, underlying only Not impli are interests Winship cated degree case, this but one to..,*^ respect greater protection afforded those interests is less In here. Winship persuasion the ultimate burden of remained prosecution, although the standard had been re proof preponderance duced to a fair of the evidence. Louisiana, (1968): See Duncan penalty may “The locality authorized the law be taken gauge judgments.’” Quoting 'as its social ethical from Clawans, District Columbia v. 300 U. S. case, by contrast, has affirmatively proof

shifted burden of to the result, defendant. The *15 in a case such as this one where the defendant required is to the critical in fact dispute, is to increase further the likelihood of an erroneous Such murder_conviction. a result directly principle contravenes~the in articulated Speiser Randall, v. U. 513, 525-526 S. (1958):

“[Wjhere party one has at stake an interest transcending value —as a criminal defendant his lib- erty margin of error is reduced him by th[e] as to — process the placing on the [prosecution] burden ... of persuading the factfinder con- at the clusion of the trial....”

See In also re Winship, 397 U. S., at 370-372 (Harlan, J., concurring).

C It has been suggested, Wilbur, State v. A. 2d, 145, at that because of the difficulties negating an argument the homicide was committed passion heat of the burden of proving this fact should rest on the defend- ant. No doubt is often heavy this burden prose- for the cution to satisfy. The may same be said of require- proof beyond ment of a reasonable many doubt of con- troverted facts in a criminal But trial. this is the tra- ditional burden system which our justice criminal deems essential.

Indeed, Maine Court Judicial itself ac knowledged that most States require prosecution to prove the passion absence of beyond a reasonable doubt. 146.28 at Moreover, difficulty of meeting such an supra, See at 696. See also 38 Mo. L. Rev. 105 Many require States do show that there is “some evi- indicating dence” passion that he acted in the heat of requir- before ing negate by proving this element the absence of exacting mitigated burden is in Maine where the fact at largely “objective, issue is an subjective, rather than a Rollins, behavioral criterion.” 2d, v. 920. A. respect, proving the defendant did not act the heat on sudden is similar any intent; proving may other element of be estab by adducing lished evidence of the factual circumstances( surrounding the commission of And the homicide. al-\ J though typically peculiarly intent considered fact knowledge within the the defendant, not, as j, this does ¡i long justify the Court has recognized, shifting the burden States, Tot United him. See 319 U. S. States, Leary United (1943); Nor is requirement proving negative unique *16 system in our of jurisprudence.29 criminal Maine itself requires prosecution to prove the of self- absence Millett, beyond defense a reasonable doubt. See 273 (1971).30 imposes A. 2d 504 this burden Satisfying obligation that, an practical effect, all is identical negating the burden involved in the heat of on \ sudden provocation. Thus, we discern unique no hard- ship prosecution on the justify requiring that would the f carry burden proving defendant to a fact so critical { criminal culpability.31 Scott, passion beyond a reasonable doubt. See LaFave & A. W. Perkins, supra, (1972); 14, Criminal Law 539 also n. at 50-51. See 20, supra-. Nothing opinion nn. 16 affect that & is intended to requirement. 30, See also n. infra. generally Wharton, Evidence See F. A Treatise the Law of (9th Comment, p. 110 1884); §1.13, Model Penal Code §320 ed. 4, 1955); Fletcher, supra, 883, (Tent. and n. 14. Draft n. No. In Millett the Maine adopted the “ma- Court Judicial jority proof pro- regarding rule” The burden of self-defense. ducing defendant, but “some evidence” on this issue with the rests persuasion by proof reasonable the ultimate burden of a prosecution. doubt remains on the supported by line of This conclusion consideration of a related

IV law Maine requires a defendant to establish by pre- ponderance of the evidence that he acted the heat of pas- sion on sudden provocation in order to reduce murder to manslaughter. Under this burden proof a defend- ant can be given a life sentence when the evidence indi- cates that it is as likely as not that he deserves sig- nificantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Harlan, Justice it is far worse to sentence one guilty only of manslaughter a murderer than to sentence a murderer for the lesser cases. Generally in a criminal case prosecution bears both the production burden and persuasion burden. instances, some however, it is aided a presumption, see States, Davis v. United (1895) S. 469 (presumption sanity), permissible or a inference, see United States v. Gainey, 380 (1965) U. (inference S. 63 of knowledge from presence illegal still). at an procedural These require (in devices the ease of presumption) permit (in the case inference) an the trier of fact to conclude that met has its proof burden of respect presumed to the or inferred fact having satisfactorily established other facts. Thus, in effect they require the defendant to present some evidence contesting the presumed otherwise or inferred fact. See Barnes States, v. United U. S. 846 n. they Since production shift the burden to the defendant, these devices satisfy must certain due process requirements. g., e. See Barnes v. States, United supra; Turner v. United States, 396 U. S. In each however, cases, these the ultimate persuasion burden of *17 by proof beyond a reasonable doubt remained .on prosecution. the See, g., e. Barnes v. States, United supra, 9; at 845 n. Davis v. States, United supra, at Shifting 484-488. the persuasion burden of to the defendant obviously places an greater even upon strain him since he no longer only present need some evidence respect to the fact issue; at he must affirmatively establish fact. Accordingly, the Due Process Clause demands exacting more standards before may require a defendant to bear this ultimate burden of persuasion. See generally Ashford & Risinger, Presumptions, As- sumptions, and Due Process in Criminal A Cases: Theoretical Over- view, 79 Yale L. J. 165 manslaughter. crime of In re Winship, 397 U. S., at 372 (concurring opinion). We therefore hold that the Due Process requires Clause to a reasonable doubt the absence of the heat passion sudden provocation when the issue is properly presented in a homicide case. Accordingly, judgment below

Affirmed. Mr. Justice Rehnquist, with whom Chief Jus- tice joins, concurring.

While I join in the Court’s opinion, the somewhat peculiar posture of case as it comes to us me leads to add these observations.

Respondent made objection no to the trial court’s instruction respecting the of proof burden on the issue of whether he had acted in the heat of on sudden provocation. Nonetheless, on his appeal Judicial Court of Maine, that court objec considered his tion to the charge on its merits and held the charge be a correct statement of Maine law. It neither made any point of respondent’s object failure to to the instruc tion in the trial court,* give nor did it any consideration to the doctrine long approved by this Court * Fay Noia, While U. S. 391 holds that a failure appeal through system the state-court constitutionally from a infirm judgment of conviction subsequent bar relief does federal corpus, habeas object failure to to a proposed instruction should stand on different footing. It is one thing to fail to utilize the appeal process to cure a defect which already inheres a judgment conviction, quite but it is another forgo making objection an exception might which prevent from error ever occurring. States, Cf. Davis United Here, however, U. Maine Supreme Judicial Court affirmatively nevertheless ruled that cognizable the issue despite respondent’s object failure to majority opinion, ante, See trial. at 688 n. 7. And the State did not propriety contest of consideration of the issue in federal habeas. *18 instructions jury to the are not to be judged artificial isolation, but must be viewed in the context of the over- all charge. Boyd States, v. United U. S. (1926); Cupp Naughten, 414 U. 141, 147 (1973). It likewise expressed no view on whether, even though the instruction might have amounted constitutional that error, error could have been Chapman harmless. California, 386 U. S. Its reason for not treat- ing the possibility that error was may harmless have been because, as this Court’s opinion ante, points out, at 687, jury came back in the midst its deliberations and requested further instructions on the doctrine of implied malice aforethought and the definition of “heat of passion.”

The case which has now reached us through the route of federal habeas corpus, therefore, is a highly unusual one which does present the question abstract of law iso- lated by the Supreme Judicial Court of Maine now decided here.

I agree with the Court re Winship, 397 U. S. 358 (1970), require does the prosecution prove beyond a reasonable every doubt element which con- stitutes the crime charged T defendant. see against_a nb~mcdnsistehcyrb“etween that holding the holding of Leland v. Oregon, 343 U. S. 790 (1952). In the latter case this Court held that there was no constitutional requirement the State shoulder the burden of prov- ing the sanity of the defendant.

The Court noted in Leland that the issue of insanity as a defense to a criminal charge was considered jury only after it had found that all elements of the offense, including rea, the mens if any, required by state law, had proved been beyond a reasonable doubt. 795. Although the state court’s instructions in Leland id., recognized, at 794-795, evidence relevant *19 may state law also be relevant insanity as defined rea mens exist- required whether present, necessary bears no legal insanity ence or nonexistence or nonexistence of the re- relationship to the existence For quired reason, elements of the crime. mental proof insanity Oregon’s placement of the burden of Leland, Maine’s redefinition of homicide unlike an did not effect unconstitutional shift case, instant beyond proof traditional burden of a reason- State’s necessary able of the offense. doubt of all elements opinion concurring at 795. Both Court’s and the supra, opinion Winship, re Justice Harlan Mr. doubt importance proof stress reasonable in a criminal case as “bottomed on a fundamental value society determination of our is far worse to guilty go convict an innocent man than to let a man S., concurring). U. (Harlan, J., free.” at 372 rigorous proof that, once met burden of Having example, this, for in a case such as the defendant only human but being, killed fellow did it with quite consistently could aforethought, the State principle conclude such a constitutional that a defendant who to establish the defense of sought insanity, thereby escape any punishment whatever for a heinous an crime, bear the oar on such issue. laboring should