OCTOBER TERM, 1999
Syllabus
CARMELL
v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND DISTRICT
No. 98-7540. Argued November 30, 1999-Decided May 1,2000
In 1996, petitioner was convicted on 15 counts of committing
sexual offenses against his stepdaughter from 1991 to 1995, when
she was 12 to 16 years old. Before September 1, 1993, Tex. Code
Crim. Proc. Ann., Art. 38.07, specified that a victim's testimony
about a sexual offense could not support a conviction unless
corroborated by other evidence or the victim informed another
person of the offense within six months of its occurrence, but
that, if a victim was under 14 at the time of the offense, the
victim's testimony alone could support a conviction. A 1993
amendment allowed the victim's testimony alone to support a
conviction if the victim was under 18. The validity of four of
petitioner's convictions depends on which version of the law
applies to him. Before the Texas Court of Appeals, he argued that
the four convictions could not stand under the pre-1993 version of
the law, which was in effect at the time of his alleged conduct,
because they were based solely on the testimony of the victim, who
was not under 14 at the time of the offenses and had not made a
timely outcry. The court held that applying the 1993 amendment
retrospectively did not violate the
Ex Post Facto Clause,
and the State Court of Criminal Appeals denied review.
Held: Petitioner's convictions on the counts at issue,
insofar as they are not corroborated by other evidence, cannot be
sustained under the
Ex Post Facto Clause. Pp. 521-553.
(a) In
Calder v.
Bull, 3 Dall. 386, 390, Justice
Chase stated that the proscription against
ex post facto
laws was derived from English common law well known to the Framers,
and set out four categories of
ex post facto criminal laws:
"1st. Every law that makes an action done before the passing of the
law, and which was
innocent when done, criminal; and
punishes such action. 2d. Every law that
aggravates a
crime, or makes it
greater than it was, when
committed. 3d. Every law that
changes the punishment, and
inflicts a
greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the
legal
rules of
evidence, and receives less, or different,
testimony, than the law required at the time of the commission of
the offence,
in order to convict the offender." The Court
has repeatedly endorsed this understanding, including the fourth
category. Both Justice Chase and the common-law treatise on which
he drew heavily cited
514
Syllabus
the case of Sir John Fenwick as an example of the fourth
category. England charged Fenwick with high treason in the late
17th century, but, under an Act of Parliament, he could not be
convicted without the testimony of two witnesses. Parliament passed
a bill of attainder making the two-witness rule inapplicable, and
Fenwick was convicted on the testimony of only one witness. Pp.
521-530.
(b) Article 38.07 plainly fits within
Calder's fourth
category. Requiring only the victim's testimony to convict, rather
than that testimony plus corroborating evidence, is surely "less
testimony required to convict" in any straightforward sense of
those words. Indeed, the circumstances here parallel those of
Fenwick's case. That Article 38.07 neither increases the punishment
for, nor changes the elements of, the offense simply shows that the
amendment does not fit within
Calder's first or third
categories. Pp. 530-531.
(c) The fourth category resonates harmoniously with one of the
principal interests that the
Ex Post Facto Clause was
designed to serve, fundamental justice. A law reducing the quantum
of evidence required to convict is as grossly unfair as
retrospectively eliminating an element of the offense, increasing
punishment for an existing offense, or lowering the burden of
proof. In each instance, the government refuses, after the fact, to
play by its own rules, altering them in a way that is advantageous
only to the State, to facilitate an easier conviction. There is
plainly a fundamental fairness interest in having the government
abide by the rules of law it establishes to govern the
circumstances under which it can deprive a person of his or her
liberty or life. Indeed, Fenwick's case itself illustrates this
principle. Pp. 531-534.
(d) None of the reasons that the United States as
amicus
advances for abandoning the fourth category is persuasive. It
asserts that the fact that neither Blackstone nor
ex post
facto clauses in Ratification-era state constitutions mention
the fourth category shows that Justice Chase simply got it wrong.
Accepting this assertion would require the Court to abandon the
third category as well, for it is also not mentioned in any of
those sources. And it does not follow from the fact that Fenwick
was convicted by a bill of attainder that his case cannot also be
an example of an
ex post facto law. In fact, all of the
specific examples that Justice Chase listed in
Calder were
passed as bills of attainder. Nor, as the United States and Texas
argue, was the fourth category effectively cast out in
Collins v.
Youngblood, 497 U. S. 37, which
actually held that it was a mistake to stray
beyond Calder's
four categories, not that the fourth category was itself mistaken.
Pp. 534-539.
(e) Texas' additional argument that the fourth category is
limited to laws that retrospectively alter the burden of proof is
also rejected.
515
The Court's decision in
Cummings v.
Missouri, 4
Wall. 277, nowhere suggests that a reversal of the burden of proof
is all the fourth category encompasses; and laws that lower the
burden of proof and laws that reduce the quantum of evidence
necessary to meet that burden are indistinguishable in all
meaningful ways relevant to concerns of the
Ex Post Facto
Clause. Texas' assertion that Fenwick's case concerns only a
reduction in the burden of proof is based on a mistaken historical
premise. And its argument that the present case is controlled by
Hopt v.
Territory of Utah, 110 U. S. 574, and
Thompson v.
Missouri, 171 U. S. 380, is also
unpersuasive. Unlike the witness competency rules at issue there,
Article 38.07 is a sufficiency of the evidence rule. It does not
merely regulate the mode in which the facts constituting guilt may
be placed before the jury, but governs the sufficiency of those
facts for meeting the burden of proof. Indeed,
Hopt
expressly
distinguished witness competency laws from laws
altering the amount or degree of proof needed for conviction.
Moreover, a sufficiency of the evidence rule resonates with the
interests to which the
Ex Post Facto Clause is addressed, in
particular the elements of unfairness and injustice in subverting
the presumption of innocence. Pp. 539-547.
963 S. W. 2d 833, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
SCALIA, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR
and KENNEDY, JJ., joined,
post, p. 553.
Richard D. Bernstein, by appointment of the Court, 527 U.
S. 1051, argued the cause for petitioner. With him on the briefs
were
Carter G.
Phillips, Katherine L. Adams, and
Paul A. Hemmersbaugh.
John Cornyn, Attorney General of Texas, argued the cause
for respondent. With him on the brief were
Andy Taylor,
First Assistant Attorney General,
Linda S.
Eads,
Deputy Attorney General,
Gregory S.
Coleman,
Solicitor General, and
Philip A. Lionberger, Assistant
Solicitor General.
Beth S.
Brinkmann argued the cause for the United
States as
amicus curiae urging affirmance. With her on the
brief were
Solicitor General Waxman, Assistant Attorney
516
General Robinson, Deputy Solicitor General Dreeben, and Vicki S.
Marani.
*
JUSTICE STEVENS delivered the opinion of the Court. An amendment
to a Texas statute that went into effect on September 1, 1993,
authorized conviction of certain sexual offenses on the victim's
testimony alone. The previous statute required the victim's
testimony plus other corroborating evidence to convict the
offender. The question presented is whether that amendment may be
applied in a trial for offenses committed before the amendment's
effective date without violating the constitutional prohibition
against state
"ex post facto" laws.
I
In 1996, a Texas grand jury returned a is-count indictment
charging petitioner with various sexual offenses against his
stepdaughter. The alleged conduct took place over more than four
years, from February 1991 to March 1995, when the victim was 12 to
16 years old. The conduct ceased after the victim told her mother
what had happened. Petitioner was convicted on alliS counts. The
two most serious counts charged him with aggravated sexual assault,
and petitioner was sentenced to life imprisonment on those two
counts.
*Robert P. Marcovitch and
Barbara Bergman filed a
brief for the National Association of Criminal Defense Lawyers as
amicus curiae urging reversal.
A brief of
amici curiae urging affirmance was filed for
the State of Kansas et al. by
Carla J.
Stovall, Attorney General of Kansas, and
Stephen R.
McAllister, State Solicitor, joined by the Attorneys General
for their respective States as follows:
Janet Napolitano of
Arizona,
M. Jane Brady of Delaware,
Robert A.
Butterworth of Florida,
Jeffrey A. Modisett of Indiana,
Richard P. Ieyoub of Louisiana,
Jennifer M. Granholm
of Michigan,
Joe Mazurek of Montana,
Don Stenberg of
Nebraska,
Frankie Sue Del Papa of Nevada,
Betty D.
Montgomery of Ohio,
W A. Drew Edmondson of Oklahoma,
Charles M. Condon of South Carolina,
Jan Graham of
Utah,
William H. Sorrell of Vermont, and
Christine O.
Gregoire of Washington.
517
For each of the other 13 offenses (5 counts of sexual assault
and 8 counts of indecency with a child), petitioner received
concurrent sentences of 20 years.
Until September 1, 1993, the following statute was in ef-
fect in Texas:
"A conviction under Chapter 21, Section 22.011, or Section
22.021, Penal Code, is supportable on the uncorroborated testimony
of the victim of the sexual offense if the victim informed any
person, other than the defendant, of the alleged offense within six
months after the date on which the offense is alleged to have
occurred. The requirement that the victim inform another person of
an alleged offense does not apply if the victim was younger than 14
years of age at the time of the alleged offense." Tex. Code Crim.
Proc. Ann., Art. 38.07 (Vernon 1983).1
We emphasize three features of this law that are critical to
petitioner's case.
The first is the so-called "outcry or corroboration"
requirement. Under that provision, a victim's testimony can support
a conviction for the specified offenses only if (1) that testimony
is corroborated by other evidence, or (2) the victim informed
another person of the offense within six months of its occurrence
(an "outcry"). The second feature is the "child victim" provision,
which is an exception to the outcry or corroboration requirement.
According to this provision, if the victim was under 14 years old
at the time of the alleged offense, the outcry or corroboration
requirement does not apply and the victim's testimony alone can
support a conviction-even without any corroborating evidence or
outcry. The third feature is that Article 38.07 establishes a
suffi-
1 The chapter and sections to which this statute refers cover
all the charges contained in the 15-count indictment against
petitioner. Chapter 21 includes the offense of indecency with a
child; § 22.011 covers sexual assault; § 22.021 criminalizes
aggravated sexual assault.
518
ciency of the evidence rule respecting the minimum quantum of
evidence necessary to sustain a conviction. If the statute's
requirements are not met (for example, by introducing only the
uncorroborated testimony of a 15-year-old victim who did not make a
timely outcry), a defendant cannot be convicted, and the court must
enter a judgment of acquittal. See
Leday v.
State,
983 S. W. 2d 713, 725 (Tex. Crim. App.
1998); Scoggan v.
State, 799 S. W. 2d 679, 683 (Tex. Crim. App. 1990).
Conversely, if the requirements are satisfied, a conviction, in the
words of the statute, "is supportable," and the case may be
submitted to the jury and a conviction sustained. See
Vickery v.
State, 566 S. W. 2d 624, 626-627 (Tex.
Crim. App. 1978); see also
Burnham v.
State, 821 S.
W. 2d 1, 3 (Tex. Ct. App. 1991).2
Texas amended Article 38.07, effective September 1, 1993.
The amendment extended the child victim exception to victims
under 18 years old.3 For four of petitioner's counts,
2 Texas courts treat Article 38.07 as a sufficiency of the
evidence rule, rather than as a rule concerning the competency or
admissibility of evidence. Ordinarily, when evidence that should
have been excluded is erroneously admitted against a defendant, the
trial court's error is remedied on appeal by reversing the
conviction and remanding for a new trial. See,
e. g., Miles
v.
State, 918 S. W. 2d 511, 512 (Tex. Crim. App. 1996);
Beltran v.
State, 728 S. W. 2d 382, 389 (Tex. Crim.
App. 1987). A trial court's failure to comply with the requirements
of Article 38.07, by contrast, results not in a remand for a new
trial, but in the reversal of conviction and remand for entry of an
order of acquittal. See,
e. g., Scoggan, 799 S. W. 2d, at
683. At oral argument, Texas agreed that the foregoing is an
accurate description of Texas law. See Tr. of Oral Arg. 28-29, 32,
40-41.
3 The new statute read in full:
"A conviction under Chapter 21, Section 22.011, or Section
22.021, Penal Code, is supportable on the uncorroborated testimony
of the victim of the sexual offense if the victim informed any
person, other than the defendant, of the alleged offense within one
year after the date on which the offense is alleged to have
occurred. The requirement that the victim inform another person of
an alleged offense does not apply if the victim was younger than 18
years of age at the time of the alleged offense." Tex. Code Crim.
Proc. Ann., Art. 38.07, as amended by Act of May 29, 1993, 73d
Leg., Reg.
519
that amendment was critical. The "outcry or corroboration"
requirement was not satisfied for those convictions; 4 they rested
solely on the victim's testimony. Accordingly, the verdicts on
those four counts stand or fall depending on whether the child
victim exception applies. Under the old law, the exception would
not apply, because the victim was more than 14 years old at
the time of the alleged offenses. Under the new law, the exception
would apply, because the victim was under 18 years old at that
time. In short, the validity of four of petitioner's convictions
depends on whether the old or new law applies to his case, which,
in turn, depends on whether the
Ex Post Facto Clause
prohibits the application of the new version of Article 38.07 to
his case.
As mentioned, only 4 of petitioner's 15 total convictions are
implicated by the amendment to Article 38.07; the other 11
counts-including the 2 convictions for which petitioner received
life sentences-are uncontested. Six counts are uncontested because
they were committed when the victim
was under 14 years old,
so his convictions stand even under the old law; the other five
uncontested counts were committed after the new Texas law went into
effect, so there could be no
ex post facto claim as to those
convictions. See
Sess., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3766, and Act
of May 10, 1993, 73d Leg., Reg. Sess., ch. 200, § 1, 1993 Tex. Gen.
Laws 387, 388.
4 The victim did not make an outcry until March 1995, more than
six months after the alleged offenses. Although the 1993 amendment
to Article 38.07 extended the outcry period from six months to one
year, see n. 3,
supra, the victim's outcry did not come
within that time period either. Accordingly, that change in the
outcry provision is immaterial to this case.
The State argues that there is evidence corroborating the
victim's testimony, so it does not help petitioner even if the old
law applies. See Brief for Respondent 4, n. 2. Before the state
court, however, petitioner argued that "there was nothing to
corroborate [the victim's] version of events," 963 S. W. 2d 833,
836 (Tex. Ct. App. 1998), and that court accepted the contention as
correct for the purposes of its decision. We do the same here.
520
Weaver v.
Graham, 450 U. S. 24, 31 (1981)
("The critical question [for an
ex post facto violation] is
whether the law changes the legal consequences of acts completed
before its effective date"). What are at stake, then, are the four
convictions on counts 7 through 10 for offenses committed between
June 1992 and July 1993 when the victim was 14 or 15 years old and
the new Texas law was not in effect.
Petitioner appealed his four convictions to the Court of Appeals
for the Second District of Texas in Fort Worth. See 963 S. W. 2d
833 (1998). Petitioner argued that under the pre-1993 version of
Article 38.07, which was the law in effect at the time of his
alleged conduct, those convictions could not stand, because they
were based
solely on the victim's testimony, and the victim
was not under 14 years old at the time of the offenses, nor had she
made a timely outcry.
The Court of Appeals rejected petitioner's argument.
Under the 1993 amendment to Article 38.07, the court observed,
petitioner could be convicted on the victim's testimony alone
because she was under 18 years old at the time of the offenses. The
court held that applying this amendment retrospectively to
petitioner's case did not violate the
Ex Post Facto
Clause:
"The statute as amended does not increase the punishment nor
change the elements of the offense that the State must prove. It
merely 'removes existing restrictions upon the competency of
certain classes of persons as witnesses' and is, thus, a rule of
procedure. Hopt v. Utah, 110 U. S. 574, 590 ...
(1884)." Id., at 836.
The Texas Court of Criminal Appeals denied discretionary review.
Because the question whether the retrospective application of a
statute repealing a corroboration requirement has given rise to
conflicting decisions,5 we granted peti-
5 Compare
Utah v.
Schreuder, 726 P. 2d 1215 (Utah
1986) (finding
ex post facto violation);
Virgin
Islands v.
Civil, 591 F.2d
255 (CA3 1979) (same), with
New York v.
Hudy, 73 N. Y. 2d 40, 535 N. E. 2d 250 (1988) (no
ex
post
521
tioner's
pro se petition for certiorari, 527 U. S. 1002
(1999), and appointed counsel,
id., at 1051.
II
To prohibit legislative Acts "contrary to the first principles
of the social compact and to every principle of sound legislation,"
6 the Framers included provisions they considered to be "perhaps
greater securities to liberty and republicanism than any [the
Constitution] contains." 7 The provisions declare:
"No State shall ... pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts .... " u. S.
Const., Art. I, § 10.8
The proscription against
ex post facto laws "necessarily
requires some explanation; for, naked and without explanation, it
is unintelligible, and means nothing."
Calder v.
Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In
Calder
v.
Bull, Justice Chase stated that the necessary explanation
is derived from English common law well known to the Framers: "The
expressions
'ex post facto laws,' are
technical, they
had been in use long before the Revolution, and had acquired an
appropriate meaning, by
Legislators, Lawyers, and
Authors." Id., at 391; see also
id., at 389 ("The
prohibition ... very probably arose from the knowledge, that
the
Parliament of Great Britain claimed and exercised a power to
pass
such laws ... "); id., at 396 (Paterson, J.).
Specifically, the
facto violation);
Murphy v.
Sowders,
801 F.2d
205 (CA6 1986) (same);
Murphy v.
Kentucky,
652 S. W. 2d 69 (Ky. 1983) (same). See also
Idaho v.
Byers, 102 Idaho 159, 627 P. 2d 788 (1981) (judicial change
in witness corroboration rule may not be applied retroactively);
Bowyer v.
United States, 422 A. 2d 973 (DC 1980)
(same).
6 The Federalist No. 44, p. 282
(C. Rossiter ed. 1961)
(J. Madison).
7Id., No. 84, at 511 (A. Hamilton).
8 Article I, § 9, cl. 3, has a similar prohibition applicable to
Congress:
"No Bill of Attainder or ex post facto Law shall be passed."
522
phrase
"ex post facto " referred only to certain types of
criminal laws. Justice Chase cataloged those types as follows:
"I will state what laws I consider ex post facto
laws, within the words and the intent of the
prohibition. 1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than
it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the
law annexed to the crime, when committed. 4th. Every law that
alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the time of
the commission of the offence, in order to convict the
offender." Id., at 390 (emphasis in original).9
It is the fourth category that is at issue in petitioner's
case.
The common-law understanding explained by Justice Chase drew
heavily upon the authoritative exposition of one of the great
scholars of the common law, Richard Wooddeson. See
id., at
391 (noting reliance on Wooddeson's treatise).l0
9 Elsewhere in his opinion, Justice Chase described his taxonomy
of
ex post facto laws as follows:
"Sometimes
[ex post facto laws] respected the crime, by
declaring acts to be treason, which were not treason, when
committed; at other times, they violated the rules of evidence (to
supply a deficiency of legal proof) by admitting one witness, when
the existing law required two; by receiving evidence without oath;
or the oath of the wife against the husband; or other testimony,
which the courts of justice would not admit; at other times they
inflicted punishments, where the party was not, by law, liable to
any punishment; and in other cases, they inflicted greater
punishment, than the law annexed to the offence." 3 Dall., at 389
(emphasis deleted).
lOWooddeson was well known for his treatise on British common
law, A Systematical View of the Laws of England, which collected
various lectures he delivered as the Vinerian Professor and Fellow
of Magdalen College at Oxford. Though not as well known today,
Justice Chase noted
523
Wooddeson's classification divided
ex post facto laws
into three general categories: those respecting the crimes
themselves; those respecting the legal rules of evidence; and those
affecting punishment (which he further subdivided into laws
creating a punishment and those making an existing punishment more
severe)Y See 2 R. Wooddeson, A Systematical View of the Laws of
England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson). Those
three categories (the last of which was further subdivided)
correlate precisely to
Calder's four categories. Justice
Chase also used language in describing the categories that
corresponds directly to Wooddeson's phrasing.12 Finally, in
four
that Wooddeson was William Blackstone's successor, 3 Dall., at
391 (Blackstone held the Vinerian chair at Oxford until 1766), and
his treatise was repeatedly cited in the years following the
ratification by lawyers appearing before this Court and by the
Court itself. See,
e. g., Trustees of Dartmouth College v.
Woodward, 4 Wheat. 518, 562-563 (1819) (argument of Daniel
Webster);
id., at 668, 676 (Story, J.);
Town of
Pawlet v.
Clark, 9 Cranch 292, 326, 329 (1815) (Story,
J.);
The Nereide, 9 Cranch 388, 449 (1815) (Story, J.);
Cooper v.
Telfair, 4 Dall. 14,16-17 (1800) (arguments
of Edward Tilghman, Jared Ingersoll, and Alexander Dallas);
Hannum v.
Spear, 2 Dall. 291 (Err. App. Pa. 1795);
Glass v.
Sloop Betsey, 3 Dall. 6, 8 (1794).
11 Specifically, in the former category Wooddeson included those
laws that make "some innovation, or creat[e] some forfeiture or
disability, not incurred in the ordinary course of law." 2 R.
Wooddeson, A Systematical View of the Laws of England 638 (1792).
In the latter category, he placed those laws that "imposed a
sentence
more severe than could have been awarded by the
inferior courts."
Id., at 639. As examples of the former
category Wooddeson cited the bills passed by Parliament that
banished Lord Clarendon in 1669 and Bishop Atterbury in 1723. Those
punishments were considered "innovation[s] ... not incurred in the
ordinary course of law" because banishment, at those times, was
simply not a form of penalty that could be imposed by the courts.
Ibid. See 11 W. Holdsworth, A History of English Law 569
(1938); Craies, The Compulsion of Subjects to Leave the Realm, 6 L.
Q. Rev. 388, 396 (1890).
12 See 2 Wooddeson 631 (referring to laws that "respec[t] the
crime, determining those things to be treason, which by no prior
law or adjudication could be or had been so declared");
id.,
at 633-634 (referring to laws "respecting ... the rules of
evidence [rectifying] a deficiency of
524
footnotes in Justice Chase's opinion, he listed examples of
various Acts of Parliament illustrating each of the four
categories. See 3 Dall., at 389, nn. *, t, :!:, 11.13 Each of these
examples is exactly the same as the ones Wooddeson himself used in
his treatise. See 2 Wooddeson 629 (case of the Earl of Strafford);
id., at 634 (case of Sir John Fenwick);
id., at 638
(banishments of Lord Clarendon and of Bishop Atterbury);
id., at 639 (Coventry Act).
Calder's four categories, which embraced Wooddeson's
formulation, were, in turn, soon embraced by contemporary scholars.
Joseph Story, for example, in writing on the
Ex Post Facto
Clause, stated:
"The general interpretation has been, and is, ... that the
prohibition reaches every law, whereby an act is declared a crime,
and made punishable as such, when it was not a crime, when done; or
whereby the act, if a crime, is aggravated in enormity, or
punishment; or whereby different, or less evidence, is required to
convict an offender, than was required, when the act was
committed." 3 Commentaries on the Constitution of the United States
§ 1339, p. 212 (1833).
James Kent concurred in this understanding of the Clause: "[T]he
words ex post facto laws were technical expressions, and
meant every law that made an act done before the passing of the
law, and which was innocent when done, criminal; or which
aggravated a crime, and
legal proof" created when only one witness was available but "a
statute then lately made requiring two witnesses" had been in
effect);
id., at 638 (describing "acts of parliament, which
principally affect
the punishment, making therein some
innovation, or creating some forfeiture or disability, not incurred
in the ordinary course of law");
id., at 639 (referring to
instances where "the legislature ... imposed a sentence
more
severe than could have been awarded by the inferior courts").
Cf. n. 9,
supra.
13 The instances cited were the case of the Earl of Strafford,
the case of Sir John Fenwick, the banishments of Lord Clarendon and
of Bishop Atterbury, and the Coventry Act.
525
made it greater than it was when committed; or which changed the
punishment, and inflicted a greater punishment than the law annexed
to the crime when committed; or which altered the legal rules of
evidence, and received less or different testimony than the law
required at the time of the commission of the offence, in order to
convict the offender." 1 Commentaries on American Law 408 (3d ed.
1836) (Lecture 19).
This Court, moreover, has repeatedly endorsed this
understanding, including, in particular, the fourth category
(sometimes quoting Chase's words verbatim, sometimes simply
paraphrasing). See
Lynce v.
Mathis, 519 U. S. 433, 441, n. 13
(1997); Dobbert v.
Florida, 432 U. S. 282, 293
(1977);
Malloy v.
South Carolina, 237 U. S. 180, 183-184
(1915);
Mallett v.
North Carolina, 181 U. S. 589, 593-594
(1901);
Thompson v.
Missouri, 171 U. S. 380, 382, 387
(1898);
Hawker v.
New York, 170 U. S. 189, 201 (1898)
(Harlan, J., dissenting);
Gibson v.
Mississippi,
162 U. S. 565,
589-590 (1896);
Duncan v.
Missouri, 152 U. S. 377, 382
(1894);
Hopt v.
Territory of Utah, 110 U. S. 574, 589
(1884);
Kring v.
Missouri, 107 U. S. 221, 228 (1883),
overruled on other grounds,
Collins v.
Youngblood,
497 U. S. 37
(1990);
Gut v.
State, 9 Wall. 35, 38 (1870);
Ex
parte Garland, 4 Wall. 333, 390-391 (1867) (Miller, J.,
dissenting);
Cummings v.
Missouri, 4 Wall. 277,
325-326, 328 (1867). State courts, too, in the years following
Calder, adopted Justice Chase's four-category formulation.
See
Boston &
Gunby v.
Cummins, 16 Ga. 102,
106 (1854);
Martindale v.
Moore, 3 Blackf. 275, 277
(Ind. 1833);
Davis v.
Ballard, 24 Ky. 563, 578
(1829);
Strong v.
State, 1 Blackf. 193,196 (Ind.
1822);
Dickinson v.
Dickinson, 7 N. C. 327, 330
(1819); see also
Woart v.
Winnick, 3 N. H. 473, 475
(Super. Ct. 1826).14
14 The reception given the four categories contrasts with that
given to
Calder's actual holding-that the
Ex Post
Facto Clause applies only to criminal laws, not to civil laws.
The early criticism levied against that holding, see,
e.
g., Satterlee v.
Matthewson, 2 Pet.
380,416,681-687 (App. I)
526
III
As mentioned earlier, Justice Chase and Wooddeson both cited
several examples of
ex post facto laws, and, in particular,
cited the case of Sir John Fenwick as an example of the fourth
category. To better understand the type of law that falls within
that category, then, we turn to Fenwick's case for preliminary
guidance.
Those who remained loyal to James II after he was deposed by
King William III in the Revolution of 1688 thought their
opportunity for restoration had arrived in 1695, following the
death of Queen Mary. 9 T. Macaulay, History of England 31 (1899)
(hereinafter Macaulay). Sir John Fenwick, along with other Jacobite
plotters including George Porter and Cardell Goodman, began
concocting their scheme in the spring of that year, and over the
next several months the original circle of conspirators expanded in
number.
Id., at 32, 47-48, 109-110. Before the conspirators
could carry out their machinations, however, three members of the
group disclosed the plot to William.
Id., at 122-125. One by
one, the participants were arrested, tried, and convicted of
treason.
Id., at 127-142. Fenwick, though, remained in
hiding while the rest of the cabal was brought to justice. During
that time, the trials of his accomplices revealed that there were
only two witnesses among them who could prove Fenwick's guilt,
Porter and Goodman.
Id., at 170171. As luck would have it,
an act of Parliament proclaimed that two witnesses were necessary
to convict a person of high treason. See An Act for Regulateing of
Tryals in
(1829) (Johnson, J., concurring);
Stoddart v.
Smith, 5 Binn. 355, 370 (Pa. 1812) (Brackenridge, J.), was
absent with respect to the four categories. Although Justice
Chase's opinion may have somewhat dampened the appetite for further
debate in the courts, that consideration would not necessarily have
an effect on scholarly discourse, nor does it explain why judges
would be reluctant to express criticism of the four categories, yet
harbor no compunction when it came to criticizing the actual
holding of the Court.
527
Cases of Treason and Misprision of Treason, 7 & 8 Will. III,
ch. 3, § 2 (1695-1696), in 7 Statutes of the Realm 6 (reprint
1963).15 Thus, Fenwick knew that if he could induce either Porter
or Goodman to abscond, the case against him would vanish. 9
Macaulay 171.
Fenwick first tried his hand with Porter. Fenwick sent his agent
to attempt a bribe, which Porter initially accepted in exchange for
leaving for France. But then Porter simply pocketed the bribe,
turned in Fenwick's agent (who was promptly tried, convicted, and
pilloried), and proceeded to testify against Fenwick (along with
Goodman) before a grand jury.
Id., at 171-173. When the
grand jury returned an indictment for high treason, Fenwick
attempted to flee the country himself, but was apprehended and
brought before the Lord Justices in London. Sensing an impending
conviction, Fenwick threw himself on the mercy of the court and
offered to disclose all he knew of the Jacobite plotting, aware all
the while that the judges would soon leave the city for their
circuits, and a delay would thus buy him a few weeks time.
Id., at 173-174.
Fenwick was granted time to write up his confession, but rather
than betray true Jacobites, he concocted a confession calculated to
accuse those loyal to William, hoping to introduce embarrassment
and perhaps a measure of instability to the current regime.
Id., at 175-178. William, however, at once perceived
Fenwick's design and rejected the confession, along with any
expectation of mercy.
Id., at 178-
15 That Act read, in relevant part:
"And bee it further enacted That ... noe Person or Persons
whatsoever shall bee indicted tryed or attainted of High Treason
... but by and upon the Oaths and Testimony of Two lawfull
Witnesses either both of them to the same Overtact or one of them
to one and another of them to another Overtact of the same Treason
unlesse the Party indicted and arraigned or tryed shall willingly
without violence in open Court confesse the same or shall stand
Mute or refuse to plead or in cases of High Treason shall
peremptorily challenge above the Number of Thirty five of the Jury
.... "
528
180, 194. Though his contrived ploy for leniency was
unsuccessful in that respect, it proved successful in another:
during the delay, Fenwick's wife had succeeded in bribing Goodman,
the other witness against him, to leave the country.
Id., at
194-195.16
Without a second witness, Fenwick could not be convicted of high
treason under the statute mentioned earlier. For all his plotting,
however, Fenwick was not to escape. After Goodman's absence was
discovered, the House of Commons met and introduced a bill of
attainder against Fenwick to correct the situation produced by the
combination of bribery and the two-witness law.
Id., at
198-199. A lengthy debate ensued, during which the Members
repeatedly discussed whether the two-witness rule should applyP
Ultimately, the bill passed by a close vote of 189 to 156,
id., at 210, notwithstanding the objections of Members who
(foreshadowing
Calder's fourth category) complained that
Fenwick was being attainted "upon less Evidence" than
16 This time, Fenwick's wife handled the bribe with a deftness
lacking in the first attempt. Not only was Goodman (popularly
called "Scum Goodman," see 9 Macaulay 32) an easier target, but
Lady Fenwick's agent gave Goodman an offer he couldn't refuse:
abscond and be rewarded, or have his throat cut on the spot.
Id., at 195. Goodman's instinct for selfpreservation
prevailed, and the agent never parted company with him until they
both safely reached France.
Ibid.
17 See,
e. g., The Proceedings Against Sir John
Fenwick Upon a Bill of Attainder for High Treason 40 (1702)
(hereinafter Proceedings) (" 'Tis Extraordinary that you bring Sir
John Fenwick, here to Answer for Trea- son, when ... you
have but one Witness to that Treason ... Treason be not Treason
unless it be proved by two Witnesses ... ");
id., at 103
("It hath been objected, That there ought to be two Witnesses, by
the late Statute");
id., at 227 ("I do take it to be part of
the Law of the Land, That no Man should be condemned for Treason
without two Witnesses");
id., at 256-257 ("[I]f we sit here
to Judge, we sit to Judge him according to the Law of
England
.... Will you set up a Judgment ... upon one Witness, when the
Law says you shall have two; and after all, say 'tis a reasonable
Proceeding?").
529
would be required under the two-witness law,18 and despite the
repeated importuning against the passing of an
ex post facto
law.19 The bill then was taken up and passed by the
18 See,
e. g., id., at 270 ("I believe this House
can't take away any Persons Life upon less Evidence than Inferiour
Courts could do");
id., at 288 ("Shall we that are the
Supream Authority ... go upon less Evidence to satisfie ourselves
of Sir
John Fenwick's Guilt, than other Courts?");
id., at 317 ("I can't satisfie my self in my Conscience, and
should think some misfortune might follow me and my Posterity, if I
passed Sentence upon Sir
John Fenwick's Life, upon less
Evidence than the Law of
England requires");
id., at
342 ("But the Liberty of the People of
England is very much
concerned in the Revocation of that Act; and none of the Arguments
that have been used can Convince me, That I ought to give Judgment
upon less Evidence than is required by that Act").
19 See,
e. g., id., at 145 ("I can't say, but
those Persons, who in the last Sessions of Parliament, were
Imprisoned by an Act
Ex Post Facto, and subsequent to the
Fact Complained of, yet when it was passed into a Law, they were
Legally Detained: but, I hope, I may take notice of their Case, as
some kind of Reason against this, to the end that those Laws may
not grow familiar, that they may not easily be obtained; because
Precedents generally grow, and as that Law
Ex Post Facto,
extended to Liberty, so this extends to Life ... ");
id., at
152-153 ("It would be too much at once to make a
subsequent
Law to condemn a Man to Death .... I am afraid none are safe if
that be admitted, That a
subsequent Law may take away a
Man's Life ... " (emphasis added));
id., at 197 ("Sir, It
hath been urged to you, of what ill Consequence it would be, and
how much Injustice to make a Law to Punish a Man,
Ex post Facto
... "); id., at 256 ("But how shall they Judge? By the Laws in
being ... That you may Judge that to be Treason in this House,
that was not so
by the Law before. So that give me
leave to say, therefore there is no such Power reserved to the
Parliament, to Declare any thing Treason that is not Treason
before" (emphasis added));
id., at 282-283 ("[F]or according
to your Law, no Man shall be declared Guilty of Treason, unless
there be two Witnesses against him .... But how can a Man satisfie
his own Conscience, to Condemn any Man by
a Law that is
subsequent to the Fact? For that is the Case ... " (emphasis
added));
id., at 305 ("I think I may confidently affirm,
there is not so much as one Precedent where a Person ... was taken
away from his Tryal, ... and cut off extrajudicially by an Act made
on purpose,
Ex post Facto"); id., at 331-332 ("Those Acts
that have been made since, are made certainly to provide, That in
no Case whatsoever, a Man should be so much as accused without two
Witnesses
530
House of Lords, and the King gave his assent.
Id., at
214225; see also An Act to Attaint Sir John Fenwick Baronet of High
Treason, 8 Will. III, ch. 4 (1696). On January 28, 1697, Sir John
Fenwick was beheaded. 9 Macaulay 226-227.
IV
Article 38.07 is unquestionably a law "that alters the legal
rules of evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offence, in
order to convict the offender." Under the law in effect at the time
the acts were committed, the prosecution's case was legally
insufficient and petitioner was entitled to a judgment of
acquittal, unless the State could produce both the victim's
testimony
and corroborative evidence. The amended law,
however, changed the quantum of evidence necessary to sustain a
conviction; under the new law, petitioner could be (and was)
convicted on the victim's testimony alone, without any
corroborating evidence. Under any commonsense understanding of
Calder's fourth category, Article 38.07 plainly fits.
Requiring only the victim's testimony to convict, rather than the
victim's testimony plus other corroborating evidence is surely
"less testimony required to convict" in any straightforward sense
of those words.
Indeed, the circumstances of petitioner's case parallel those of
Fenwick's case 300 years earlier. Just as the relevant law in
Fenwick's case required more than one witness' testimony to support
a conviction (namely, the testimony of a second witness), Texas'
old version of Article 38.07 required more than the victim's
testimony alone to sustain a conviction (namely, other
corroborating evidence).2o And just like Fen-
of the Treason .... Then this is a Law;
ex post facto,
and that hath been always condemned ... ").
20 Texas argues that the corroborative evidence required by
Article 38.07 "need not be more or different from the victim's
testimony; it may be entirely cumulative of the victim's
testimony." Brief for Respondent 19;
531
wick's bill of attainder, which permitted the House of Commons
to convict him with less evidence than was otherwise required,
Texas' retrospective application of the amendment to Article 38.07
permitted petitioner to be convicted with less than the previously
required quantum of evidence. It is true, of course, as the Texas
Court of Appeals observed, that "[t]he statute as amended does not
increase the punishment nor change the elements of the offense that
the State must prove." 963 S. W. 2d, at 836. But that observation
simply demonstrates that the amendment does not fit within
Calder's first and third categories. Likewise, the dissent's
remark that "Article 38.07 does not establish an element of the
offense,"
post, at 559, only reveals that the law does not
come within
Calder's first category. The fact that the
amendment authorizes a conviction on less evidence than previously
required, however, brings it squarely within the fourth
category.
V
The fourth category, so understood, resonates harmoniously with
one of the principal interests that the
Ex Post Facto Clause
was designed to serve, fundamental justice.21
see also
post, at 561, n. 6 (dissenting opinion). The
trouble with that argument is that the same was true in Fenwick's
case. The relevant statute there required the "Testimony of Two
lawfull Witnesses
either both of them to the same Overtact
or one of them to one and another of them to another Overtact of
the same Treason." See n. 15,
supra (emphasis added).
21 The Clause is, of course, also aimed at other concerns,
"namely, that legislative enactments give fair warning of their
effect and permit individuals to rely on their meaning until
explicitly changed,"
Miller v.
Florida, 482 U. S. 423, 430 (1987)
(internal quotation marks omitted), and at reinforcing the
separation of powers, see
Weaver v.
Graham, 450 U. S. 24, 29, n. 10
(1981). But those are not its only aims, and the absence of a
reliance interest is not an argument in favor of abandoning the
category itself. If it were, the same conclusion would follow for
Calder's third category (increases in punishment), as there
are few, if any, reliance interests in planning future criminal
activities based on the expectation of less severe
repercussions.
532
Justice Chase viewed all
ex post facto laws as
"manifestly
unjust and oppressive." Calder, 3 Dall., at 391.
Likewise, Blackstone condemned them as "cruel and unjust," 1
Commentaries on the Laws of England 46 (1765), as did every state
constitution with a similar clause, see n. 25,
infra. As
Justice Washington explained in characterizing "[t]he injustice and
tyranny" of
ex post facto laws:
"Why did the authors of the constitution turn their attention to
this subject, which, at the first blush, would appear to be
peculiarly fit to be left to the discretion of those who have the
police and good government of the State under their management and
control? The only answer to be given is, because laws of this
character are oppressive, unjust, and tyrannical; and, as such, are
condemned by the universal sentence of civilized man." Ogden
v. Saunders, 12 Wheat. 213, 266 (1827).
In short, the
Ex Post Facto Clause was designed as "an
additional bulwark in favour of the personal security of the
subject,"
Calder, 3 Dall., at 390 (Chase, J.), to protect
against "the favorite and most formidable instruments of tyranny,"
The Federalist No. 84, p. 512
(C. Rossiter ed. 1961) (A.
Hamilton), that were "often used to effect the most detestable
purposes,"
Calder, 3 Dall., at 396 (Paterson, J.).
Calder's fourth category addresses this concern
precisely.
A law reducing the quantum of evidence required to convict an
offender is as grossly unfair as, say, retrospectively eliminating
an element of the offense, increasing the punishment for an
existing offense, or lowering the burden of proof (see
infra, at 540-544). In each of these instances, the
government subverts the presumption of innocence by reducing the
number of elements it must prove to overcome that presumption; by
threatening such severe punishment so as to induce a plea to a
lesser offense or a lower sentence; or by making it easier to meet
the threshold for overcoming the presumption. Reducing the quantum
of evidence necessary
533
to meet the burden of proof is simply another way of achieving
the same end.22 All of these legislative changes, in a sense, are
mirror images of one another. In each instance, the government
refuses, after the fact, to play by its own rules, altering them in
a way that is advantageous only to the State, to facilitate an
easier conviction. There is plainly a fundamental fairness
interest, even apart from any claim of reliance or notice, in
having the government abide by the rules of law it establishes to
govern the circumstances under which it can deprive a person of his
or her liberty or life.23
Indeed, Fenwick's case is itself an illustration of this
principle. Fenwick could claim no credible reliance interest in the
two-witness statute, as he could not possibly have known that only
two of his fellow conspirators would be able to testify as to his
guilt, nor that he would be successful in bribing one of them to
leave the country. Nevertheless, Parliament had enacted the
two-witness law, and there was
22 Lowering the burden of persuasion, to be sure, is not
precisely the same thing as lowering (as a matter of law) the
amount of evidence necessary to meet that burden. But it does not
follow, as the dissent appears to think, that only the former
subverts the presumption of innocence.
Post, at 560-561
(opinion of GINSBURG, J.).
23 We do not mean to say that every rule that has an effect on
whether a defendant can be convicted implicates the
Ex Post
Facto Clause. Ordinary rules of evidence, for example, do not
violate the Clause. See
infra, at 543-547. Rules of that
nature are ordinarily evenhanded, in the sense that they may
benefit either the State or the defendant in any given case. More
crucially, such rules, by simply permitting evidence to be admitted
at trial, do not at all subvert the presumption of innocence,
because they do not concern whether the admissible evidence is
sufficient to overcome the presumption. Therefore, to the extent
one may consider changes to such laws as "unfair" or "unjust," they
do not implicate the same
kind of unfairness implicated by
changes in rules setting forth a sufficiency of the evidence
standard. Moreover, while the principle of unfairness helps explain
and shape the Clause's scope, it is not a doctrine unto itself,
invalidating laws under the
Ex Post Facto Clause by its own
force. Cf.
W S.
Kirkpatrick &
Co. v.
Environmental Tectonics Corp., Int'l, 493 U. S. 400, 409
(1990).
534
a profound unfairness in Parliament's retrospectively altering
the very rules it had established, simply because those rules
prevented the conviction of the traitor-notwithstanding the fact
that Fenwick could not truly claim to be "innocent." (At least one
historian has concluded that his guilt was clearly established, see
9 Macaulay 203-204, and the debate in the House of Commons bears
out that conclusion, see,
e. g., Proceedings 219,
230, 246, 265, 289.) Moreover, the pertinent rule altered in
Fenwick's case went directly to the general issue of guilt,
lowering the minimum quantum of evidence required to obtain a
conviction. The Framers, quite clearly, viewed such maneuvers as
grossly unfair, and adopted the
Ex Post Facto Clause
accordingly.24
VI
The United States as
amicus asks us to revisit the
accuracy of the fourth category as an original matter. None of its
reasons for abandoning the category is persuasive.
24 Fenwick's case also illustrates how such
ex post facto
laws can operate similarly to retrospective increases in punishment
by adding to the coercive pressure to accept a plea bargain. When
Fenwick was first brought before the Lord Justices, he was given an
opportunity to make a confession to the King. Though he squandered
the opportunity by authoring a plain contrivance, Fenwick could
have reasonably assumed that a sincere confession would have been
rewarded with leniency-the functional equivalent of a plea bargain.
See 9 Macaulay 125. When the bill of attainder was taken up by the
House of Commons, there is evidence that this was done to pressure
Fenwick into making the honest confession he had failed to make
before. See,
e. g., Proceedings 197 (" 'Tis a Matter
of Blood, 'tis true, but I do not aim at this Gentleman's Life in
it ... all I Propose by it, is to get his Confession");
id.,
at 235 ("[W]e do not aim at Sir
John Fenwick's Blood, (God
forbid we should) but at his Confession");
id., at 255
("Why, give me leave to say to you, 'tis a new way not known in
England, that you will Hang a Man unless he will Confess or
give Evidence ... "). And before the House of Lords, Fenwick was
explicitly threatened that unless he confessed, they would proceed
to consider the bill against him. 9 Macaulay 218.
535
First, pointing to Blackstone's Commentaries and a handful of
state constitutions cited by Justice Chase in
Calder, see 3
Dall., at 391-392, the United States asserts that Justice Chase
simply got it wrong with his four categories. Blackstone wrote:
"There is still a more unreasonable method than this, which is
called making of laws
ex post facto; when
after an
action is committed, the legislator then for the first time
declares it to have been a crime, and inflicts a punishment upon
the person who has committed it .... " 1 Commentaries on the Laws
of England, at 46 (emphasis in original). The
ex post facto
clauses in Ratification-era state constitutions to which Justice
Chase cited are of a piece.25 The United States directs our
attention to the fact that none of these definitions mentions
Justice Chase's fourth category.
All of these sources, though, are perfectly consistent with
Justice Chase's first category of
ex post facto laws. None
of them is incompatible with his four-category formulation, unless
we accept the premise that Blackstone and the state constitutions
purported to express the
exclusive definition of an
ex
post facto law. Yet none appears to do so on its face. And if
those definitions were read as exclusive, the United
25 Massachusetts' clause read as follows: "Laws made to punish
for actions done before the existence of such laws, and which have
not been declared crimes by preceding laws, are unjust, oppressive,
and inconsistent with the fundamental principles of a free
government." Constitution of Massachusetts, Pt. I, Art. 24 (1780),
in 5 W. Swindler, Sources and Documents of United States
Constitutions 95 (1975) (hereinafter Swindler). The Constitutions
of Maryland and North Carolina used identical words:
"That retrospective laws, punishing facts committed before the
existence of such laws, and by them only declared criminal, are
oppressive, unjust, and incompatible with liberty; wherefore no
ex post facto law ought to be made." Maryland Constitution,
A Declaration of Rights, Art. 15 (1776), in 4 Swindler 373; North
Carolina Constitution, A Declaration of Rights, Art. 24 (1776), in
7 Swindler 403. And Delaware's Declaration of Rights and
Fundamental Rules, Art. 11 (1776), in 2 Swindler 198, stated, "That
retrospective Laws, punishing Offenses committed before the
Existence of such Laws, are oppressive and unjust and ought not to
be made."
536
States' argument would run up against a more troubling obstacle,
namely, that neither Blackstone nor the state constitutions mention
Calder's third category either (increases in punishment).
The United States, in effect, asks us to abandon two of
Calder's categories based on the unsupported supposition
that the Blackstonian and state constitutional definitions were
exclusive, and upon the implicit premise that neither Wooddeson,
Chase, Story, Kent, nor subsequent courts (state and federal)
realized that was so. We think that simply stating the nature of
the request demonstrates why it must be rejected.26
Next, the United States contends Justice Chase was mistaken to
cite the case of Sir John Fenwick as an example of an
ex post
facto law, because it was actually a bill of attainder. Fenwick
was indeed convicted by a bill of attainder, but it does not follow
that his case cannot also be an example of an
ex post facto
law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641, as did
the House of Commons, see n. 19,
supra, and we are aware of
no rule stating that a single historical event can explain one, but
not two, constitutional Clauses (actually, three Clauses, see Art.
III, § 3 (Treason Clause)). We think the United States' observation
simply underscores the kinship between bills of attainder and
ex
post facto laws, see
Nixon v.
Administrator of
General Services, 433 U. S. 425, 468, n. 30
(1977);
United States v.
Lovett, 328 U. S. 303, 323 (1946)
(Frankfurter, J., concurring); see also Z. Chafee, Three Human
Rights in the Constitution of 1787, pp. 92-93 (1956) (herein-
26 Nor does it help much to cite Justice Iredell's statement
that
ex post facto laws include those that "inflict a
punishment for any act, which was innocent at the time it was
committed; [or] increase the degree of punishment previously
denounced for any specific offence,"
Calder v.
Bull,
3 Dall. 386, 400 (1798). The argument still requires us to believe
that Justice Iredell-and only Justice Iredell-got it right, and
that all other authorities (now including Blackstone and the state
constitutions) somehow missed the point.
537
after Chafee), which may explain why the Framers twice placed
their respective prohibitions adjacent to one another. And if the
United States means to argue that category four should be abandoned
because its illustrative example was a bill of attainder, this
would prove entirely too much, because
all of the specific
examples listed by Justice Chase were passed as bills of
attainder.27
Finally, both Texas and the United States argue that we have
already effectively cast out the fourth category in
Collins
v.
Youngblood, 497 U. S. 37 (1990).
Collins held no such thing. That case began its discussion
of the
Ex Post Facto Clause by quoting verbatim Justice
Chase's "now familiar opinion in
Calder" and his
four-category definition.
Id., at 41-42. After noting that
"[e]arly opinions of the Court portrayed this as an exclusive
definition of
ex post facto laws,"
id., at 42, the
Court then quoted from our opinion in
Beazell v.
Ohio, 269 U.
S. 167 (1925):
"'It is settled, by decisions of this Court so well known that
their citation may be dispensed with, that any statute which
punishes as a crime an act previously committed, which was innocent
when done; which makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged with crime of
any defense available according to law at the time when the act was
committed, is prohibited as ex post
27 See An Act for the Attainder of Thomas Earle of Strafford of
High Treason, 16 Car. I, ch. 38 (1640), in 5 Statutes of the Realm
177 (reprint 1963); An Act for Banishing and Disenabling the Earl
of Clarendon, 19 & 20 Car. II, ch. 2 (1667-1668), in 5 Statutes
of the Realm, at 628; An Act to Inflict Pains and Penalties on
Francis (Atterbury) Lord Bishop of Rochester, 9 Geo. I, ch. 17
(1722); An Act to Prevent Malicious Maiming and Wounding (Coventry
Act), 22 & 23 Car. II, ch. 1 (1670). While the bills against
the Earl of Clarendon and Bishop Atterbury appear to be bills of
pains and penalties, see Chafee 117, 136, as does the Coventry Act,
see 2 Wooddeson 638-639, those are simply a subspecies of bills of
attainder, the only difference being that the punishment was
something less than death. See
Drehman v.
Stifle, 8
Wall. 595, 601 (1870).
538
facto.'" Collins, 497 U. S., at 42 (quoting
Beazell,
269 U. S., at 169-170).
Collins then observed in a footnote: "The
Beazell
definition omits the reference by Justice Chase in
Calder v.
Bull, to alterations in the 'legal rules of evidence.' As
cases subsequent to
Calder make clear, this language was not
intended to prohibit the application of new evidentiary rules in
trials for crimes committed before the changes." 497 U. S., at 43,
n.3 (citations omitted).
Collins then commented that "[t]he
Beazell formulation is faithful to our best knowledge of the
original understanding of the
Ex Post Facto Clause."
Id., at 43.
It seems most accurate to say that
Collins is rather
cryptic. While calling
Calder's four categories the
"exclusive definition" of
ex post facto laws, it also calls
Beazell's definition a "faithful" rendition of the "original
understanding" of the Clause, even though that quotation omitted
category four. And while
Collins quotes a portion of
Beazell omitting the fourth category, the immediately
preceding paragraph in
Beazell explains that the law at
issue in that case did not change "[t]he quantum and kind of proof
required to establish guilt," 269 U. S., at 170, a statement
distinguishing, rather than overruling,
Calder's fourth
category.
If
Collins had intended to resurrect a long forgotten
original understanding of the
Ex Post Facto Clause shorn of
the fourth category, we think it strange that it would have done so
in a footnote. Stranger still would be its reliance on a single
case from 1925, which did not even implicate, let alone purport to
overrule, the fourth category, and which did not even mention
Fenwick's case. But this Court does not discard longstanding
precedent in this manner. Further still,
Collins itself
expressly overruled two of our prior cases; if the Court that day
were intent on overruling part of
Calder as well, it surely
would have said so directly, rather than act in such an ambiguous
manner.
539
The better understanding of Co
II ins' discussion of the
Ex Post Facto Clause is that it eliminated a doctrinal hitch
that had developed in our cases, which purported to define the
scope of the Clause along an axis distinguishing between laws
involving "substantial protections" and those that are merely
"procedural." Both
Kring v.
Missouri, 107 U. S. 221
(1883), and
Thompson v.
Utah, 170 U. S. 343 (1898)-the
two cases
Collins overruled-relied on just that distinction.
In overruling them, the Court correctly pointed out, "the
prohibition which may not be evaded is the one defined by the
Calder categories." 497 U. S., at 46. Accordingly,
Collins held that it was a mistake to stray
beyond
Calder's four categories, not that the fourth category was
itself mistaken.28
VII
Texas next argues that even if the fourth category exists, it is
limited to laws that retrospectively alter the burden of proof
(which Article 38.07 does not do). See also
post, at 572
(dissenting opinion). It comes to this conclusion on the basis of
two pieces of evidence. The first is our decision in
Cummings v.
Missouri, 4 Wall. 277 (1867). The second
concerns Texas' historical understanding of Fenwick's case.
28 The dissent would have us dismiss our numerous and repeated
invocations of the fourth category, see
supra, at 525,
because they were merely "mechanical ... recitation[s]" in cases
that did not depend on the fourth category.
Post, at 568.
Instead, the dissent would glean original meaning from
Beazell v.
Ohio, 269 U. S. 167 (1925), and
Collins v.
Youngblood, 497 U. S. 37 (1990).
Post, at 567-568. First of all, the dissent is factually
mistaken;
Cummings v.
Missouri, 4 Wall. 277 (1867),
relied on the fourth category in invalidating the laws at issue
there. See
infra this page and 540-541. And
Hopt v.
Territory of Utah, 110 U. S. 574 (1884)
(discussed
infra, at 542-547), specifically
distinguished category four. See
post, at
570-571
("Hopt ... retain[ed]
Calder's fourth category").
Second, as mentioned above, neither
Beazell nor
Collins relied on the fourth category, so it is not apparent
why the dissent would place so much emphasis on those two cases
that did not depend on category four.
540
Cummings v.
Missouri addressed an
ex post
facto challenge to certain amendments to the Missouri State
Constitution made in 1865. When read together, those amendments
listed a series of acts deemed criminal (all dealing with the
giving of aid or comfort to anyone engaged in armed hostility
against the United States), and then declared that unless a person
engaged in certain professions
(e. g., lawyers and
clergymen) swore an oath of loyalty, he "shall, on conviction [for
failing to swear the oath], be punished" by a fine, imprisonment,
or both.
Id., at 279-281. We held that these provisions
violated the
Ex Post Facto Clause.
Writing for the Court, Justice Field first observed that "[b]y
an
ex post facto law is meant one which imposes a punishment
for an act which was not punishable at the time it was committed;
or imposes additional punishment to that then prescribed; or
changes the rules of evidence by which less or different testimony
is sufficient to convict than was then required."
Id., at
325-326. The Court then held the amendments violated the
Ex Post
Facto Clause in all these respects: some of the offenses deemed
criminal by the amendments were not criminal acts before then,
id., at 327-328; other acts were previously criminal, but
now they carried a greater criminal sanction,
id., at 328;
and, most importantly for present purposes, the amendments
permitted conviction on less testimony than was previously
sufficient, because they "subvert the presumptions of innocence,
and alter the rules of evidence, which heretofore, under the
universally recognized principles of the common law, have been
supposed to be fundamental and unchangeable,"
ibid. The
Court continued: "They assume that the parties are guilty; they
call upon the parties to establish their innocence; and they
declare that such innocence can be shown only in one way-by an
inquisition, in the form of an expurgatory oath, into the
consciences of the parties."
Ibid.
It is correct that
Cummings held Missouri's
constitutional amendments invalid under the fourth category
because
541
they reversed the burden of proof. But
Cummings nowhere
suggests that a reversal of the burden of proof is all the fourth
category encompasses. And we think there is no good reason to draw
a line between laws that lower the burden of proof and laws that
reduce the quantum of evidence necessary to meet that burden; the
two types of laws are indistinguishable in all meaningful ways
relevant to concerns of the
Ex Post Facto Clause. See
supra, at 530534; see also
Cummings, 4 Wall., at 325
("The legal result must be the same, for what cannot be done
directly cannot be done indirectly. The Constitution deals with
substance, not shadows").
As for Texas' second piece of evidence, it asserts that the law
in Fenwick's case, requiring two witnesses to convict a person for
high treason, traces its origins to the ancient Roman law concept
known as the "rule of number," under which "the probative value of
testimony would be increased if others testifying to the same facts
swore an oath." Brief for Respondent 20. The "less testimony" to
which Fenwick's case refers, the argument runs, concerns lowering
the probative value required to convict, i.
e., a reduction
in the burden of proof.
Even if that historical argument were correct, the same response
to Texas'
Cummings-based argument is applicable. But we
think the historical premise is mistaken. If the testimony of one
witness rather than two truly reflected a less credible showing,
and if the House of Commons truly thought it labored under a lesser
burden of proof, then one would expect some sort of reference to
that in Fenwick's case. Yet the few direct references to the burden
of proof that were made during the debates are to the contrary;
they indicate something roughly the equivalent of a
beyond-a-reasonabledoubt standard.29 And at least one Member
expressly de-
29 See,
e. g., Proceedings 75 ("If upon what I
hear, I am of Opinion, he is notoriously Guilty, I shall freely
pass the Bill. If I do so much as doubt that he is Guilty,
according to the old Rule,
Quod dubitas ne feceris
542
dared that the number of witnesses testifying bore no
relationship to the overall credibility of the Crown's case.30 It
also appears that "[a]fter the middle of the 1600s there never was
any doubt that the common law of England in jury trials rejected
entirely" the Roman law concept of the rule of number. Wigmore,
Required Numbers of Witnesses; A Brief History of the Numerical
System in England, 15 Harv. L. Rev. 83, 93 (1901). Though the
treason statute at issue in Fenwick's case, and related antecedent
acts, have a superficial resemblance to the rule of number, those
acts in fact reflected a concern with prior monarchical abuses
relating to the specific crime of treason, rather than any
vestigial belief that the number of witnesses is a proxy for
probative value.
Id., at 100-101; see also 7 J. Wigmore,
Evidence § 2037, pp. 353-354 (J. Chadbourn rev. 1978).
VIII
Texas argues (following the holding of the Texas Court of
Appeals) that the present case is controlled by
Hopt v.
Territory of Utah, 110 U. S. 574 (1884), and
Thompson v.
Missouri, 171 U. S. 380 (1898). In
Hopt, the defendant was convicted of murder. At trial, the
prosecution introduced the testimony of a convicted felon that
tended to inculpate the defendant. Hopt objected to the competency
of the witness on the basis of a law in place at the time of the
alleged murder, which stated: " '[T]he rules for determining the
competency of witnesses in civil actions are applicable also to
criminal actions .... '" The relevant civil rules, in turn,
specified that "'all persons, without exception, ... may be
witnesses in any action or proceeding,'" but "'persons against whom
judgment has been rendered upon a conviction
[where you doubt, do nothing], I shall not be for it ... "). See
also
Coffin
30 "[O]ne single Witness, if credited by Twelve Jury-men, is
sufficient; and an Hundred Witnesses, if not so credited, is not
sufficient to Convict a Person of a Capital Crime." Proceedings
210; see also
id., at 223-226.
543
for felony ... shall not be witnesses.'" 110 U. S., at 587-588.
After the date of the alleged offense, but prior to defendant's
trial, the last provision (excluding convicted felons from being
witnesses) was repealed.
The defendant argued that the retrospective application of the
felon witness-competency provision violated the
Ex Post
Facto Clause. Because of the emphasis the parties (and the
dissent) have placed on
Hopt, it is worth quoting at length
this Court's explanation for why it rejected the defendant's
argument:
"Statutes which simply enlarge the class of persons who may be
competent to testify in criminal cases are not ex post facto
in their application to prosecutions for crimes committed prior to
their passage; for they do not attach criminality to any act
previously done, and which was innocent when done; nor aggravate
any crime theretofore committed; nor provide a greater punishment
therefor than was prescribed at the time of its commission; nor
do they alter the degree, or lessen the amount or measure, of the
proofwhich was made necessary to conviction when the crime was
committed.
"The crime for which the present defendant was indicted, the
punishment prescribed therefor, and the quantity or the degree
of proof necessary to establish his guilt, all remained
unaffected by the subsequent statute. Any statutory alteration of
the legal rules of evidence which would authorize conviction upon
less proof, in amount or degree, than was required when the offence
was committed, might, in respect of that offence, be obnoxious to
the constitutional inhibition upon ex post facto laws. But
alterations which do not increase the punishment, nor change the
ingredients of the offence or the ultimate facts necessary to
establish guilt, but-leaving untouched the nature of the crime and
the amount or degree of proof essential to conviction-only remove
existing restrictions upon the compe-
544
tency of certain classes of persons as witnesses, relate to
modes of procedure only, in which no one can be said to have a
vested right, and which the State, upon grounds of public policy,
may regulate at pleasure. Such regulations of the mode in which the
facts constituting guilt may be placed before the jury, can be made
applicable to prosecutions or trials thereafter had, without
reference to the date of the commission of the offence charged."
Id., at 589-590 (emphases added).
Thompson v.
Missouri, also relied upon by Texas,
involved a similar
ex post facto challenge to the
retrospective application of a law permitting the introduction of
expert handwriting testimony as competent evidence, where the rule
in place at the time of the offense did not permit such evidence to
be introduced. Mainly on the authority of
Hopt, the Court
rejected Thompson's
ex post facto challenge as well.
Texas' reliance on
Hopt is misplaced. Article 38.07 is
simply not a witness competency rule.31 It does not "simply enlarge
the class of persons who may be competent to testify," and it does
not "only remove existing restrictions upon the competency of
certain classes of persons as witnesses." 110 U. S., at 589-590.
Both before and after the amendment, the victim's testimony was
competent evidence. Texas Rule of Criminal Evidence 601(a) already
prescribes that "[e]very person is competent to be a witness except
as otherwise provided in these rules," and Rule 601(a)(2) already
contains its own provision respecting child wit-
31 We recognize that the Court of Appeals stated Article 38.07
"merely 'removes existing restrictions upon the competency of
certain classes of persons as witnesses,'" 963 S. W. 2d, at 836
(quoting
Hopt, 110 U. S., at 590); see
supra, at 520.
Whether a state law is properly characterized as falling under the
Ex Post Facto Clause, however, is a federal question we
determine for ourselves. Cf.
Lindsey v.
Washington,
301 U. S. 397,
400 (1937).
545
nesses.32 As explained earlier, see
supra, at 517-518,
531533, Article 38.07 is a sufficiency of the evidence rule. As
such, it does not merely "regulat[e] ... the mode in which the
facts constituting guilt may be placed before the jury," (Rule
601(a) already does that), but governs the sufficiency of those
facts for meeting the burden of proof. Indeed,
Hopt
expressly
distinguished witness competency laws from those
laws that "alter the degree, or lessen the amount or measure, of
the proof which was made necessary to conviction when the crime was
committed." 110 U. S., at 589; see also
id., at 590 (felon
witness law "leav[es] untouched ... the amount or degree of proof
essential to conviction").
It is profitable, in this respect, to compare the statutes in
Hopt and
Thompson with the text of Article 38.07. The
law in
Hopt proscribed a "'rul[e] for determining the
competency of witnesses'" that stated "'persons ... convict[ed of
a] felony ... shall not be witnesses.'" 110 U. S., at 587-588. The
statute in
Thompson, similarly, specified that "'comparison
of a disputed writing ... shall be permitted to be made by
witnesses, and such writings ... may be submitted to the court and
jury as evidence.'" 171 U. S., at 381. Article 38.07, however,
speaks in terms of whether "[a] convic-
32 That subsection contains an exception for "[c]hildren or
other persons who, after being examined by the court, appear not to
possess sufficient intellect to relate transactions with respect to
which they are interrogated."
It is also worth observing that before 1986, Rule 601(a) was
codified as Tex. Code Crim. Proc. Ann., Art. 38.06 (Vernon
1979)-the section immediately preceding the law at issue in this
case. (The provision then read: "All persons are competent to
testify in criminal cases," and contained a similar exception for
child witnesses.) We think it fair to infer that Texas was well
aware of the differences in the language used in these adjacent
provisions, and understood that the laws served two different
functions. The dissent views Article 38.07 as an exception to the
general rule of former Article 38.06. It finds it logical that the
exception would be placed next to the general rule,
post, at
564, n. 8, but does not suggest a reason why it would be logical
for the supposed exception to be phrased in language so utterly
different from the general rule.
546
tion ... is supportable on" certain evidence. It is Rule 601(a),
not Article 38.07, that addresses who is "competent to testify." We
think the differences in these laws are plain.33
Moreover, a sufficiency of the evidence rule resonates with the
interests to which the
Ex Post Facto Clause is addressed in
a way that a witness competency rule does not. In particular, the
elements of unfairness and injustice in subverting the presumption
of innocence are directly implicated by rules lowering the quantum
of evidence required to convict. Such rules will
always run
in the prosecution's favor, because they always make it easier to
convict the accused. This is so even if the accused is not in fact
guilty, because the coercive pressure of a more easily obtained
conviction may induce a defendant to plead to a lesser crime rather
than run the risk of conviction on a greater crime. Witness
competency rules, to the contrary, do not necessarily run in the
State's favor. A felon witness competency rule, for example, might
help a defendant if a felon is able to relate credible exculpatory
evidence.
Nor do such rules necessarily affect, let alone subvert, the
presumption of innocence. The issue of the admissibility of
evidence is simply different from the question whether the properly
admitted evidence is sufficient to convict the defendant. Evidence
admissibility rules do not go to the general issue of guilt, nor to
whether a conviction, as a matter of law, may be sustained.
Prosecutors may satisfy all the requirements of any number of
witness competency
33 The dissent seems unwilling to concede this distinction.
Though it admits that under Article 38.07 the uncorroborated victim
is "not literally forbidden from testifying,"
post, at 563,
it also insists that testimony is "inadmissible,"
post, at
571, and that "the jury will not be permitted to consider it,"
post, at 555, n. 3. See also
post, at 557, 565
(referring to Article 38.07 as a rule about witness "credibility");
post, at 556, 570, 575 (referring to Texas' law as a rule of
"admissibility");
post, at 553, 557,563, 564, and n. 8, 575
(referring to the law as one about "competency"). We think it is
clear from the text of Article 38.07 and Rule 601, however, that
the victim's testimony alone is not inadmissible; it is just
insufficient.
547
rules, but this says absolutely nothing about whether they have
introduced a quantum of evidence sufficient to convict the
offender. Sufficiency of the evidence rules (by definition) do just
that-they inform us whether the evidence introduced is sufficient
to convict as a matter of law (which is not to say the jury
must convict, but only that, as a matter of law, the case
may be submitted to the jury and the jury may convict). In the
words of Article 38.07, "[a] conviction ... is supportable" when
its requirements are met.
IX
The dissent contends that Article 38.07 is not a sufficiency of
the evidence rule. It begins its argument by describing at length
how the corroboration requirement "is premised on a legislative
judgment that accusations made by sexual assault victims above a
certain age are not independently trustworthy."
Post, at
556; see also
post, at 557-559. But it does not follow from
that premise that Article 38.07 cannot be a sufficiency of the
evidence rule. Surely the legislature can address trustworthiness
issues through witness competency rules and sufficiency of the
evidence rules alike. Indeed, the statutory history to which the
dissent points cuts against its own argument. Article 38.07's
statutory antecedent, the dissent says, was a "replac[ement]" for
the old common-law rule that seduced females were" 'incompetent'"
as witnesses.
Post, at 557, 558. In 1891, Texas substituted
a law stating that" 'the female alleged to have been seduced
shall be permitted to testify; but
no conviction
shall be had upon the testimony of the said female,
unless the
same is corroborated .... '" Post, at 558 (emphasis added).
That statute was recodified as Article 38.07 in 1965, was repealed
in 1973, and then replaced in 1975 by another version of Article
38.07. As reenacted, the law's language changed from "no conviction
shall be had" to its current language that "[a] conviction ... is
supportable." We think this legislative history, to the extent it
is relevant for interpreting the current
548
law, demonstrates that Texas perceived the issue of witness
trustworthiness as
both an admissibility issue
and as
a sufficiency question; that it long ago abandoned its rule that
victims of these types of crimes are incompetent as witnesses; and
that Article 38.07 codifies Texas' sufficiency of the evidence
solution to the trustworthiness issue.
Next, the dissent argues that under Texas' law "the prosecution
need not introduce the victim's testimony at all, much less any
corroboration of that testimony."
Post, at 559. Instead,
"[u]nder both the old and new versions of the statute, a conviction
could be sustained on the testimony of a single third-party
witness, on purely circumstantial evidence, or in any number of
other ways."
Ibid. Because other avenues of
prosecution-besides the victim's testimony (with or without
corroboration or outcry)-remain available to the State, Article
38.07 "did not change the quantity of proof necessary to convict
in every case." Post, at 560 (emphasis added in part and
deleted in part); see also
post, at 561 ("Article 38.07 has
never dictated what it takes
in all cases ... for evidence
to be sufficient to convict" (emphasis added)). Accordingly, the
dissent urges, more evidence (in the form of corroboration) is not
really
required under Article 38.07. See
post, at
560-561, 574. It is unclear whether the dissent's argument is that
laws cannot be sufficiency of the evidence rules unless they apply
to
every conviction for a particular crime, or whether the
dissent means that sufficiency rules not applicable in every
prosecution for a particular crime do not fall within
Calder's fourth category, which refers to less testimony
"required ... in order to convict the offender." 3 Dall., at
390 (emphasis added in part and deleted in part). Either way, the
argument fails.
Fenwick's case once again provides the guide. The dissent agrees
that "[t]he treason statute in effect at the time of John Fenwick's
conspiracy, like the Treason Clause of our Constitution, embodied
... a quantitative sufficiency [of the evidence] rule."
Post, at 573. But, it argues, Fen-
549
wick's law and the Treason Clause are different from Article
38.07; with the first two laws, "two witnesses [were]
necessary to support a conviction,"
ibid. (emphasis
added), whereas with Article 38.07, the victim's testimony plus
corroboration is not
"necessary to convict
in every
case," post, at 560 (emphasis added). But a closer look at
Fenwick's law and at the Treason Clause shows that this supposed
distinction is simply incorrect. Fenwick's law stated that no
person could be convicted of high treason "but by and upon the
Oaths and Testimony of Two lawfull Witnesses ...
unlesse the
Party indicted and arraigned or tryed shall willingly without
violence in open Court confesse the same or shall stand Mute or
refuse to plead ... " See n. 15,
supra (emphasis added).
And the Treason Clause, of course, states that "No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to
the same overt Act,
or on Confession in open Court." U. S.
Const., Art. III, § 3 (emphasis added). Plainly, in neither
instance were two witnesses
"necessary to support a
conviction," as the dissent claims. Accordingly, its assertion that
Article 38.07 "is nothing like the two-witness rule on which
Fenwick vainly relied" appears erroneous, as does its accusation
that our reliance on Fenwick's case "simply will not wash."
Post, at 573.34
The dissent's final argument relies upon
Hopt and runs
something like this. The "effect" of Article 38.07, it claims, is
the same, in certain cases, as a witness credibility rule. See
post, at 559, 563-566, 575. However differently
Hopt-
34 Perhaps one can draw a distinction between convictions based
on confessions in open court and convictions based on third-party
evidence and the like (though how such a distinction would comport
with the language of the fourth category is not apparent). For
example, an accused's confession might be thought to be outside of
the State's control. But see n. 24,
supra. It is not clear
at all, though, that the availability of evidence other than the
victim's testimony is any more within the State's control than is
the defendant's confession.
550
type laws and Article 38.07 may seem to operate on their face,
in practical application (at least in certain instances) their
consequences are no different, and, accordingly, they ought to be
treated alike. For example, if there were a rule declaring a victim
to be incompetent to testify unless she was under a certain age at
the time of the offense, or had made an outcry within a specified
period of time, or had other corroborating evidence, and the
prosecution attempted to rest its case on the victim's testimony
alone without satisfying those requirements, the end result would
be a judgment of acquittal.
Post, at 564-565. Likewise,
under Article 38.07, if the prosecution attempts to rest its case
on the victim's testimony alone without satisfying the Article's
requirements, the result would also be an acquittal. Thus,
Hopt-type laws and Article 38.07 should be treated the same way for
ex post facto purposes.
This argument seeks to make
Hopt controlling by ignoring
what the case says.
Hopt specifically distinguished laws
that "alter the degree, or lessen the amount or measure, of the
proof" required to convict from those laws that merely respect what
kind of evidence may be introduced at trial. See
supra, at
545. The above argument, though, simply denies any meaningful
distinction between those types of laws, on the premise that they
produce the same results in some situations. See
post, at
563 ("Such a victim is of course not literally forbidden from
testifying, but that cannot make the difference for
Ex Post
Facto Clause purposes between a sufficiency of the evidence
rule and a witness competency rule");
post, at 571
("Hopt cannot meaningfully be distinguished from the instant
case"). In short, the argument finds
Hopt controlling by
erasing the case's controlling distinction.
The argument also pays no heed to the example laid down by
Fenwick's case. Surely we can imagine a witness competency rule
that would operate in a manner similar to the law in that case
(e. g., a witness to a treasonous act is not
551
competent to testify unless corroborated by another witness).
Plainly, the imagined rule does not mean that Fenwick's case is not
an example of an
ex post facto law. But if that is so, why
should it be any different for Article 38.07? Just as we can
imagine a witness competency rule that would operate similarly to
the statute in Fenwick's case, the above argument imagines a
witness competency rule that operates similarly to Article 38.07.
If the former does not change our view of the law in Fenwick's
case, why should the latter change our view in the present
circumstances?
Moreover, the argument fails to account for what
Calder's
fourth category actually says, and tells only half the story of
what a witness competency rule does. As for what
Calder
says, the fourth category applies to "[e]very law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the commission of
the offence, in order to convict the offender." 3 Dall., at 390
(emphasis deleted). The last six words are crucial. The relevant
question is whether the law affects the quantum of evidence
required
to convict; a witness competency rule that (in
certain instances at least) has the practical effect of telling us
what evidence would result in
acquittal does not really
speak to
Calder's fourth category.
As for relating only half the story, the dissent's argument
rests on the assertion that sometimes a witness competency rule
will result in acquittals in the same instances in which Article
38.07 would also demand an acquittal. That may be conceded, but it
is only half the story-and, as just noted, not the most relevant
half. The other half concerns what a witness competency rule has to
say about the evidence "required ... in order to convict the
offender." The answer is, nothing at all. As mentioned earlier, see
supra, at 546547, prosecutors may satisfy all the
requirements of any number of witness competency rules, but this
says absolutely nothing about whether they have introduced a
quantum of
552
evidence sufficient to convict the offender. Sufficiency of the
evidence rules, however, tell us precisely that.35
X
For these reasons, we hold that petitioner's convictions on
counts 7 through 10, insofar as they are not corroborated by other
evidence, cannot be sustained under the
Ex Post Facto
Clause, because Texas' amendment to Article 38.07 falls within
Calder's fourth category. It seems worth remembering, at
this point, Joseph Story's observation about the Clause:
" 'If the laws in being do not punish an offender, let him go
unpunished; let the legislature, admonished of the
35 The dissent contends that the witness competency rule "would
produce the same results" as a sufficiency rule,
post, at
564-565 (emphasis deleted), and above we have been willing to
assume as much for argument's sake. But the dissent's statement is
not entirely correct. It would not be the witness competency rule
that would produce the same result, but that rule in combination
with the normally operative sufficiency rule. Failure to comply
with the requirements of Article 38.07, by contrast, would mean
that the evidence is insufficient to convict
by the force of
that law alone. That difference demonstrates the very distinction
between witness competency rules and sufficiency of the evidence
rules, points to precisely the distinction that
Hopt drew,
and illustrates why (contrary to the dissent's contention) our
conclusion about Article 38.07 does not apply to "countless
evidentiary rules."
Post, at 571.
That is also why the dissent's statement that we have been
"misdirected" by the plain text of Article 38.07 is wrong.
Post, at 564. The dissent asserts that "any evidence"
admitted under an applicable rule of evidence could "potentially"
support a conviction,
ibid., and therefore Article 38.07's
explicit specification that a conviction "is supportable" if its
requirements are met does not distinguish it from ordinary rules of
evidence. Once again, we point out that whether certain evidence
can support a conviction is
not determined by the rule of
admissibility itself, but by some other, separate, normally
operative sufficiency of the evidence rule. The distinction the
dissent finds illusive is that Article 38.07
itself
determines the evidence's sufficiency (that is why it is a
sufficiency of the evidence rule), while witness competency rules
and other ordinary rules of evidence do not (because they are
admissibility rules, not sufficiency rules). See also n. 23,
supra.
553
defect of the laws, provide against the commission of future
crimes of the same sort. The escape of one delinquent can never
produce so much harm to the community, as may arise from the
infraction of a rule, upon which the purity of public justice, and
the existence of civil liberty, essentially depend.'" 3
Commentaries on the Constitution § 1338, at 211, n. 2.
And, of course, nothing in the
Ex Post Facto Clause
prohibits Texas'
prospective application of its amendment.
Accordingly, the judgment of the Texas Court of Appeals is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE KENNEDY join, dissenting.
The Court today holds that the amended version of Article 38.07
of the Texas Code of Criminal Procedure reduces the amount of proof
necessary to support a sexual assault conviction, and that its
retroactive application therefore violates the
Ex Post Facto
Clause. In so holding, the Court misreads both the Texas statute
and our precedents concerning the
Ex Post Facto Clause.
Article 38.07 is not, as the Court would have it, most accurately
characterized as a "sufficiency of the evidence rule"; it is in its
essence an evidentiary provision dictating the circumstances under
which the jury may credit victim testimony in sexual offense
prosecutions. The amended version of Article 38.07 does nothing
more than accord to certain victims of sexual offenses full
testimonial stature, giving them the same undiminished competency
to testify that Texas extends to witnesses generally in the State's
judicial proceedings. Our precedents make clear that such a witness
competency rule validly may be applied to offenses committed before
its enactment. I therefore dissent.
554
***
Petitioner Scott Leslie Carmell began sexually abusing his
stepdaughter, "K. M.," in the spring of 1991, when K. M. was 13
years old. He continued to do so through March 1995. The specific
question before the Court concerns Carmell's sexual assault on K.
M. in June 1992, when K. M. was 14.1 K. M. did not inform anyone
about that assault or about any of Carmell's other sexual advances
toward her until sometime around March 1995, when she told a friend
and then her mother, Eleanor Alexander. Alexander went to the
police, and Carmell was arrested and charged in a is-count
indictment.
Under Article 38.07 of the Texas Code of Criminal Procedure as
it stood at the time of the assault, a conviction for sexual
assault was supportable on the uncorroborated testimony of the
victim if the victim was younger than 14 years old at the time of
the offense. If the victim was 14 years old or older, however, the
victim's testimony could support a conviction only if that
testimony was corroborated by other evidence. One form of
corroboration, specifically described in Article 38.07 itself, was
known as "outcry": The victim's testimony could support a
conviction if he or she had informed another person, other than the
defendant, about the offense within six months of its occurrence.
Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).
Article 38.07 was amended in 1993. Under the new version, which
was in effect at the time of Carmell's trial, the victim's
uncorroborated testimony can support a conviction as long as the
victim was under 18 years of age at the time of the offense. Tex.
Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp. 2000). The
corroboration requirement con-
1 The Court correctly notes that Carmell's
ex post facto
challenge applies equally to three other counts on which he was
convicted.
Ante, at 518519. This Court's grant of review,
however, was limited to the first question presented in Carmell's
petition for certiorari, which encompassed only the count charging
the June 1992 assault. Pet. for Cert. 4.
555
tinues in force for victims aged 18 or older, with a modified
definition of outcry not material here. Thus, under the version of
Article 38.07 in effect at the time of Carmen's trial but not the
version in effect at the time of the offense, his conviction was
supportable by the uncorroborated testimony of K. M. The new
version of Article 38.07 was applied at Carmen's trial, and he was
convicted.2 Carmen argues that the application of the new version
of Article 38.07 to his trial violated the
Ex Post Facto
Clause, U. S. Const., Art. I, § 10, cl. 1.
I
A proper understanding of Article 38.07 of the Texas Code of
Criminal Procedure is central to this case. Accordingly, I turn
first to the effect and purpose of that statute.
The effect of Article 38.07 in sexual offense prosecutions is
plain. If the victim is of a certain age, the jury, in assessing
whether the prosecution has met its burden of demonstrating guilt
beyond a reasonable doubt, must give no weight to her testimony
unless that testimony is corroborated, either by other evidence
going directly to guilt or by "outcry." 3 For victims (such as K.
M.) who were between the ages of 14 and
2 The Texas Court of Appeals did not rule on whether the State
in fact did corroborate K. M.'s testimony at trial. I note the
testimony of K. M.'s mother that when she visited Carmell in jail
and told him he needed to confess if he was sorry for what he had
done, he wrote "'adultery with [K. M.]''' on a piece of paper. 963
S. W. 2d 833, 835 (Tex. App. 1998). That testimony might count as
corroboration. Because this question is outside the grant of
certiorari, I (like the Court, see
ante, at 519, n. 4) do
not further address it.
3 At first glance one might object that the statute permits the
jury to give such testimony
some weight, just not enough to
support a conviction. See,
e. g., ante, at
546, n. 33 (contending that under the old Article 38.07, "the
victim's testimony alone is not inadmissible, it is just
insufficient"). A moment's reflection should reveal, however, that
this distinction is illusory. If a particular item of evidence
cannot by itself support a conviction, then the jury will not be
permitted to consider it unless and until corroborating evidence is
introduced.
556
18 at the time of the offense, the 1993 amendment repealed this
corroboration requirement. The amended version of Article 38.07
thus permits sexual assault victims between 14 and 18 to have their
testimony considered by the jury in the same manner and with the
same effect as that of witnesses generally in Texas
prosecutions.
This sort of corroboration requirement-still embodied in Article
38.07 for victims aged 18 or older-is a common, if increasingly
outmoded, rule of evidence. Its purpose is to rein in the
admissibility of testimony the legislature has deemed
insufficiently credible standing alone. Texas' requirement of
corroboration or outcry, like similar provisions in other
jurisdictions, is premised on a legislative judgment that
accusations made by sexual assault victims above a certain age are
not independently trustworthy. See
Villareal v.
State, 511 S. W. 2d 500, 502 (Tex. Crim. App. 1974) ("The
basis of this rule is that the failure to make an outcry or
promptly report the rape diminishes the credibility of the
prosecutrix."); cf.,
e. g., Battle v.
United States,
630 A. 2d 211, 217 (D. C. 1993) (evidence of outcry "rebuts an
implied charge of recent fabrication, which springs from some
jurors' assumptions that sexual offense victims are generally lying
and that the victim's failure to report the crime promptly is
inconsistent with the victim's current statement that the assault
occurred").
Legislatures in many States, including Texas, have enacted
similar evidentiary provisions requiring corroboration for the
testimony of other categories of witnesses, particularly
accomplices. See,
e. g., Tex. Code Crim. Proc. Ann.,
Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had upon
the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the offense
committed .... "). Such provisions-generally on the wane but still
in force in several States-are, like Article 38.07, designed to
ensure the credibility of the relevant witness. See,
e. g.,
State v.
Haugen, 448 N. W. 2d 191, 194
557
(N. D. 1989) ("The purpose of corroborating evidence is to show
that accomplices are reliable witnesses and worthy of credit.");
Holladay v.
State, 709 S. W. 2d 194, 196 (Tex. Grim.
App. 1986) ("Because such a witness [i.
e., an accomplice]
is usually deemed to be corrupt, his testimony is always looked
upon with suspicion.");
Fleming v.
State, 760 P. 2d
208, 209210 (Okla. Grim. App. 1988) ("The purpose behind the
requirement of corroboration is to protect an accused from being
falsely implicated by another criminal in the hope of clemency, a
desire for revenge, or for any other reason.").
I make no judgment here as to the propriety of the Texas
Legislature's decision to view the testimony of certain sexual
assault victims in the same light as that of accomplices.
Ex
post facto analysis does not depend on an assessment of a
statute's wisdom. For current purposes it suffices to note that
Article 38.07's corroboration requirement rests on the same
rationale that underpins accomplice corroboration requirements: the
notion that a particular witness, because of his or her role in the
events at issue, might not give trustworthy testimony. See
Reed v.
State, 991 S. W. 2d 354, 361 (Tex. App. 1999)
("Generally speaking, the need to corroborate the testimony of a
sexual assault victim stems from the notion that the victim, if
over the age of consent, could be an accomplice rather than a
victim.");
Hernandez v.
State, 651 S. W. 2d 746, 751
(Tex. Grim. App. 1983) (concurring opinion adopted on rehearing)
(Article 38.07's corroboration requirement "was meant to deal
only with testimony of a victim of a sexual offense who, for
one reason or another, was held to be an 'accomplice witness' and,
perforce, whose testimony must be corroborated.").
The history of Article 38.07 bears out the view that its focus
has always been on the competency and credibility of the victim as
witness. The origins of the statute could be traced to the fact
that in Texas, "for many years a seduced female was an incompetent
witness as a matter of law."
Holladay, 709 S. W. 2d, at 200.
See,
e. g., Cole v.
State, 40
558
Tex. 147 (1874); see also
Hernandez, 651 S. W. 2d, at
751-752 (tracing the current Article 38.07 to the earlier seduction
victim competency rule). In 1891, this common-law disability was
lifted by statute and replaced by a corroboration requirement: "In
prosecutions for seduction ... the female alleged to have been
seduced shall be permitted to testify; but no conviction shall be
had upon the testimony of the said female, unless the same is
corroborated by other evidence tending to connect the defendant
with the offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7,
Art. 789 (1911). The application of this statute to offenses
committed before its enactment was upheld by the Texas courts on
the authority of
Hopt v.
Territory of Utah, 110 U. S. 574 (1884). See
Mrous v.
State, 31 Tex. Crim. App. 597, 21 S. W. 764
(1893). The corroboration requirement for seduction prosecutions,
recodified in 1965 at Tex. Code Crim. Proc. Ann., Art. 38.07,
remained in effect until 1973, when the entire 1925 Penal Code
(including the offense of seduction) was repealed.
In 1975, Article 38.07 was enacted substantially in its present
form. As revised, the article covered all sexual offenses in
Chapter 21 of the Texas Penal Code; however, it contained no
express exemption from the corroboration requirement for the
testimony of the youngest victims. Tex. Code Crim. Proc. Ann., Art.
38.07 (Vernon 1979). The exemption for victims under the age of 14
was added in 1983, and extended in 1993 to cover those under the
age of 18, as already described. As initially proposed, the 1993
change would have eliminated the corroboration/outcry requirement
altogether. House Research Organization, Texas House of
Representatives, Daily Floor Report 13 (Mar. 15, 1993), Lodging of
Petitioner. Supporters of the proposal maintained that "[v]ictims
in sexual assault cases are no more likely to fantasize or
misconstrue the truth than the victims of most other crimes, which
do not require corroboration of testimony or previous 'outcry.'
Juries can decide if a witness is credible .... Most states no
longer require this type of corrobora-
559
tion; neither should Texas."
Id., at 14. The historical
development of Article 38.07 reveals a progressive alleviation of
restrictions on the competency of victim testimony, not a
legislative emphasis on the quantum of evidence needed to
convict.
The version of Article 38.07 applied at Carmell's trial was
thus, in both effect and purpose, an evidentiary rule governing the
weight that may be given to the testimony of sexual assault victims
who had attained the age of 14. The Court's efforts to paint it as
something more than that are detached from the statute's moorings
and are consequently unpersuasive.
To begin with, it is beyond doubt that Article 38.07 does not
establish an element of the offense. See
Love v.
State, 499 S. W. 2d 108, 108 (Tex. Crim. App. 1973)
("[O]utcry is not one of the elements of the offense charged."). To
convict a defendant of sexual assault in Texas today as before
1993, the prosecution need not introduce the victim's testimony at
all, much less any corroboration of that testimony. The Court is
therefore less than correct in asserting that "[u]nder the law in
effect at the time the acts were committed, the prosecution's case
was legally insufficient and petitioner was entitled to a judgment
of acquittal, unless the State could produce both the victim's
testimony
and corroborative evidence."
Ante, at 530.
Under both the old and new versions of the statute, a conviction
could be sustained on the testimony of a single third-party
witness, on purely circumstantial evidence, or in any number of
other ways-so long as the admissible evidence presented is
sufficient to prove all of the elements of the offense beyond a
reasonable doubt.4 And under either version of Article 38.07, of
course,
4 Not only is corroborated victim testimony not
necessary
for a conviction under the former version of Article 38.07, it is
not always
sufficient. Under both the old and new versions
of the statute, the prosecution's evidence will not support a
conviction unless it is adequate to prove all the elements of the
offense beyond a reasonable doubt.
560
the accused could be convicted, like any other defendant, on the
basis of a guilty plea or a voluntary confession. Article 38.07, in
other words, does not define "sexual assault proven by corroborated
victim testimony" as a distinct offense from "sexual assault."
Rather, the measure operates only to restrict the State's method of
proving its case.5
And it does so without affecting in any way the burden of
persuasion that the prosecution must satisfy to support a
conviction. Under both the old and new versions of the statute, the
applicable standard is proof beyond a reasonable doubt. The
amendment in 1993 that repealed the corroboration requirement for
victims between the ages of 14 and 18 did nothing to change that
standard.
The Court recognizes that Article 38.07 does not affect the
applicable burden of persuasion, see
ante, at 539, but
several times it asserts that the amended version of the statute
"changed the
quantum of evidence
necessary to sustain
a conviction,"
ante, at 530 (emphasis added). See also
ante, at 531 (amended law "permitted petitioner to be
convicted with less than the previously
required quantum of
evidence");
ante, at 532-533 (amended law "[r]educ[es] the
quantum of evidence
necessary to meet the burden of
proof" (emphases added)). If by the word "quantum" the Court means
to refer to the burden of persuasion, these statements are simply
incorrect and contradict the Court's own acknowledgment. And if, as
appears more likely, "quantum" refers to some required
quantity or
amount of proof, the Court is also wrong.
The partial repeal of Article 38.07's corroboration requirement did
not change the
quantity of proof necessary to convict in
every case, for the simple reason that Texas has never required the
prosecution to introduce any particular
5 By the same reasoning, the repeal of the corroboration
requirement for victims between the ages of 14 and 18 plainly did
not deprive sexual assault defendants of any defense they
previously enjoyed.
561
number of witnesses or items of proof to support a sexual
assault conviction.6
The Court also declares several times that the amended version
of Article 38.07 "subverts the presumption of innocence." See
ante, at 532; see also
ante, at 533, nn. 22, 23, 546.
The phrase comes from
Cummings v.
Missouri, 4 Wall.
277 (1867), in which the Court struck down a series of post-Civil
War amendments to the Missouri Constitution that imposed penalties
on persons unable or unwilling to swear an oath that they had not
aided the Confederacy. The amendments, the Court said in
Cummings, "subvert the presumptions of innocence" because
"[t]hey assume that the parties are guilty [and] ... call upon
[them] to establish their innocence" by swearing the oath.
Id., at 328. Nothing of the kind is involved here. Article
38.07 did not impose a presumption of guilt on Carmell and then
saddle him with the task of overcoming it. The burden of persuasion
remained at all times with the State. See Tex. Code Crim. Proc.
Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's presumption of
innocence is thus untouched by the current Article 38.07's
recognition of K. M.'s full testimonial stature.
The Court places perhaps its greatest weight on the "sufficiency
of the evidence" label, see
ante, at 547-552, but the label
will not stick. As just noted, Article 38.07 has never dictated
what it takes in all cases, quantitatively or qualitatively, for
evidence to be sufficient to convict. To the contrary, under both
the old and new versions of the statute the
6 Moreover, even in a case founded on the victim's testimony,
the pre1993 version of Article 38.07 would permit the prosecution
to corroborate that testimony without introducing any additional
evidence going to the defendant's guilt, because corroboration
could be provided by outcry, which is hearsay and inadmissible to
prove the truth of the matter asserted. See
Heckathorne v.
State, 697 S. W. 2d 8, 12 (Tex. App. 1985) ("[A]n outcry
should not be admitted for its truth, but merely as evidence that
the victim informed someone of the offense.").
562
prosecution's admissible evidence will be sufficient to support
a conviction if a rational factfinder presented with that evidence
could find the defendant guilty beyond a reasonable doubt. The 1993
repeal of the corroboration requirement for victims between the
ages of 14 and 18 did not lower that "sufficiency of the evidence"
hurdle; it simply expanded the range of methods the State could use
to surmount it.
To be sure, one might descriptively say in an individual case
that the uncorroborated testimony of the victim would be
"sufficient" to convict under the new version of Article 38.07 and
"insufficient" under the old. But that cannot be enough to
invalidate a statute as
ex post facto. If it were, then all
evidentiary rules that work to the defendant's detriment would be
unconstitutional as applied to offenses committed before their
enactment-an outcome our cases decisively reject. See
infra,
at 570-571 (discussing
Thompson v.
Missouri, 171 U. S. 380 (1898), and
Hopt v.
Territory of Utah, 110 U. S. 574 (1884),
which upheld the retroactive application of evidentiary rules
governing the authentication of documents and the competency of
felons to testify, respectively). A defendant whose conviction
turned, for example, on an item of hearsay evidence considered
inadmissible at the time of the offense but made admissible by a
later enacted statute might accurately describe the new statute as
one that permits conviction on less evidence than was "sufficient"
under prior law. But our precedents establish that such a defendant
has no valid
ex post facto claim. See
infra, at
570-571. N either does Carmell.
The Court attempts to distinguish Article 38.07 from
garden-variety evidentiary rules by asserting that the latter "are
ordinarily evenhanded, in the sense that they may benefit either
the State or the defendant in any given case."
Ante, at 533,
n. 23. The truth of this assertion is not at all clear. Evidence is
never admissible in its own right; it must be admitted for some
purpose. Rules of admissibility typically take that basic fact into
account, often restricting the
563
use of evidence in a way that systematically disadvantages one
side. Consider, for example, a rule providing that evidence of a
rape victim's sexual relations with persons other than the accused
is admissible to prove consent, or a rule providing that evidence
of a sexual assault defendant's prior sexual offenses is
inadmissible to show a propensity to commit that type of crime. A
statute repealing either of the above rules would
"always
run in the prosecution's favor ... [by] mak[ing] it easier to
convict the accused."
Ante, at 546.7 Yet no one (until
today) has suggested that such a statute would be
ex post
facto as applied to offenses committed before its
enactment.
The Court resists the conclusion that Article 38.07 functions as
a rule of witness competency by asserting that "[b]oth before and
after the amendment, the victim's testimony was competent
evidence."
Ante, at 544. In all but the most technical sense
that blanket statement is dubious. If the victim was 14 years old
or older at the time of the offense (18 or older under the amended
statute) and her testimony is unbolstered by corroboration or
outcry, the jury may not credit that testimony in determining
whether the State has met its burden of proof. Such a victim is of
course not literally forbidden from testifying, but that cannot
make the difference for
Ex Post Facto Clause purposes
between a sufficiency of the evidence rule and a witness competency
rule. Evidence to which the jury is not permitted to assign weight
is, in reality, incompetent evidence.
7 Cf. Fed. Rules Evid. 412(a)(1) (restricting admissibility of
"[e]vidence offered to prove that any alleged victim [of sexual
misconduct] engaged in other sexual behavior"); 412(b)(1)(B)
(providing that "evidence of specific instances of sexual behavior
by the alleged victim with respect to the person accused" is
admissible to prove consent); 413(a) (providing that "evidence of
the defendant's commission of another offense or offenses of sexual
assault is admissible" in sexual assault cases notwithstanding Rule
404(b)'s general prohibition on the introduction of prior bad acts
evidence "to show action in conformity therewith").
564
Perhaps the Court has been misdirected by the wording of Article
38.07, which speaks in both its old and new versions of evidence
upon which a "conviction ... is supportable." See
ante, at
547. That sounds like a "sufficiency of the evidence rule," until
one realizes that any evidence admissible in a criminal case-i.
e., any evidence that a jury is entitled to consider in
determining whether the prosecution has met its burden of
persuasion-is at least potentially evidence upon which a
"conviction ... is supportable." Conversely, as I have just said,
evidence to which the jury may give no weight in making that
determination is effectively inadmissible.8
In short, no matter how it is phrased, the corroboration
requirement of Article 38.07 is functionally identical to a
conditional rule of witness competency. If the former version of
Article 38.07 had provided instead that "the testimony of the
victim shall be inadmissible to prove the defendant's guilt unless
corroborated,"
it would produce the
8 It is thus no wonder that before 1986 the general rule of
witness competency was codified at Article 38.06 of the Texas Code
of Criminal Procedure, and the statute now at issue immediately
followed it. Article 38.07 was an exception to the general rule
laid out in Article 38.06. It is logical to put an exception right
after the rule. Yet the Court draws the opposite inference from
that juxtaposition. See
ante, at 545, n. 32.
The Court's related observation that Texas' general witness
competency statute "already contains its own provision respecting
child witnesses,"
ante, at 544-545, is true but irrelevant.
Article 38.07's corroboration requirement has nothing to do with
the diminished credibility of child witnesses. Indeed, the statute
has always permitted juries to credit fully the testimony of sexual
offense victims
below a certain age (first 14, then 18)
without any corroboration, the reason apparently being that the
legislature considers victims under a certain age to be too young
to consent to sex and then lie about it. See,
e. g., Scoggan
v.
State, 799 S. W. 2d 679, 681 (Tex. Crim. App. 1990);
Hernandez v.
State, 651 S. W. 2d 746,752-753 (Tex.
Crim. App. 1983) (concurring opinion adopted on rehearing). The
corroboration requirement attaches only to victims
above a
certain age, and thus would not be appropriate for inclusion in a
"provision respecting child witnesses."
565
same results as the actual statute in every case. Not "in
certain instances,"
ante, at 551, or "in some situations,"
ante, at 550, but in every case.9 Recognizing this
equivalency, the Texas Court of Criminal Appeals has noted that the
Texas accomplice corroboration rule is "a mere rule of evidence"
even though
"statutorily worded as a sufficiency standard."
Malik v.
State, 953 S. W. 2d 234, 240, n. 6
(1997).10
In sum, the function and purpose of the corroboration
requirement embedded in the former version of Article 38.07 was to
ensure the credibility of the victim's testimony, not otherwise to
impede the defendant's conviction. Our precedents, I explain next,
make clear that the retroactive repeal
9 The Court contends that the effect of Article 38.07 is
distinct from that of a witness competency rule because
noncompliance with the former dictates acquittal
ex proprio
vigore while noncompliance with the latter dictates acquittal
"in combination with the normally operative sufficiency rule."
Ante, at 552, n. 35. This is a distinction without a
difference, because the "normally operative sufficiency rule" in
question-when the prosecution submits no admissible evidence, its
case will be deemed insufficient-is a bedrock requirement of due
process, applicable in every criminal trial.
10 The Court observes that the characterization of a state law
under the
Ex Post Facto Clause is a federal question.
Ante, at 544, n. 31. This undoubtedly correct observation
stands in some tension, however, with the Court's reliance on the
assertion that "Texas courts treat Article 38.07 as a sufficiency
of the evidence rule."
Ante, at 518, n. 2. In any event, the
latter assertion is inaccurate, as
Malik's discussion of the
accomplice corroboration rule suggests. It is true that a trial
court's failure to comply with Article 38.07 results on appeal in
the entry of an order of acquittal. But it is not true that the
remedy on appeal for the introduction of inadmissible evidence is
always a remand for a new trial. When the only evidence introduced
by the prosecution is evidence that may not be considered by a jury
in determining the defendant's guilt, the proper result is always
acquittal. By the same reasoning, as this Court decided just this
Term, when a court of appeals has found that evidence was
improperly admitted in a civil trial and that the remaining
evidence is insufficient, it may enter judgment as a matter of law
rather than ordering a new trial.
Weisgram v.
Marley
Co., 528 U. S.
440 (2000).
566
of such an evidentiary rule does not violate the
Ex Post
Facto Clause.
II
The
Ex Post Facto Clause, this Court has said repeatedly,
furthers two important purposes. First, it serves "to assure that
legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed."
Weaver v.
Graham, 450 U. S. 24, 28-29
(1981).11 Second, it "restricts governmental power by restraining
arbitrary and potentially vindictive legislation."
Id., at
29; see also
Landgraf v.
USI Film Products, 511 U. S. 244, 267
(1994);
Miller v.
Florida, 482 U. S. 423, 429-430
(1987). The latter purpose has much to do with the separation of
powers; like its textual and conceptual neighbor the Bill of
Attainder Clause, the
Ex Post Facto Clause aims to ensure
that legislatures do not meddle with the judiciary's task of
adjudicating guilt and innocence in individual cases.
Weaver, 450 U. S., at 29, n. 10.
The Court does not even attempt to justify its extension of the
Clause in terms of these two fundamental purposes. That is
understandable, for to day's decision serves neither purpose. The
first purpose (fair warning and reliance), vital as it is, cannot
tenably be relied upon by Carmell. He had ample notice that the
conduct in which he engaged was illegal. He certainly cannot claim
to have relied in any way on the preamendment version of Article
38.07: He tendered
11 Today's opinion apart, see
ante, at 531, n. 21, this
Court has consistently stressed "'lack of fair notice'" as one of
the "central concerns of the
Ex Post Facto Clause."
Lynce v.
Mathis, 519 U. S. 433, 441 (1997)
(quoting
Weaver v.
Graham, 450 U. S. 24, 30 (1981)).
See also
Landgraf v.
USI Film Products, 511 U. S. 244, 266-267
(1994);
Miller v.
Florida, 482 U. S. 423, 430 (1987);
Weaver, 450 U. S., at 28-29;
Marks v.
United
States, 430 U. S.
188, 191-192 (1977). The implausibility of
ex ante
reliance on rules of admissibility like the one at issue here helps
explain why the
Ex Post Facto Clause has never been held to
apply to changes in such rules.
567
no reason to anticipate that K. M. would not report the assault
within the outcry period, nor any cause to expect that
corroborating evidence would not turn up sooner or later. Nor is
the Clause's second purpose relevant here, for there is no
indication that the Texas Legislature intended to single out this
defendant or any class of defendants for vindictive or arbitrary
treatment. Instead, the amendment of Article 38.07 simply brought
the rules governing certain victim testimony in sexual offense
prosecutions into conformity with Texas law governing witness
testimony generally.
In holding the new Article 38.07 unconstitutional as applied to
Carmell, the Court relies heavily on the fourth category of
ex
post facto statutes enumerated by Justice Chase in his opinion
in
Calder v.
Bull, 3 Dall. 386, 390 (1798):
"Every law that alters the
legal rules of
evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offence,
in order to convict the offender." Justice Chase's
formulation was dictum, of course, because
Calder involved a
civil statute and the Court held that the statute was not
ex
post facto for that reason alone. Moreover, Justices Paterson
and Iredell in their own
seriatim opinions gave no hint that
they considered rules of evidence to fall within the scope of the
Clause. See
id., at 395-397 (Paterson, J.);
id., at
398-400 (Iredell, J.). Still, this Court has come to view Justice
Chase's categorical enumeration as an authoritative gloss on the
Ex Post Facto Clause's reach. Just a decade ago in
Collins v.
Youngblood, 497 U. S. 37 (1990), for
instance, this Court reiterated that "the prohibition which may not
be evaded is the one defined by the
Calder categories."
Id., at 46.
If those words are placed in the context of the full text of the
Collins opinion, however, a strong case can be made that
Collins pared the number of
Calder categories down to
three, eliminating altogether the fourth category on which the
Court today so heavily relies. As long ago as 1925, in
Beazell v.
Ohio, 269 U. S. 167, the Court
cataloged
ex post
568
facto laws without mentioning Chase's fourth category at
all.
Id., at 169-170. And in
Collins the Court cited
with apparent approval
Beazell's omission of the fourth
category, 497 U. S., at 43, n. 3, declaring that "[t]he
Beazell formulation is faithful to our best knowledge of the
original understanding of the
Ex Post Facto Clause:
Legislatures may not retroactively alter the definition of crimes
or increase the punishment for criminal acts."
Id., at 43.
Collins concluded by reciting in the plainest terms the
prohibitions laid down by the
Ex Post Facto Clause: A
statute may not "punish as a crime an act previously committed,
which was innocent when done; nor make more burdensome the
punishment for a crime, after its commission; nor deprive one
charged with crime of any defense available according to law at the
time when the act was committed."
Id., at 52. This
recitation conforms to
Calder's first three categories, but
not the fourth; changes in evidentiary rules are nowhere
mentioned.12
The majority asserts that the Court has repeatedly endorsed
Justice Chase's formulation, "including, in particular, the fourth
category," and it offers an impressive-looking string citation in
support of the claim.
Ante, at 525. Yet all of those cases
simply quoted or paraphrased Chase's enumeration, a mechanical task
that naturally entailed a recitation of the fourth category. Not
one of them depended on that category for the judgment the Court
reached.13 Nei-
12 In
California Dept. of Corrections v.
Morales,
514 U. S. 499,
504-505 (1995), the Court similarly enumerated the categories of
ex post facto laws without mentioning the fourth
category.
13 The Court in
Cummings v.
Missouri, 4 Wall. 277
(1867), invoked the fourth category, see
id., at 328, but
that invocation was hardly necessary to the Court's holding. In
Cummings, as already noted, the Court invalidated on Bill of
Attainder Clause and
Ex Post Facto Clause grounds state
constitutional amendments that imposed punishment on persons unable
to swear an oath that they had not taken up arms against the Union
in the Civil War. The Court recognized that the challenged
amendments, though framed in terms of a method of proof, were
"aimed at past acts,
569
ther did Justice Washington's opinion in
Ogden v.
Saunders, 12 Wheat. 213 (1827), which is quoted extensively
by the Court,
ante, at 532. In fact, the Court has never
until today relied on the fourth
Calder category to
invalidate the application of a statute under the
Ex Post
Facto Clause.
It is true that the Court has on two occasions struck down as
ex post facto the retroactive application of rules governing
the functioning of the criminal trial process-but both decisions
have since been overruled. In
Kring v.
Missouri, 107
U. S. 221 (1883), the Court held that Missouri was forbidden to
apply retroactively a state constitutional amendment providing that
a plea of guilty to second-degree murder would not automatically
serve on retrial as an acquittal of the charge of first-degree
murder. And in
Thompson v.
Utah, 170 U. S. 343 (1898), the
Court held that a change in state law reducing the number of petit
jurors in criminal trials from 12 to 8 was
ex post facto
because it deprived the defendant of "a substantial right involved
in his liberty."
Id., at 352. The Court in
Collins
overruled both
Kring and
Thompson v.
Utah,
concluding that neither decision was "consistent with the
understanding of the term
'ex post facto law' at the time
the Constitution was adopted."
Collins, 497 U. S., at 47,
50, 51-52.
The Court today offers a different reading of
Collins. It
concludes that
Collins overruled
Kring and
Thompson v.
Utah because those cases improperly
construed the
Ex Post Facto Clause to cover all "substantial
protections," and that the fourth
Calder category
consequently remains intact.
and not future acts,"
id., at 327, for only those who had
aided the Confederacy would be unable to take the expurgatory oath.
The Court held that the amendments violated
Calder's first
category by retroactively creating new offenses, 4 Wall., at
327-328, and violated the third category by retroactively imposing
new punishments,
id., at 328. As for
Calder's fourth
category, the Court said only that the amendments "subvert[ed] the
presumptions of innocence" by "assum[ing] that the parties [we]re
guilty." 4 Wall., at 328. As already discussed,
supra, at
561, that analysis is of no help to Carmell here.
570
That is a plausible reading of
Collins, and I might well
be prepared to accept it, were the issue presented here. But it is
not. For purposes of this case, it does not matter whether
Collins eliminated the fourth
Calder category or left
it undisturbed. For even if the fourth category remains viable, our
precedents make clear that it cannot be stretched to fit the
statutory change at issue here. Those precedentsdecisions that
fully acknowledged the fourth
Calder category-firmly
establish that retroactively applied changes in rules concerning
the admissibility of evidence and the competency of witnesses do
not raise
Ex Post Facto Clause concerns.
In
Thompson v.
Missouri, 171 U. S. 380 (1898),
this Court upheld against
ex post facto attack the
retroactive application of a statute that permitted the
introduction of previously inadmissible evidence to demonstrate the
authenticity of disputed writings. The new statute, the Court
reasoned, "did nothing more than remove an obstacle arising out of
a rule of evidence that withdrew from the consideration of the jury
testimony which, in the opinion of the legislature, tended to
elucidate the ultimate, essential fact to be established, namely,
the guilt of the accused."
Id., at 387.
The case most similar to the one before us is
Hopt v.
Territory of Utah, 110 U. S. 574 (1884). In
that case, a statute in effect at the time of the offense but
repealed by the time of trial provided that felons were incompetent
to testify. The defendant, whose conviction for capital murder had
been based in large part on the testimony of a felon, claimed that
the application of the new law to his trial was
ex post
facto. The Court rejected the defendant's claim, adopting
reasoning applicable to the instant case:
"Statutes which simply enlarge the class of persons who may be
competent to testify in criminal cases are not ex post facto
in their application to prosecutions for crimes committed prior to
their passage; for they do
571
not attach criminality to any act previously done, and which was
innocent when done; nor aggravate any crime theretofore committed;
nor provide a greater punishment therefor than was prescribed at
the time of its commission; nor do they alter the degree, or lessen
the amount or measure, of the proof which was made necessary to
conviction when the crime was committed." Id., at 589.
As the quoted passage shows, the Court in
Hopt rejected
the defendant's
Ex Post Facto Clause claim while retaining
Calder's fourth category. The same outcome should obtain
today, for
Hopt cannot meaningfully be distinguished from
the instant case.
The Court asserts that "Article 38.07 plainly fits" the fourth
Calder category, because "[r]equiring only the victim's
testimony to convict, rather than the victim's testimony plus other
corroborating evidence is surely 'less testimony required to
convict' in any straightforward sense of those words."
Ante,
at 530. Yet to declare Article 38.07
ex post facto on that
basis is to overrule
Hopt without saying so. For if the
amended version of Article 38.07 requires "less testimony ... to
convict," then so do countless evidentiary rules, including the
felon competency rule whose retroactive application we upheld in
Hopt. In both this case and
Hopt, a conviction based
on evidence previously deemed inadmissible was sustained pursuant
to a broadened rule regarding the competency of testimonial
evidence. The mere fact that the new version of Article 38.07 makes
some convictions easier to obtain cannot be enough to preclude its
retroactive application. "Even though it may work to the
disadvantage of a defendant, a procedural change is not
ex post
facto." Dobbert v.
Florida, 432 U. S. 282, 293
(1977).
In short, the Court's expansive new reading of the
Ex Post
Facto Clause cannot be squared with this Court's prior
decisions. Rather than embrace such an unprecedented approach, I
would advance a "commonsense understanding of
572
Calder's fourth category,"
ante, at 530, one that
comports with our precedents and with the underlying purposes of
the
Ex Post Facto Clause: Laws that reduce the burden of
persuasion the prosecution must satisfy to win a conviction may not
be applied to offenses committed before their enactment. To be
sure, this reading would leave the fourth category with
considerably less independent effect than it would have had in
Justice Chase's day, given our intervening decisions establishing
the "beyond a reasonable doubt" standard as a constitutional
minimum under the Due Process Clause. See,
e. g., In re
Winship, 397 U.
S. 358 (1970);
Jackson v.
Virginia, 443 U. S. 307 (1979). But
it is not a reading that necessarily renders the category
meaningless even today. Imagine, for example, a statute requiring
the prosecution to prove a particular sentencing enhancement
factor-leadership role in the offense, say, or obstruction of
justice-beyond a reasonable doubt. A new statute providing that the
factor could be established by a mere preponderance of the evidence
might rank as
ex post facto if applied to offenses committed
before its enactment. The same might be said of a statute
retroactively increasing the defendant's burden of persuasion as to
an affirmative defense.
Burdens of persuasion are
qualitative tests of
sufficiency.
Calder's fourth category, however, encompasses
quantitative sufficiency rules as well, for Justice Chase
did speak of a law that "receives
less ... testimony, than
the law
required at the time of the commission of the
offence." 3 Dall., at 390 (emphasis added). Cf.
Hopt, 110 U.
S., at 590 ("Any statutory alteration of the legal rules of
evidence which would authorize conviction upon less proof, in
amount or degree, than was
required when the offence
was committed" might be
ex post facto. (emphasis added)).
Quantitative sufficiency rules are rare in modern Anglo-American
law, but some do exist. Criminal statutes sometimes limit the
prosecution to a particular form of proof, for example, the
testimony of two witnesses to the same overt act. In modern
Anglo-
573
American law, such instances have been almost exclusively
confined to two contexts: perjury, see
Weiler v.
United
States, 323 U. S.
606 (1945), and treason, see U. S. Const., Art. III, § 3, cl. 1
("No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open
Court."). See generally Wigmore, Required Numbers of Witnesses; A
Brief History of the Numerical System in England, 15 Harv. L. Rev.
83,100108 (1901).
The treason statute in effect at the time of John Fenwick's
conspiracy, like the Treason Clause of our Constitution, embodied
just such a quantitative sufficiency rule: As long as the accused
traitor put the prosecution to its proof by pleading not guilty,
the sworn testimony of two witnesses was necessary to support a
conviction. The Court describes at great length the attainder of
Fenwick, which served as a cautionary model for Justice Chase's
explication of the fourth category in
Calder. See
ante, at 526-530.14 This excursion into post-Restoration
English history is diverting, but the Court's statement that "the
circumstances of petitioner's case parallel those of Fenwick's case
300 years earlier,"
ante, at 530, simply will not wash. The
preamendment version of Article 38.07 is nothing like the
two-witness rule on which Fenwick vainly relied.15
First, the preamendment version of Article 38.07, unlike a
two-witness rule, did not apply indifferently to all who testify.
Rather, it branded a particular class of witnesses-
14 Tellingly, the Court offers no evidence that anyone at the
time of the Framers considered witness corroboration requirements
of the type involved here to fall within the scope of the
ex
post facto prohibition.
15When the Texas Legislature wants to enact a two-witness rule,
it knows how to do so. See Tex. Code Crim. Proc. Ann., Art. 38.15
(Vernon Supp. 2000) ("No person can be convicted of treason except
upon the testimony of at least two witnesses to the same overt act,
or upon his own confession in open court."); Art. 38.18(a) ("No
person may be convicted of perjury or aggravated perjury if proof
that his statement is false rests solely upon the testimony of one
witness other than the defendant.").
574
sexual assault victims aged 14 or older-as less competent than
others to speak in court. Second, as I have already described, the
Texas statute did not restrict the State to one prescribed form of
proof. Both before and after the 1993 amendment, introduction of
the victim's corroborated testimony was neither required nor
necessarily sufficient to sustain a conviction. Prosecutors'
compliance with both the old and new versions of Article 38.07 thus
"says absolutely nothing about whether they have introduced a
quantum of evidence sufficient to convict the offender."
Ante, at 547, 551-552.16 On the contrary, the only
sufficiency rule applicable in Texas sexual offense prosecutions
has always been a qualitative one: The State's evidence must be
sufficient to prove every element of the offense beyond a
reasonable doubt.
That should not be surprising. It makes little sense in our
modern legal system to conceive of standards of proof in
quantitative terms. In a civil case, the winner is the party that
produces
better evidence, not the party that produces
more evidence. Similarly, in a criminal trial the
prosecution need not introduce any fixed amount of evidence, so
long as the evidence it does introduce could persuade a rational
factfinder beyond a reasonable doubt. "Our system of justice rests
on the general assumption that the truth is not to be determined
merely by the number of witnesses on each side of a controversy. In
gauging the truth of conflicting evidence, a jury has no simple
formulation of weights and measures on which to rely. The
touchstone is always credibility; the ultimate measure of
testimonial worth is quality and not
16 Noncompliance with the former version of Article 38.07
does say something: The statute mandates acquittal if the
prosecution comes forward with no evidence beyond the victim's
testimony, which is deemed unreliable standing alone. But as the
Court itself recognizes, "a witness competency rule that ... has
the practical effect of telling us what evidence would result in
acquittal does not really speak to
Calder's fourth
category."
Ante, at 551.
575
quantity."
Weiler, 323 U. S., at 608. If the Court wishes
to rely on the fourth
Calder category to render Texas'
altered evidentiary rule prospective only, it should do so
forthrightly by overruling
Hopt and
Thompson v.
Missouri, rather than by attempting to portray Article 38.07
as a quantitative sufficiency rule indistinguishable from the
two-witness requirement that figured in John Fenwick's case.
***
In sum, it is well settled (or was until today) that retroactive
changes to rules concerning the admissibility of evidence and the
competency of witnesses to testify cannot be
ex post facto.
Because Article 38.07 is in both function and purpose a rule of
admissibility,
Thompson v.
Missouri, Hopt, Beazell,
and
Collins dictate that its retroactive application does
not violate the
Ex Post Facto Clause. That conclusion
comports perfectly with the dual purposes that underlie the Clause:
ensuring fair notice so that individuals can rely on the laws in
force at the time they engage in conduct, and sustaining the
separation of powers while preventing the passage of vindictive
legislation. The Court today thus not only brings about an
"undefined enlargement of the
Ex Post Facto Clause,"
Collins, 497 U. S., at 46, that conflicts with established
precedent, it also fails to advance the Clause's fundamental
purposes. For these reasons, I dissent.
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