author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    UNITED STATES v. PARK
    No. 74-215.
    Argued March 18-19, 1975
    Decided June 9, 1975

      Burger, C. J., delivered the opinion of the Court, in which Douglas, Brennan, White, Blackmun, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which Marshall and Powell, JJ., joined, post, p. 678.

      Allan Abbott Tuttle argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Kauper, Howard E. Shapiro, and Peter Barton Hutt.

      Gregory M. Harvey argued the cause for respondent. With him on the brief was Orvel Sebring

       Briefs of amici curiae urging affirmance were filed by James F. Rill, Robert A. Collier, and John Hardin Young for the National Association of Food Chains; by H. Thomas Austern, H. Edward Dunkelberger, Jr., and Geoffrey Richard Wagner Smith for the National Canners Assn.; by Robert C. Barnard and Charles F. Let-tow for the Synthetic Organic Chemical Manufacturers Assn.; and by Frederick M. Rowe, Paid M. Hyman, and Jonathan W. Sloat for the Grocery Manufacturers of America, Inc.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to consider whether the jury instructions in the prosecution of a corporate officer under § 301 (k) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1042, as amended, 21 U. S. C. § 331 (k), were appropriate under United States v. Dotterweich, 320 U. S. 277 (1943).

Acme Markets, Inc., is a national retail food chain with approximately 36,000 employees, 874 retail outlets, 12 general warehouses, and four special warehouses. Its headquarters, including the office of the president, respondent Park, who is chief executive officer of the corporation, are located in Philadelphia, Pa. In a five-count information filed in the United States District Court for the District of Maryland, the Government charged Acme and respondent with violations of the Federal Food, Drug, and Cosmetic Act. Each count of the information alleged that the defendants had received food that had been shipped in interstate commerce and that, while the food was being held for sale in Acme’s Baltimore warehouse following shipment in interstate commerce, they caused it to be held in a building accessible to rodents and to be exposed to contamination by rodents. These acts were alleged to have resulted in the food’s being adulterated within the meaning of 21 U. S. C. §§ 342 (a)(3) and (4), in violation of 21 U. S. C. §331 (k).

Acme pleaded guilty to each count of the information. Respondent pleaded not guilty. The evidence at trial demonstrated that in April 1970 the Food and Drug Administration (FDA) advised respondent by letter of insanitary conditions in Acme’s Philadelphia warehouse. In 1971 the FDA found that similar conditions existed in the firm’s Baltimore warehouse. An FDA consumer safety officer testified concerning evidence of rodent infestation and other insanitary conditions discovered during a 12-day inspection of the Baltimore warehouse in November and December 1971. He also related that a second inspection of the warehouse had been conducted in March 1972. On that occasion the inspectors found that there had been improvement in the sanitary conditions, but that “there was still evidence of rodent activity in the building and in the warehouses and we found some rodent-contaminated lots of food items.” App. 23.

The Government also presented testimony by the Chief of Compliance of the FDA’s Baltimore office, who informed respondent by letter of the conditions at the Baltimore warehouse after the first inspection. There was testimony by Acme’s Baltimore division vice president, who had responded to the letter on behalf of Acme and respondent and who described the steps taken to remedy the insanitary conditions discovered by both inspections. The Government’s final witness, Acme’s vice president for legal affairs and assistant secretary, identified respondent as the president and chief executive officer of the company and read a bylaw prescribing the duties of the chief executive officer. He testified that respondent functioned by delegating “normal operating duties,” including sanitation, but that he retained “certain things, which are the big, broad, principles of the operation of the company,” and had “the responsibility of seeing that they all work together.” Id., at 41.

At the close of the Government’s case in chief, respondent moved for a judgment of acquittal on the ground that “the evidence in chief has shown that Mr. Park is not personally concerned in this Food and Drug violation.” The trial judge denied the motion, stating that United States v. Dotterweich, 320 U. S. 277 (1943), was controlling.

Respondent was the only defense witness. He testified that, although all of Acme’s employees were in a sense under his general direction, the company had an “organizational structure for responsibilities for certain functions” according to which different phases of its operation were “assigned to individuals who, in turn, have staff and departments under them.” He identified those individuals responsible for sanitation, and related that upon receipt of the January 1972 FDA letter, he had conferred with the vice president for legal affairs, who informed him that the Baltimore division vice president “was investigating the situation immediately and would be taking corrective action and would be preparing a summary of the corrective action to reply to the letter.” Respondent stated that he did not “believe there was anything [he] could have done more constructively than what [he] found was being done.” App. 43-47.

On cross-examination, respondent conceded that providing sanitary conditions for food offered for sale to the public was something that he was “responsible for in the entire operation of the company,” and he stated that it was one of many phases of the company that he assigned to “dependable subordinates.” Respondent was asked about and, over the objections of his counsel, admitted receiving, the April 1970 letter addressed to him from the FDA regarding insanitary conditions at Acme’s Philadelphia warehouse. He acknowledged that, with the exception of the division vice president, the same individuals had responsibility for sanitation in both Baltimore and Philadelphia. Finally, in response to questions concerning the Philadelphia and Baltimore incidents, respondent admitted that the Baltimore problem indicated the system for handling sanitation “wasn’t working perfectly” and that as Acme’s chief executive officer he was responsible for “any result which occurs in our company.” Id., at 48-55.

At the close of the evidence, respondent’s renewed motion for a judgment of acquittal was denied. The relevant portion of the trial judge’s instructions to the jury challenged by respondent is set out in the margin. Respondent’s counsel objected to the instructions on the ground that they failed fairly to reflect our decision in United States v. Dotterweich, supra, and to define “ 'responsible relationship.’ ” The trial judge overruled the objection. The jury found respondent guilty on all counts of the information, and he was subsequently sentenced to pay a fine of $50 on each count.

The Court of Appeals reversed the conviction and remanded for a new trial. That court viewed the Government as arguing “that the conviction may be predicated solely upon a showing that . . . [respondent] was the President of the offending corporation,” and it stated that as “a general proposition, some act of commission or omission is an essential element of every crime.” 499 F. 2d 839, 841 (CA4 1974). It reasoned that, although our decision in United States v. Dotterweich, supra, at 281, had construed the statutory provisions under which respondent was tried to dispense with the traditional element of “ ‘awareness of some wrongdoing,’ ” the Court had not construed them as dispensing with the element of “wrongful action.” The Court of Appeals concluded that the trial judge’s instructions “might well have left the jury with the erroneous impression that Park could be found guilty in the absence of ‘wrongful action’ on his part,” 499 F. 2d, at 841-842, and that proof of this element was required by due process. It held, with one dissent, that the instructions did not “correctly state the law of the case,” id., at 840, and directed that on retrial the jury be instructed as to “wrongful action,” which might be “gross negligence and inattention in discharging . . . corporate duties and obligations or any of a host of other acts of commission or omission which would ‘cause’ the contamination of food.” Id., at 842. (Footnotes omitted.)

The Court of Appeals also held that the admission in evidence of the April 1970 FDA warning to respondent was error warranting reversal, based on its conclusion that, “as this case was submitted to the jury and in light of the sole issue presented,” there was no need for the evidence and thus that its prejudicial effect outweighed its relevancy under the test of United States v. Woods, 484 F. 2d 127 (CA4 1973), cert. denied, 415 U. S. 979 (1974). 499 F. 2d, at 843.

We granted certiorari because of an apparent conflict among the Courts of Appeals with respect to the standard of liability of corporate officers under the Federal Food, Drug, and Cosmetic Act as construed in United States v. Dotterweich, supra, and because of the importance of the question to the Government’s enforcement program. We reverse.

I

The question presented by the Government’s petition for certiorari in United States v. Dotterweich, supra, and the focus of this Court’s opinion, was whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the Federal Food, Drug, and Cosmetic Act of 1938 for the introduction of misbranded and adulterated articles into interstate commerce.” Pet. for Cert., No. 5, O. T. 1943, p. 2. In Dotterweich, a jury had disagreed as to the corporation, a jobber purchasing drugs from manufacturers and shipping them in interstate commerce under its own label, but had convicted Dotterweich, the corporation’s president and general manager. The Court of Appeals reversed the conviction on the ground that only the drug dealer, whether corporation or individual, was subject to the criminal provisions of the Act, and that where the dealer was a corporation, an individual connected therewith might be held personally only if he was operating the corporation “as his ‘alter ego.’ ” United States v. Buffalo Pharmacal Co., 131 F. 2d 500, 503 (CA2 1942).

In reversing the judgment of the Court of Appeals and reinstating Dotterweich’s conviction, this Court looked to the purposes of the Act and noted that they “touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.” 320 U. S., at 280. It observed that the Act is of “a now familiar type” which “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” Id., at 280-281.

Central to the Court’s conclusion that individuals other than proprietors are subject to the criminal provisions of the Act was the reality that “the only way in which a corporation can act is through the individuals who act on its behalf.” Id., at 281. The Court also noted that corporate officers had been subject to criminal liability under the Federal Food and Drugs Act of 1906, and it observed that a contrary result under the 1938 legislation would be incompatible with the expressed intent of Congress to “enlarge and stiffen the penal net” and to discourage a view of the Act’s criminal penalties as a “ ‘license fee for the conduct of an illegitimate business.’ ” 320 U. S., at 282-283. (Footnote omitted.)

At the same time, however, the Court was aware of the concern which was the motivating factor in the Court of Appeals’ decision, that literal enforcement “might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment.” Id., at 284. A limiting principle, in the form of “settled doctrines of criminal law” defining those who “are responsible for the commission of a misdemeanor,” was available. In this context, the Court concluded, those doctrines dictated that the offense was committed “by all who . . . have . . . a responsible share in the furtherance of the transaction which the statute outlaws.” Ibid.

The Court recognized that, because the Act dispenses with the need to prove “consciousness of wrongdoing,” it may result in hardship even as applied to those who share “responsibility in the business process resulting in” a violation. It regarded as “too treacherous” an attempt “to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation.” The question of responsibility, the Court said, depends “on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance.” The Court added: “In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted.” Id., at 284r-285. See 21 U. S. C. § 336.’ Cf. United States v. Sullivan, 332 U. S. 689, 694-695 (1948).

II

The rule that corporate employees who have “a responsible share in the furtherance of the transaction which the statute outlaws” are subject to the criminal provisions of the Act was not formulated in a vacuum. Cf. Morissette v. United States, 342 U. S. 246, 258 (1952). Cases under the Federal Food and Drugs Act of 1906 reflected the view both that knowledge or intent were not required to be proved in prosecutions under its criminal provisions, and that responsible corporate agents could be subjected to the liability thereby imposed. See, e. g., United States v. Mayfield, 177 F. 765 (ND Ala. 1910). Moreover, the principle had been recognized that a corporate agent, through whose act, default, or omission the corporation committed a crime, was himself guilty individually of that crime. The principle had been applied whether or not the crime required “consciousness of wrongdoing,” and it had been applied not only to those corporate agents who themselves committed the criminal act, but also to those who by virtue, of their managerial positions or other similar relation to the actor could be deemed responsible for its commission.

In the latter class of cases, the liability of managerial officers did not depend on their knowledge of, or personal participation in, the act made criminal by the statute. Rather, where the statute under which they were prosecuted dispensed with “consciousness of wrongdoing,” an omission or failure to act was deemed a sufficient basis for a responsible corporate agent’s liability. It was enough in such cases that, by virtue of the relationship he bore to the corporation, the agent had the power to prevent the act complained of. See, e. g., State v. Burnam, 71 Wash. 199, 128 P. 218 (1912); Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 P. 924 (1904). Cf. Groff v. State, 171 Ind. 547, 85 N. E. 769 (1908); Turner v. State, 171 Tenn. 36, 100 S. W. 2d 236 (1937); People v. Schwartz, 28 Cal. App. 2d 775, 70 P. 2d 1017 (1937); Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689 (1930).

The rationale of the interpretation given the Act in D otterweich, as holding criminally accountable the persons whose failure to exercise the authority and supervisory responsibility reposed in them by the business organization resulted in the violation complained of, has been confirmed in our subsequent eases. Thus, the Court has reaffirmed the proposition that “the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors.” Smith v. California, 361 U. S. 147, 152 (1959). In order to make “distributors of food the strictest censors of their merchandise,” ibid., the Act punishes “neglect where the law requires care, or inaction where it imposes a duty.” Morissette v. United States, supra, at 255. “The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id., at 256. Cf. Hughes, Criminal Omissions, 67 Yale L. J. 590 (1958). Similarly, in cases decided after Dotterweich, the Courts of Appeals have recognized that those corporate agents vested with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with the Act bear a “responsible relationship” to, or have a “responsible share” in, violations.

Thus Dotterweich and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission — and this is by no means necessarily confined to a single corporate agent or employee — the Act imposes not only a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them. Cf. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 741-745 (I960).

The Act does not, as we observed in Dotterweich, make criminal liability turn on “awareness of some wrongdoing” or “conscious fraud.” The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of- foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible. The theory upon which responsible corporate agents are held criminally accountable for “causing” violations of the Act permits a claim that a defendant was “powerless” to prevent or correct the violation to “be raised defensively at a trial on the merits.” United States v. Wiesenfeld Warehouse Co., 376 U. S. 86, 91 (1964). If such a claim is made, the defendant has the burden of. coming forward with evidence, but this does not alter the Government’s ultimate burden of proving beyond a reasonable doubt the defendant’s guilt, including his power, in light of the duty imposed by the Act, to prevent or correct the prohibited condition. Congress has seen fit to enforce the accountability of responsible corporate agents dealing with products which may affect the health of consumers by penal sanctions cast in rigorous terms, and the obligation of the courts is to give them effect so long as they do not violate the Constitution.

Ill

We cannot agree with the Court of Appeals that it was incumbent upon the District Court to instruct the jury that the Government had the burden of establishing “wrongful action” in the sense in which the Court of Appeals used that phrase. The concept of a “responsible relationship” to, or a “responsible share” in, a violation of the Act indeed imports some measure of blameworthiness; but it is equally clear that the Government establishes a prima facie case when it introduces evidence sufficient to warrant a finding by the trier of the facts that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so. The failure thus to fulfill the duty imposed by the interaction of the corporate agent’s authority and the statute furnishes a sufficient causal link. The considerations which prompted the imposition of this duty, and the scope of the duty, provide the measure of culpability.

Turning to the jury charge in this case, it is of course arguable that isolated parts can be read as intimating that a finding of guilt could be predicated solely on respondent’s corporate position. But this is not the way we review jury instructions, because “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U. S. 141, 146-147 (1973). See Boyd v. United States, 271 U. S. 104, 107 (1926).

Reading the entire charge satisfies us that the jury’s attention was adequately focused on the issue of respondent’s authority with respect to the conditions that formed the basis of the alleged violations. Viewed as a whole, the charge did not permit the jury to find guilt solely on the basis of respondent’s position in the corporation; rather, it fairly advised the jury that to find guilt it must find respondent “had a responsible relation to the situation,” and “by virtue of his position ... had ... authority and responsibility” to deal with the situation. The situation referred to could only be “food ... held in unsanitary conditions in a warehouse with the result that it consisted, in part, of filth or . . . may have been contaminated with filth.”

Moreover, in reviewing jury instructions, our task is also to view the charge itself as part of the whole trial. “Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Bimbaum, 373 F. 2d 250, 257 (CA2), cert. denied, 389 U. S. 837 (1967). (Emphasis added.) Cf. Cupp v. Naughten, supra. The record in this case reveals that the jury could not have failed to be aware that the main issue for determination was not respondent’s position in the corporate hierarchy, but rather his accountability, because of the responsibility and authority of his position, for the conditions which gave rise to the charges against him.

We conclude that, viewed as a whole and in the context of the trial, the charge was not misleading and contained an adequate statement of the law to guide the jury’s determination. Although it would have been better to give an instruction more, precisely relating the legal issue to the facts of the case, we cannot say that the failure to provide the amplification requested by respondent was an abuse of discretion. See United States v. Bayer, 331 U. S. 532, 536-537 (1947); Holland v. United States, 348 U. S. 121, 140 (1954). Finally, we note that there was no request for an instruction that the Government was required to prove beyond a reasonable doubt that respondent was not without the power or capacity to affect the conditions which founded the charges in the information. In light of the evidence adduced at trial, we find no basis to conclude that the failure of the trial court to give such an instruction sua sponte was plain error or a defect affecting substantial rights. Fed. Rule Crim. Proc. 52 (b). Compare Lopez v. United States, 373 U. S. 427, 436 (1963), with Screws v. United States, 325 U. S. 91, 107 (1945) (opinion of Douglas, J.).

IV

Our conclusion that the Court of Appeals erred in its reading of the jury charge suggests as well our disagreement with that court concerning the admissibility of evidence demonstrating that respondent was advised by the FDA in 1970 of insanitary conditions in Acme’s Philadelphia warehouse. We are satisfied that the Act imposes the highest standard of care and permits conviction of responsible corporate officials who, in light of this standard of care, have the power to prevent or correct violations of its provisions. Implicit in the Court’s admonition that “the ultimate judgment of juries must be trusted,” United States v. Dotterweich, 320 U. S., at 285, however, is the realization that they may demand more than corporate bylaws to find culpability.

Respondent testified in his defense that he had employed a system in which he relied upon his subordinates, and that he was ultimately responsible for this system. He testified further that he had found these subordinates to be “dependable” and had “great confidence” in them. By this and other testimony respondent evidently sought to persuade the jury that, as the president of a large corporation, he had no choice but to delegate duties to those in whom he reposed confidence, that he had no reason to suspect his subordinates were failing to insure compliance with the Act, and that, once violations were unearthed, acting through those subordinates he did everything possible to correct them.

Although we need not decide whether this testimony would have entitled respondent to an instruction as to his lack of power, see supra, at 676, had he requested it, the testimony clearly created the “need” for rebuttal evidence. That evidence was not offered to show that respondent had a propensity to commit criminal acts, cf. Michelson v. United States, 335 U. S. 469, 475-476 (1948), or, as in United States v. Woods, 484 F. 2d 127, that the crime charged had been committed; its purpose was to demonstrate that respondent was on notice that he could not rely on his system of delegation to subordinates to prevent or correct insanitary conditions at Acme’s warehouses, and that he must have been aware of the deficiencies of this system before the Baltimore violations were discovered. The evidence was therefore relevant since it served to rebut respondent’s defense that he had justifiably relied upon subordinates to handle sanitation matters. Cf. United States v. Ross, 321 F. 2d 61, 67 (CA2), cert. denied, 375 U. S. 894 (1963); E. Cleary, McCormick on Evidence § 190, pp. 450-452 (2d ed. 1972). And, particularly in light of the difficult task of juries in prosecutions under the Act, we conclude that its relevance and persuasiveness outweighed any prejudicial effect. Cf. Research Laboratories, Inc. v. United States, 167 F. 2d 410, 420-421 (CA9), cert. denied, 335 U. S. 843 (1948).

Reversed.

Mr. Justice Stewart,

with whom Mr. Justice Marshall and Mr. Justice Powell join, dissenting.

Although agreeing with much of what is said in the Court’s opinion, I dissent from the opinion and judgment, because the jury instructions in this case were not consistent with the law as the Court today expounds it.

As I understand the Court’s opinion, it holds that in order to sustain a conviction under § 301 (k) of the Federal Food, Drug, and Cosmetic Act the prosecution must at least show that by reason of an individual’s corporate position and responsibilities, he had a duty to use care to maintain the physical integrity of the corporation’s food products. A jury may then draw the inference that when the food is found to be in such condition as to violate the statute’s prohibitions, that condition was “caused” by a breach of the standard of care imposed upon the responsible official. This is the language of negligence, and I agree with it.

To affirm this conviction, however, the Court must approve the instructions given to the members of the jury who were entrusted with determining whether the respondent was innocent or guilty. Those instructions did not conform to the standards that the Court itself sets out today.

The trial judge instructed the jury to find Park guilty if it found beyond a reasonable doubt that Park “had a responsible relation to the situation .... The issue is, in this case, whether the Defendant, John R. Park, by virtue of his position in the company, had a position of authority and responsibility in the situation out of which these charges arose.” Requiring, as it did, a verdict of guilty upon a finding of “responsibility,” this instruction standing alone could have been construed as a direction to convict if the jury found Park “responsible” for the condition in the sense that his position as chief executive officer gave him formal responsibility within the structure of the corporation. But the trial judge went on specifically to caution the jury not to attach such a meaning to his instruction, saying that “the fact that the Defendant is pres[id]ent and is a chief executive officer of the Acme Markets does not require a finding of guilt.” “Responsibility” as used by the trial judge therefore had whatever meaning the jury in its unguided discretion chose to give it.

The instructions, therefore, expressed nothing more than a tautology. They told the jury: “You must find the defendant guilty if you find that he is to be held accountable for this adulterated food.” In other words: “You must find the defendant guilty if you conclude that he is guilty.” The trial judge recognized the infirmities in these instructions, but he reluctantly con-eluded that he was required to give such a charge under United States v. Dotterweich, 320 U. S. 277, which, he thought, in declining to define “responsible relation” had declined to specify the minimum standard of liability for criminal guilt.

As the Court today recognizes, the Dotterweich case did not deal with what kind of conduct must be proved to support a finding of criminal guilt under the Act. Dotterweich was concerned, rather, with the statutory definition of “person” — with what kind of corporate employees were even “subject to the criminal provisions of the Act.” Ante, at 670. The Court held that those employees with “a responsible relation” to the violative transaction or condition were subject to the Act’s criminal provisions, but all that the Court had to say with respect to the kind of conduct that can constitute criminal guilt was that the Act “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing.” 320 U. S., at 281.

In approving the instructions to the jury in this case-instructions based upon what the Court concedes was a misunderstanding of Dotterweich — the Court approves a conspicuous departure from the long and firmly established division of functions between judge and jury in the administration of criminal justice. As the Court put the matter more than 80 years ago:

“We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.” Sparf v. United States, 156 U. S. 51, 102-103.

More recently the Court declared unconstitutional a procedure whereby a jury, having acquitted a defendant of a misdemeanor, was instructed to impose upon him such costs of the prosecution as it deemed appropriate to his degree of “responsibility.” Giaccio v. Pennsylvania, 382 U. S. 399. The state statute under which the procedure was authorized was invalidated because it left “to the jury such broad and unlimited power in imposing costs on acquitted defendants that the jurors must make determinations of the crucial issue upon their own notions of what the law should be instead of what it is.” Id., at 403. And in Jackson v. Denno, 378 U. S. 368, the Court found unconstitutional a procedure whereby a jury was permitted to decide the question of the voluntariness of a confession along with the question of guilt, in part because that procedure permitted the submergence of a question of law, as to which appellate review was constitutionally required, in the general deliberations of a jury.

These cases no more than embody a principle fundamental to our jurisprudence: that a jury is to decide the facts and apply to them the law as explained by the trial judge. Were it otherwise, trial by jury would be no more rational and no more responsive to the accumulated wisdom of the law than trial by ordeal. It is the function of jury instructions, in short, to establish in any trial the objective standards that a jury is to apply as it performs its own function of finding the facts.

To be sure, “the day [is] long past when [courts] . . . parsed instructions and engaged in nice semantic distinctions,” Cool v. United States, 409 U. S. 100, 107 (Rehnquist, J., dissenting). But this Court has never before abandoned the view that jury instructions must contain a statement of the applicable law sufficiently precise to enable the jury to be guided by something other than its rough notions of social justice. And while it might be argued that the issue before the jury in this case was a “mixed” question of both law and fact, this has never meant that a jury is to be left wholly at sea, without any guidance as to the standard of conduct the law requires. The instructions given by the trial court in this case, it must be emphasized, were a virtual nullity, a mere authorization to convict if the jury thought it appropriate. Such instructions — regardless of the blameworthiness of the defendant’s conduct, regardless of the social value of the Food, Drug, and Cosmetic Act, and regardless of the importance of convicting those who violate it — have no place in our jurisprudence.

We deal here with a criminal conviction, not a civil forfeiture. It is true that the crime was but a misdemeanor and the penalty in this case light. But under the statute even a first conviction can result in imprisonment for a year, and a subsequent offense is a felony carrying a punishment of up to three years in prison. So the standardless conviction approved today can serve in another case tomorrow to support a felony conviction and a substantial prison sentence. However highly the Court may regard the social objectives of the Food, Drug, and Cosmetic Act, that regard cannot serve to justify a criminal conviction so wholly alien to fundamental principles of our law.

The Dotterweich case stands for two propositions, and I accept them both. First, “any person” within the meaning of 21 U. S. C. § 333 may include any corporate officer or employee “standing in responsible relation” to a condition or transaction forbidden by the Act. 320 TJ. S., at 281. Second, a person may be convicted of a criminal offense under the Act even in the absence of “the conventional requirement for criminal conduct— awareness of some wrongdoing.” Ibid.

But before a person can be convicted of a criminal violation of this Act, a jury must find — and must be clearly instructed that it must find — evidence beyond a reasonable doubt that he engaged in wrongful conduct amounting at least to common-law negligence. There were no such instructions, and clearly, therefore, no such finding in this case.

For these reasons, I cannot join the Court in affirming Park’s criminal conviction.

       Section 402 of the Act, 21 "ü. S. C. §342, provides in pertinent part:
      “A food shall be deemed to be adulterated—
      “(a) (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or (4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health . ..

       Section 301 of the Act, 21 U. S. C. § 331, provides in pertinent part:
      “The following acts and the causing thereof are prohibited:
      “(k) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded.”

       The parties stipulated in effect that the items of food described in the information had been shipped in interstate commerce and were being held for sale in Acme’s Baltimore warehouse.

       The witness testified with respect to the inspection of the basement of the "old building” in the warehouse complex:
      “We found extensive evidence of rodent infestation in the form of rat and mouse pellets throughout the entire perimeter area and along the wall.
      “We also found that the doors leading to the basement area from the rail siding had openings at the bottom or openings beneath part of the door that came down at the bottom large enough to admit rodent entry. There were also roden[t] pellets found on a number of different packages of boxes of various items stored in the basement, and looking at this document, I see there were also broken windows along the rail siding.” App. 20-21.
      On the first floor of the "old building,” the inspectors found:
      “Thirty mouse pellets on the floor along walls and on the ledge in the hanging meat room. There were at least twenty mouse pellets beside bales of lime Jello and one of the bales had a chewed rodent hole in the product. . . .” Id., at 22.

       The first four counts of the information alleged violations corresponding to the observations of the inspectors during the November and December 1971 inspection. The fifth count alleged violations corresponding to observations during the March 1972 inspection.

       The letter, dated January 27, 1972, included the following:
      “We note with much concern that the old and new warehouse
      areas used for food storage were actively and extensively inhabited by live rodents. ■ Of even more concern was the observation that such reprehensible conditions obviously existed for a prolonged period of time without any detection, or were completely ignored ....
      “We trust this letter will serve to direct your attention to the seriousness of the problem and formally advise you of the urgent need to initiate whatever measures are necessary to prevent recurrence and ensure compliance with the law.” Id., at 64-65.

       The bylaw provided in pertinent part:
      “The Chairman of the board of directors or the president shall be the chief executive officer of the company as the board of directors may from time to time determine. He shall, subject to the board of directors, have general and active supervision of the affairs, business, offices and employees of the company. . . .
      “He shall, from time to time, in his discretion or at the order of the board, report the operations and affairs of the company. He shall also perform such other duties and have such other powers as may be assigned to him from time to time by the board of directors.” Id., at 40.

       The April 1970 letter informed respondent of the following "objectionable conditions” in Acme’s Philadelphia warehouse:
      “1. Potential rodent entry ways were noted via ill fitting doors and door in irrepair at Southwest comer of warehouse; at dock at old salvage room and at receiving and shipping doors which were observed to be open most of the time.
      “2. Rodent nesting, rodent excreta pellets, rodent stained bale bagging and rodent gnawed holes were noted among bales of flour stored in warehouse.
      “3. Potential rodent harborage was noted in discarded paper, rope, sawdust and other debris piled in comer of shipping and receiving dock near bakery and warehouse doors. Rodent excreta pellets were observed among bags of sawdust (or wood shavings).” Id., at 70.

       “In order to find the Defendant guilty on any count of the Information, you must find beyond a reasonable doubt on each count....
      “Thirdly, that John R. Park held a position of authority in the operation of the business of Acme Markets, Incorporated.
      “However, you need not concern yourselves with the first two elements of the case. The main issue for your determination is only with the third element, whether the Defendant held a position of authority and responsibility in the business of Acme Markets.
      "The statute makes individuals, as well as corporations, liable for violations. An individual is liable if it is clear, beyond a reasonable doubt, that the elements of the adulteration of the food as to travel in interstate commerce are present. As I have instructed you in this case, they are, and that the individual had a responsible relation to the situation, even though he may not have participated personally.
      “The individual is or could be liable under the statute, even if he did not consciously do wrong. However, the fact that the Defendant is pres[id]ent and is a chief executive officer of the Acme Markets does not require a finding of guilt. Though, he need not have personally participated in the situation, he must have had a-responsible relationship to the issue. The issue is, in this case, whether the Defendant, John R. Park, by virtue of his position in the company, had a position of authority and responsibility in the situation out of which these charges arose.” Id., at 61-62.

       Sections 303 (a) and (b) of the Act, 21 U. S. C. §§ 333 (a) and (b), provide:
      “(a) Any person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000, or both.
      “(b) Notwithstanding the provisions of subsection (a) of this section, if any person commits such a violation after a conviction of him under this section has become final, or commits such a violation with the intent to defraud or mislead, such person shall be imprisoned for not more than three years or fined not more than $10,000, or both.”
      Respondent’s renewed motion for a judgment of acquittal or in the alternative for a new trial, one of the grounds of which was the alleged abuse of discretion in the initiation of the prosecution against him, had previously been denied after argument.

       The Court of Appeals relied upon § 303 (c) of the Act, 21 U. S. C. §333 (c), which extended immunity from the penalties provided by § 303 (a) to a person who could establish a. guaranty “signed by, and containing the name and address of, the person residing in the United States {rom whom he received in good faith the article ....”' (Emphasis added.) The court reasoned that where the drug dealer was a corporation, the protection of § 303 (c) would extend only to such dealer and not to its employees.

       Act of June 30, 1906, c. 3915, 34 Stat. 768.

       In reinstating Dotterweich’s conviction, the Court stated: “For present purpose it suffices to say that in what the defense characterized as ‘a very fair charge’ the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.” 320 U. S., at 285.

       See, e. g., Lelies v. United States, 241 F. 2d 21 (CA9), cert. denied, 353 U. S. 974 (1957); United States v. Kaadt, 171 F. 2d 600 (CA7 1948). Cf. United States v. Shapiro, 491 F. 2d 335, 337 (CA6 1974); United States v. 3963 Bottles, 265 F. 2d 332 (CA7), cert. denied, 360 U. S. 931 (1959); United States v. Klehman, 397 F. 2d 406 (CA7 1968).

       We note that in 1948 the Senate passed an amendment to § 303 (a) of the Act to impose criminal liability only for violations committed “willfully or as a result of gross negligence.” 94 Cong. Rec. 6760-6761 (1948). However, the amendment was subsequently stricken in conference. Id., at 8551, 8838.

       In his summation to the jury, the prosecutor argued:
      “That brings us to the third question that you must decide, and that is whether Mr. John R. Park is responsible for the conditions persisting.. ..
      “The point is that, while Mr. Park apparently had a system, and I think he testified the system had been set up long before he got there — he did say that if anyone was going to change the system, it was his responsibility to do so. That very system, the system that he didn’t change, did not work in March of 1970 in Philadelphia; it did not work in November of 1971 in Baltimore; it did not work in March of 1972 in Baltimore, and under those circumstances, I submit, that Mr. Park is the man responsible. . . .
      “Mr. Park was responsible for seeing that sanitation was taken care of, and he had a system set up that was supposed to do that. This system didn’t work. It didn’t work three times. At some point in time, Mr. Park has to be held responsible for the fact that his system isn’t working . . . .” App. 57, 59, 60.

       Counsel for respondent submitted only two requests for charge: (1) “Statutes such as the ones the Government seeks to apply here are criminal statutes and should be strictly construed,” and (2) “The fact that John Park is President and Chief Executive Officer of Acme Markets, Inc. does not of itself justify a finding of guilty under Counts I through V of the Information.” 1 Record 56-57.

       In his summation to the jury, counsel for respondent-argued:
      “Now, you are Mr. Park. You have his responsibility for a thousand stores — I think eight hundred and some stores — lots of stores, many divisions, many warehouses. What are you going to do, except hire people in whom you have confidence to whom you delegate the work? . . .
      “. . . What I am saying to you is that Mr. Park, through his subordinates, when this was found out, did everything in the world they [sic] could.” 3 Record 201, 207.

       Assuming, arguendo, that it would be objectively impossible for a senior corporate agent to control fully day-to-day conditions in 874 retail outlets, it does not follow that such a corporate agent could not prevent or remedy promptly violations of elementary sanitary conditions in 16 regional warehouses.

       In response to a request for further illumination of what he meant by “responsible relationship” the District Judge said:
      “Let me say this, simply as to the definition of the ‘responsible relationship.’ Dotterweich and subsequent cases have indicated this really is a jury question. It says it is not even subject to being defined by the Court. As I have indicated to counsel, I am quite candid in stating that I do not agree with the decision; therefore, T am going to stick by it.”

       See ante, at 666 n. 10.

       This is not to say that Park might not be found guilty by a properly instructed jury in a new trial. But that, of course, is not the point. “Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges.” Morissette v. United States, 342 U. S. 246, 276.


source: Caselaw Access Project

author: Mr. Justice Powell Mr. Justice Rehnquist,

license: Public Domain

text:
    MULLANEY et al. v. WILBUR
    No. 74-13.
    Argued January 15, 1975
    Decided June 9, 1975
    Powell, J., delivered the opinion for a unanimous Court. Rehnquist, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 704.

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

      Peter J. Rubin, by appointment of the Court, 419 U. S. 1017, argued the cause and filed a brief for respondent.
   Mr. Justice Powell

delivered the opinion of the Court.

The State of Maine requires a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. We must decide whether this rule comports with the due process requirement, as defined in In re Winship, 397 U. S. 358, 364 (1970), that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

I

In June 1966 a jury found respondent Stillman E. Wilbur, Jr., guilty of murder. The case against him rested on his own pretrial statement and on circumstantial evidence showing that he fatally assaulted Claude Hebert in the latter’s hotel room. Respondent’s statement, introduced by the prosecution, claimed that he had attacked Hebert in a frenzy provoked by Hebert’s homosexual advance. The defense offered no evidence, but argued that the homicide was not unlawful since respondent lacked criminal intent. Alternatively, Wilbur’s counsel asserted that at most the homicide was manslaughter rather than murder, since it occurred in the heat of passion provoked by the homosexual assault.

The trial court instructed the jury that Maine law recognizes two kinds of homicide, murder and manslaughter, and that these offenses are not subdivided into different degrees. The common elements of both are that the homicide be unlawful — i. e., neither justifiable • nor excusable — and that it be intentional. The prosecution is required to prove these elements by proof beyond a reasonable doubt, and only if they are so proved is the jury to consider the distinction between murder and manslaughter.

In view of the evidence the trial court drew particular attention to the difference between murder and manslaughter. After reading the statutory definitions of both offenses, the court charged that “malice aforethought is an essential and indispensable element of the crime of murder,” App. 40, without which the homicide would be manslaughter. The iurv was further instructed, however, that if the prosecution established that the homicide was both intentional jand unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. The' court emphasized that “malice aforethought and heat of passion on sudden provocation are two inconsistent things,” id., at 62; thus, byjproving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter. The court then concluded its charge with elaborate definitions of “heat of passion” and “sudden provocation.”

After retiring to consider its verdict, the jury twice returned to request further instruction. It first sought reinstruction on the doctrine of implied malice aforethought, and later on the definition of “heat of passion.” Shortly after the second reinstruction, the jury found respondent guilty of murder. »

Respondent appealed to the Maine Supreme Judicial Court, arguing that he had been denied due ..process be-1 cause he was reqiliFed’TcT negate the element of malice; ^forethought by proving that he had acted in the hqat’ ..of passion on sudden provocation. He claimed that under Maine law malice aforethought was an essential element of the crime of murder — indeed that it was the sole element distinguishing murder from manslaughter, Respondent contended, therefore, that this Court’s decisión in Winship requires the prosecution to prove the existence of that element beyond a reasonable doubt.

The Maine Supreme Judicial Court rejected this contention, holding that in Maine Jhürd'ér and manslaughter are nofclistinct crimes but, rather, different degrees of the single generic offense of felonious homicide. State v. Wilbur, 278 A. 2d 139 (1971). The court further stated that for more than a century it repeatedly had held that the prosecution could rest on a presumption of implied malice aforethought and require the defendant to prove that he had acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. With respect to Winship, which was decided aftér respondent’s trial, the court noted that it did not anticipate the application of the Winship principle to a factor such as the heat of passion on sudden provocation.

Respondent next successfully petitioned for a writ of habeas corpus in Federal District Court. Wilbur v. Robbins, 349 F. Supp. 149 (Me. 1972). The District Court ruled that under the Maine statutes murder and manslaughter are distinct offenses, not different degrees of a single offense. The court further held that “[mjalice aforethought is made the distinguishing element of the offense of murder, and it is expressly excluded as an element of the offense of manslaughter.” Id., at 153. Thus, the District Court concluded. Winship requires the prosecution . to prom,malice__ aforethought beyond a reasonable doubt; it cannot rely on a presumption of implied malice, which requires the defendant to prove that he acted in the heat of passion on sudden provocation.

The Court of Appeals for the First Circuit affirmed, subscribing in general to the District Court’s analysis and construction of Maine law. 473 F. 2d 943 (1973). Although recognizing that “within broad limits a state court must be the one to interpret its own laws,” the court nevertheless ruled that “a totally unsupportable construction which leads to an invasion of constitutional due process is a federal matter.” Id., at 945. The Court of Appeals equated malice aforethought with “premeditation,” id., at 947, and concluded that Winship requires the prosecution to prove this fact beyond a reasonable doubt.

Followingjhis decision, the Maine Supreme Judicial Court decided the casé of State v. Lafferty, 309 A. 2d 647 (1973), in which it sharply disputed the First Circuit’s view that it was entitled to make an independent determination of Maine law. The Maine court also reaffirmed its earlier opinion that murder and manslaughter are punishment categories of the single offense of felonious homicide. . Accordingly, if the prosecution, proves a felonious homicide the burden shifts to the defendant to prove that he acted in the heat of passion on sudden provocation in order to receive the lesser penalty prescribed for manslaughter.

In view of the Lafferty decision we granted certiorari in this case and remanded to the Court of Appeals for reconsideration. 414 U. S. 1139 (1974). On remand, that court again applied Winship, this time to the Maine law as construed by the Maine Supreme Judicial Court. 496 F. 2d 1303 (1974). Looking to the “substance” of that law, the court found thatthe presence or absence of the heat of passiorucm ..sudden-provocation results in significant differences in the t)enalties...and stigma attaching to conviction. For these reasons. the Court of Appeals held that the principles enunciated in Winship control, and that to establish murder, the, prosecution must prove beyond a reasonable doubt that the defendant did not act in the. heat of passion on sudden provocation.

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

II

We reject at the outset respondent’s position that we follow the analysis of the District Court and the initial opinion of the First Circuit, both of which held that murder and manslaughter are distinct crimes in Maine, and that malice aforethought is a fact essential to the former and absent in the latter. Respondent argues that the Maine Supreme Judicial Court’s construction of state law should not be deemed binding on this Court since it marks a radical departure from prior law, leads to internally inconsistent results, and is a transparent effort to circumvent Winship. This Court, however, repeatedly has held that state courts are the ultimate expositors of state law, see, e. g., Murdock v. City of Memphis, 20 Wall. 590 (1875); Winters v. New York, 333 U. S. 507 (1948), and that we are bound by their constructions except in extreme circumstances not present here. Accordingly, we accept as binding the Maine Supreme Judicial Court’s construction of state homicide law.

Ill

The Maine law of homicide, as it bears on this case, can be stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder'— i. e., by life imprisonment — unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter — i. e., by a fine not to exceed $1,000 or by imprisonment not to exceed 20 years. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.

A

Our analysis may be illuminated if this issue is placed in historical context. At early common law only those homicides committed in the enforcement of justice were considered justifiable; all others were deemed unlawful and were punished by death. Gradually, however, the severity of the common-law punishment for homicide abated. Between the 13th and 16th centuries the class of justifiable homicides expanded to include, for example, accidental homicides and those committed in self-defense. Concurrently, the widespread use of capital punishment was ameliorated further by extension of the ecclesiastic jurisdiction. Almost any person able to read was eligible for “benefit of clergy,” a procedural device that effected a transfer from the secular to the ecclesiastic jurisdiction. And under ecclesiastic law a person who committed an unlawful homicide was not executed; instead he received a one-year sentence, had his thumb branded and was required to forfeit his goods. At the turn of the 16th century, English rulers, concerned with the accretion of ecclesiastic- jurisdiction at the expense of the secular, enacted a series of statutes eliminating the benefit of clergy in all cases of “murder of malice prepensed.” Unlawful homicides that were committed without such malice were designated “manslaughter,” and their perpetrators remained eligible for the benefit of clergy.

Even after ecclesiastic jurisdiction was eliminated for all secular offenses the distinction between murder and manslaughter persisted. It was said that “manslaughter, when voluntary,[] arises from the sudden heat of the passions, murder from the wickedness of the heart.” 4 W. Blackstone, Commentaries *190. Malice aforethought was designated as the element that distinguished the two crimes, but it was recognized that such malice could be implied by law as well as proved by evidence. Absent proof that an unlawful homicide resulted from “sudden and sufficiently violent provocation,” the homicide was “presumed to be malicious.” Id., at *201. In view of this presumption, the early English authorities, relying on the case of The King v. Oneby, 92 Eng. Rep. 465 (K. B. 1727), held that once the prosecution proved that the accused had committed the homicide, it was “incumbent upon the prisoner to make out, to the satisfaction of the court and jury” “all. .. circumstances of justification, excuse, or alleviation.” 4 W. Blackstone, Commentaries *201. See M. Foster, Crown Law 255 (1762). Thus, at common law the burden of proving heat of passion on sudden provocation appears to have rested on the defendant.

In this country the concept of malice aforethought took on two distinct meanings: in some jurisdictions it came to signify a substantive element of intent, requiring the prosecution to prove that the defendant intended to kill or to inflict great bodily harm; in other jurisdictions it remained a policy presumption, indicating only that absent proof to the contrary a homicide was presumed not to have occurred in the heat of passion. See State v. Rollins, 295 A. 2d 914, 918-919 (Me. 1972). See generally Perkins, A Re-Examination of Malice Aforethought, 43 Yale L. J. 537, 548-549, 566-568 (1934). In a landmark case, Commonwealth v. York, 50 Mass. 93 (1845), Chief Justice Shaw of the Massachusetts Supreme Judicial Court held that the defendant was required to negate malice aforethought by proving by a preponderance of the evidence that he acted in the heat of passion. Initially, York was adopted in Maine as well as in several other jurisdictions. In 1895, however, in the context of deciding a question of federal criminal procedure, this Court explicitly considered and unanimously rejected the general approach articulated in York. Davis v. United States, 160 U. S. 469. And, in the past half century, the large majority of States have abandoned York and now require the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt. See W. LaFave & A. Scott, Handbook on Criminal Law 539-540 (1972).

This historical review establishes two important points. First, the fact at issue here — the presence or absence of the heat of passion on sudden provocation — has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact. See generally Fletcher, supra, n. 16; H. Packer, The Limits of the Criminal Sanction 137-139 (1968).

B

Petitioners, the warden of the Maine Prison and the State., of Maine, argue that despite these considerations Winship should not be extended to the present case. They note that as a formal matter the absence of the heat of passion on sudden provocation is not a “fact necessary to”constitute the crime” of felonious homicide ipMaine. In re Winship, 397 U. S., at 364 (emphasis supplied). This distinction is relevant, according to petitioners, because in TTms/wp the fact's at issue were essential to establish criminality in the first instance, whereas the fact in question here does not come into play until the)jury already has determined that the defendant is guilty and may be punished at least for manslaughter. In this situation, petitioners maintain, the defendant’s critical interests in liberty and reputation are no longer of paramount concern since, irrespective of the presence or absence of the heat of passion on sudden provocation, he is likely to lose his liberty and certain to be stigmatized, In short, petitioners would limit IT whip to those facts which, if not proved,. would wholly exonerate the defendant

This analysis fails to recognize that the criminal law of Maine, like that of other jurisdictions, is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less “blameworth[y],” State v. Lafferty, 309 A. 2d, at 671, 673 (concurring opinion), they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Wins hip.

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

Moreover, if Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment. An extreme example of this approach can be fashioned from the law challenged in this case. Maine divides the single generic offense of felonious homicide into three distinct punishment categories — murder, voluntary manslaughter, and involuntary manslaughter. Only the first two of these categories require that the homicidal act either be intentional or the result of criminally reckless conduct. See State v. Lafferty, supra, at 670-672 (concurring opinion). But under Maine law these facts of intent are not general elements of the crime of felonious homicide. See Brief for Petitioners 10 n. 5. Instead, they bear only on the appropriate punishment category. Thus, if petitioners’ argument were accepted, Maine could impose a life sentence for any felonious homicide — even one that traditionally might be considered involuntary manslaughter — unless the defendant was able to prove that his act was neither intentional nor criminally reckless.

Winship is concerned with substance rather than this kind of formalism. The rationale of that case requires an analysis that looks to the “operation and effect of the law as applied and enforced by the State,” St. Louis S. W. R. Co. v. Arkansas, 235 U. S. 350, 362 (1914), and to the interests of both the State and the defendant as affected by the allocation of the burden of proof.

In Winship the Court emphasized the societal interests in the reliability of jury verdicts:

“The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction....
“Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 397 U. S., at 363, 364.

These interests are implicated to a greater degree in this case than they were in Winship itself. Petitioner there faced an 18-month sentence, with a maximum possible extension of an additional four and one-half years, id., at 360, whereas respondent here faces a differential in sentencing ranging from a nominal fine to a mandatory life sentence. Both the stigma to the defendant ■ and the community’s confidence in the administration of the criminal law are also of greater consequence in this case, since the adjudication of delinquency involved in Winship was “benevolent” in intention, seeking to provide i “a generously conceived program of compassionate treat- / ment.” Id., at 376 (Burger, C. J., dissenting).

Not only are the interests underlying Winship implicated to..,*^ greater degree in this case, but in one respect the protection afforded those interests is less here. In Winship the ultimate burden of persuasion remained with the prosecution, although the standard had been reduced to proof by a fair preponderance of the evidence. In this case, by contrast, the State has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder_conviction. Such a result directly contravenes~the principle articulated in Speiser v. Randall, 357 U. S. 513, 525-526 (1958):

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

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

C

It has been suggested, State v. Wilbur, 278 A. 2d, at 145, that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.

Indeed, the Maine Supreme Judicial Court itself acknowledged that most States require the prosecution to prove the absence of passion beyond a reasonable doubt. Id., at 146. Moreover, the difficulty of meeting such an exacting burden is mitigated in Maine where the fact at issue is largely an “objective, rather than a subjective, behavioral criterion.” State v. Rollins, 295 A. 2d, at 920. In this respect, proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances( surrounding the commission of the homicide. And al-\ though intent is typically considered a fact peculiarly J within the knowledge of the defendant, this does not, as j, the Court has long recognized, justify shifting the burden ¡i to him. See Tot v. United States, 319 U. S. 463, 469 (1943); Leary v. United States, 395 U. S. 6, 45 (1969).

Nor is the requirement of proving a negative unique in our system of criminal jurisprudence. Maine itself requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Millett, 273 A. 2d 504 (1971). Satisfying this burden imposes an obligation that, in all practical effect, is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hard- \ ship on the prosecution that would justify requiring the f defendant to carry the burden of proving a fact so critical { to criminal culpability.

IV

Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter. In re Winship, 397 U. S., at 372 (concurring opinion). We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Accordingly, the judgment below is

Affirmed.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, concurring.

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

Respondent made no objection to the trial court’s instruction respecting the burden of proof on the issue of whether he had acted in the heat of passion on sudden provocation. Nonetheless, on his appeal to the Supreme Judicial Court of Maine, that court considered his objection to the charge on its merits and held the charge to be a correct statement of Maine law. It neither made any point of respondent’s failure to object to the instruction in the trial court, nor did it give any consideration to the doctrine long approved by this Court that the instructions to the jury are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926); Cupp v. Naughten, 414 U. S. 141, 147 (1973). It likewise expressed no view on whether, even though the instruction might have amounted to constitutional error, that error could have been harmless. Chapman v. California, 386 U. S. 18 (1967). Its reason for not treating the possibility that the error was harmless may have been because, as this Court’s opinion points out, ante, at 687, the jury came back in the midst of its deliberations and requested further instructions on the doctrine of implied malice aforethought and the definition of “heat of passion.”

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

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

The Court noted in Leland that the issue of insanity as a defense to a criminal charge was considered by the jury only after it had found that all elements of the offense, including the mens rea, if any, required by state law, had been proved beyond a reasonable doubt. Id., at 792, 795. Although as the state court’s instructions in Leland recognized, id., at 794-795, evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present, the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon’s placement of the burden of proof of insanity on Leland, unlike Maine’s redefinition of homicide in the instant case, did not effect an unconstitutional shift in the State’s traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense. Id., at 795. Both the Court’s opinion and the concurring opinion of Mr. Justice Harlan in In re Winship, supra, stress the importance of proof beyond a reasonable doubt in a criminal case as “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” 397 U. S., at 372 (Harlan, J., concurring). Having once met that rigorous burden of proof that, for example, in a case such as this, the defendant not only killed a fellow human being, but did it with malice aforethought, the State could quite consistently with such a constitutional principle conclude that a defendant who sought to establish the defense of insanity, and thereby escape any punishment whatever for a heinous crime, should bear the laboring oar on such an issue.

       As examples of justifiable or excusable homicides, the court mentioned a soldier in battle, a policeman in certain circumstances, and an individual acting in self-defense. App. 38.

       The court elaborated that an intentional homicide required the jury to find “either that the defendant intended death, or that he intended an act which was calculated and should have been understood by [a] person of reason to be one likely to do great bodily harm and that death resulted.” Id., at 37.

       The Maine murder statute, Me. Rev. Stat. Ann., Tit. 17, § 2651 (1964), provides:
      “Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life.”
      The manslaughter statute, Me. Rev. Stat. Ann., Tit. 17, §2551 (1964), in relevant part provides:
      “Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought . . . shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 20 years .. ..”

         The trial court also explained the concept of express malice aforethought, which required a “premeditated design to kill” thereby manifesting a “general malignancy and disregard for human life which proceeds from a heart void of social duty and fatally bent on mischief.” App. 40-42. Despite this instruction, the court repeatedly made clear that express malice need not be established since malice would be implied unless the defendant proved that he acted in the heat of passion. Hence, the instruction on express malice appears to have been wholly unnecessary, as the Maine Supreme Judicial Court subsequently held. State v. Lafferty, 309 A. 2d 647 (1973). See also n. 10, infra.

       “Heat of passion . . . means that at the time of the act the' reason is disturbed or obscured by passion to an extent which might [make] ordinary men of fair, average disposition liable to act irrationally without due deliberation or reflection, and from passion rather than judgment.” App. 47.

       “[H]eat of passion will not avail unless upon sudden provocation. Sudden means happening without previous notice or with very brief notice; coming unexpectedly, precipitated, or unlooked for. ... It is not every provocation, it is not every rage of passion that will reduce a killing from murder to manslaughter. The provocation must be of such a character and so close upon the act of killing, that for a moment a person could be — that for a moment the defendant could be considered as not being the master of his own understanding.” Id., at 47-48.

       Respondent did not object to the relevant instructions at trial. The Maine Supreme Judicial Court nevertheless found the issue cognizable on appeal because it had “constitutional implications.” State v. Wilbur, 278 A. 2d 139, 144 (1971).

       The Maine court concluded that Winship should not be applied retroactively.. We subsequently decided, however, that Winship should be given complete retroactive effect. Ivan v. City of New York, 407 U. S. 203 (1972).

       The Maine court emphasized that, contrary to the view of the Court of Appeals for the First Circuit, malice aforethought connotes no substantive fact (such as premeditation), but rather is solely a policy presumption. Under its interpretation of state law, the Maine court would require proof of the same element of intent for both murder and manslaughter, the distinction being that in the latter case the intent results from a sudden provocation which leads the defendant to act in the heat of passion. 309 A. 2d, at 670-671 (concurring opinion).

       Respondent relies on Bowie v. City of Columbia, 378 U. S. 347 (1964). In that case a State Supreme Court’s reinterpretation of a criminal statute was so novel as to be "unforeseeable” and therefore deprived the defendants of fair notice of the possible criminality of their acts at the time they weré committed. Thus, the retroactive application of the new interpretation was itself a denial of due process. See also Brinkerkoff-Faris Co. v. Hill, 281 U. S. 673 (1930). In this case, as respondent apparently concedes, Brief for Respondent 12, there was no comparable prejudice to respondent since in Maine the burden of proving heat of passion has rested on the defendant for more than a century. See,
        e. g., State v. Knight, 43 Me. 11, 137-138 (1857). To be sure, the trial court instructed the jury on the concept of express malice aforethought, see n. 4, supra, a concept that was subsequently stripped of its vitality by the Maine Supreme Judicial Court. But the trial court explicitly stated that express malice aforethought need not be shown since malice would be implied from the unlawful homicide. In considering these instructions as a whole, see Cupp v. Naughten, 414 U. S. 141, 147 (1973), we discern no prejudice to respondent.

       On rare occasions the Court has re-examined a state-court interpretation of state law when it appears to be an “obvious subterfuge to evade consideration of a federal issue.” Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 129 (1945). See Ward v. Love County, 253 U. S. 17 (1920); Terre Haute & I. R. Co. v. Indiana ex rel. Ketcham, 194 U. S. 579 (1904). In this case the Maine court’s interpretation of state law, even assuming it to be novel, does not frustrate consideration of the due process issue, as the Maine court itself recognized, State v. Wilbur, 278 A. 2d, at 146, and as the remainder of this opinion makes clear. See generally Comment, Due Process and Supremacy as Foundations for the Adequacy Rule: The Remains of Federalism After Wilbur v. Mullaney, 26 Me. L. Rev. 37 (1974).

       Much of this history was set out in the Court’s opinion in McGautha v. California, 402 U. S. 183, 197-198 (1971). See also 3 J. Stephen, A History of the Criminal Law of England 1-107 (1883); 2 F. Pollock & F. Maitland, The History of English Law 478-487 (2d ed. 1909).

       12 Hen. 7, e. 7 (1496); 4 Hen. 8, c. 2 (1512); 23 Hen. 8, c. 1, §§ 3, 4 (1531); 1 Edw. 6, c. 12, § 10 (1547).

       Blackstone also referred to a class of homicides called involuntary manslaughter. Such homicides were committed by accident in the course of perpetrating another unlawful, although not felonious, act. 4 W. Blackstone, Commentaries *192-193. This offense, with some modification and elaboration, generally has been recognized in this country. See R. Perkins, Criminal Law 70-77 (2d ed. 1969).

       Thus it appears that the concept of express malice aforethought was surplusage since if the homicide resulted from sudden provocation it was manslaughter; otherwise it was murder. In this respect, Maine law appears to follow the old common law. See generally Comment, The Constitutionality of the Common Law Presumption of Malice in Maine, 54 B. U. L. Rev. 973, 986-999 (1974).

       Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 904-907 (1968), disputes this copclusion, arguing that the reliance on Oneby’s case was misplaced. In Oneby the jury returned a special verdict making specific findings of fact. No finding was made with respect to provocation. Absent such a finding the court held that the homicide was murder. Fletcher maintains that in the context of a special verdict it is impossible to determine whether the defendant failed to satisfy his burden of going forward with “some evidence” or the ultimate burden of persuading the jury. See also n. 20, infra.

       Several jurisdictions also divided murder into different degrees, typically limiting capital punishment to first-degree murder and requiring the prosecution to prove premeditation and deliberation in order to establish that offense. See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev. 759 (1949); Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col. L. Rev. 701, 703-707 (1937).

       Justice Wilde dissented, arguing that the Commonwealth was required to prove all facts necessary to establish murder, including malice aforethought, which in turn required it to negate the suggestion that the killing occurred in the heat of passion on sudden provocation. He also rejected the doctrine of implied malice on the ground that " [n] o malice can be inferred from the mere act of killing. Such a presumption, therefore, is arbitrary and unfounded.” 50 Mass., at 128.

        State v. Knight, 43 Me. 11 (1857).

       See cases cited in Fletcher, supra, n. 16, at 903 nn. 77-79. Some confusion developed, however, as to precisely what York required. Contemporary writers divide the general notion of “burden of proof” into a burden of producing some probative evidence on a particular issue and a burden of persuading the factfinder with respect to that issue by a standard such as proof beyond a reasonable doubt or by a fair preponderance of the evidence. See, e. g., E. Cleary, McCormick on Evidence §336 (2d ed. 1972). This distinction apparently was not well recognized at the time York was decided, and thus in some jurisdictions it was unclear whether the defendant was required to bear the production burden or the persuasion burden on the issue of heat of passion. See, e. g., cases discussed in People v. Morrin, 31 Mich. App. 301, 315-323, 187 N. W. 2d 434, 441-446 (1971). Indeed, 10 years after the. decision in York, Chief Justice Shaw explained that “the doctrine of York’s case was that where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder.” Commonwealth v. Hawkins, 69 Mass. 463, 465 (1855) (emphasis in original). He further noted that this presumption did not govern when there was evidence indicating that the defendant might have acted in the heat of passion. In that situation, “if the jury, upon all the circumstances, are satisfied, beyond a reasonable doubt, that [the homicide] was done with malice, they will return a verdict of murder; otherwise, they will find the defendant guilty of manslaughter.” Id., at 466. Thus, even the author of York quickly limited its scope to require only that the accused produce some evidence on the issue of passion; that is, that he satisfy the production but not the persuasion burden. Other jurisdictions blurred the distinction between these two burdens by requiring the defendant to prove “to the satisfaction of the jury” that he acted in the heat of passion. See, e. g., State v. Willis, 63 N. C. 26 (1868).

       In Leland v. Oregon, 343 U. S. 790 (1952), the Court declined to apply the specific holding of Davis — that the prosecution must prove sanity beyond a reasonable doubt — to the States.

       See also State v. Cuevas, 488 P. 2d 322 (Haw. 1971) (Winship requires the prosecution to prove malice aforethought beyond a reasonable doubt). England also now requires the prosecution to negate heat of passion on sudden provocation by proof beyond a reasonable doubt. Mancini v. Director of Public Prosecutions, [1942] A. C. 1; see Woolmington v. Director of Public Prosecutions, [1935] A.C. 462.

       Relying on Williams v. New York, 337 U. S. 241 (1949), and McGautha v. California, 402 U. S., at 196, petitioners seek to buttress this contention by arguing that since the presence or absence of the heat of passion on sudden provocation affects only the extent of punishment it should be considered a matter within the traditional discretion of the sentencing body and therefore not subject to rigorous due process demands. But cf. United States v. Tucker, 404 U. S. 443 (1972). There is no incompatibility between our decision today and the traditional discretion afforded sentencing bodies. Under Maine law the jury is given no discretion as to the sentence to be imposed on one found guilty of felonious homicide. If the defendant is found to be a murderer, a mandatory life sentence results. On the other hand, if the jury finds him guilty only of manslaughter it remains for the trial court in the exercise of its discretion to impose a sentence within the statutorily defined limits.

       Many States impose different statutory sentences on different degrees of assault. If Winship were limited to a State’s definition of the elements of a crime, these States could define all assaults as a single offense and then require the defendant to disprove the elements of aggravation — e. g., intent to kill or intent to rob. But see State v. Ferris, 249 A. 2d 523 (Me. 1969) (prosecution must prove elements of aggravation in criminal assault case by proof beyond a reasonable doubt).

       Indeed, in Winship itself the Court invalidated the burden of proof in a juvenile delinquency proceeding even though delinquency was not formally considered a “crime” under state law. 397 U. S., at 365-366; id., at 373-374 (Harlan, J., concurring). .

       See also Lego v. Twomey, 404 U. S. 477, 486 (1972).

       See Duncan v. Louisiana, 391 U. S. 145, 160 (1968):
      “The penalty authorized by the law of the locality may be taken 'as a gauge of its social and ethical judgments.’” Quoting from District of Columbia v. Clawans, 300 U. S. 617, 628 (1937).

       See supra, at 696. See also 38 Mo. L. Rev. 105 (1973). Many States do require the defendant to show that there is “some evidence” indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt. See W. LaFave & A. Scott, Criminal Law 539 (1972); Perkins, supra, n. 14, at 50-51. See also nn. 16 & 20, supra-. Nothing in this opinion is intended to affect that requirement. See also n. 30, infra.

       See generally F. Wharton, A Treatise on the Law of Evidence §320 (9th ed. 1884); Model Penal Code §1.13, Comment, p. 110 (Tent. Draft No. 4, 1955); Fletcher, supra, n. 16, at 883, and n. 14.

       In Millett the Maine Supreme Judicial Court adopted the “majority rule” regarding proof of self-defense. The burden of producing “some evidence” on this issue rests with the defendant, but the ultimate burden of persuasion by proof beyond a reasonable doubt remains on the prosecution.

       This conclusion is supported by consideration of a related line of cases. Generally in a criminal case the prosecution bears both the production burden and the persuasion burden. In some instances, however, it is aided by a presumption, see Davis v. United States, 160 U. S. 469 (1895) (presumption of sanity), or a permissible inference, see United States v. Gainey, 380 U. S. 63 (1965) (inference of knowledge from presence at an illegal still). These procedural devices require (in the ease of a presumption) or permit (in the case of an inference) the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed or inferred fact by having satisfactorily established other facts. Thus, in effect they require the defendant to present some evidence contesting the otherwise presumed or inferred fact. See Barnes v. United States, 412 U. S. 837, 846 n. 11 (1973). Since they shift the production burden to the defendant, these devices must satisfy certain due process requirements. See e. g., Barnes v. United States, supra; Turner v. United States, 396 U. S. 398 (1970).
      In each of these cases, however, the ultimate burden of persuasion by proof beyond a reasonable doubt remained .on the prosecution. See, e. g., Barnes v. United States, supra, at 845 n. 9; Davis v. United States, supra, at 484-488. Shifting the burden of persuasion to the defendant obviously places an even greater strain upon him since he no longer need only present some evidence with respect to the fact at issue; he must affirmatively establish that fact. Accordingly, the Due Process Clause demands more exacting standards before the State may require a defendant to bear this ultimate burden of persuasion. See generally Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L. J. 165 (1969).

       While Fay v. Noia, 372 U. S. 391 (1963), holds that a failure to appeal through the state-court system from a constitutionally infirm judgment of conviction does not bar subsequent relief in federal habeas corpus, failure to object to a proposed instruction should stand on a different footing. It is one thing to fail to utilize the appeal process to cure a defect which already inheres in a judgment of conviction, but it is quite another to forgo making an objection or exception which might prevent the error from ever occurring. Cf. Davis v. United States, 411 U. S. 233 (1973). Here, however, the Maine Supreme Judicial Court nevertheless affirmatively ruled that the issue was cognizable despite respondent’s failure to object at trial. See majority opinion, ante, at 688 n. 7. And the State did not contest the propriety of consideration of the issue in federal habeas.