author: Chief Justice Rehnquist Justice Blackmun, Justice Marshall,

text:
    UNITED STATES v. ROBINSON
    No. 86-937.
    Argued November 3, 1987
    Decided February 24, 1988
    Rehnquist, C. J., delivered the opinion of the Court, in which White, Stevens, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 34. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 37. Kennedy, J., took no part in the consideration or decision of the case.

      Lawrence S. Robbins argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson.

      Carolou P. Durham argued the cause for respondent. With her on the brief was Bart C. Durham III.

   Chief Justice Rehnquist

delivered the opinion of the Court.

During the course of respondent Robinson’s mail fraud trial in the Middle District of Tennessee, his counsel urged in closing argument that the Government had not allowed respondent to explain his side of the story. The prosecutor during his summation informed the jury that respondent “could have taken the stand and explained it to you. . . .” App. 27. We hold that the comment by the prosecutor did not violate respondent’s privilege to be free from compulsory self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.

Following a jury trial in the United States District Court for the Middle District of Tennessee, respondent was convicted of two counts of mail fraud, 18 U. S. C. § 1341; both counts involved arson-related insurance claims. The evidence at trial showed that respondent leased a truck stop in Guthrie, Kentucky, in 1979. The business deteriorated over the next several months. Two days after respondent increased the insurance coverage on the truckstop an explosion and fire destroyed the premises. A number of unusual circumstances suggested arson. Respondent subsequently submitted an insurance claim of $80,000.

Approximately one year later, respondent’s home in Clarksville, Tennessee, was badly damaged by arson an hour after respondent had departed for California in a large truck filled with household furnishings. When interviewed by investigators, respondent denied setting fire to his house and explained that he had removed the household furnishings to take them to his daughter in California. Respondent filed with his insurance company a proof of loss claim of $200,000, including a $106,500 personal property claim. Certain property included in this claim was later discovered by authorities in respondent’s California home.

Respondent did not testify at trial. In his closing argument to the jury, the theme of respondent’s counsel was that the Government had breached its “duty to be fair.” Several different times, counsel charged that the Government had unfairly denied respondent the opportunity to explain his actions. Counsel concluded by informing the jury that respondent was not required to testify, and that although it would be natural to draw an adverse inference from respondent’s failure to take the stand, the jury could not and should not do so.

Following this closing and out of the presence of the jury, the prosecution objected to the remarks of defense counsel and contended that the defense had “opened the door.” The court agreed, stating:

"... I will tell you what, the Fifth Amendment ties the Government’s hands in terms of commenting upon the defendant’s failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face.
“That is not what it was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury.” App. 25.

Respondent did not object.

Following a short recess, the prosecutor gave his rebuttal summation. He began by stating that the Government had an obligation to “play fair” and had complied with that obligation in this case. Specifically, he stated:

“[Defense counsel] has made comments to the extent the Government has not allowed the defendants an opportunity to explain. It is totally unacceptable.
“He explained himself away on tape right into an indictment. He explained himself to the insurance investigator, to the extent that he wanted to.
“He could have taken the stand and explained it to. you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.” Id., at 27.

Defense counsel did not object to this closing and did not request a cautionary instruction. Nonetheless, the court included in the jury instruction the admonition that “no inference whatever may be drawn from the election of a defendant not to testify.” Tr. 694.

The United States Court of Appeals for the Sixth Circuit reversed respondent’s convictions, finding that the prosecutor’s comment had “deprived the defendant ... of a fair trial under the Fifth Amendment and 18 U. S. C. §3481.” 716 F. 2d 1095, 1096, 1097 (1983) (citing Griffin v. California, 380 U. S. 609 (1965), and Wilson v. United States, 149 U. S. 60 (1893)). The court held that because the prosecution’s reference to respondent’s failure to testify had been “direct,” it did not matter that it was made in response to remarks by defense counsel. This Court granted certiorari, vacated that judgment of the Court of Appeals, and remanded for reconsideration in light of United States v. Young, 470 U. S. 1 (1985). 470 U. S. 1025 (1985). There we held that improper remarks by the prosecutor — in which he expressed his personal belief that the defendant was guilty — did not constitute reversible error under the standard properly applicable. On remand, a divided panel of the Court of Appeals reinstated its prior judgment. 794 F. 2d 1132 (1986). We granted certiorari, 479 U. S. 1083 (1987), to consider whether the remarks violated the Fifth Amendment, and if so, whether the violation constituted plain error. Because we conclude that there was no constitutional error at all, we do not reach the plain-error issue.

In Griffin v. California, supra, the defendant, who had not testified, was found guilty by a jury of first-degree murder. The prosecution had emphasized to the jury in closing argument that the defendant, who had been with the victim just prior to her demise, was the only person who could provide information as to certain details related to the murder, and yet, he had “ ‘not seen fit to take the stand and deny or explain.’” Id., at 611. In accordance with the California Constitution, the trial court had instructed the jury that although the defendant had a constitutional right not to testify, the jury could draw an inference unfavorable to the defendant as to facts within his knowledge about which he chose not to testify. Id., at 610. This Court reversed the conviction ruling that the prosecutor’s comments and the jury instruction impermissibly infringed upon the defendant’s Fifth Amendment right to remain silent:

“[Comment on the refusal to testify] is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Id., at 614 (citations omitted).

The Court said that the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615.

We think that the Court of Appeals’ holding in this case rests both upon too broad a reading of Griffin and upon too restrictive a reading of the closing comments of respondent’s counsel. Taking up the second of these points first, we think the reasoning of the opinion of the Court of Appeals necessarily rests on the assumption that the references by respondent’s counsel to the Government’s failure to provide respondent an opportunity to “explain” were directed only to the period during which the offenses were being investigated, and not the trial itself. Respondent understandably mirrors this position in his brief here. While we agree that defense counsel’s remarks could have been interpreted in this manner, we do not think that an appellate court may substitute its reading of ambiguous language for that of the trial court and counsel. The colloquy quoted earlier shows that the trial court, immediately after hearing counsel’s comment, understood them to mean that the Government had not allowed respondent to explain his side of the story either before or during trial. While respondent now contends that this interpretation is incorrect, he did not offer, while the matter was being considered by the trial judge, the explanation which he now supports. If counsel’s remarks were, as respondent now argues, so clearly limited to the pretrial period, we think it unusual, to say the least, that counsel would have stood silently by when the trial court made clear its contrary interpretation. We accept what we regard as a reasonable interpretation of the remarks adopted by the trial court.

We hold that the prosecutor’s statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon respondent’s Fifth Amendment rights. The Court of Appeals and respondent apparently take the view that any “direct” reference by the prosecutor to the failure of the defendant to testify violates the Fifth Amendment as construed in Griffin. We decline to give Griffin such a broad reading, because we think such a reading would be quite inconsistent with the Fifth Amendment, which protects against compulsory self-incrimination. The Griffin court addressed prosecutorial comment which baldly stated to the jury that the defendant must have known what the disputed facts were, but that he had refused to take the stand to deny or explain them. We think there is considerable difference for purposes of the privilege against compulsory self-incrimination between the sort of comments involved in Griffin and the comments involved in this case.

In Baxter v. Palmigiano, 425 U. S. 308, 319 (1976), we stated that “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” See also Lakeside v. Oregon, 435 U. S. 333, 338 (1978). In the present case it is evident that the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his side of the case. Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege.

“Under Griffin ... it is improper for either the court or the prosecutor to ask the jury to draw an adverse inference from a defendant’s silence. But I do not believe the protective shield of the Fifth Amendment should be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.” United States v. Hasting, 461 U. S. 499, 515 (1983) (STEVENS, J., concurring) (citation omitted).

The principle that prosecutorial comment must be examined in context is illustrated by our treatment of a Fifth Amendment claim in Lockett v. Ohio, 438 U. S. 586 (1978). We quickly dismissed the argument that the prosecutor had violated the defendant’s right to remain silent when he repeatedly remarked that the evidence was uncontradicted. We did not need to decide whether such comment was generally improper, because in that case “Lockett’s own counsel had clearly focused the jury’s attention on her silence, first, by outlining her contemplated defense in his opening statement and, second, by stating to the court and jury near the close of the case, that Lockett would be the ‘next witness.’” Id., at 595. We concluded: “When viewed against this background, it seems clear that the prosecutor’s closing remarks added nothing to the impression that had already been created by Lockett’s refusal to testify after the jury had been promised a defense by her lawyer and told that Lockett would take the stand.” Ibid.; cf. United States v. Young, 470 U. S. 1 (1985); Darden v. Wainwright, 477 U. S. 168 (1986).

“[The] central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U. S. 225 (1975) . . . .” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin to the effect that the Fifth Amendment “forbids . . . comment by the prosecution on the accused’s silence,” 380 U. S., at 615, must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some “cost” to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.

The judgment of the Court of Appeals is

Reversed.

Justice Kennedy took no part in the consideration or decision of this case.

Justice Blackmun,

concurring in part and dissenting in part.

I agree with Justice Marshall when he concludes that the prosecutor’s comments constituted error under Griffin v. California, 380 U. S. 609 (1965). I also share his conclusion that the considerations taken into account by the Court in determining that no error occurred should have been weighed, instead, in assessing whether the prosecutor’s error qualified as plain error, requiring reversal despite the absence of a contemporaneous objection. See post, at 42. I write separately, however, because I think the Court of Appeals’ determination that the prosecutor’s error constituted plain error may well be wrong. I fear that the flaws in that court’s plain-error analysis, as I read it, may be attributable to confusion generated by this Court’s recent opinion in United States v. Young, 470 U. S. 1 (1985), and its direction to reconsider the present case in the light of Young. 470 U. S. 1025 (1985).

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Fed. Rule Crim. Proc. 52(b). “[Considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end” have led this Court to except from the contemporaneous-objection requirement only errors that are “obvious” or “otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 159-160 (1936). See also United States v. Frady, 456 U. S. 152, 163, n. 14 (1982) (plain error “to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”). While this Court has emphasized that the doctrine is to be invoked only rarely, it generally has avoided articulating a strict formula for other courts to follow in applying the doctrine. Cf. Engle v. Isaac, 456 U. S. 107, 135 (1982) (plain-error analysis characterized as “vague inquiry”).

In United States v. Young, however, the Court was presented with a lower court’s decision finding plain error which the Court determined had been reached without considering whether the defendant had been prejudiced by the error. In pinpointing where it thought the lower court had gone wrong, this Court broke down the plain-error inquiry into two parts: whether the error “seriously affected ‘substantial rights,’ ” and whether the error “had an unfair prejudicial impact on the jury’s deliberations.” 470 U. S., at 17, n. 14. While any application of the plain-error doctrine necessarily includes some form of prejudice inquiry, the Court’s attempt to isolate that inquiry without giving it any substantive definition may have produced more mischief than clarity. See id., at 36 (Stevens, J., dissenting). The present decision below, I believe, is an example of this mischief.

In analyzing whether the prosecutor’s improper remarks at trial constituted plain error, the Court of Appeals tracked Young’s two-pronged analysis: the Court found, first, that the remarks affected a substantial right, and, second, that the effect of the error was not proved, beyond a reasonable doubt, to be harmless. 794 F. 2d 1132, 1137 (1986). In so dividing the inquiry into these two parts, however, the Court of Appeals appears to have taken the constitutional nature of the error into consideration twice — both in finding the right at issue substantial and in following the lenient standard for prejudice used to determine whether properly preserved constitutional errors are harmless. See Chapman v. California, 386 U. S. 18, 24 (1967) (where court or prosecutor commits constitutional error, reviewing court “must be able to declare a belief that [the error] was harmless beyond a reasonable doubt”). Accounting for the constitutional magnitude of the error is, of course, appropriate. See Weems v. United States, 217 U. S. 349, 362 (1910) (court less reluctant to find plain error “when rights are asserted which are of such high character as to find expression and sanction in the Constitution or bill of rights”). I am troubled, however, by the Court of Appeals’ apparent double counting of the constitutional nature of the error, for it threatens to render meaningless the contemporaneous-objection requirement in the context of constitutional error. Under the Court of Appeals’ analysis, constitutional error, whether or not objected to at trial, always would be subject to the more sensitive prejudice standard set out in Chapman.

To clear the confusion reflected in the Court of Appeals’ application of the plain-error standard “in light of Young,” this Court should either continue on the path it started down in Young and formulate a test for plain error that articulates the prejudice standard to be applied, or, in the alternative, it should make clear, by reasserting the plain-error doctrine’s lack of rigid definition, that its language in Young is not to be interpreted as a test. This latter course may be more true to the doctrine’s purpose of allowing courts to single out the rare case in which allowing a conviction to stand would severely undermine “the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U. S., at 160. Either course, however, would clarify for other courts their role in determining what errors, unnoticed at trial, warrant reversal. Because “the proper course” to follow “[w]hen we detect legal error in a lower court’s application of the plain-error or harmless-error rules ... is to set forth the appropriate standards and then remand for further proceedings,” United States v. Young, 470 U. S., at 30-31 (opinion concurring in part and dissenting in part), I would vacate the Court of Appeals’ judgment and remand the case after clarifying how the plain-error doctrine is to be applied.

Justice Marshall,

with whom

Justice Brennan joins, dissenting.

In practical terms, the erosion of the Griffin rule that the Court today sanctions is modest: the Court’s holding is tailored to address only prosecutorial comments that are “a fair response to a claim made by defendant or his counsel,” ante, at 32. Presumably, defendants and their counsel need only refrain from claiming that the Government denied them an opportunity to testify in order to insulate themselves from prosecutorial comment on the failure to testify. Only such claims are capable of provoking the prosecution to “fairly respond] to an argument of the defendant by adverting to that silence.” Ante, at 34. But however slight the impact of today’s decision, the Court’s faithlessness to the bright-line rules of Griffin v. California, 380 U. S. 609 (1965), and Wil son v. United States, 149 U. S. 60 (1893), is unsettling and unwarranted. I therefore dissent.

The Court styles its decision as a refusal to expand the rule of Griffin. It rejects as unduly broad respondent’s reading of Griffin to prohibit any direct reference by the prosecutor to the defendant’s failure to testify. But Griffin lays down exactly this prohibition, and it does so in no uncertain terms. The final words of the opinion in Griffin read: “We . . . hold that the Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” 380 U. S., at 615. See also id., at 614, n. 5 (“Our decision today [is] that the Fifth Amendment prohibits comment on the defendant’s silence”). We repeatedly have recognized the categorical nature of the Griffin rule in subsequent decisions. Respondent’s position thus represents a straightforward and orthodox reading of the controlling law.

Moreover, because this case involves a federal prosecution, the prosecutor’s comments must also satisfy the statutory requirements of 18 U. S. C. § 3481, which we construed in Wilson v. United States, supra. Wilson’s longstanding prohibition on prosecutorial comment is,, if anything, more plainly categorical than the rule set down in Griffin: “To prevent [any adverse presumption from the defendant’s failure to testify,] comment, especially hostile comment, upon such failure must necessarily be excluded from the jury. The minds-of the jurors can only remain unaffected from this circumstance by excluding all reference to it.” 149 U. S., at 65 (emphasis added). The statement by the prosecutor in this case that respondent “could have taken the stand and explained it to you” is undeniably a comment on respondent’s exercise of his constitutional right not to testify. The statement thus violated the statutory rule of Wilson as well as the constitutional standard of Griffin.

The underpinnings of today’s decision are difficult to discern. The Court freely offers its conclusion that “[w]e think there is considerable difference . . . between the sort of comments involved in Griffin and the comments involved in this case,” ante, at 32, but it is far less forthcoming with its reasoning. At times, the Court’s opinion appears to flirt with a constitutional distinction under Griffin between prosecutorial comment that invites the jury to treat the defendant’s silence as substantive evidence of guilt and other prosecutorial comment on the failure to testify. No such distinction can be found in the text or the animating principle of Griffin. The passages from Griffin that the Court cites addressed California’s practice of permitting the trial court to instruct the jury that it could draw an unfavorable inference from the accused’s failure to testify. We recognized that “[w]hat the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Griffin, 380 U. S., at 614. The Griffin opinion suggests no similar distinction with regard to comments by the prosecution. Indeed, its holding explicitly rejects such a distinction: “[T]he Fifth Amendment. . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Id., at 615 (emphasis added).

At other points in the opinion, the crux of the Court’s holding appears to be its assumption that the prosecution’s comments were made in response to improper argument from defense counsel. First, the Court’s premise is problematic. Respondent’s counsel could “fairly” have provoked the prosecutorial comment in this case only if he had suggested that the Government had prevented respondent from taking the stand at trial. Respondent maintains, however, that his counsel argued only that the Government had prevented him from explaining his position during its pretrial investigation, not during the trial itself. This interpretation appears from the record to be the most, if not the only, reasonable one. More fundamentally, the Court’s suggestion that whether a comment violates Griffin depends on whether it is a response to the defense is muddled. A comment may well be a response to the defense and nevertheless be precisely the kind of statement that our holdings in Griffin and Wilson were designed to eliminate. If, for example, a defendant’s counsel argues at trial that the defendant failed to take the stand in order to protect another person, and the prosecution responds that the true explanation is that the defendant is guilty as sin, the prosecution’s comment responds to the defense, but it nevertheless invites the jury to infer guilt from the defendant’s decision not to testify. Such a comment violates Griffin under any reasonable interpretation of that case.

The breadth of the categorical bright-line rule of Griffin and Wilson is not a simple matter of convenience or administrability.' Rather, it rests on a theory that today’s decision threatens to erode. As the Court explained in Griffin, “comment on the refusal to testify .'. . cuts down on the privilege by making its assertion costly.” Griffin, supra, at 614. The commonsensical premise of Griffin and Wilson is that the practice of prosecutorial comment on the failure to testify tends inherently to penalize a defendant for exercising his constitutional right not to take the stand. It is no doubt possible to conceive of a particular comment that would impose no penalty on a particular defendant in the eyes of a particular jury, but, as I argue below, that undertaking properly goes to the harmfulness, rather than the existence, of Griffin error. More importantly, the truly benign comment on the failure to testify is far less frequent than the offhand reference or subtle innuendo that imposes an unmistakable, if not always obvious, cost on the assertion of the Fifth Amendment privilege. Griffin, and Wilson before it, responded to this pervasive threat with a general prophylactic rule. As the author of Griffin explained: “In Griffin ... we held that the Fifth Amendment guarantee against self-incrimination prohibits a prosecutor from commenting to the jury upon the defendant’s failure to testify at his trial. Such a practice would place a price on the defendant’s invocation of his constitutional privilege — a price that would seriously undermine the value of that privilege.” Burt v. New Jersey, 414 U. S. 938, 938 (1973) (Douglas, J., dissenting from denial of certiorari). Wilson similarly rejects a case-by-case analysis in favor of a general prophylactic ban: “To prevent such presumption being created, comment, especially hostile comment, upon such practice must necessarily be excluded from the jury.” 149 U. S., at 65. See also Lakeside v. Oregon, 435 U. S. 333, 344 (1978) (Stevens, J., dissenting) (Although the probability that the jury will draw an unfavorable inference from the defendant’s failure to testify “can never be eliminated, Griffin stands for the proposition that the government may not add unnecessarily to the risk taken by a defendant who stands mute”) (footnote omitted).

That is not to say that every comment by the prosecution on the defendant’s failure to testify occasions a reversal of an ensuing conviction. This Court recognized as much in Chapman v. California, 386 U. S. 18, 21-24 (1967) (Griffin violation may be harmless error if the court believes beyond a reasonable doubt that the violation did not contribute to the jury’s verdict). My fundamental objection with the Court’s analysis is that it confuses the issue whether a constitutional error has occurred with the analytically distinct issue whether the constitutional error is harmless, or, as in a case like this one where no contemporaneous objection was made, whether the error is plain. The considerations that guide the Court’s opinion may help identify whether Griffin error is reversible, but they should not enter into the analysis whether Griffin error has occurred.

Nor do I necessarily dispute the Court’s statement that “prosecutorial comment must be examined in context.” Ante, at 33. I agree that under our precedents the comments in this case may be evaluated against the trial court’s and prosecution’s apparent perception that respondent’s counsel had offered an inaccurate suggestion that the Government had barred his client from testifying at trial. But this Court set out the framework for that evaluation in United States v. Young, 470 U. S. 1 (1985), and we previously indicated that it applied to this case. The prosecutor in Young, in response to unethical argument from defense counsel, interjected personal impressions into his argument to the jury. The Court recognized that the argument was improper but found that it was not plain error meriting reversal: “Viewed in context, the prosecutor’s statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” Id., at 16. The teaching of Young is that improper argument that viewed in context only “rights the scales” after improper argument from the other side sometimes will not rise to the level of plain error. Id., at 14. In this case, we vacated the Court of Appeals’ first reversal of respondent’s conviction and remanded for reconsideration in light of our intervening opinion in Young. See 716 F. 2d 1095 (1988), vacated and remanded, 470 U. S. 1025 (1985). The obvious premise of that order was that the prosecutor’s comments in this case were error under Griffin, but the Court of Appeals was to determine whether the error was plain in the context of defense counsel’s argument. Thus, we already have recognized that the “context” of an argument is relevant for determining whether it is reversible error, not for determining whether it in fact violates the bright-line standard of Griffin. The Court today muddies Griffin analysis by straying from that distinction.

The Court ultimately attempts to justify its decision by an appeal to the truth-finding function of the criminal trial. The Court cites this function as the central purpose of the trial and writes that “it is important that both the defendant and the prosecutor have the opportunity to fairly meet the evidence and arguments of one another.” Ante, at 33. This rationale could mean one of two things, neither of which legitimately can support the Court’s holding. First, the Court could mean that the prosecutor’s statements in this case were not error because they aided the jury in its central purpose of determining whether respondent was guilty of mail fraud. This, however, is only another way of admitting that the prosecutor’s comments invited the jury to infer guilt from respondent’s silence, in clear violation of Griffin. If this is the kind of “truth-finding” the Court has in mind, the quick answer to the Court’s concern is that our constitutional scheme presupposes that the exercise of Fifth Amendment rights may make it more difficult to discover whether the defendant is guilty as charged; the impediment to the jury’s truth-finding function that the Court finds irksome is a matter of precious design. See Mackey v. United States, 401 U. S. 667, 673 (1971) (Fifth Amendment “privilege ‘is not an adjunct to the ascertainment of truth,’ but is aimed at serving the complex of values on which it has historically rested”) (citing Tehan v. United States ex rel. Shott, 382 U. S. 406, 416 (1966)). Griffin’s ban on prosecutorial comment on the failure to testify may impose a social cost, but the acceptance of this cost is a prized achievement which separates our system from an “‘inquisitorial system of criminal justice.’” Griffin, 380 U. S., at 614.

The other meaning that the Court’s appeal to the criminal trial’s truth-finding function could have is that the prosecutor’s comments were not meant to bear on respondent’s guilt but merely made the jury aware that the Government had not barred respondent from taking the stand. Perhaps such a vindication of the Government’s honor and the principles of fair play has its place in the criminal justice system and may be taken into account in evaluating whether a particular constitutional violation is reversible error. In my estimation, however, this interest would rarely be significant enough to subordinate the defendant’s right to an unfettered exercise of his privilege not to testify. Moreover, this interest can be vindicated by less burdensome alternatives, such as sustaining an objection from the prosecution or perhaps undertaking a separate disciplinary proceeding against a dissembling attorney. But in any event, the Court’s appeal to the truth-finding function is no justification for its determination that the prosecution’s comments were “perfectly proper.” Ante, at 33, n. 5. That conclusion, in fact, is unjustifiable; the prosecution’s comments were not perfectly proper under either Griffin or Wilson. Perhaps they were not reversibly improper, but that, as I have indicated, is a separate question.

The Court’s concluding comments reveal a belief that it simply would be unfair not to permit the prosecution to offer a “fair response ... in situations such as the present one.” Ante, at 34. This gut feeling may be the final explanation for today’s decision. But this Court should be more circumspect before bending constitutional principles in the service of what it takes to be the fairer result in an individual case. Whether or not the Court’s adulteration of Griffin and Wilson produces a fairer result here (and there is good reason to believe it does not), it tends to undermine a defendant’s constitutional privilege not to testify. “The Fifth Amendment privilege is ‘as . broad as the mischief against which it seeks to guard,’ and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’” Estelle v. Smith, 451 U. S. 454, 467-468 (1981) (citations omitted; footnote omitted). As the Court itself recognizes, see ante, at 34, the comments in this case imposed a penalty on respondent for his decision not to take the stand. They also ran afoul of the express prohibitions of both Griffin and Wilson. The fair judicial response, rather than validating such comments, should be to reject them as violative of the Fifth Amendment. I dissent.

       Respondent was acquitted on two counts of making false statements to a bank for purposes of obtaining a loan, 18 U. S. C. § 1014, and the District Court dismissed at the close of the evidence two counts of making and possessing a destructive device, 26 U. S. C. § 5861.

       “By the way, all of those statements, I don’t know how many statements we heard of Mr. Robinson, they were all about the arson. Did they ever give him a chance to explain about those sorts of things, about mail fraud?
      “Did they ever give this man an opportunity in their many, many statements they took at the time to say, “Well, I had two bedroom sets.’” App. 18.
      “The furniture and clothing, all that clothing out on the lawn, . . -. ‘What about your clothing?’ They never gave him a chance to explain.” Id., at 19.
      “Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents?” Ibid.

      “Now, here is what the Government, to be fair with the jury, should have done. They should have taken those items in the Kentucky inventory and just proved them. Why let the defendant disprove them, give him an opportunity to explain?” Id., at 21.

       “In trial of all persons charged with the commission of offense against the United States . . . the person charged shall, at his own request, be a competent witness. His failure to make such a request shall not create any presumption against him.” 18 U. S. C. § 3481.

       Concomitant with the protections of the Fifth Amendment are those afforded by § 3481. See n. 3, supra. For many years, the prohibition on adverse comment concerning a defendant’s failure to testify was grounded solely in § 3481. See Wilson v. United States, 149 U. S. 60 (1893). Since that time, however, the scope of the Fifth Amendment has been expanded to encompass in large part the terrain previously occupied solely by § 3481. See Griffin v. California, 380 U. S. 609 (1965). In circumstances such as these, the two provisions are generally construed in a parallel fashion. Id., at 613-614 (quoting a passage from Wilson and concluding: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected”); see also United States v. Hasting, 461 U. S. 499, 504-508 (1983).

       In United States v. Young and Darden v. Wainwright, we concluded that statements by the prosecutor which inflamed the jury, vouched for the credibility of witnesses, or offered the prosecutor’s personal opinion as to the defendant’s guilt were improper, but we held that, in context, those statements did not necessitate reversal. In contrast, a reference to the defendant’s failure to take the witness stand may, in context, be perfectly proper.

      In formulating that prejudice standard, the Court might look to the standard applied by some Courts of Appeals in assessing whether non-constitutional errors are harmless, see, e. g., United States v. Davis, 657 F. 2d 637, 640 (CA4 1981) (citing Kotteakos v. United States, 328 U. S. 750, 765 (1946), for the proposition that “[t]he test for harmlessness for nonconstitutional error is whether it is probable that the error could have affected the verdict reached by the particular jury in the particular circumstances of the trial”), or to the standard alluded to in Justice Stevens’ dissent in United States v. Young, 470 U. S. 1, 35, 37 (1985) (plain error where error “obviously prejudicial,” .and prejudice of sufficient degree to warrant reversal).

       See, e. g., United States v. Hasting, 461 U. S. 499, 507 (1983) (Griffin “interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right”); Jenkins v. Anderson, 447 U. S. 231, 235 (1980) (Griffin “prevents the prosecution from commenting on the silence of a defendant who asserts the right” not to testify); Mackey v. United States, 401 U. S. 667, 673 (1971) (“Griffin . . . construed the Fifth Amendment to forbid comment on defendants’ failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose”); United States v. Jackson, 390 U. S. 570, 583, n. 25 (1968) (In Griffin, “the Court held that comment on a defendant’s failure to testify imposes an impermissible penalty on the exercise of the right to remain silent at trial”); Stovall v. Denno, 388 U. S. 293, 300 (1967) (referring to the “no comment rule of Griffin”).

       Most of defense counsel’s controversial statements refer outright to the Government’s failure to allow respondent to explain his actions during the preindictment investigation. The balance, although admittedly more ambiguous, are also best seen in that light. Respondent’s argument is nevertheless troublesome, because, as the majority points out, it does not take account of the apparent understanding of the prosecution and trial court. But rather than address this tension in any cogent way, the Court simply “accept[s] what we regard as a reasonable interpretation of the remarks adopted by the trial court.” Ante, at 31. It does so even though the trial court never expressly made this interpretation and the Court of Appeals’ understanding is the more reasonable.

       Indeed, this hypothetical chain of events bears more than a passing resemblance to this ease. In response to counsel’s claim that the Government had not given respondent a chance to explain, the prosecution paraded respondent’s failure to testify before the jury: “He could have taken the stand and explained it to you, anything he wanted to.” 716 F. 2d 1095, 1096 (1983). That statement varies only subtly, if at all, from the bald references condemned in Griffin v. California, 380 U. S., at 611, “[tjhese things he has not seen fit to take the stand and deny or explain” — and Wilson v. United States, 149 U. S., at 62, “if I am ever charged with a crime, ... I will go upon the stand . . . and testify before Heaven to my innocence.” The character of the statement at issue here thus is quite similar to that condemned in Griffin and Wilson. The focus on whether a comment is responsive therefore could sanction a blatant violation of Griffin. This is so because whether a prosecutorial comment imposes a cost on a defendant’s assertion of his Fifth Amendment privilege is not necessarily related to whether the comment is a response to the defense.


source: Caselaw Access Project

author: Chief Justice Rehnquist Justice White,

license: Public Domain

text:
    HUSTLER MAGAZINE, INC., et al. v. FALWELL
    No. 86-1278.
    Argued December 2, 1987
    Decided February 24, 1988

      Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 57. Kennedy, J., took no part in the consideration or decision of the case.

      Alan L. Isaacman argued the cause for petitioners. With him on the briefs was David O. Carson.

      Norman Roy Grutman argued the cause for respondent. With him on the brief were Jeffrey H. Daichman and Thomas V. Marino.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by Harriette K. Dorsen, John A '. Powell, and Steven R. Shapiro; for the Association of American Editorial Cartoonists et al. by Roslyn A. Mazer and George Kaufmann; for the Association of American Publishers, Inc., by R. Bruce Rich; for Home Box Office, Inc., by P. Cameron DeVore and Daniel M. Waggoner; for the Law & Humanities Institute by Edward de Grazia; for the Reporters Committee for Freedom of the Press et al. by Jane E. Kirtley, Richard M. Schmidt, David Barr, and J. Laurent Scharff; for Richmond Newspapers, Inc., et al. by Alexander Wellford, David C. Kohler, Rodney A. Smolla, William A. Niese, Jeffrey S. Klein, W. Terry Maguire, and Slade R. Met-calf; and for Volunteer Lawyers for the Arts, Inc., by Irwin Karp and I. Fred Koenigsberg.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation claim, but found for respondent on the claim for intentional infliction of emotional distress and awarded damages. We now consider whether this award is consistent with the First and Fourteenth Amendments- of the United States Constitution.

The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, “ad parody — not to be taken seriously.” The magazine’s table of contents also lists the ad as “Fiction; Ad and Personality Parody.”

Soon after the November issue of Hustler became available to the public, respondent brought this diversity action in the United States District Court for the Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial. At the close of the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. Cl. The jury ruled for respondent on the intentional infliction of emotional distress claim, however, and stated that he should be awarded $100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners. Petitioners’ motion for judgment notwithstanding the verdict was denied.

On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against petitioners. Falwell v. Flynt, 797 F. 2d 1270 (1986). The court rejected petitioners’ argument that the “actual malice” standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), must be met before respondent can recover for emotional distress. The court agreed that because respondent is concededly a public figure, petitioners are “entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in [respondent’s] claim for libel.” 797 F. 2d, at 1274. But this does not mean that a literal application of the actual malice rule is appropriate in the context of an emotional distress claim. In the court’s view, the New York Times decision emphasized the constitutional importance not of the falsity of the statement or the defendant’s disregard for the truth, but of the heightened level of culpability embodied in the requirement of “knowing ... or reckless” conduct. Here, the New York Times standard is satisfied by the state-law requirement, and the jury’s finding, that the defendants have acted intentionally or recklessly. The Court of Appeals then went on to reject the contention that because the jury found that the ad parody did not describe actual facts about respondent, the ad was an opinion that is protected by the First Amendment. As the court put it, this was “irrelevant,” as the issue is “whether [the ad’s] publication was sufficiently outrageous to constitute intentional infliction of emotional distress.” Id., at 1276. Petitioners then filed a petition for rehearing en banc, but this was denied by a divided court. Given the importance of the constitutional issues involved, we granted certiorari. 480 U. S. 945 (1987).

This case presents us with a novel question involving First Amendment limitations upon a State’s authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State’s interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. “[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503-504 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea. Gertz v. Robert Welch, Inc., 418 U. S. 323, 339 (1974). As Justice Holmes wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .” Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion).

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U. S. 130, 164 (1967) (Warren, C. J., concurring in result). Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U. S. 665, 673-674 (1944), when he said that “[o]ne of the prerogatives of American citizenship is the fight to criticize public men and measures.” Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks,” New York Times, supra, at 270. “[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry ‘Foul!’ when an opponent or an industrious reporter attempts to demonstrate the contrary.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 274 (1971).

Of course, this does not mean that any speech about a public figure is immune from sanction in the form of damages. Since New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we have consistently ruled that a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective. See Gertz, 418 U. S., at 340, 344, n. 9. But even though falsehoods have little value in and of themselves, they are “nevertheless inevitable in free debate,” id., at 340, and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted “chilling” effect on speech relating to public figures that does have constitutional value. “Freedoms of expression require “‘breathing space.’” Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 772 (1986) (quoting New York Times, supra, at 272). This breathing space is provided by a constitutional rule that allows public figures to recover for libel or defamation only when they can prove both that the statement was false and that the statement was made with the requisite level of culpability.

Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977) (ruling that the “actual malice” standard does not apply to the tort of appropriation of a right of publicity). In respondent’s view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently “outrageous.” But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U. S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment:

“Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.” Id., at 73.

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster’s defines a caricature as “the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.” Webster’s New Unabridged Twentieth Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events — an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words:

“The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters.” Long, The Political Cartoon: Journalism’s Strongest Weapon, The Quill 56, 57 (Nov. 1962).

Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the greatest American cartoonist to date, who was associated for many years during the post-Civil War era with Harper’s Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. “Boss” Tweed and his corrupt associates in New York City’s “Tweed Ring.” It has been described by one historian of the subject as “a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art.” M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved “because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners.” C. Press, The Political Cartoon 251 (1981).

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast’s castigation of the Tweed Ring, Walt McDougall’s characterization of Presidential candidate James G. Blaine’s banquet with the millionaires at Delmonico’s as “The Royal Feast of Belshazzar,” and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln’s tall, gangling posture, Teddy Roosevelt’s glasses and teeth, and Franklin D. Roosevelt’s jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.

Respondent contends, however, that the caricature in question here was so “outrageous” as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U. S. 886, 910 (1982) (“Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action”). And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726 (1978):

“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.” Id., at 745-746.

See also Street v. New York, 394 U. S. 576, 592 (1969) (“It is firmly settled that . . . the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”).

Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. We recognized in Pacifica Foundation, that speech that is “ ‘vulgar,’ ‘offensive,’ and ‘shocking’” is “not entitled to absolute constitutional protection under all circumstances. ” 438 U. S., at 747. In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), we held that a State could lawfully punish an individual for the use of insulting “‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id., at 571-572. These limitations are but recognition of the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758 (1985), that this Court has “long recognized that not all speech is of equal First Amendment importance.” But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above.

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. This is not' merely a “blind application” of the New York Times standard, see Time, Inc. v. Hill, 385 U. S. 374, 390 (1967), it reflects our considered judgment that such a standard is necessary to give adequate “breathing space” to the freedoms protected by the First Amendment.

Here it is clear that respondent Falwell is a “public figure” for purposes of First Amendment law. The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. Cl. The Court of Appeals interpreted the jury’s finding to be that the ad parody “was not reasonably believable,” 797 F. 2d, at 1278, and in accordance with our custom we accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by “outrageous” conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here. The judgment of the Court of Appeals is accordingly

Reversed.

Justice Kennedy took no part in the consideration or decision of this case.

Justice White,

concurring in the judgment.

As I see it, the decision in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment.

       While the case was pending, the ad parody was published in Hustler Magazine a second time.

       The jury found no liability on the part of Flynt Distributing Co., Inc. It is consequently not a party to this appeal.

       Under Virginia law, in an action for intentional infliction of emotional distress a plaintiff must show that the defendant’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with the plaintiff’s emotional distress; and (4) caused emotional distress that was severe. 797 F. 2d, at 1275, n. 4 (citing Womack v. Eldridge, 215 Va. 338, 210 S. E. 2d 145 (1974)).

       The court below also rejected several other contentions that petitioners do not raise in this appeal.

       Neither party disputes this conclusion. Respondent is the host of a nationally syndicated television show and was the founder and president of a political organization formerly known as the Moral Majority. He is also the founder of Liberty University in Lynchburg, Virginia, and is the author of several books and publications. Who’s Who in America 849 (44th ed. 1986-1987).


author: Chief Justice Rehnquist Justice Brennan, Justice Scalia, Justice White,

text:
    MATHEWS v. UNITED STATES
    No. 86-6109.
    Argued December 2, 1987
    Decided February 24, 1988

      Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, Marshall, Stevens, and O’Connor, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 66. Scalia, J., filed an opinion concurring in the judgment, post, p. 67. White, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 68. Kennedy, J., took no part in the consideration or decision of the ease.

      Franklyn M. Gimbel, by appointment of the Court, 481 U. S. 1046, argued the cause for petitioner. With him on the briefs were Jeffrey A. Kaufman and Mama M. TessMattner.

      Charles A. Rothfeld argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson.

   Chief Justice Rehnquist

delivered the opinion of the Court.

This case requires the Court to decide whether a defendant in a federal criminal prosecution who denies commission of the crime may nonetheless have the jury instructed, where the evidence warrants, on the affirmative defense of entrapment. The United States Court of Appeals for the Seventh Circuit upheld the ruling of the District Court, which had refused to instruct the jury as to entrapment because petitioner would not admit committing all of the elements of the crime of accepting a bribe. 803 F. 2d 325 (1986). This holding conflicts with decisions of other Courts of Appeals, which have taken a variety of approaches to the question. We granted certiorari to resolve this conflict, and we now reverse.

Petitioner was employed by the Small Business Administration (SBA) in Milwaukee, Wisconsin, and was responsible for the SBA’s “8A Program,” which provided aid to certain small businesses. Under the program, the SBA obtained Government contracts and subcontracted them to program participants. The SBA would then assist the participants in performing the contracts. Midwest Knitting Mills, whose president was James DeShazer, was one of the participants in the 8A Program. DeShazer’s principal contact at the SBA was petitioner.

In October 1984, DeShazer complained to a Government customer that petitioner had repeatedly asked for loans. DeShazer believed that petitioner was not providing Midwest with certain 8A Program benefits because DeShazer had not made the requested loans. In early 1985, the Federal Bureau of Investigation (FBI) arranged for DeShazer to assist in the investigation resulting from his complaint. Under FBI surveillance, DeShazer offered petitioner a loan that, according to DeShazer, petitioner had previously requested. Petitioner agreed to accept the loan, and two months later, DeShazer met petitioner at a restaurant and gave him the money. Petitioner was immediately arrested and charged with accepting a gratuity in exchange for an official act. 18 U. S. C. § 201(g).

Before trial petitioner filed a motion in limine seeking to raise an entrapment defense. The District Court denied the motion, ruling that entrapment was not available to petitioner because he would not admit all of the elements (including the requisite mental state) of the offense charged. The District Court did, however, allow petitioner to argue as his first line of defense that his acts “were procurred [sic] by the overt acts of the principle [sic] witness of the Government, Mr. DeShazer.” App. 131.

At trial, the Government argued that petitioner had accepted the loan in return for cooperation in SBA matters. The Government called DeShazer, who testified both that petitioner had repeatedly asked for loans and that he and petitioner had agreed that the loan at issue would result in SBA-provided benefits for Midwest. The Government also played tape recordings of conversations between DeShazer and petitioner in which they discussed the loan. Petitioner testified in his own defense that although he had accepted the loan, he believed it was a personal loan unrelated to his duties at the SBA. Petitioner stated that he and DeShazer were friends and that he had accepted a personal loan from DeShazer previously. According to petitioner, he was in dire financial straits when DeShazer broached the possibility of providing a loan. Petitioner also testified that DeShazer had stated that he needed quickly to get rid of the money that he was offering to petitioner because he had been hiding the money from his wife and was concerned that she would be upset if she discovered this secret; DeShazer had also stated at one point that if petitioner did not take the money soon, DeShazer would be tempted to spend it.

At the close of the trial, petitioner moved for a “mistrial” because of the District Court’s refusal to instruct the jury as to entrapment. The District Court noted that the evidence of entrapment was “shaky at best,” ibid., but rather than premise its denial of petitioner’s motion on that ground, the court reaffirmed its earlier ruling that, as a matter of law, petitioner was not entitled to an entrapment instruction because he would not admit committing all elements of the crime charged. The jury subsequently found petitioner guilty.

The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s refusal to allow petitioner to argue entrapment:

“When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was The Government’s deception [that implanted] the criminal design in the mind of the defendant.’ United States v. Russell, 411 U. S. 423, 436 . . . (1973); United States v. Rodgers, 755 F. 2d 533, 550 (7th Cir. 1985). We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow [petitioner] or any other defendant to plead these defenses simultaneously.” 803 F. 2d, at 327.

We granted certiorari, 480 U. S. 945 (1987), to consider under what circumstances a defendant is entitled to an entrapment instruction. We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

Because the parties agree as to the basics of the affirmative defense of entrapment as developed by this Court, there is little reason to chronicle its history in detail. Suffice it to say that the Court has consistently adhered to the view, first enunciated in Sorrells v. United States, 287 U. S. 435 (1932), that a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. See Sherman v. United States, 356 U. S. 369, 376-378 (1958); United States v. Russell, 411 U. S. 423, 435-436 (1973); Hampton v. United States, 425 U. S. 484, 489 (1976). Predisposition, “the principal element in the defense of entrapment,” Russell, supra, at 433, focuses upon whether the defendant was an “unwary innocent” or, instead, an “unwary criminal” who readily availed himself of the opportunity to perpetrate the crime. Sherman, supra, at 372; Russell, supra, at 436. The question of entrapment is generally one for the jury, rather than for the court. Sherman, supra, at 377.

The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, Russell, supra, at 435, a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped. According to the Government, petitioner is asking to “clai[m] the right to swear that he had no criminal intent and in the same breath to argue that he had one that did not originate with him.” United States v. Henry, 749 F. 2d 203, 214 (CA5 1984) (en banc) (Gee, J., dissenting).

As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. Stevenson v. United States, 162 U. S. 313 (1896); 4 C. Torcia, Wharton’s Criminal Procedure § 538, p. 11 (12th ed. 1976) (hereinafter Wharton). A parallel rule has been applied in the context of a lesser included offense instruction, see Fed. Rule Crim. Proc. 31(c); Keeble v. United States, 412 U. S. 205, 208 (1973); Sansone v. United States, 380 U. S. 343, 349 (1965). In Stevenson, this Court reversed a murder conviction arising out of a gunfight in the Indian Territory. The principal holding of the Court was that the evidence was sufficient to entitle the defendant to a manslaughter instruction, but the Court also decided that the defendant was entitled as well to have the jury instructed on self-defense. The affirmative defense of self-defense is, of course, inconsistent with the claim that the defendant killed in the heat of passion.

Federal appellate cases also permit the raising of inconsistent defenses. See Johnson v. United States, 138 U. S. App. D. C. 174, 179, 426 F. 2d 651, 656 (1970) (the defense in a rape case was permitted to argue that the act did not take place and that the victim consented), cert. dism’d, 401 U. S. 846 (1971); see also Womack v. United States, 119 U. S. App. D. C. 40, 336 F. 2d 959 (1964). And state cases support the proposition that a homicide defendant may be entitled to an instruction on both accident and self-defense, two inconsistent affirmative defenses. 4 Wharton § 545, p. 32.

The Government points out that inconsistent pleading is specifically authorized under the Federal Rules of Civil Procedure, but that there is no parallel authorization under the Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal Rules of Civil Procedure provides in relevant part:

“A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. ... A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.” (Emphasis added.)

The absence of a cognate provision affecting criminal trials, we think, is not because the Rules intended to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings — particularly with respect to the defendant — in a criminal case. The issues of fact in a criminal trial are usually developed by the evidence adduced and the court’s instructions to the jury. A simple plea of not guilty, Fed. Rule Crim. Proc. 11, puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Sorrells, 287 U. S., at 452. The only matters required to be specially pleaded by a defendant are notice of alibi, Fed. Rule Crim. Proc. 12.1, or of intent to rely on insanity as a defense, Fed. Rule Crim. Proc. 12.2.

The Government argues that allowing a defendant to rely on inconsistent defenses will encourage perjury, lead to jury confusion, and subvert the truth-finding function of the trial. These same concerns are, however, present in the civil context, yet inconsistency is expressly allowed under the Federal Rules of Civil Procedure. We do not think that allowing inconsistency necessarily sanctions perjury. Here petitioner wished to testify that he had no intent to commit the crime, and have his attorney argue to the jury that if it concluded otherwise, then it should consider whether that intent was the result of Government inducement. The jury would have considered inconsistent defenses, but petitioner would not have necessarily testified untruthfully.

We would not go so far as to say that charges on inconsistent defenses may not on occasion increase the risk of perjury, but particularly in the case of entrapment we think the practical consequences will be less burdensome than the Government fears. The Court of Appeals in United States v. Demma, 523 F. 2d 981, 985 (CA9 1975) (en banc), observed:

“Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged. . . . When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so.”

The Government finally contends that since the entrapment defense is not of “constitutional dimension,” Russell, 411 U. S., at 433, and that since it is “relatively limited,” id., at 435, Congress would be free to make the entrapment defense available on whatever conditions and to whatever category of defendants it believed appropriate. Congress, of course, has never spoken on the subject, and so the decision is left to the courts. We are simply not persuaded by the Government’s arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject.

The Government contends as an alternative basis for affirming the judgment below that the evidence at trial was insufficient to support an instruction on the defense of entrapment. Of course evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant such an instruction. But this question was pretermitted by the Court of Appeals, and it will be open for consideration by that court on remand.

Reversed and remanded.

Justice Kennedy took no part in the consideration or decision of this case.

Justice Brennan,

concurring.

I join the Court’s opinion. I write separately only because I have previously joined or written four opinions dissenting from this Court’s holdings that the defendant’s predisposition is relevant to the entrapment defense. Hampton v. United States, 425 U. S. 484, 495 (1976) (Brennan, J., dissenting); United States v. Russell, 411 U. S. 423, 436 (1973) (Douglas, J., dissenting); id., at 439 (Stewart, J., dissenting); Sherman v. United States, 356 U. S. 369, 378 (1958) (Frankfurter, J., concurring in judgment). See also Sorrells v. United States, 287 U. S. 435, 453 (1932) (Roberts, J., concurring in judgment). Although some governmental misconduct might be sufficiently egregious to violate due process, Russell, supra, at 431-432, my differences with the Court have been based on statutory interpretation and federal common law, not on the Constitution. Were I judging on a clean slate, I would still be inclined to adopt the view that the entrapment defense should focus exclusively on the Government’s conduct. But I am not writing on a clean slate; the Court has spoken definitively on this point. Therefore I bow to stare decisis, and today join the judgment and reasoning of the Court.

Justice Scalia,

concurring in the judgment.

I concur in the judgment of the Court because in my view the defense of entrapment will rarely be genuinely inconsistent with the defense on the merits, and when genuine inconsistency exists its effect in destroying the defendant’s credibility will suffice to protect the interests of justice.

The typical case presenting the issue before us here is one in which the defendant introduces evidence to the effect that he did not commit the unlawful acts, or did not commit them with the requisite unlawful intent, and also introduces evidence to show his lack of predisposition and inordinate government inducement. There is nothing inconsistent in these showings. The inconsistency alleged by the government is a purely formal one, which arises only if entrapment is defined to require not only (1) inordinate government inducement to commit a crime, (2) directed at a person not predisposed to commit the crime, but also (3) causing that person to commit the crime. If the third element is added to the definition, counsel’s argument to the jury cannot claim entrapment without admitting the crime. But I see no reason why the third element is essential, unless it is for the very purpose of rendering the defense unavailable without admission of the crime. Surely it does not add anything of substance to the findings the jury must make, since findings of (1) inordinate inducement plus (2) lack of predisposition will almost inevitably produce a conclusion of (3) causality. To be sure, entrapment cannot be available as a defense unless a crime by the object of the entrapment is established, since if there is no crime there is nothing to defend against; but in that sense all affirmative defenses assume commission of the crime.

My point is not that entrapment must be defined to exclude element (3). Whether it is or not, since that element seems to me unnecessary to achieve the social policy fostered by the defense I am not willing to declare the defense unavailable when it produces the formal inconsistency of the defendant’s simultaneously denying the crime and asserting entrapment which assumes commission of the crime. I would not necessarily accept such formal inconsistency for other defenses, where the element contradicted is a functionally essential element of the defense.

Of course in the entrapment context, as elsewhere, the defendant’s case may involve genuine, noniovmsl inconsistency. The defendant might testify, for example, that he was not in the motel room where the illegal drugs changed hands, and that the drugs were pressed upon him in the motel room by agents of the government. But that kind of genuine inconsistency here, as elsewhere, is self-penalizing. There is nothing distinctive about entrapment that justifies a special prophylactic rule.

Justice White,

with whom

Justice Blackmun joins, dissenting.

At his criminal trial, petitioner took the stand and flatly denied accepting a loan “for or because of any official act.” App. 128-130; 18 U. S. C. § 201(g). Petitioner later moved for a mistrial because the District Court would not permit him to rely on that testimony while he simultaneously argued that, in fact, he had accepted a loan for an official act, but only at the Government’s instigation. Today, the Court holds that this rather sensible ruling on the part of the District Court constitutes reversible error. The reasons the Court offers for reaching this conclusion are not at all persuasive, and I respectfully dissent.

I

The Court properly recognizes that its result is not compelled by the Constitution. As the Court acknowledges, petitioner has no Fifth or Sixth Amendment right to conduct the inconsistent entrapment defense that he wished to mount at trial. Ante, at 66. And yet, if the Constitution does not compel reversal of the decision below, then what does?

Certainly not any Act of Congress, or the Federal Rules of Criminal Procedure. As the majority candidly admits, “Congress . . . has never spoken on the subject [at issue here], and so the decision is left to the courts.” Ibid. Moreover, the Court also frankly notes that while the Federal Rules of Civil Procedure contain a provision expressly authorizing inconsistent defenses, Fed. Rule Civ. Proc. 8(e)(2), the Federal Criminal Rules are without any such authorization. Ante, at 64. Indeed, the rather scant authority the majority cites in support of its view that inconsistent defenses are generally permitted in criminal trials, ibid., is strongly suggestive of just how extraordinary such pleadings are in the criminal context.

Nor is the result the Court reaches urged by a predominance of authority in the lower courts. As the Court recognizes, only two Circuits have held, as the Court does today, that a criminal defendant may deny committing the elements of a crime, and then contend that the Government entrapped him into the offense. The remaining Circuits are far more restrained in their allowance of such inconsistent defenses, divided along the lines the majority discusses in its opinion. Ante, at 59-60, n. 1.

Thus, neither the Constitution, nor a statute, nor the Criminal Rules, nor the bulk of authority compels us to reverse petitioner’s conviction. Nor does the Court claim support from any of these sources for its decision. Instead, the majority rests almost exclusively on an application of the “general proposition [that] a defendant is entitled to an instruction as to any legally sufficient defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Ante, at 63. There are several reasons, however, why this “general proposition” is inapposite here.

II

First, there is the unique nature of the entrapment defense. There is a valuable purpose served by having civil litigants plead alternative defenses which may be legally inconsistent. Allowing a tort defendant to claim both that he owed no duty of care to the plaintiff, but that if he did, he met that duty, preserves possible alternative defenses under which the defendant is entitled to relief. It prevents formalities of pleadings, or rigid application of legal doctrines, from standing in the way of the equitable resolution of a civil dispute. See generally 2A J. Moore, J. Lucas, & G. Grotheer, Moore’s Federal Practice ¶8.32, pp. 8-224 — 8-229 (2d ed. 1987). The same may be true for some criminal defenses (such as “self-defense” or “provocation”) where a defendant may truthfully testify as to the facts of the crime, leaving it to his counsel to argue that these facts make out, as a matter of law, several possible defenses.

But the entrapment defense, by contrast, “is a relatively limited defense”; it is only available to “a defendant who has committed all the elements of a proscribed offense.” United States v. Russell, 411 U. S. 423, 435 (1973). Thus, when a defendant (as petitioner did here) testifies that he did not commit the elements of the offense he is charged with, the defense of entrapment is not a plausible alternative legal theory of the case; rather, it is a proper defense only if the accused is lying. We have rejected before the notion that a defendant has a right to lie at trial, or a right to solicit his attorney’s aid in executing such a defense strategy. See Nix v. Whiteside, 475 U. S. 157, 173 (1986). And there is respectable authority for concluding that no legitimate end of the criminal justice system is served by requiring a trial court to entertain such tactics, in the form of an entrapment defense which is at odds with the defendant’s own testimony.

Allowing such inconsistency in defense tactics invites the scourge of an effective criminal justice system: perjury. In the past, we have taken extraordinary steps to combat perjury in criminal trials; these steps have even included permitting the admission of otherwise inadmissible evidence to prevent a defendant from procuring an acquittal via false testimony. See, e. g., Oregon v. Hass, 420 U. S. 714, 720-723 (1975); Harris v. New York, 401 U. S. 222, 225-226 (1971). Yet today, the Court reaches a result which it concedes “may ... on occasion” increase the risk of perjury. Ante, at 65. This is reason enough to reject the Court’s result. Worse still, the majority’s prognostication may well be an understatement. Even if — as the Court suggests, ibid, —inconsistent defenses do not measurably increase the frequency of perjury in civil trials, the risk of perjury in a criminal trial is always greater than in a civil setting because the stakes are so much higher. See Britt v. North Carolina, 404 U. S. 226, 238 (1971) (Douglas, J., dissenting). Absent some constitutional or statutory mandate to conduct criminal trials in a particular way, we should be taking steps to minimize, not increase, the danger of perjured testimony.

After all, a criminal trial is not a game or a sport. “[T]he very nature of a trial [i]s a search for truth.” Nix v. Whiteside, supra, at 166. This observation is particularly applicable to criminal trials, which are the means by which we affix our most serious judgments of individual guilt or innocence. It is fundamentally inconsistent with this understanding of criminal justice to permit a defendant to win acquittal on a rationale which he states, under oath, to be false. “Permitting a defendant to argue two defenses that cannot both be true is equivalent to sanctioning perjury by the defendant.” See Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 883-884.

Finally, even if the Court’s decision does not result in increased perjury at criminal trials, it will — at the very least— result in increased confusion among criminal juries. The lower courts have rightly warned that jury confusion is likely to result from allowing a defendant to say “I did not do it” while his lawyer argues “he did it, but the government tricked him into it.” See, e. g., United States v. Dorta, 783 F. 2d 1179, 1182 (CA4 1986). Creating such confusion may enable some defendants to win acquittal on the entrapment defense, but only under the peculiar circumstances where a jury rejects the defendant’s own stated view of the facts. We have not previously endorsed defense efforts to prevail at trial by playing such “shell games” with the jury; rather, we have written that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” Strickland v. Washington, 466 U. S. 668, 695 (1984). Nor, it should be added, is there any entitlement to a baffled decisionmaker.

Ill

Ultimately, only petitioner knows whether he accepted a loan in exchange for an official act, or whether he obtained it as a personal favor. Today, the Court holds that petitioner has a right to take the stand and claim the latter, while having his attorney argue that he was entrapped into doing the former. Nothing counsels such a result — let alone compels it. Hence this dissent.

       Two other Circuits have adopted the approach taken by the Seventh Circuit. See United States v. Hill, 655 F. 2d 512, 514 (CA3 1981); United States v. Whitley, 734 F. 2d 1129, 1139 (CA6 1984). Four Circuits have ruled that a defendant may not affirmatively deny committing the elements of the crime if he desires an entrapment instruction. United States
        v. Annese, 631 F. 2d 1041, 1046-1047 (CA1 1980); United States v. Mayo, 705 F. 2d 62, 72-73 (CA2 1983); United States v. Dorta, 783 F. 2d 1179, 1181 (CA4), cert. denied, 477 U. S. 905 (1986); United States v. Mora, 768 F. 2d 1197, 1198-1199 (CA10 1985), cert. denied, 474 U. S. 1083 (1986). One Circuit has declared that a defendant denying the elements of the crime may rely on entrapment if the issue is raised by the Government’s evidence. United States v. Smith, 757 F. 2d 1161, 1169 (CA11 1985). Another Circuit has developed a hybrid rule allowing a testifying defendant to contest the intent element of the offense charged, but not the acts, while arguing entrapment. United States v. Henry, 749 F. 2d 203 (CA5 1984) (en banc); two Circuits have ruled that a defendant is entitled to an entrapment instruction even if he testifies and denies all elements of the offense. United States v. Demma, 523 F. 2d 981 (CA9 1975) (en banc); Hansford v. United States, 112 U. S. App. D. C. 359, 303 F. 2d 219 (1962). We note also that even within the Circuits, the decisions have been contradictory and inconsistent.

       In pursuing this line of defense, petitioner apparently introduced the same evidence that he planned to adduce in support of his entrapment claim.

       While some cases have explicitly permitted inconsistent criminal defenses outside of the entrapment area, e. g., Whittaker v. United States, 108 U. S. App. D. C. 268, 269, 281 F. 2d 631, 632 (1960), others have been less receptive to this defense strategy, see, e. g., United States v. Ervin, 436 F. 2d 1331, 1334 (CA5 1971); Blunt v. United States, 131 U. S. App. D. C. 306, 312, n. 12, 404 F. 2d 1283, 1289, n. 12 (1968). Given the rarity of reported federal cases on this question, drawing any conclusion about the prevailing practice in the federal courts is difficult. See Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 Duke L. J. 866, 878-879, and n. 127.

       See, e. g., United States v. Dorta, 783 F. 2d 1179, 1181-1182 (CA4 1986); United States v. Smith, 757 F. 2d 1161, 1167-1168 (CA11 1985); United States v. Henry, 749 F. 2d 203, 214-216 (CA5 1984) (en banc) (Gee, J., dissenting).

       Again, the fact that the system endures the jury confusion caused by inconsistent civil defenses is no support for the Court’s conclusion here. For one thing, reliability is obviously a more important concern in criminal cases than in civil.
      Moreover, in civil cases, the trial court has the option of ordering the jury to complete a special verdict form, thus minimizing any errors in judgment which may result from inconsistent defenses. See Fed. Rule Civ. Proc. 49(a). The Criminal Rules contain no similar provision, cf. Fed. Rule Crim. Proc. 31, and “as a general rule special verdicts are disfavored in criminal cases,” see United States v. Buishas, 791 F. 2d 1310, 1317 (CA7 1986).