source: Caselaw Access Project

author: Justice Blackmun Justice Powell,

license: Public Domain

text:
    BULLINGTON v. MISSOURI
    No. 79-6740.
    Argued January 14, 1981
    Decided May 4, 1981

      Blackmun, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and White and Rehnquist, JJ., joined, post, p. 447.

      Richard H. Sindel argued the cause for petitioner. With him on the brief was Gail Gaus.

      James J. Cook argued the cause and filed a brief for respondent.
   Justice Blackmun

delivered the opinion of the Court.

Stroud v. United States, 251 U. S. 15 (1919), concerned a defendant who was convicted of first-degree murder and sentenced to life imprisonment, and who then obtained, upon confession of error by the Solicitor General, a reversal of his conviction and a new trial. This Court, by a unanimous vote in that case, held that the Double Jeopardy Clause of the Fifth Amendment did not bar the imposition of the death penalty when Stroud at his new trial was again convicted.

The issue in the present case is whether the reasoning of Stroud is also to apply under a system where a jury’s sentencing decision is made at a bifurcated proceeding’s second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the death penalty may be imposed.

I

Missouri law provides two, and only two, possible sentences for a defendant convicted of capital murder: (a) death, or (b) life imprisonment without eligibility for probation or parole for 50 years. Mo. Rev. Stat. § 565.008.1 (1978).

Like most death penalty legislation enacted after this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), the Missouri statutes contain substantive standards to guide the discretion of the sentencer. The statutes also afford procedural safeguards to the convicted defendant. Section 565.006 provides that the trial court shall conduct a separate presentence hearing for the defendant who is convicted by a jury of capital murder. The hearing must be held before the same jury that found the defendant guilty, and “additional evidence in extenuation, mitigation, and aggravation of punishment” shall be heard. “Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible.” The jury must consider whether the evidence shows that there exist any of the 10 aggravating circumstances or the 7 mitigating circumstances specified by the statute, see §§ 565.012.2 and 565.012.3; whether any other mitigating or aggravating circumstances authorized by law exist; whether any aggravating circumstances that do exist are sufficient to warrant the imposition of the death penalty; and whether any mitigating circumstances that exist outweigh the aggravating circumstances. § 565.012.1. A jury that imposes the death penalty must designate in writing the aggravating circumstance or circumstances that it finds beyond a reasonable doubt. § 565.012.4. It also must be convinced beyond a reasonable doubt that any aggravating circumstance or circumstances that it finds to exist are sufficient to warrant the imposition of the death penalty. Missouri Approved Instructions — Criminal (MAI-Cr) § 15.42 (1979). A Missouri jury is instructed that it is not compelled to impose the death penalty, even if it decides that a sufficient aggravating circumstance or circumstances exist and that it or they are not outweighed by any mitigating circumstance or circumstances. MAI-Cr. § 15.46. A jury’s decision to impose the death penalty must be unanimous. If the jury is unable to agree, the defendant receives the alternative sentence of life imprisonment described above. § 565.006.2; MAI-Cr. § 15.48.

II

In December 1977, petitioner Robert Bullington was indicted in St. Louis County, Mo., for capital murder and other crimes arising out of the abduction of a young woman and her subsequent death by drowning.

The Circuit Court of St. Louis County granted petitioner’s pretrial motion for a change of venue to Jackson County in the western part of the State. The prosecution, by letter, informed the defense that the State would seek the death penalty if the jury convicted the defendant of capital murder. App. 12. The letter-notice stated that the prosecution would present evidence of two aggravating circumstances specified by the statute: that “[t]he offense was committed by a person . . . who has a substantial history of serious assaultive criminal convictions,” § 565.012.2 (1), and that “[t]he offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind,” § 565.012.2 (7).

At the guilt-or-innocence phase of petitioner’s trial, the jury returned a verdict of guilty of capital murder. App. 21. On the following day, the trial court proceeded to hold the presentence hearing required by § 565.006.2. Evidence submitted by the prosecution was received. None was offered by the defense. After argument by counsel, instructions from the judge, and deliberation, the jury returned its additional verdict fixing petitioner’s punishment not at death, but at imprisonment for life without eligibility for probation or parole for 50 years. App. 27.

Petitioner then moved, on various grounds, for judgment of acquittal or in the alternative for a new trial. While that motion was pending, Duren v. Missouri, 439 U. S. 357 (1979), was decided. In that case this Court held that Missouri’s constitutional and statutory provisions allowing women to claim automatic exemption from jury service deprived a defendant of his Sixth and Fourteenth Amendments right to a jury drawn from a fair cross-section of the community. The trial court overruled petitioner’s motion for acquittal but, relying upon Duren, granted his motion for a new trial. App. 44.

Soon thereafter, the prosecution served and filed a formal “Notice of Evidence in Aggravation,” stating that it intended again to seek the death penalty. The notice specified the same aggravating circumstances the State sought to prove at the first trial, see also Tr. of Oral Arg. 36, and asserted that it would introduce the evidence that was previously disclosed to defense counsel. App. 45-46. The defense moved to strike the notice, id., at 47, arguing that the Double Jeopardy Clause of the Fifth Amendment (as made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 794 (1969)) barred the imposition of the penalty of death when the first jury had declined to impose the death sentence.

The trial court announced that it would grant that motion and would not permit the State to seek the death penalty. Before the court issued a formal order to this effect, the prosecution sought a writ of prohibition or mandamus from the Missouri Court of Appeals for the Western District. After granting a temporary “stop order,” App. 56, the Court of Appeals without opinion denied the State’s request and dissolved the stop order. Id., at 57. The Supreme Court of Missouri, however, granted the prosecution’s motion for transfer of the case to that court and issued a preliminary-writ of prohibition. After argument, the court, sitting en banc and by a divided vote, sustained the State’s position and made the writ absolute. State ex rel. Westfall v. Mason, 594 S. W. 2d 908 (1980). It held that neither the Double Jeopardy Clause, nor the Eighth Amendment, nor the Due Process Clause barred the imposition of the death penalty upon petitioner at his new trial, and that allowing the prosecution to seek capital punishment would not impermissibly chill a defendant’s effort to seek redress for any constitutional violation committed at his initial trial.

We granted certiorari, 449 U. S. 819 (1980), in order to consider the important issues raised by petitioner regarding the administration of the death penalty.

Ill

It is well established that the Double Jeopardy Clause forbids the . retrial of a defendant who has been acquitted of the crime charged. United States v. DiFrancesco, 449 U. S. 117, 129-130 (1980); Burks v. United States, 437 U. S. 1, 16 (1978) ; United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977); Fong Foo v. United States, 369 U. S. 141, 143 (1962); Green v. United States, 355 U. S. 184 (1957). This Court, however, has resisted attempts to extend that principle to sentencing. The imposition of a particular sentence usually is not regarded as an “acquittal” of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See North Carolina v. Pearce, 395 U. S. 711 (1969). See also United States v. DiFrancesco, 449 U. S., at 133, 137-138; Chaffin v. Stynchcombe, 412 U. S. 17, 23-24 (1973); Stroud v. United States, 251 U. S. 15 (1919).

The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s-cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes.

In contrasty the sentencing procedures considered in the Court’s previous cases did not have the hallmarks of the trial on guilt or innocence. In Pearce, Chaffin, and Stroud, there was no separate sentencing proceeding at which the prosecution was required to prove — beyond a reasonable doubt or otherwise — additional facts in order to justify the particular sentence. In each of those cases, moreover, the sentencer’s discretion was essentially unfettered. In Stroud, no standards had been enacted to guide the jury’s discretion. In Pearce, the judge had a wide range of punishments from which to choose with no explicit standards imposed to guide him. And in Chaffin, the discretion given to the jury was extremely broad. That defendant, convicted in Georgia of robbery, could have been sentenced to death, to life imprisonment, or to a prison term of between 4 and 20 years. 412 U. S., at 18, and n. 1. The statute contained no standards to guide the jury's exercise of its discretion.

In only one prior case, United States v. DiFrancesco, has this Court considered a separate or bifurcated sentencing procedure at which it was necessary for the prosecution to prove additional facts. The federal statute under consideration there, the "dangerous special offender” provision of the Organized Crime Control Act of 1970, 18 U. S. C. §§ 3575 and 3576, requires a separate presentence hearing. The Government must prove the additional fact that the defendant is a “dangerous special offender,” as defined in the statute, in order for the court to impose an enhanced sentence. But there are highly pertinent differences between the Missouri procedures controlling the present case and those found constitutional in DiFrancesco. The federal procedures at issue in DiFrancesco include appellate review of a sentence “on the record of the sentencing court,” § 3576, not a de novo proceeding that gives the Government the opportunity to convince a second factfinder of its view of the facts. Moreover, the choice presented to the federal judge under § 3575 is far broader than that faced by the state jury at the present petitioner’s trial. Bullington’s Missouri jury was given— and under the State’s statutes could be given — only two choices, death or life imprisonment. On the other hand, if the Federal Government proves that a person convicted of a felony is a dangerous special offender, the judge may sentence that person to “an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony.” §3575 (b). Finally, although the statute requires the Government to prove the additional fact that the defendant is a “dangerous special offender,” it need do so only by a preponderance of the evidence. Ibid. This stands in contrast to the reasonable-doubt standard of the Missouri statute, the same standard required to be used at the trial on the issue of guilt or innocence. Jackson v. Virginia, 443 U. S. 307 (1979); In re Winship, 397 U. S. 358 (1970). The State’s use of this standard indicates that, as has been said generally of the criminal case, “the interests of the defendant are of such magnitude that . . . they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. . . . [O]ur society imposes almost the entire risk of error upon itself.” Addington v. Texas, 441 U. S. 418, 423-424 (1979).

IV

These procedural differences become important when the underlying rationale of the cases is considered. The State here relies principally upon North Carolina v. Pearce. The Court’s starting point in that case, 395 U. S., at 719-720, was the established rule that there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction. See, e. g., United States v. Tateo, 377 U. S. 463 (1964); United States v. Ball, 163 U. S. 662, 672 (1896). The Court stated that this rule rests on the premise that the original conviction has been nullified and “the slate wiped clean.” 395 U. S., at 721. Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served.

There is an important exception, however, to the rule recognized in Pearce. A defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict. Burks v. United States, 437 U. S. 1 (1978). The reasons for this exception are relevant here:

“[RJeversal for trial error, as distinguished from evi-dentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its cases. As such, it implies nothing with respect to the guilt or innocence of the defendant. . . .
“The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it can assemble. . . . Since we necessarily accord absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” Id., at 15-16 (emphasis in original).

The decision in Burks was foreshadowed by Green v. United States, 355 U. S. 184 (1957). In that case, the defendant had been indicted for first-degree murder, and the trial court instructed the jury that it could convict him either of that crime or of the lesser included offense of second-degree murder. The juiy convicted him of second-degree murder, but the conviction was reversed on appeal. The Court held that a retrial on the first-degree murder charge was barred by the Double Jeopardy Clause, because the defendant “was forced to run the gantlet once on that charge and the jury refused to convict him.” Id., at 190. See also Price v. Georgia, 398 U. S. 323 (1970).

Thus, the “clean slate” rationale recognized in Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case.

In the usual sentencing proceeding, however, it is impossible to conclude that a sentence less than the statutory maximum “constitute [s] a decision to the effect that the government has failed to prove its case.” In the normal process of sentencing, “there are virtually no rules or tests or standards — and thus no issues to resolve . . . M. Frankel, Criminal Sentences: Law Without Order 38 (1973). Thus, “[t]he discretion of the judge ... in [sentencing] matters is virtually free of substantive control or guidance. Where the judge has power to select a term of imprisonment within a range the exercise of that authority is left fairly at large.” Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 916 (1962).

The Court’s cases that have considered the role of the Double Jeopardy Clause in sentencing have noted this absence of sentencing standards. In DiFrancesco, for example, we observed: “[A] sentence is characteristically determined in large part on the basis of information, such as the presen-tence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature.” 449 U. S., at 136-137. And even if it is the jury that imposes the sentence, “[n]ormally, there would be no way for the jury to place on the record the reasons for its collective sentencing determination . . . .” Chaffin v. Stynchcombe, 412 U. S., at 28, n. 15.

By enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouri explicitly requires the jury to determine whether the prosecution has “proved its case.” Both Burks and Green, as has been noted, state an exception to the general rule relied upon in North Carolina v. Pearce. That exception is applicable here, and we therefore refrain from extending the rationale of Pearce to the very different facts of the present case. Chief Justice Bardgett, in his dissent from the ruling of the Missouri Supreme Court majority, observed that the sentence of life imprisonment which petitioner received at his first trial meant that “the jury has already acquitted the defendant of whatever was necessary to impose the death sentence.” 594 S. W. 2d, at 922. We agree.

A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle, stated for the Court by Justice Black, are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Creen v. United States, 355 U. S., at 187-188.

See also United States v. DiFrancesco, 449 U. S., at 136. The “embarrassment, expense and ordeal” and the “anxiety and insecurity” faced by a defendant at the penalty phase of a Missouri capital murder trial surely are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial. The “unacceptably high risk that the [prosecution], with its superior resources, would wear down a defendant,” id., at 130, thereby leading to an erroneously imposed death sentence, would exist if the State were to have a further opportunity to convince a jury to impose the ultimate punishment. Missouri’s use of the reasonable-doubt standard indicates that in a capital sentencing proceeding, it is the State, not the defendant, that should bear “almost the entire risk of error.” Addington v. Texas, 441 U. S., at 424. Given these considerations, our decision today does not at all depend upon the State’s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner’s first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserves the death penalty. Having received “one fair opportunity to offer whatever proof it could assemble,” Burks v. United States, 437 U. S., at 16, the State is not entitled to another.

V

The Court already has held that many of the protections available to a defendant at a criminal trial also are available at a sentencing hearing similar to that required by Missouri in a capital case. See, e. g., Specht v. Patterson, 386 U. S. 605 (1967) (due process protections such as right to counsel, right to confront witnesses, and right to present favorable evidence are available at hearing at which sentence may be imposed based upon “a new finding of fact . . . that was not an ingredient of the offense charged,” id., at 608). Because the sentencing proceeding at petitioner’s first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial. We therefore refrain from extending the reasoning of Stroud v. United States, 251 U. S. 15 (1919), to this very different situation.

The judgment of the Supreme Court of Missouri is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Powell,

with whom The Chief Justice, Justice White, and Justice Rehnquist join, dissenting.

This case concerns the force of the Double Jeopardy Clause after a defendant convicted of a crime and sentenced has succeeded in having his conviction reversed. The Court holds that the jury’s decision at petitioner’s first trial to sentence him to life imprisonment precludes Missouri from asking the jury at petitioner’s second trial to sentence him to death. I consider the Court’s opinion irreconcilable in principle with the precedents of this Court.

I

It is well-established law that the Double Jeopardy Clause does not apply to sentencing decisions after retrial with the same force that it applies to redeterminations of guilt or innocence. Since Stroud v. United States, 251 U. S. 15 (1919), it has been settled that a defendant whose conviction is reversed may receive a more severe sentence upon retrial than, he received at his first trial. The Court followed this principle in North Carolina v. Pearce, 395 U. S. 711 (1969), where it held that a “corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” Id., at 720. In contrast, where the question was whether a defendant could be retried for first-degree murder after the jury at his first trial had found him guilty only of second-degree murder, the Court “regarded the jury’s verdict as an imulicit acquittal on the charge of first degree murder” and held that the Double Jeopardy Clause therefore barred retrial on that charge. Green v. United States, 355 U. S. 184, 190 (1957).

Although there is some tension between the Green and Pearce opinions, their holdings are not inconsistent. Both have become landmarks in the law of the Double Jeopardy Clause. The Court has cited each opinion time and time again, and more than once the Court has declined to reexamine Pearce. Indeed, its rationale has been reaffirmed in recent cases. United States v. DiFrancesco, 449 U. S. 117, 135-136, n. 14 (1980); Chaffin v. Stynchcomhe, 412 U. S. 17, 24 (1973). Earlier this Term, the Court stated without qualification that “the difference in result reached in Green and Pearce can be explained only on the grounds that the imposition of sentence does not operate as an implied acquittal of any greater sentence.” United States v. DiFrancesco, supra, at 136, n. 14. Compare ante, at 438 (“The imposition of a particular sentence usually is not regarded as an 'acquittal’ of any more severe sentence . . . .” (emphasis added)). But today the Court applies Green’s principle of “implicit acquittal” to sentencing, despite Pearce and the unqualified statement in DiFrancesco.

II

The Court justifies applying the implicit-acquittal principle to the sentencing in this case on the ground that Missouri’s death penalty statute establishes certain procedures for the sentencing phase of a capital murder trial. In the Court’s view, these procedures give the sentencing phase “the hallmarks of the trial on guilt or innocence,” ante, at 439, and require the jury to decide whether the State has proved that the defendant deserves the penalty of death, ante, at 444. The decision at the first trial to impose life imprisonment, the Court reasons, reflects a decision that the State failed to prove that the defendant deserves capital punishment. According to the Court, that decision implies an “acquittal” of the harsher sentence.

Having characterized the jury’s decision for life imprisonment as an “acquittal” of the death sentence, the Court recites the classic double jeopardy rationale applicable to retrying the issue of guilt or innocence, Green v. United States, supra, at 187-188, and applies it to the reconsideration of an appropriate sentence for one whose guilt is unquestioned. Ante, at 445-446. It states, without documentation in the record, that the expense, ordeal, and anxiety at a resentencing in a capital murder case are as great as would accompany a redetermination of guilt or innocence. Ante, at 445. It also states that Missouri’s second attempt to obtain a death sentence might lead to an erroneously imposed death sentence. Ante, at 445-446. The Court therefore concludes that the Double Jeopardy Clause bars Missouri from again seeking the death penalty against petitioner.

This is the first time the Court has held that the Double Jeopardy Clause applies equally to sentencing and to determinations of guilt or innocence. It heretofore has been thought that there is a fundamental difference between the two. Stroud v. United States, supra; North Carolina v. Pearce, supra; Chaffin v. Stynchcomhe, supra; United States v. DiFrancesco, supra. I would adhere to these precedents, and think they control this case.

Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover that truth according to law. But triers of fact can err, and an innocent person can be pronounced guilty. In contrast, the law provides only limited standards for assessing the validity of a sentencing decision. The sentencer’s function is not to discover a fact, but to mete out just deserts as he sees them. Absent a mandatory sentence, there is no objective measure by which the sentencer’s decision can be deemed correct or erroneous if it is duly made within the authority conferred by the legislature.

In light of this difference in the nature of the decisions, the question in this case is not — as the Court would frame it— whether the procedures by which a sentencing decision is made are similar to the procedures by which a decision on guilt or innocence is made. Rather, the question is whether the reasons for considering an acquittal on guilt or innocence as absolutely final apply equally to a sentencing decision imposing less than the most severe sentence authorized by law. I would have thought that the pertinence of this question was clear, and that the answer consistently given in the past could not have escaped the Court. Earlier this Term, in United States v. DiFrancesco, we stated that “[tjhere are . . . fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal.” 449 U. S., at 133.

The reasons for considering an acquittal on guilt or innocence as absolutely final do not apply equally to a sentencing decision for less than the most severe sentence authorized by law. A retrial of a defendant once found to have been innocent “enhanc[es] the possibility that even though innocent he may be found guilty.” .Green v. United States, 355 U. S., at 188. But in Chaffin v. Stynchcombe, 412 U. S., at 25, we held that “[t]he possibility of a higher sentence was recognized and accepted [in Pearce] as a legitimate concomitant of the retrial process.” The possibility of a higher sentence is acceptable under the Double Jeopardy Clause, whereas the possibility of error as to guilt or innocence is not, because the second jury’s sentencing decision is as “correct” as the first jury’s. Similarly, a defendant once found to have been innocent cannot be forced a second time through the ordeal of trial. But when a defendant is found guilty, he must bear the ordeal of being sentenced just as he does the ordeal of serving sentence.

In sum, I find wholly unpersuasive the Court’s justification for applying the implicit-acquittal principle to sentencing. The Court does not purport to justify its conclusion with the argument that facing the death sentence a second time is more of an ordeal in the legal sense than facing any other sentence a second time. The death sentence, of course, is unlike any other punishment. For that reason, this Court has read the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that States prescribe unique procedural safeguards to protect against capricious or discriminatory impositions of the death sentence. Furman v. Georgia, 408 U. S. 238 (1972); Gregg v. Georgia, 428 U. S. 153 (1976) (joint opinion). But a death sentence imposed in accord with the strictures of the Eighth Amendment and the Fourteenth Amendment is a lawful sentence, and Missouri provides the requisite procedures. I find no basis under the Double Jeopardy Clause for the Court to single out a sentence which is statutorily authorized, and otherwise may be imposed constitutionally, as nonetheless one that a guilty defendant may not be required to face twice. Petitioner’s ordeal upon retrial would not be different in kind from that of the defendants in Chaffin and Stroud, both of whom faced the possibility of the death sentence upon re-conviction. Chaffin v. Stynchcombe, supra, at 18-19; Stroud v. United States, 251 U. S., at 17-18. The Court today simply disregards the principles established by prior cases.

Ill

In the course of explaining why the Double Jeopardy Clause does not bar retrial after a reversal for trial error, the Court stated: “Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial.” United States v. Tateo, 377 U. S. 463, 466 (1964). Missouri has decided that death is an appropriate punishment for one whose guilt of murder with aggravating circumstances is made clear through special procedures. There is no justification in the Constitution for barring Missiouri from exacting that punishment unless Missouri’s interest in doing so conflicts with constitutionally protected interests of the defendant. The Double Jeopardy Clause does not protect a guilty defendant’s interest in avoiding a harsher sentence upon retrial, even the death sentence. I therefore dissent.

       “. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .”

       The definition of capital murder in Missouri is set forth in Mo. Rev. Stat. § 565.001 (1978):
      “Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder.”

       Section 565.008.1 reads:
      “Persons convicted of the offense of capital murder shall, if the judge or jury so recommends after complying with the provisions of sections 565.006 and 565.012, be punished by death. If the judge or jury does not recommend the imposition of the death penalty on a finding of guilty of capital murder, the convicted person shall be punished by imprisonment by the division of corrections during his natural life and shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.”

       At all relevant times, § 565.006 read in pertinent part:
      “1. At the conclusion of all trials upon an indictment or information for capital murder heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment, and by their verdict ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense. ...
      “2. Where the jury . . . returns a verdict or finding of guilty as provided in subsection 1 of this section, the court shall resume the trial and conduct a presentence hearing before the jury ... at which time the only isssue shall be the determination of the punishment to be imposed. In such hearing, subject to the laws of evidence, the jury . . . shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas. Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial shall be admissible. The jury . . . shall also hear argument by the defendant or his counsel and the prosecuting attorney regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury .... Upon conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. In capital murder eases in which the death penalty may be imposed by a jury . . . the additional procedure provided in section 565.012 shall be followed. The jury . . . shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury .... If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; except that, the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment.
      “3. If the trial court is reversed on appeal because of error only in the presentenee hearing, the new trial which may be ordered shall apply only to the issue of punishment.”
      The statute was amended by 1979 Mo. Laws H. B. 251, but the amendment does not affect the present case.

       Because the petitioner in this case.was sentenced by a jury at his first trial, we describe only Missouri’s procedure for imposition of the death penalty by a jury.

       Section 565.012.2 was amended in 1980 to provide two additional specified aggravating circumstances. Those added were:
      “(11) The capital murder was committed while the defendant was engaged in the perpetration or in the attempt to perpetrate the felony of rape or forcible rape or the felony of sodomy or forcible sodomy;
      “(12) The capital murder was committed by the defendant for the purpose of preventing the person killed from testifying in any judicial proceeding.” Mo. Rev. Stat. §§565.012.2 (11) and (12) (Supp. 1980).

       Petitioner also was charged with the state crimes of kidnaping, armed criminal action, burglar}', and flourishing a dangerous and deadly weapon. At his trial, petitioner was found guilty of all these charges.

       Although further proceedings are to take place in state court, the judgment rejecting petitioner’s double jeopardy claim is “final” -within the meaning of the jurisdictional statute, 28 U. S. C. § 1257. Harris v. Washington, 404 U. S. 55 (1971). See Abney v. United States, 431 U. S. 651 (1977).

       Subsequent to this Court’s decisions in Furman v. Georgia, 408 U. S. 238 (1972), and Gregg v. Georgia, 428 U. S. 153 (1976), courts of at least two States have concluded that a defendant originally sentenced to life imprisonment may not be sentenced to death upon retrial after reversal of his original conviction. The Texas Court of Criminal Appeals has relied upon this Court’s eases construing the Double Jeopardy Clause. Sanne v. State, 609 S. W. 2d 762, 766-767 (1980); Brasfield v. State, 600 S. W. 2d 288, 298 (1980). The Supreme Court of Georgia has concluded that the imposition of a death sentence in these circumstances would violate the state-law requirement, Ga. Code §27-2537 (c)(3) (1979), that the sentence not be “ ‘excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ ” Ward v. State, 239 Ga. 205, 208-209, 236 S. E. 2d 365, 368 (1977).

       At the statutorily prescribed presentence hearing, counsel make opening statements, testimony is taken, evidence is introduced, the jury is instructed, and final arguments are made. The jury then deliberates and returns its formal punishment verdict. § 565.006.2. See n. 4, supra. All these steps were taken at petitioner’s presentence hearing following his first trial.
      We think it not without some significance that the pertinent Missouri statute itself speaks specifically of the presentence hearing in terms of a continuing “trial.” Section 565.006.2 states that after the verdict of guilty of capital murder is returned, “the court shall resume the trial and conduct a presentence hearing.” (Emphasis added.)

       In Stroud, the relevant statute provided: “Every person guilty of murder in the first degree shall suffer death,” but “the jury may qualify their verdict by adding thereto ‘without capital punishment;’ and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life.” Act of Mar. 4, 1909, §§275, 330, 35 Stat. 1143, 1152, codified currently as 18 U. S. C. §1111 (b).
      At Stroud’s retrial, the court essentially repeated the language of this statute to the jury, giving it no further guidance as to the appropriate penalty. Record in Stroud v. United States, O. T. 1919, No. 276, p. 472. At the previous trial, the judge had told the jury that he would not “pretend to tell you the various considerations that come into determining that question [of the proper sentence].” Record in Stroud v. United States, O. T. 1917, No. 694, p. 177.

       Pearce was convicted of assault with intent to commit rape, a state crime punishable by a prison term of between 1 and 15 years. N. C. Gen. Stat. § 14r-22 (1969), repealed by 1979 N. C. Sess. Laws, eh. 682, §7, and replaced.

       In discussing the usual attributes of jury sentencing, the Court in Chaffin observed: “Normally, there would be no way for a jury to place on the record the reasons for its collective sentencing determination, and ordinarily the resentencing jury would not be informed of any conduct of the accused unless relevant to the question of guilt.” 412 U. S., at 28, n. 15. This starkly illustrates the significant difference between the sentencing procedure in that case and the procedure now required by Missouri in a capital murder case.

       The statute authorizes “review of whether the procedure employed was lawful, the findings made were clearly erroneous, or the sentencing court’s discretion was abused.” 18 U. S. C. § 3576.

       The other eases that concern the application of the Double Jeopardy Clause to sentencing do not add significantly to the State’s argument. Chaffin relies primarily upon Pearce. See 412 U. S., at 23-24. Stroud states only that “[t]he fact that the jury may thus mitigate the punishment to imprisonment for life did not render the conviction less than one for first degree murder.” 251 U. S., at 18. Stroud’s jury was not required to find any facts in addition to those necessary for a conviction for first-degree murder in order to sentence him to death.

        DiFrancesco relies upon “the history of sentencing practices, . . . the pertinent rulings of this Court, [and] considerations of double jeopardy policy . . . .” 449 U. S., at 132. The history of sentencing practices is of little assistance to Missouri in this case, since the sentencing procedures for capital cases instituted after the decision in Furman are unique. As we see below, considerations of double jeopardy policy favor petitioner in this case, rather than the State. Missouri, therefore, can rely only upon DiFrancesco’s discussion of the Court’s prior cases, a discussion that relies chiefly upon Pearce. See 449 U. S., at 134-136.

       “Sentencing and parole release decisions in this country have largely been left to the unfettered discretion of the officials involved. Legislatures have traditionally set high maximum penalties within which judges must choose specific sentences, but generally have provided little guidance for the exercise of this choice. Although the purposes of sentencing have often been defined as including deterrence, retribution, incapacitation, rehabilitation, and community condemnation to maintain respect for law, legislatures have been silent regarding which purposes are primary and how conflicts among the purposes are to be resolved. For example, federal law currently requires merely that in determining a sentence, the court consider ‘in its opinion the ends of justice and best interest of the public.’ [18 U. S. C. §4205 (b).]
      “In effect, sentencing policymaking has traditionally been delegated to a multitude of independent judges to be exercised in the context of individual cases. There has been no attempt to separate policymaking from individual sentencing determinations. Normally, some type of presentence investigation is available which attempts to provide an informational basis for an intelligent and 'individualized’ sentencing decision. Yet, which factors should be considered, under what circumstances, and how they are to be weighted are decisions left solely to the unfettered discretion of the individual decisionmakers.” Hoffman & Stover, Reform in the Determination of Prison Terms: Equity, Determinacy, and the Parole Release Function, 7 Hofstra L. Rev. 89, 96 (1978) (footnotes omitted).

       Because of our conclusion on the Double Jeopardy Clause issue, we have no occasion to address petitioner’s claims under the Sixth, Eighth, and Fourteenth Amendments.

       In Pearce, the Court stated: “The Court’s decision in Green v. United States, 355 U. S. 184, is of no applicability to the present problem. The Green decision was based upon the double jeopardy provision’s guarantee against retrial for an offense of which the defendant was acquitted.” 395 U. S., at 720, n. 16 (emphasis in original).

       In the Court’s view, these procedures distinguish this case from United States v. DiFrancesco, 449 U. S. 117 (1980), Chaffin v. Stynchcomhe, 412 U. S. 17 (1973), North Carolina v. Pearce, 395 U. S. 711 (1969), and Stroud v. United States, 251 U. S. 15 (1919), where the sentencing decisions were not made pursuant to similar procedures. No one questions that these procedures, applicable in capital cases, are different. But analytically the difference is immaterial for purposes of the Double Jeopardy Clause. See infra, at 450.

       Of course, a sentence imposed upon one who did not commit the crime is “erroneous,” but the error inheres in the decision on guilt or innocence, not in the sentencing decision. Also, a sentence may be called “erroneous” if it is grossly disproportionate to the severity of the crime committed. But in that event, the sentence is “cruel and unusual” in violation of the Eighth Amendment. Weems v. United States, 217 U. S. 349 (1910).

       I would have trouble concurring in the Court’s judgment even if I agreed with the Court that the procedures of the Missouri death penalty-statute distinguish this case from Pearce, Chaffin, and Stroud. In the Court’s view, the first jury’s decision to sentence petitioner to life imprisonment rather than death reveals that the State failed to “prove its case” that petitioner deserved capital punishment. On this premise the Court concludes that the principle of Green and Burks v. United States, 437 U. S. 1 (1978), bars a second attempt by the State to secure a death sentence.
      Under the Missouri statute, Mo. Rev. Stat. § 565.012 (1978), the “case” that the State had to prove was that petitioner committed the murder under circumstances defined as “aggravating” and that these circumstances warranted the imposition of the death penalty. But the trial court expressly instructed the jury that it could choose life imprisonment rather than death even if it found beyond a reasonable doubt that the State had proved the existence and gravity of such circumstances. See ante, at 434-435. Thus, the jury’s decision for life imprisonment rather than death does not necessarily mean that the State adduced insufficient evidence. To be sure, an acquittal on the question of guilt or innocence does not necessarily mean that the State adduced insufficient evidence, and yet such acquittals are final. But juries instructed on the question of guilt or innocence are not told that they can ignore the State’s evidence. Where the jury is so instructed, as in this case, there is significantly less reason to assume that the State failed to prove its ease. Accordingly, there is less reason to consider a second attempt to obtain the death penalty an unfair “ ‘second bite at the apple.’ ” Burks v. United States, supra, at 17.


author: Chief Justice Burger Justice Brennan. Justice Marshall, Justice Stewart, Justice Rehnquist,

text:
    ESTELLE, CORRECTIONS DIRECTOR v. SMITH
    No. 79-1127.
    Argued October 8, 1980
    Decided May 18, 1981

      Burger, C. J., delivered the opinion of the Court, in which BreNNAn, White, Blackmuh, and Stevens, JJ., joined, and in all but Part II-C of which Marshall, J., joined. Brennan, J., filed a concurring statement, post, p. 474. Marshall, J., filed a statement concurring in part,
      post, p. 474. Stewart, J., filed an opinion concurring in the judgment, in which Powell, J., joined, post, p. 474. Rehnquist, J., filed an opinion concurring in the judgment, post, p. 474.

      Anita Ashton, Assistant Attorney General of Texas, argued the cause for petitioner. With her on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, Executive Assistant Attorney General, and W. Barton Boling and Douglas M. Becker, Assistant Attorneys General.

      Joel Berger argued the cause for respondent. With him on the brief were John F. Simmons, Jack Greenberg, James M. Nabrit III, John Charles Boger, and Anthony G. Amsterdam.

        Joel I. Klein filed a brief for the American Psychiatric Association as amicus curiae urging affirmance.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to consider whether the prosecution’s use of psychiatric testimony at the sentencing phase of respondent’s capital murder trial to establish his future dangerousness violated his constitutional rights. 445 U. S. 926 (1980).

I

A

On December 28, 1973, respondent Ernest Benjamin Smith was indicted for murder arising from his participation in the armed robbery of a grocery store during which a clerk was fatally shot, not by Smith, but by his accomplice. In accordance with Art. 1257 (b) (2) of the Tex. Penal Code Ann. (Yernon 1974) concerning the punishment for murder with malice aforethought, the State of Texas announced its intention to seek the death penalty. Thereafter, a judge of the 195th Judicial District Court of Dallas County, Texas, informally ordered the State’s attorney to arrange a psychiatric examination of Smith by Dr. James P. Grigson to determine Smith’s competency to stand trial. See n. 5, infra.

Dr. Grigson, who interviewed Smith in jail for approximately 90 minutes, concluded that he was competent to stand trial. In a letter to the trial judge, Dr. Grigson reported his findings: “[I]t is my opinion that Ernest Benjamin Smith, Jr., is aware of the difference between right and wrong and is able to aid an attorney in his defense.” App. A-6. This letter was filed with the court’s papers in the case. Smith was then tried by a jury and convicted of murder.

In Texas, capital cases require bifurcated proceedings — a guilt phase and a penalty phase. If the defendant is found guilty, a separate proceeding before the same jury is held to fix the punishment. At the penalty phase, if the jury affirmatively answers three questions on which the State has the burden of proof beyond a reasonable doubt, the judge must impose the death sentence. See Tex. Code Crim. Proc. Ann., Arts. 37.071 (c) and (e) (Vernon Supp. 1980). One of the three critical issues to be resolved by the jury is “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Art. 37.071 (b)(2). In other words, the jury must assess the defendant’s future dangerousness.

At the commencement of Smith’s sentencing hearing, the State rested “[s]ubject to the right to reopen.” App. A-ll. Defense counsel called three lay witnesses: Smith’s stepmother, his aunt, and the man who owned the gun Smith carried during the robbery. Smith’s relatives testified as to his good reputation and character. The owner of the pistol testified as to Smith’s knowledge that it would not fire because of a mechanical defect. The State then called Dr. Grigson as a witness.

Defense counsel were aware from the trial court’s file of the case that Dr. Grigson had submitted a psychiatric report in the form of a letter advising the court that Smith was competent to stand trial. This report termed Smith “a severe sociopath,” but it contained no more specific reference to his future dangerousness. Id., at A-6. Before trial, defense counsel had obtained an order requiring the State to disclose the witnesses it planned to use both at the guilt stage and, if known, at the penalty stage. Subsequently, the trial court had granted a defense motion to bar the testimony during the State’s case in chief of any witness whose name did not appear on that list. Dr. Grigson’s name was not on the witness list, and defense counsel objected when he was called to the stand at the penalty phase.

In a hearing outside the presence of the jury, Dr. Grigson stated: (a) that he had not obtained permission from Smith’s attorneys to examine him; (b) that he had discussed his conclusions and diagnosis with the State’s attorney; and (c) that the prosecutor had requested him to testify and had told him, approximately five days before the sentencing hearing began, that his testimony probably would be needed within the week. Id., at A-14 — A-16. The trial judge denied a defense motion to exclude Dr. Grigson’s testimony on the ground that his name was not on the State’s list of witnesses. Although no continuance was requested, the court then recessed for one hour following an acknowledgment by defense counsel that an hour was “all right.” Id., at A-17.

After detailing his professional qualifications by way of foundation, Dr. Grigson testified before the jury on direct examination: (a) that Smith “is a very severe sociopath”; (b) that “he will continue his previous behavior”; (c) that his sociopathic condition will “only get worse”; (d) that he has no “regard for another human being’s property or for their life, regardless of who it may be”; (e) that “[t]here is no treatment, no medicine . . . that in any way at all modifies or changes this behavior”; (f) that he “is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so”; and (g) that he “has no remorse or sorrow for what he has done.” Id., at A-17 — A-26. Dr. Grigson, whose testimony was based on information derived from his 90-minute “mental status examination” of Smith (i. e., the examination ordered to determine Smith’s competency to stand trial), was the State’s only witness at the sentencing hearing.

The jury answered the three requisite questions in the affirmative, and, thus, under Texas law the death penalty for Smith was mandatory. The Texas Court of Criminal Appeals affirmed Smith’s conviction and death sentence, Smith v. State, 540 S. W. 2d 693 (1976), and we denied certiorari, 430 U. S. 922 (1977).

B

After unsuccessfully seeking a writ of habeas corpus in the Texas state courts, Smith petitioned for such relief in the United States District Court for the Northern District of Texas pursuant to 28 U. S. C. § 2254. The District Court vacated Smith’s death sentence because it found constitutional error in the admission of Dr. Grigson’s testimony at the penalty phase. 445 F. Supp. 647 (1977). The court based its holding on the failure to advise Smith of his right to remain silent at the pretrial psychiatric examination and the failure to notify defense counsel in advance of the penalty phase that Dr. Grigson would testify. The court concluded that the death penalty had been imposed on Smith in violation of his Fifth and Fourteenth Amendment rights to due process and freedom from compelled self-incrimination, his Sixth Amendment right to the effective assistance of counsel, and his Eighth Amendment right to present complete evidence of mitigating circumstances. Id., at 664.

The United States Court of Appeals for the Fifth Circuit affirmed. 602 F. 2d 694 (1979). The court held that Smith’s death sentence could not stand because the State’s “surprise” use of Dr. Grigson as a witness, the consequences of which the court described as “devastating,” denied Smith due process in that his attorneys were prevented from effectively challenging the psychiatric testimony. Id., at 699. The court went on to hold that, under the Fifth and Sixth Amendments, “Texas may not use evidence based on a psychiatric examination of the defendant unless the defendant was warned, before the examination, that he had a right to remain silent; was allowed to terminate the examination when he wished; and was assisted by counsel in deciding whether to submit to the examination.” Id., at 709. Because Smith was not accorded these rights, his death sentence was set aside. While “leav[ing] to state authorities any questions that arise about the appropriate way to proceed when the state cannot legally éxecute a defendant whom it has sentenced to death,” the court indicated that “the same testimony from Dr. Grigson, based on the same examination of Smith” could not be used against Smith at any future re-sentencing proceeding. Id., at 703, n. 13, 709, n. 20.

II

A

Of the several constitutional issues addressed by the District Court and the Court of Appéals, we turn first to whether the admission of Dr. Grigson’s testimony at the penalty phase violated respondent’s Fifth Amendment privilege against compelled self-incrimination because respondent was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a sentencing proceeding. Our initial inquiry must be whether the Fifth Amendment privilege is applicable in the circumstances of this case.

(1)

The State argues that respondent was not entitled to the protection of the Fifth Amendment because Dr. Grigson’s testimony was used only to determine punishment after conviction, not to establish guilt. In the State’s view, “incrimination is complete once guilt has been adjudicated,” and, therefore, the Fifth Amendment privilege has no relevance to the penalty phase of a capital murder trial. Brief for Petitioner 33-34. We disagree.

The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The essence of this basic constitutional principle is “the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Culombe v. Connecticut, 367 U. S. 568, 581-582 (1961) (opinion announcing the judgment) (emphasis added). See also Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964); E. Griswold, The Fifth Amendment Today 7 (1955).

The Court has held that “the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” In re Gault, 387 U. S. 1, 49 (1967). In this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist. Just as the Fifth Amendment prevents a criminal defendant from being made “ 'the deluded instrument of his own conviction,’ ” Culombe v. Connecticut, supra, at 581, quoting 2 Hawkins, Pleas of the Crown 595 (8th ed. 1824), it protects him as well from being made the “deluded instrument” of his own execution.

We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees. See Green v. Georgia, 442 U. S. 95, 97 (1979); Presnell v. Georgia, 439 U. S. 14, 16 (1978); Gardner v. Florida, 430 U. S. 349, 357-358 (1977) (plurality opinion). Any effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment. Yet the State’s attempt to establish respondent’s future dangerousness by relying on the unwarned statements he made to Dr. Grigson similarly infringes Fifth Amendment values.

(2)

The State also urges that the Fifth Amendment privilege is inapposite here because respondent’s communications to Dr. Grigson were nontestimonial in nature. The State seeks' support from our cases holding that the Fifth Amendment is not violated where the evidence given by a defendant is neither related to some communicative act nor used for the testimonial content of what was said. See, e. g., United States v. Dionisio, 410 U. S. 1 (1973) (voice exemplar); Gilbert v. California, 388 U. S. 263 (1967) (handwriting exemplar) ; United States v. Wade, 388 U. S. 218 (1967) (lineup); Schmerber v. California, 384 U. S. 757 (1966) (blood sample).

However, Dr. Grigson’s diagnosis, as detailed in his testimony, was not based simply on his observation of respondent. Rather, Dr. Grigson drew his conclusions largely from respondent’s account of the crime during their interview, and he placed particular emphasis on what he considered to be respondent’s lack of remorse. See App. A-27 — A-29, A-33— A-34. Dr. Grigson’s prognosis as to future dangerousness rested on statements respondent made, and remarks he omitted, in reciting the details of the crime. The Fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against respondent the substance of his disclosures during the pretrial psychiatric examination.

The fact that respondent’s statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the Fifth Amendment. See n. 6, supra. The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent. Consequently, the interview with Dr. Grigson cannot be characterized as a routine competency examination restricted to ensuring that respondent understood the charges against him and was capable of assisting in his defense. Indeed, if the application of Dr. Grigson’s findings had been confined to serving that function, no Fifth Amendment issue would have arisen.

Nor was the interview analogous to a sanity examination occasioned by a defendant’s plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution’s psychiatrist. See, e. g., United States v. Cohen, 530 F. 2d 43, 47-48 (CA5), cert. denied, 429 U. S. 855 (1976); Karstetter v. Cardwell, 526 F. 2d 1144, 1145 (CA9 1975); United States v. Bohle, 445 F. 2d 54, 66-67 (CA7 1971); United States v. Weiser, 428 F. 2d 932, 936 (CA2 1969), cert. denied, 402 U. S. 949 (1971); United States v. Albright, 388 F. 2d 719, 724-725 (CA4 1968); Pope v. United States, 372 F. 2d 710, 720-721 (CA8 1967) (en banc), vacated and remanded on other grounds, 392 U. S. 651 (1968).

Respondent, however, introduced no psychiatric evidence, nor had he indicated that he might do so. Instead, the State offered information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death. Respondent’s future dangerousness was a critical issue at the sentencing hearing, and one on which the State had the burden of proof beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann., Arts. 37.071 (b) and (c) (Vernon Supp. 1980). To meet its burden, the State used respondent’s own statements, unwittingly made without an awareness that he was assisting the State’s efforts to obtain the death penalty. In these distinct circumstances, the Court of Appeals correctly concluded that the Fifth Amendment privilege was implicated.'

(3)

In Miranda v. Arizona, 384 U. S. 436, 467 (1966), the Court acknowledged that “the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda held that “the prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. Thus, absent other fully effective procedures, a person in custody must receive certain warnings before any official interrogation, including that he has a “right to remain silent” and that “anything said can and will be used against the individual in court.” Id., at 467-469. The purpose of these admonitions is to combat what the Court saw as “inherently compelling pressures” at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it, which is the prerequisite for “an intelligent decision as to its exercise.” Ibid.

The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. Respondent was in custody at the Dallas County Jail when the examination was ordered and when it was conducted. That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent’s future dangerousness, his role changed and became essentiallv like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was “faced with a phase of the adversary system” and was “not in the presence of [a] perso[n] acting solely in his interest.” Id., at 469. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.

The Fifth Amendment privilege is “as broad as the mischief against which it seeks to guard,” Counselman v. Hitchcock, 142 U. S. 547, 562 (1892), 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.” Malloy v. Hogan, 378 U. S. 1, 8 (1964). We agree with the Court of Appeals that respondent's Fifth Amendment rights were violated by the admission of Dr. Grigson’s testimony at the penalty phase.

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grig-son to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson’s questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way.

“Volunteered statements . . . are not barred by the Fifth Amendment,” but under Miranda v. Arizona, supra, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent’s statements to Dr. Grigson were not “given freely and voluntarily without any compelling influences” and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. Id., at 478. These safeguards of the Fifth Amendment privilege were not afforded respondent and, thus, his death sentence cannot stand.

B

When respondent was examined by Dr. Grigson, he already had been indicted and an attorney had been appointed to represent him. The Court of Appeals concluded that he had a Sixth Amendment right to the assistance of counsel before submitting to the pretrial psychiatric interview. 602 F. 2d, at 708-709. We agree.

The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defence.” The “vital” need for a lawyer’s advice and aid during the pretrial phase was recognized by the Court nearly 50 years ago in Powell v. Alabama, 287 U. S. 45, 57, 71 (1932). Since then, we have held that the right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer “at or after the time that adversary judicial proceedings have been initiated against him . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U. S. 682, 688-689 (1972) (plurality opinion); Moore v. Illinois, 434 U. S. 220, 226-229 (1977). And in United States v. Wade, 388 U. S., at 226-227, the Court explained:

“It is central to [the Sixth Amendment] principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” (Footnote omitted.)

See United States v. Henry, 447 U. S. 264 (1980); Massiah v. United States, 377 U. S. 201 (1964). See also White v. Maryland, 373 U. S. 59 (1963); Hamilton v. Alabama, 368 U. S. 52 (1961).

Here, respondent’s Sixth Amendment right to counsel clearly had attached when Dr. Grigson examined him at the Dallas County Jail, and their interview proved to be a “critical stage” of the aggregate proceedings against respondent. See Coleman v. Alabama, 399 U. S. 1, 7-10 (1970) (plurality opinion); Powell v. Alabama, supra, at 57. Defense counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their client’s future dangerousness, and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed.

Because “ [a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege,” the assertion of that right “often depends upon legal advice from someone who is trained and skilled in the subject matter.” Maness v. Meyers, 419 U. S. 449, 466 (1975). As the Court of Appeals observed, the decision to be made regarding the proposed psychiatric evaluation is “literally a life or death matter” and is “difficult.. . even for an attorney” because it requires “a knowledge of what other evidence is available, of the particular psychiatrist’s biases and predilections, [and] of possible alternative strategies at the sentencing hearing.” 602 F. 2d, at 708. It follows logically from our precedents that a defendant should not be forced to resolve such an important issue without “the guiding hand of counsel.” Powell v. Alabama, supra, at 69.

Therefore, in addition to Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent’s Sixth Amendment right to the assistance of counsel.

c

Our holding based on the Fifth and Sixth Amendments will not prevent the State in capital cases from proving the defendant’s future dangerousness as required by statute. A defendant may request or consent to a psychiatric examination concerning future dangerousness in the hope of escaping the death penalty. In addition, a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase. See n. 10, supra.

Moreover, under the Texas capital sentencing procedure, the inquiry necessary for the jury’s resolution of the future dangerousness issue is in no sense confined to the province of psychiatric experts. Indeed, some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are “fundamentally of very low reliability” and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (1974); A. Stone, Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17.

In Jurek v. Texas, 428 U. S. 262 (1976), we held that the Texas capital sentencing statute is not unconstitutional on its face. As to the jury question on future dangerousness, the joint opinion announcing the judgment emphasized that a defendant is free to present whatever mitigating factors he may be able to show, e. g., the range and severity of his past criminal conduct, his age, and the circumstances surrounding the crime for which he is being sentenced. Id., at 272-273. The State, of course, can use the same type of evidence in seeking to establish a defendant’s propensity to commit other violent acts.

In responding to the argument that foretelling future behavior is impossible, the joint opinion stated:

“ [Prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant’s future conduct. And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice.” Id., at 275-276 (footnotes omitted).

While in no sense disapproving the use of psychiatric testimony bearing on the issue of future dangerousness, the holding in Jurek was guided by recognition that the inquiry mandated by Texas law does not require resort to medical experts.

Ill

Respondent’s Fifth and Sixth Amendment rights were abridged by the State’s introduction of Dr. Grigson’s testimony at the penalty phase, and, as the Court of Appeals concluded, his death sentence must be vacated. Because respondent’s underlying conviction has not been challenged and remains undisturbed, the State is free to conduct further proceedings not inconsistent with this opinion. Accordingly, the judgment of the Court of Appeals is

Affirmed.

Justice Brennan.

I join the Court’s opinion. I also adhere to my position that the death penalty is in all circumstances unconstitutional.

Justice Marshall,

concurring in part.

I join in all but Part II-C of the opinion of the Court. I adhere to my consistent view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. I therefore am unable to join the suggestion in Part II-C that the penalty may ever be constitutionally imposed.

Justice Stewart,

with whom Justice Powell joins, concurring in the judgment.

The respondent had been indicted for murder and a lawyer had been appointed to represent him before he was examined by Dr. Grigson at the behest of the State. Yet that examination took place without previous notice to the respondent’s counsel. The Sixth and Fourteenth Amendments as applied in such cases as Massiah v. United States, 377 U. S. 201, and Brewer v. Williams, 430 U. S. 387, made impermissible the introduction of Dr. Grigson’s testimony against the respondent at any stage of his trial.

I would for this reason affirm the judgment before us without reaching the other issues discussed by the Court.

Justice Rehnquist,

concurring in the judgment.

I concur in the judgment because, under Massiah v. United States, 377 U. S. 201 (1964), respondent’s counsel should have been notified prior to Dr. Grigson’s examination of respondent. As the Court notes, ante, at 469, respondent had been indicted and an attorney had been appointed to represent him. Counsel was entitled to be made aware of Dr. Grigson’s activities involving his client and to advise and prepare his client accordingly. This is by no means to say that respondent had any right to have his counsel present at any examination. In this regard I join the Court’s careful delimiting of the Sixth Amendment issue, ante, at 470, n. 14.

Since this is enough to decide the case, I would not go on to consider the Fifth Amendment issues and cannot subscribe to the Court’s resolution of them. I am not convinced that any Fifth Amendment rights were implicated by Dr. Grigson’s examination of respondent. Although the psychiatrist examined respondent prior to trial, he only testified concerning the examination after respondent stood convicted. As the court in Hollis v. Smith, 571 F. 2d 685, 690-691 (CA2 1978), analyzed the issue: “The psychiatrist’s interrogation of [defendant] on subjects presenting no threat of disclosure of prosecutable crimes, in the belief that the substance of [defendant’s] responses or the way in which he gave them might cast light on what manner of man he was, involved no 'compelled testimonial self-incrimination’ even though the consequence might be more severe punishment.”

Even if there are Fifth Amendment rights involved in this case, respondent never invoked these rights when confronted with Dr. Grigson’s questions. The Fifth Amendment privilege against compulsory self-incrimination is not self-executing. “Although Miranda’s requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.” Roberts v. United States, 445 U. S. 552, 560 (1980). The Miranda requirements were certainly not designed by this Court with psychiatric examinations in mind. Respondent was simply not in the inherently coercive situation considered in Miranda. He had already been indicted, and counsel had been appointed to represent him. No claim is raised that respondent’s answers to Dr. Grigson’s questions were “involuntary” in the normal sense of the word. Unlike the police officers in Miranda, Dr. Grigson was not questioning respondent in order to ascertain his guilt or innocence. Particularly since it is not necessary to decide this case, I would not extend the Miranda requirements to cover psychiatric examinations such as the one involved here.

       This psychiatric evaluation was ordered even though defense counsel had not put into issue Smith’s competency to stand trial or his sanity at the time of the offense. The trial judge later explained: “In all cases where the State has sought the death penalty, I have ordered a mental evaluation of the defendant to determine his competency to stand trial. I have done this for my benefit because I do not intend to be a participant in a case where the defendant receives the death penalty and his mental competency remains in doubt.” App. A-117. See Tex. Code Crim. Proc. Ann., Art. 46.02 (Vernon 1979). No question as to the appropriateness of the trial judge’s order for the examination has been raised by Smith.

       Article 37.071 (a) of the Tex. Code of Crim. Proc. Ann. (Vernon Supp. 1980) provides:
      “Upon a finding that the defendant is guilty of a capital offense, the court shall conduct' a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.”

       The other two issues are “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result” and “if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc. Ann., Arts. 37.071 (b)(1) and (3) (Vernon Supp. 1980).

       It appears from the record that Smith’s only prior criminal conviction was for the possession of marihuana. See App. A-64.

       Defense counsel discovered the letter at some time after jury selection began in the ease on March 11, 1974. The trial judge later explained that Dr. Grigson was “appointed by oral communication,” that “[a] letter of appointment was not prepared,” and that “the court records do not reflect [the entry of] a written order.” Id., at A-118. The judge also stated: “As best I recall, I informed John Simmons, the attorney for the defendant, that I had appointed Dr. Grigson to examine the defendant and that a written report was to be mailed to me.” Ibid. However, defense counsel assert that the discovery of Dr. Grigson’s letter served as their first notice that he had examined Smith. Id., at A-113, A-116.
      On March 25, 1974, the day the trial began, defense counsel requested the issuance of a subpoena for the Dallas County Sheriff’s records of Dr. Grigson’s “visitation to . . . Smith.” Id., at A-8.

       Texas law does provide that “[n]o statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.” Tex. Code Crim. Proc. Ann., Art. 46.023 (g) (Vernon 1979) (emphasis added). See also 18 U. S. C. §4244; Fed. Rule Crim. Proc. 12.2 (c); United States v. Alvarez, 519 F. 2d 1036, 1042-1044 (CA3 1975); Note, Requiring a Criminal Defendant to Submit to a Government Psychiatric Examination: An Invasion of the Privilege Against Self-Incrimination, 83 Harv. L. Rev. 648, 649, and cases cited at nn. 8-9 (1969).

       The State conceded this at oral argument. Tr. of Oral Arg. 47, 49.

       Although the Court of Appeals doubted the applicability of the Fifth Amendment if Dr, Grigscm’s diagnosis had been founded only on respondent’s mannerisms, facial expressions, attention span, or speech patterns, 602 F. 2d 694, 704 (CA5 1979), the record in this case sheds no light on whether such factors alone would enable a psychiatrist to predict future dangerousness. The American Psychiatric Association suggests, however, that “absent a defendant’s willingness to cooperate as to the verbal content of his communications, ... a psychiatric examination in these circumstances would be meaningless.” Brief for American Psychiatric Association as Amicus Curiae 26 (emphasis in original).

       On cross-examination, Dr. Grigson acknowledged that his findings were based on his “discussion” with respondent, App. A-32, and he replied to the question “[w]hat . . . was the most important thing that . . . caused you to think that [respondent] is a severe sociopath” as follows:
      “He told me that this man named Moon looked as though he was going to reach for a gun, and he pointed his gun toward Mr. Moon’s head, pulled the trigger, and it clicked — misfired, at which time he hollered at Howie, apparently his other partner there who had a gun, 'Watch out, Howie. He’s got a gun.’ Or something of that sort. At which point he told me — now, I don’t know who shot this man, but he told me that Howie shot him, but then he walked around over this man who had been shot— didn’t . . . check to see if he had a gun nor did he check to see if the man was alive or dead. Didn’t call an ambulance, but simply found the gun further up underneath the counter and took the gun and the money. This is a very — sort of cold-blooded disregard for another human being’s life. I think that his telling me this story and not saying, you know, ‘Man, I would do anything to have that man back alive. I wish I hadn’t just stepped over the body.’ Or you know, ‘I wish I had checked to see if he was all right’ would indicate a concern, guilt, or remorse. But I didn’t get any of this.” Id., at A-27- — A-28.

       On the same theory, the Court of Appeals here carefully left open “the possibility that a defendant who wishes to use psychiatric evidence in his own behalf [on the issue of future dangerousness] can be precluded from using it unless ho is [also] willing to be examined by a psychiatrist nominated by the state.” 602 F. 2d, at 705.

       While recognizing that attempts to coerce a defendant to submit to psychiatric inquiry on his future dangerousness might include the penalty of prosecutorial comment on his refusal to be examined, the Court of Appeals noted that making such a remark and allowing the jury to draw its own conclusions “might clash with [this Court’s] insistence that capital sentencing procedures be unusually reliable.” 602 F. 2d, at 707. See also Griffin v. California, 380 U. S. 609 (1965).

       For the reasons stated by the Court of Appeals, we reject the State’s argument that respondent waived his Fifth Amendment claim by failing to make a timely, specific objection to Dr. Grigson’s testimony at trial. See 602 F. 2d, at 708, n. 19. In addition, we note that the State did not present the waiver argument in its petition for certiorari. See this Court’s Rule 40 (1) (d)(2) (1970).

       Of course, we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.

         Because psychiatric examinations of the type at issue here are conducted after adversary proceedings have been instituted, we are not concerned in this case with the limited right to the appointment and presence of counsel recognized as a Fifth Amendment safeguard in Miranda v. Arizona, 384 U. S. 436, 471-473 (1966). See Edwards v. Arizona, post, p. 477. Rather, the issue before us is whether a defendant’s Sixth Amendment right to the assistance of counsel is abridged when the defendant is not given prior opportunity to consult with counsel about his participation in the psychiatric examination. But cf. n. 15, infra.

      Respondent does not assert, and the Court of Appeals did not find, any constitutional right to have counsel actually present during the examination. In fact, the Court of Appeals recognized that “an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.” 602 F. 2d, at 708. Cf. Thornton v. Corcoran, 132 U. S. App. D. C. 232, 242, 248, 407 F. 2d 695, 705, 711 (1969) (opinion concurring in part and dissenting in part).

       It is not clear that defense counsel were even informed prior to the examination that Dr. Grigson had been appointed by the trial judge to determine respondent’s competency to stand trial. See n. 5, supra.

       We do not hold that respondent was precluded from waiving this constitutional right. Waivers of the assistance of counsel, however, “must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends . . . ‘upon the particular facts and circumstances surrounding [each] case Edwards v. Arizona, post, at 482, quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938). No such waiver has been shown, or even alleged, here.

       Because of our disposition of respondent’s Fifth and Sixth Amendment claims, we need not reach the question of whether the failure to give advance notice of Dr. Grigson’s appearance as a witness for the State deprived respondent of due process.