author: Justice White Justice Scalia, Justice Blackmun, Justice Brennan, Justice Stevens,

text:
    POPE et al. v. ILLINOIS
    No. 85-1973.
    Argued February 24, 1987
    Decided May 4, 1987

      White, J., delivered the opinion of the Court, in which Rehnquist, .C. J., and Powell, O’ConnoR, and Scalia, JJ., joined, and in Parts I and II of which Blackmun, J., joined. Scalia, J., filed a concurring opinion, post, p. 504. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 505. Brennan, J., filed a dissenting opinion, post, p. 506. Stevens, J., filed a dissenting opinion, in which MARSHALL, J., joined, in all but n. 11 of which Brennan, J., joined, and in Part I of which Blackmun, J., joined, post, p. 507.

      Glenn A. Stanko argued the cause for petitioners. With him on the briefs was J. Steven Beckett.

      Sally Louise Dilgart, Assistant Attorney General of Illinois, argued the cause for respondent. On the brief were Neil F. Hartigan, Attorney General, Roma J. Stewart, Solicitor General, and Mark L. Rotert and Jack Donatelli, Assistant Attorneys General.

      Briefs of amici curiae urging reversal were filed for the American Booksellers Association, Inc., et al. by Michael A. Bamberger, R. Bruce Rich, Roger L. Funk, and Maxwell J. Lillienstein; for the American Civil Liberties Union et al. by Bruce J. Ennis, Jr., David W. Ogden, Harvey Grossman, Jane M. Whicher, Jack Novik, and David Goldstein; and for Volunteer Lawyers for the Arts, Inc., by Irwin Karp and I. Fred Koenigsberg.

        Edward Cooper and James J. Clancy filed a brief for the city of Santa Ana, California, as amicus curiae.

   Justice White

delivered the opinion of the Court.

In Miller v. California, 413 U. S. 15 (1973), the Court set out a tripartite test for judging whether material is obscene. The third prong of the Miller test requires the trier of fact to determine “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id., at 24. The issue in this case is whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question.

I

On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore. Petitioners were subsequently charged separately with the offense of “obscenity” for the sale of these magazines. Each petitioner moved to dismiss the charges against him on the ground that the then-current version of the Illinois obscenity statute, Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983), violated the First and Fourteenth Amendments to the United States Constitution. Both petitioners argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged “solely on an objective basis as opposed to reference [sic] to contemporary community standards.” App. 8, 22. Both trial courts rejected this contention and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. Both petitioners were found guilty, and both appealed to the Illinois Appellate Court, Second District. That court also rejected petitioners’ contention that the issue of value must be determined bn an objective basis and not by reference to contemporary community standards. 138 Ill. App. 3d 726, 486 N. E. 2d 350 (1985); 138 Ill. App. 3d 595, 486 N. E. 2d 345 (1985). The Illinois Supreme Court denied review, and we granted certio-rari, 479 U. S. 812 (1986).

h-i b — I

There is no suggestion m our cases that the question of the value of an allegedly obscene work is to be determined by reference to community standards. Indeed, our cases are to the contrary. Smith v. United States, 431 U. S. 291 (1977), held that, in a federal prosecution for mailing obscene materials, the first and second prongs of the Miller test — appeal to prurient interest and patent offensiveness — are issues of fact for the jury to determine applying contemporary community standards. The Court then observed that, unlike prurient appeal and patent offensiveness, “[ljiterary, artistic, political, or scientific value ... is not discussed in Miller in terms of contemporary community standards.” Id., at 301 (citing F. Schauer, The Law of Obscenity 123-124 (1976)). This comment was not meant to point out an oversight in the Miller opinion, but to call attention to and approve a deliberate choice.

In Miller itself, the Court was careful to point out that “[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” 413 U. S., at 34. Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. The instruction at issue in this case was therefore unconstitutional.

Ill

The question remains whether the convictions should be reversed outright or are subject to salvage if the erroneous instruction is found to be harmless error. Petitioners contend that the statute is invalid on its face and that the convictions must necessarily be reversed because, as we understand it, the State should not be allowed to preserve any conviction under a law that poses a threat to First Amendment values. But the statute under which petitioners were convicted is no longer on the books; it has been repealed and replaced by a statute that does not call for the application of community standards to the value question. Facial invalidation of the repealed statute would not serve the purpose of preventing future prosecutions under a constitutionally defective standard. Cf., e. g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 964-968, and n. 13 (1984). And if we did facially invalidate the repealed statute and reverse petitioners’ convictions, petitioners could still be retried under that statute, provided that the erroneous instruction was not repeated, because petitioners could not plausibly claim that the repealed statute failed to give them notice that the sale of obscene materials would be prosecuted. See Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965); United States v. Thirty-seven Photographs, 402 U. S. 363, 375, n. 3 (1971). Under these circumstances, we see no reason to require a retrial if it can be said beyond a reasonable doubt that the jury’s verdict in this case was not affected by the erroneous instruction.

The situation here is comparable to that in Rose v. Clark, 478 U. S. 570 (1986). In Rose, the jury in a murder trial was incorrectly instructed on the element of malice, yet the Court held that a harmless-error inquiry was appropriate. The Court explained that in the absence of error that renders a trial fundamentally unfair, such as denial of the right to counsel or trial before a financially interested judge, a conviction should be affirmed “[wjhere a reviewing court can find that the record developed at trial established guilt beyond a reasonable doubt. . . Id., at 579. The error in Rose did not entirely preclude the jury from considering the element of malice, id., at 580, n. 8, and the fact that the jury could conceivably have had the impermissible presumption in mind when it considered the element of malice was not a reason to retry the defendant if the facts that the jury necessarily found established guilt beyond a reasonable doubt. The Court said: “When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond reasonable doubt. Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.” Id., at 580-581.

Similhrly, in the present cases the jurors were not precluded from considering the question of value: they were informed that to convict they must find, among other things, that the magazines petitioners sold were utterly without redeeming social value. While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand.

Although we plainly have the authority to decide whether, on the facts of a given case, a constitutional error was harmless under the standard of Chapman v. California, 386 U. S. 18 (1967), we do so sparingly. Rose v. Clark, supra, at 584. In this case the Illinois Appellate Court has not considered the harmless-error issue. We therefore vacate its judgment and remand so that it may do so.

It is so ordered.

Justice Scalia,

concurring.

I join the Court’s opinion with regard to harmless error because I think it implausible that a community standard embracing the entire State of Illinois would cause any jury to convict where a “reasonable person” standard would not. At least in these circumstances, if a reviewing court concludes that no rational juror, properly instructed, could find value in the magazines, the Constitution is not offended by letting the convictions stand.

I join the Court’s opinion with regard to an “objective” or “reasonable person” test of “serious literary, artistic, political, or scientific value,” Miller v. California, 413 U. S. 15, 24 (1973), because I think that the most faithful ássessment of what Miller intended, and because we have not been asked to reconsider Miller in the present case. I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled “reasonable man” is of little help in the inquiry, and would have to be replaced with, perhaps, the “man of tolerably good taste” — a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decisionmaking is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide “What is Beauty” is a novelty even by today’s standards.

The approach proposed by Part II of Justice Stevens’ dissent does not eliminate this difficulty, but arguably aggravates it. It is a refined enough judgment to estimate whether a reasonable person would find literary or artistic value in a particular publication; it carries refinement to the point of meaninglessness to ask whether he could do so. Taste being, as I have said, unpredictable, the answer to the question must always be “yes” — so that there is little practical difference between that proposal and Part III of Justice Stevens’ dissent, which asserts more forthrightly that “government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors, or obtrusive display to unconsenting adults.” Post, at 513 (footnote omitted).

All of today’s opinions, I suggest, display the need for reexamination of Miller.

Justice Blackmun,

concurring in part and dissenting in part.

I join Part I of Justice Stevens’ dissenting opinion for I agree with him that “harmless error” analysis may not appropriately be applied to this case. I join Parts I and II of Justice White’s opinion for the Court (but not the Court’s judgment remanding the case for harmless-error analysis), however, because I believe the standard enunciated in those Parts of that opinion meets the other concerns voiced by the dissent. Justice White points out: “Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won.” Ante, at 500. Justice White further emphasizes: “Of course . . . the mere fact that only a minority of a population may believe a work has serious value does not mean the ‘reasonable person’ standard would not be met.” Ante, at 501, n. 3. Thus, contrary to the dissent’s characterization, I do not think that “[a] juror asked to create a ‘reasonable person’ in order to apply the standard that the Court announces today might well believe that the majority of the population who find no value in such a book are more reasonable than the minority who do find value.” Post, at 512. Rather, the Court’s opinion stands for the clear proposition that the First Amendment does not permit a majority to dictate to discrete segments of the population — be they composed of art critics, literary scholars, or scientists — the value that may be found in various pieces of work. That only a minority may find value in a work does not mean that a jury would not conclude that “a reasonable person would find such value in the material, taken as a whole.” Ante, at 501. Reasonable people certainly may differ as to what constitutes literary or artistic merit. See ante, at 504 (Scalia, J., concurring). As I believe Justice Scalia recognizes in his concurrence (although he may not applaud it), the Court’s opinion today envisións that even a minority view among reasonable people that a work has value may protect that work from being judged “obscene.”

Justice Brennan,

dissenting.

Justice Stevens persuasively demonstrates the unconstitutionality of criminalizing the possession or sale of “obscene” materials to consenting adults. I write separately only to reiterate my view that any regulation of such material with respect to consenting adults suffers from the defect that “the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 103 (1973) (Brennan, J., dissenting). I therefore join all but footnote 11 of Justice Stevens’ dissent.

Justice Stevens,

with whom Justice Marshall joins, with whom Justice Brennan joins except as to footnote 11, and with whom Justice Blackmun joins as to Part I, dissenting.

The Court correctly holds that the juries that convicted petitioners were given erroneous instructions on one of the three essential elements of an obscenity conviction. Nevertheless, I disagree with its disposition of the case for three separate reasons: (1) the error in the instructions was not harmless; (2) the Court’s attempt to clarify the constitutional definition of obscenity is not faithful to the First Amendment; and (3) I do not believe Illinois may criminalize the sale of magazines to consenting adults who enjoy the constitutional right to read and possess them.

I — I

The distribution of magazines is presumptively protected by the First Amendment. The Court has held, however, that the constitutional protection does not apply to obscene literature. If a state prosecutor can convince the trier of fact that the three components of the obscenity standard set forth in Miller v. California, 413 U. S. 15, 24 (1973), are satisfied, it may, in the Court’s view, prohibit the sale of sexually explicit magazines. In a criminal prosecution, the prosecutor must prove each of these three elements beyond a reasonable doubt. Thus, in these cases, in addition to the first two elements of the Miller standard, the juries were required to find, on the basis of proof beyond a reasonable doubt, that each of the magazines “lacks serious literary, artistic, political, or scientific value.” Ibid.

The required finding is fundamentally different from a conclusion that a majority of the populace considers the magazines offensive or worthless. As the Court correctly holds, the juries in these cases were not instructed to make the required finding; instead, they were asked to decide whether “ordinary adults in the whole State of Illinois” would view the magazines that petitioners sold as having value. App. 11, 25-26. Because of these erroneous instructions, the juries that found petitioners guilty of obscenity did not find one of the essential elements of that crime. This type of omission can never constitute harmless error.

Just as the constitutional right to trial by jury prohibits a judge from directing a verdict for the prosecution, United States v. Martin Linen Supply Co., 430 U. S. 564, 572-573 (1977), so too, “a jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof.” Cabana v. Bullock, 474 U. S. 376, 384 (1986). As Justice White has explained:

“It should hardly need saying that a judgment or conviction cannot be entered against a defendant no matter how strong the evidence is against him, unless that evidence has been presented to a jury (or a judge, if a jury is waived) and unless the jury (or judge) finds from that evidence that the defendant’s guilt has been proved beyond a reasonable doubt. It cannot be ‘harmless error’ wholly to deny a defendant a jury trial on one or all elements of the offense with which he is charged.” Henderson v. Morgan, 426 U. S. 637, 650 (1976) (White, J., concurring) (emphasis added).

Yet, this is exactly what happened in these cases. Because of the constitutionally erroneous instructions, petitioners were denied a jury determination on one of the critical elements of an obscenity prosecution.

An application of the harmless-error doctrine under these circumstances would not only violate petitioners’ constitutional right to trial by jury, but would also pervert the notion of harmless error. When a court is asked to hold that an error that occurred did not interfere with the jury’s ability to legitimately reach the verdict that it reached, harmless-error analysis may often be appropriate. But this principle cannot apply unless the jury found all of the elements required to support a conviction. The harmless-error doctrine may enable a court to remove a taint from proceedings in order to preserve a jury’s findings, but it cannot constitutionally supplement those findings. It is fundamental that an appellate court (and for that matter, a trial court) is not free to decide in a criminal case that, if asked, a jury would have found something that it did not find. We have consistently rejected the possibility of harmless error in these circumstances. See Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979); Carpenters v. United States, 330 U. S. 395, 408-409 (1947); Bollenbach v. United States, 326 U. S. 607, 615 (1946); see also Marks v. United States, 430 U. S. 188, 196, n. 12 (1977).

The Court suggests that these cases “are no longer good authority” in light of the decision last term in Rose v. Clark, 478 U. S. 570 (1986). See ante, at 503-504, n. 7. I emphatically disagree. In Rose v. Clark the Court held that harmless-error analysis is applicable to instructions that informed the jury of the proper elements of the crime and the proper standard of proof, but impermissibly gave the jury the option of finding one of the elements through a presumption, in violation of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985). In holding harmless-error analysis applicable, the Court explained that because the presumption in question “‘does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.”’ 478 U. S., at 580, n. 8 (emphasis added), quoting Connecticut v. Johnson, 460 U. S. 73, 95, n. 3 (1983) (Powell, J., dissenting). The Court reasoned that when the evidence is overwhelming on intent, the instruction allowing the jury to use a presumption can be deemed “simply superfluous,” 478 U. S., at 581, for as Justice Powell had earlier stated, in some cases the evidence may be so “dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption. ” Connecticut v. Johnson, 460 U. S., at 97, n. 5 (dissenting opinion). This case is, of course, far different. No court could ever determine that the instructions on the element were superfluous, since the error in the instructions went to the ultimate fact that the juries were required to find. Rose v. Clark did not modify the precedents requiring that a jury find all of the elements of a crime under the proper standard, any more than it modified the Sixth Amendment’s provision that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial by an impartial jury.”

HH H — I

Aside from its error in remanding convictions which must clearly be reversed, the Court announces an obscenity standard that fails to accomplish the goal that the Court ascribes to it. After stressing the need to avoid a mere majoritarian inquiry, the Court states:

“The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” Ante, at 500-501.

The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court’s formulation does not tell the jury how to decide such cases.

In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value. Over 40 years ago, the Court recognized that

“Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another. . . . From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values.” Hannegan v. Esquire, Inc., 327 U. S. 146, 157-158 (1946).

The purpose of the third element of the Miller test is to ensure that the obscenity laws not be allowed to “'level’ the available reading matter to the majority or lowest common denominator of the population. ... It is obvious that neither Ulysses nor Lady Chatterley’s Lover would have literary appeal to the majority of the population.” F. Schauer, The Law of Obscenity 144 (1976). A juror asked to create “a reasonable person” in order to apply the standard that the Court announces today might well believe that the majority of the population who find no value in such a book are more reasonable than the minority who do find value. First Amendment protection surely must not be contingent on this type of subjective determination.

Ill

There is an even more basic reason why I believe these convictions must be reversed. The difficulties inherent in the Court’s “reasonable person” standard reaffirm my conviction that government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors or obtrusive display to unconsenting adults. During the recent years in which the Court has struggled with the proper definition of obscenity, six Members of the Court have expressed the opinion that the First Amendment, at the very least, precludes criminal prosecutions for sales such as those involved in this case. Dissenting in Smith v. United States, 431 U. S. 291 (1977), I explained my view:

“The question of offensiveness to community standards, whether national or local, is not one that the average juror can be expected to answer with e'venhanded consistency. The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social context. Studies have shown that an opinion held by a large majority of a group concerning a neutral and objective subject has a significant impact in distorting the perceptions of group members who would normally take a different position. Since obscenity is by no means a neutral subject, and since the ascertainment of a community standard is such a subjective task, the expression of individual jurors’ sentiments will inevitably influence the perceptions of other jurors, particularly those who would normally be in the minority. Moreover, because the record never discloses the obscenity standards which the jurors actually apply, their decisions in these cases are effectively unreviewable by an appellate court. In the final analysis, the guilt or innocence of a criminal defendant in an obscenity trial is determined primarily by individual jurors’ subjective reactions to the materials in question rather than by the predictable application of rules of law.
“This conclusion is especially troubling because the same image — whether created by words, sounds, or pictures — may produce such a wide variety of reactions. As Mr. Justice Harlan noted: ‘[It is] often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials [or jurors] cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.’ Cohen v. California, 403 U. S. 15, 25. In my judgment, the line between communications which ‘offend’ and those which do not is too blurred to identify criminal conduct. It is also too blurred to delimit the protections of the First Amendment.” Id., at 315-316 (footnotes omitted).

The Court has repeatedly recognized that the Constitution “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983). These two requirements serve overlapping functions. Not only do vague statutes tend to give rise to selective and arbitrary prosecution, but selective and arbitrary prosecution often lessens the degree to which an actor is on notice that his or her conduct is illegal.

When petitioners Pope and Morrison accepted part-time employment as clerks in the bookstores, they could hardly have been expected to examine the stores’ entire inventories, and even if they had, they would have had no way of knowing which, if any, of the magazines being sold were legally “obscene.” Perhaps if the enterprise were being carried out in a clandestine manner, it might be fair to impute to them knowledge that something illegal was going on. But these stores both had large signs indicating the nature of the enterprise, one claiming that the store had “The Largest Selection of Adult Merchandise in Northern Illinois.” See People’s Exhibit No. 3, People v. Morrison, No. 84-cm-4114 (17th Jud. Cir. Ill. 1984). The Illinois Appellate Court found that Pope had the necessary scienter because it was “difficult to believe that [he] would not be fully apprised of the type and character of the three magazines simply by looking at them.” App. to Pet. for Cert/19. It is obvious that Pope knew that the magazines were “pornographic,” but that does not mean he knew, or should have known, that they were legally “obscene” under the Illinois statute and our precedents. It would have been quite reasonable for him to conclude that if sale of the magazines were indeed against the law, then the police would never allow the store to remain in operation, much less publicly advertise its goods. Nor would an examination of the statute have given him much guidance.

Under ordinary circumstances, ignorance of the law is no excuse for committing a crime. But that principle presupposes a penal statute that adequately puts citizens on notice of what is illegal. The Constitution cannot tolerate schemes that criminalize categories of speech that the Court has conceded to be so vague and uncertain that they cannot “be defined legislatively.” Smith v. United States, 431 U. S., at 303. If a legislature cannot define the crime, Richard Pope and Michael Morrison should not be expected to. Criminal prosecution under these circumstances “may be as much of a trap for the innocent as the ancient laws of Caligula.” United States v. Cardiff, 344 U. S. 174, 176 (1952).

Concern with the vagueness inherent in criminal obscenity statutes is not the only constitutional objection to the criminalization of the sale of sexually explicit material (not involving children) to consenting adults. In Stanley v. Georgia, 394 U. S. 557 (1969), the Court held that Georgia could not criminalize the mere possession of obscene matter. The decision was grounded upon a recognition that “[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Id., at 565. The only justification we could find for the law there was Georgia’s desire to “protect the individual’s mind from the effects of obscenity,” ibid., and we concluded that such a desire to “control the moral content of a person’s thoughts ... is wholly inconsistent with the philosophy of the First Amendment.” Id., at 565-566.

The Court has adopted a restrictive reading of Stanley, opining that it has no implications to the criminalization of the sale or distribution of obscenity. See United States v. Reidel, 402 U. S. 351 (1971); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973). But such a crabbed approach offends the overarching First Amendment principles discussed in Stanley, almost as much as it insults the citizenry by declaring its right to read and possess material which it may not legally obtain. In Stanley, the Court recognized that there are legitimate reasons for the State to regulate obscenity: protecting children and protecting the sensibilities of unwilling viewers. 394 U. S., at 507. But surely a broad criminal prohibition on all sale of obscene material cannot survive simply because the State may constitutionally restrict public display or prohibit sale of the material to minors.

As was the case in Smith, “I do not know whether the ugly pictures in this record have any beneficial value.” 431 U. S., at 319 (Stevens, J., dissenting). I do know though:

“The fact that there is a large demand for comparable materials indicates that they do provide amusement or information, or at least satisfy the curiosity of interested persons. Moreover, there are serious well-intentioned people who are persuaded that they serve a worthwhile purpose. Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct. Moreover, the baneful effects of these materials are disturbingly reminiscent of arguments formerly made about what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from that which is ugly or worthless.” Id., at 320-321 (footnotes omitted).

I respectfully dissent.

       As noted in petitioners’ motions to dismiss, App. 7, 21, the statute under which petitioners were prosecuted had been construed to incorporate the third prong of the tripartite test set out in the plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413 (1966), viz., material is obscene only if “utterly without redeeming social value.” Id., at 418. See People v. Ridens, 59 Ill. 2d 362, 321 N. E. 2d 264 (1974); People v. Thomas, 37 Ill. App. 3d 320, 346 N. E. 2d 190 (1976). In Miller v. California, 413 U. S. 15, 22 (1973), the Court held that this test is not constitutionally mandated because it imposes a burden of proof on the State that is “virtually impossible to discharge under our criminal standards of proof.” Nonetheless, at the time petitioners were prosecuted Illinois still chose to retain the higher burden of proof on the value question, which it was of course free to do. For purposes of this ease, it makes no difference that the value inquiry was under the Memoirs as opposed to the Miller test.

       The instructions stated that the obscenity determination was to be made under a statewide standard rather than by reference to the standard of any single city, town, or region within the State. App. 11, 25-26.

       Of course, as noted above, the mere fact that only a minority of a population may believe a work has serious value does not mean the “reasonable person” standard would not be met.
      The State contends that without an instruction to apply contemporary community standards the jury will be at a loss as to how to decide the value issue. Brief for Respondent 21. In an obscenity prosecution the trial court, in its discretion, could instruct the jury to decide the value question by considering whether a reasonable person would find serious literary, artistic, political, or scientific value in the work, taken as a whole. Such an instruction would be no more likely to confuse a jury than the “reasonable man” instructions that have been given for generations in other contexts, such as tort suits.
      The State also suggests, in attempting to justify the use of a “community standards” instruction on the value question, that such an instruction is the functional equivalent of a “reasonable man” instruction. Id., at 16. The risk, however, is that under a “community standards” instruction a jury member could consider himself bound to follow prevailing local views on value without considering whether a reasonable person would arrive at a different conclusion.

         The new statute provides in relevant part:
      “Any material or performance is obscene if: (1) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person-, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibitions of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value.” Ill. Rev. Stat., ch. 38, Hll-20(b) (1985) (effective Jan. 1, 1986).

       The jury in Rose was instructed that “[a]U homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.” This instruction shifted the burden of proof on an element of the crime, in violation of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985).

       We do not understand Rose, as Justice Steven’s dissent apparently does, to be based on the fiction that a reviewing court could say beyond all reasonable doubt that the jury in fact did not have the impermissible burden-shifting instruction in mind when it concluded that the defendant killed with malice. To say that the jury “would have found it unnecessary to rely on the presumption,” Connecticut v. Johnson, 460 U. S. 73, 97, n. 5 (Powell, J., dissenting), or that the impermissible instruction was “superfluous,” Rose, 478 U. S., at 581, is not to say that the reviewing court can retrace the jury’s deliberative processes but that the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.

       The problem with the instructions in both cases is that the jury could have been impermissibly aided or constrained in finding the relevant element of the crime: in Rose, by the erroneous presumption; in this case, by possible reliance on unreasonable community views on the value question. By leaving open the possibility that petitioners’ convictions can be preserved despite the instructional error, we do no more than we did in Rose. To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, see, e. g., Cabana v. Bullock, 474 U. S. 376, 384 (1986), after Rose, they are no longer good authority.

       “The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” Miller v. California, 413 U. S., 15, 34 (1973). See ante, at 500.

       In Section II, infra, I explain my disagreement with the Court’s formulation of the obscenity standard, and in Section III, infra, I elaborate on my reasons for believing that the Constitution does not tolerate criminal prosecution in cases such as this. For purposes of the harmless-error discussion, however, those disagreements are irrelevant.

       See, e. g., Rose v. Clark, 478 U. S. 570 (1986) (instruction on permissive presumption may be found to have been “superfluous”); Delaware v. Van Arsdall, 475 U. S. 673 (1986) (failure to permit cross-examination on witness’ bias); Chapman v. California, 386 U. S. 18 (1967) (improper comment on defendant’s failure to testify); but see Rose, supra, at 587 (Stevens, J., concurring) (harmless-error analysis may be inappropriate even when error does not implicate reliability and accuracy of factual findings). These cases are consistent with the theory that “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Van Arsdall, supra, at 681.

       Notwithstanding the Court’s rejection of the community values test, the Court’s standard would still, in effect, require a juror to apply community values, unless the juror were to find that an ordinary member of his or her community is not “a reasonable person.” While this is, of course, not an impossible conclusion, it surely conflicts with the Court’s admonition that the value of works does not “vary from community to community based on the degree of local acceptance it has won,” and that whether a majority of the people find value in the material is immaterial. Ante, at 500, and n. 3. Indeed, as applied in the tort context, to which the Court analogizes, ante, at 501, n. 3, the reasonable man standard is extolled as enabling the “triers of fact ... to look to a community standard.” Restatement (Second) of Torts § 283, Comment c (1965). Absent intolerable orthodoxy, First Amendment protection cannot be circumscribed by the attitudes of a “reasonable man,” who has been described as an “ ‘excellent’ ” character who “ ‘stands like a monument in our Courts of Justice, vainly appealing to his fellow-citizens to order their lives after his own example.’ ” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 174 (5th ed. 1984), quoting A. Herbert, Misleading Cases in the Common Law 12 (3d ed. 1928).

       The problems with the Court’s formulation are accentuated when expert evidence is adduced about the value that the material has to a discrete segment of the population — be they art scholars, scientists, or literary critics. Certainly a jury could conclude that although those people reasonably find value in the material, the ordinary “reasonable person” would not.

       The definitional problems the Court confronts buttress the conclusion that:
      “none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments on the one hand, and on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 84 (1973) (Brennan, J., dissenting).

       See Roth v. United States, 354 U. S. 476, 508 (1957) (Douglas and Black, JJ., dissenting); Sewell v. Georgia, 435 U. S. 982, 988 (1978) (Stewart, J., dissenting from denial of certiorari); Paris Adult Theatre I, supra (Brennan, Stewart, and Marshall, JJ., dissenting); Smith v. United States, 431 U. S. 291, 311 (1977) (Stevens, J., dissenting). It has been recognized recently that the “the bulk of scholarly commentary is of the opinion that the Supreme Court’s resolution of and basic approach to the First Amendment issues” involved in obscenity laws “is incorrect,” in that it fails to adequately protect First Amendment values. See Attorney General’s Comm’n on Pornography, Final Report 261 (July 1986).
      On the state level, the Oregon Supreme Court recently held that its State Constitution gives people in Oregon the right to “write, print, read, say, show, or sell anything to a consenting adult even though that expression may be generally or universally considered ‘obscene.’” State v. Henry, 302 Ore. 510, 525, 732 P. 2d 9, 18 (1987). At least five States do not have adult obscenity statutes, although they do criminalize certain materials harmful to minors. See Alaska Stat. Ann. §11.61.125 (1983); Me. Rev. Stat. Ann., Tit. 17, §2911 et seq. (1983); N. M. Stat. Ann. § 30-37-1 et seq. (1980 and Supp. 1986); S. D. Comp. Laws Ann. § 22-24-1 et seq. (1979); Vt. Stat. Ann., Tit. 13, §2801 et seq. (1974 and Supp. 1987).

       See also Papachristou v. Jacksonville, 405 U. S. 156, 162-163, 168-169 (1972); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); Connally v. General Construction Co., 269 U. S. 385, 391-393 (1926). We have been especially intolerant of vague statutes in the First Amendment area. See Smith v. Goguen, 415 U. S. 566, 573 (1974); Grayned v. Rockford, 408 U. S. 104, 108-109 (1972); Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 684-690 (1968); Cramp v. Board of Public Instruction of Orange County, 368 U. S. 278, 283-284 (1961); Smith v. California, 361 U. S. 147, 151 (1959); Winters v. New York, 333 U. S. 507, 515 (1948).

       In both trials, the State used the fact that the stores were open only to those over 18 years of age as proof that respondents knew the materials were obscene. See Tr. in People v. Pope, No. 83-em-4116, pp. 317-318 (17th Jud. Cir. Ill. 1984); Tr. in People v. Morrison, No. 84-cm-4114, p. 303 (17th Jud. Cir. Ill. 1984). As I explained in Splawn v. California, 431 U. S. 595 (1977):
      “Signs which identify the ‘adult’ character of a motion picture theatre or a bookstore convey the message that sexually provocative entertainment is to be found within .... Such signs, however, also provide a warning to those who find erotic materials offensive that they should shop elsewhere for other kinds of books, magazines, or entertainment. Under any sensible regulatory scheme, truthful description of subject matter that is pleasing to some and offensive to others ought to be encouraged, not punished.” Id., at 604 (dissenting opinion).

       “The statements did make it clear that the films were ‘sexually provocative,’ but that is hardly a confession that they were obscene.” Id., at 603.

       The insurmountable vagueness problems involved in criminalization are not, in my view, implicated with respect to civil regulation of sexually explicit material, an area in which the States retain substantial leeway. See Smith v. United States, 431 U. S., at 317-321 (Stevens, J., dissenting); see generally Winters, supra, at 515 (“The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement”). Moreover, as long as it does not deny “access to the market,” and allows “the viewing public” to “satisfy its appetite for sexually explicit fare,” I believe that the State may regulate the sale and exhibition of even nonobscene material. See Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Schad v. Mount Ephraim, 452 U. S. 61, 79 (1981) (Stevens, J., concurring). As for prohibiting sale or exhibition of sexually explicit material to minors or material containing depiction of minors, it has long been established that the State may go beyond the constitutional definition of obscenity. See New York v. Ferber, 458 U. S. 747 (1982); Ginsberg v. New York, 390 U. S. 629 (1968); see also Ferber, supra, at 777 (Stevens, J., concurring).

       “After all, if a person has the right to receive information without regard to its social worth — that is, without regard to its obscenity — then it would seem to follow that a State could not constitutionally punish one who undertakes to provide that information to a willing, adult recipient." Paris Adult Theatre I, 413 U. S., at 86, n. 9 (Brennan, J., dissenting); see also United States v. Reidel, 402 U. S. 351, 360 (1971) (Marshall, J., dissenting); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 137 (1973) (Douglas, J., dissenting).


source: Caselaw Access Project

author: Justice Powell Justice Stevens,

license: Public Domain

text:
    ARIZONA v. MAURO
    No. 85-2121.
    Argued March 31, 1987
    Decided May 4, 1987

      Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Black-mun, JJ., joined, post, p. 530.

      Jack Roberts, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the brief were Robert K. Corbin, Attorney General, Georgia B. Ellexson, Assistant Attorney General, William J. Schafer III, and John Verkamp.

      Kathleen Kelly Walsh argued the cause and filed a brief for respondent.
   Justice Powell

delivered the opinion of the Court.

While respondent in this case was in police custody, he indicated that he did not wish to answer any questions until a lawyer was present. The issue presented is whether, in the circumstances of this case, officers interrogated respondent in violation of the Fifth and Fourteenth Amendments when they allowed him to speak with his wife in the presence of a police officer.

I

On November 23, 1982, the Flagstaff Police Department received a telephone call from a local K mart store. The caller stated that a man had entered the store claiming to have killed his son. When officers reached the store, respondent Mauro freely admitted that he had killed his son. He directed the officers to the child’s body, and then was arrested and advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U. S. 436 (1966). The officers then took Mauro to the pólice station, where he was advised of his Miranda rights again. At that point, Mauro told the officers that he did not wish to make any more statements without having a lawyer present. All questioning then ceased. As no secure detention area was available, Mauro was held in the office of the police captain.

At the same time, one of the officers, Detective Manson, was questioning Mauro’s wife in another room. After she finished speaking with Manson, Mrs. Mauro asked if she could speak to her husband. Manson was reluctant to allow the meeting, but after Mrs. Mauro insisted, he discussed the request with his supervisor, Sergeant Allen. Allen testified that he “saw no harm in it and suggested to [Manson] that if she really sincerely wanted to talk to him to go ahead and allow it.” App. 74. Allen instructed Manson not to leave Mr. and Mrs. Mauro alone and suggested that Manson tape-record the conversation.

Manson then “told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on.” Id., at 218 (findings of trial court). He brought Mrs. Mauro into the room and seated himself at a desk, placing a tape recorder in plain sight on the desk. He recorded their brief conversation, in which she expressed despair about their situation. During the conversation, Mauro told his wife not to answer questions until a lawyer was present.

Mauro’s defense at trial was that he had been insane at the time of the crime. In rebuttal, the prosecution played the tape of the meeting between Mauro and his wife, arguing that it demonstrated that Mauro was sane on the day of the murder. Mauro sought suppression of the recording on the ground that it was a product of police interrogation in violation of his Miranda rights. The trial court refused to suppress the recording. First, it explained the basis of the officers’ decision to allow Mrs. Mauro to meet with her husband in the presence of a policeman:

“The police counseled [Mrs. Mauro] not to [speak with her husband], but she was adamant about that. They finally yielded to her insistent demands. The Police Station lacked a secure interview room. The police justifiably appeared [sic] for Mrs. Mauro’s . . . safety, and they were also concerned about security, both in terms of whether Mr. and Mrs. Mauro might cook up a lie or swap statements with each other that shouldn’t have been allowed, and whether some escape attempt might have been made, or whether there might have been an attempt to smuggle in a weapon. They really had no idea what to expect along those lines.” Ibid.

In light of these justifications, the trial court found “that this procedure was not a ruse, nor a subterfuge by the police. They did not create this situation [i. e., allowing the meeting] as an indirect means of avoiding the dictates of Miranda.” Ibid. Accordingly, the trial court admitted the evidence. Mauro was convicted of murder and child abuse, and sentenced to death.

The Arizona Supreme Court reversed. 149 Ariz. 24, 716 P. 2d 393 (1986). It found that by allowing Mauro to speak with his wife in the presence of a police officer, the detectives interrogated Mauro within the meaning of Miranda. This interrogation was impermissible, the court said, because Mauro previously had invoked the right to have counsel present before being questioned further. The court noted that both detectives had acknowledged in pretrial hearings that they knew it was “possible” that Mauro might make incriminating statements if he saw his wife. The court relied on our statement in Rhode Island v. Innis, 446 U. S. 291 (1980), that interrogation includes a “practice that the police should know is reasonably likely to evoke an incriminating response from a suspect,” id., at 301. The court then concluded that the officers’ testimony demonstrated that there had been interrogation, because “[t]hey both knew that if the conversation took place, incriminating statements were likely to be made.” 149 Ariz., at 31, 716 P. 2d, at 400. Therefore, it held that the tape recording was not properly admitted at Mauro’s trial.

Arizona filed a petition for a writ of certiorari. Because the decision below appeared to misconstrue our decision in Rhode Island v. Innis, supra, we granted the petition, 479 U. S. 811 (1986). We now reverse.

HH 1 — 1

We begin by summarizing the relevant legal principles. The Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U. S. 436 (1966), the Court concluded that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. ” Id., at 467. “Accordingly, the Court formulated the now-familiar ‘procedural safeguards effective to secure the privilege against self-incrimination.’” Colorado v. Spring, 479 U. S. 564, 572 (1987) (quoting Miranda v. Arizona, supra, at 444). Among these is the rule that when an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S. 477, 484-485 (1981).

One of the questions frequently presented in cases in this area is whether particular police conduct constitutes “interrogation.” In Miranda, the Court suggested in one passage that “interrogation” referred only to actual “questioning initiated by law enforcement officers.” 384 U. S., at 444. But this statement was clarified in Rhode Island v. Innis, supra. In that case, the Court reviewed the police practices that had evoked the Miranda Court’s concern about the coerciveness of the “‘interrogation environment.’” 446 U. S., at 299 (quoting Miranda, supra, at 457). The questioned practices included “the use of lineups in which a coached witness would pick the defendant as the perpetrator . . .[,] the so-called ‘reverse line-up’ in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime,” and a variety of “psychological ploys, such as to ‘posi[t]’ ‘the guilt of the subject,’ to ‘minimize the moral seriousness of the offense,’ and ‘to cast blame on the victim or on society.’” 446 U. S., at 299 (quoting Miranda, supra, at 450) (brackets by Innis Court). None of these techniques involves express questioning, and yet the Court found that any of them, coupled with the “interrogation environment,” was likely to “‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” 466 U. S., at 399 (quoting Miranda, supra, at 457). Thus, the Innis Court concluded that the goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to “its functional equivalent.” 446 U. S., at 301. The Court explained the phrase “functional equivalent” of interrogation as including “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Ibid, (footnotes omitted). Finally, it noted that “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Ibid.

1 — 1 I — I hH

We now turn to the case before us. The officers gave Mauro the warnings required by Miranda. Mauro indicated that he did not wish to be questioned further without a lawyer present. Mauro never waived his right to have a lawyer present. The sole issue, then, is whether the officers’ subsequent actions rose to the level of interrogation — that is, in the language of Innis, whether they were the “functional equivalent” of police interrogation. We think it is clear under both Miranda and Innis that Mauro was not interrogated. The tape recording of the conversation between Mauro and his wife shows that Detective Manson asked Mauro no questions about the crime or his conduct. Nor is it suggested — or supported by any evidence — that Sergeant Allen’s decision to allow Mauro’s wife to see him was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation.

There is no evidence that the officers sent Mrs. Mauro in to see her husband for the purpose of eliciting incriminating statements. As the trial court found, the officers tried to discourage her from talking to her husband, but finally “yielded to her insistent demands,” App. 218. Nor was Detective Manson’s presence improper. His testimony, that the trial court found credible, indicated a number of legitimate reasons — not related to securing incriminating statements — for having a police officer present. See supra, at 523-524 (quoting App. 218). Finally, the weakness of Mauro’s claim that he was interrogated is underscored by examining the situation from his perspective. Cf. Rhode Island v. Innis, 446 U. S., at 301 (suggesting that the suspect’s perspective may be relevant in some cases in determining whether police actions constitute interrogation). We doubt that a suspect, told by officers that his wife will be allowed to speak to him, would feel that he was being coerced to incriminate himself in any way.

The Arizona Supreme Court was correct to note that there was a “possibility” that Mauro would incriminate himself while talking to his wife. It also emphasized that the officers were aware of that possibility when they agreéd to allow the Mauros to talk to each other. But the actions in this case were far less questionable than the “subtle compulsion” that we held not to be interrogation in Innis. See id., at 303. Officers do not interrogate a suspect simply by hoping that he will incriminate himself. In Miranda, and again in Innis, the Court emphasized:

“Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, 384 U. S., at 478, quoted in Rhode Island v. Innis, supra, at 299-300.

See Oregon v. Elstad, 470 U. S. 298, 305 (1985). (“‘[F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable’” (quoting United States v. Washington, 431 U. S. 181, 187 (1977))). Mauro was not subjected to compelling influences, psychological ploys, or direct questioning. Thus, his volunteered statements cannot properly be considered the result of police interrogation.

In deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. The government actions in this case do not implicate this purpose in any way. Police departments need not adopt inflexible rules barring suspects from speaking with their spouses, nor must they ignore legitimate security concerns by allowing spouses to meet in private. In short, the officers in this case acted reasonably and lawfully by allowing Mrs. Mauro to speak with her husband. In this situation, the Federal Constitution does not forbid use of Mauro’s subsequent statements at his criminal trial.

I — I <!

The judgment of the Arizona Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, dissenting.

The Supreme Court of Arizona unanimously and unequivocally concluded that the police intended to interrogate respondent. This Court reverses, finding that no interrogation occurred because Mauro “was not subjected to compelling influences, psychological ploys, or direct questioning.” Ante, at 529. The record indicates, however, that the police employed a powerful psychological ploy; they failed to give respondent any advance warning that Mrs. Mauro was coming to talk to him, that a police officer would accompany her, or that their conversation would be recorded. As the transcript of the conversation reveals, respondent would not have freely chosen to speak with her. See ante, at 522-523, n. 1. These facts compel the conclusion that the police took advantage of Mrs. Mauro’s request to visit her husband, setting up a confrontation between them at a time when he manifestly desired to remain silent. Because they allowed respondent’s conversation with his wife to commence at a time when they knew it was reasonably likely to produce an incriminating statement, the police interrogated him. The Court’s opposite conclusion removes an important brick from the wall of protection against police overreaching that surrounds the Fifth Amendment rights of suspects in custody.

At the time of the meeting in question between William Mauro and his wife, he was in police custody and had requested an attorney. It is therefore undisputed that he could not be subjected to interrogation until he either received the assistance of counsel or initiated a conversation with the police. See ante, at 525-526; Edwards v. Arizona, 451 U. S. 477, 484-485 (1981). Since neither event occurred, the tape-recorded evidence must be excluded if it was the product of “interrogation” within the meaning of Rhode Island v. Innis, 446 U. S. 291 (1980).

Police conduct may constitute “interrogation” even if the officers do not pose direct questions to the suspect. The Court explained the term in Rhode Island v. Innis:

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Id., at 301 (footnotes omitted).

In a footnote, the Court added:

“By ‘incriminating response’ we refer to any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Id., at 301, n. 5 (emphasis in original).

The Arizona Supreme Court correctly applied the Innis standard when it held that “the admission of a tape-recorded conversation between [Mauro] and his wife violated his state and federal rights not to incriminate himself. U. S. Const. amend. V, XIV; Ariz. Const, art. 2, § 10.” 149 Ariz. 24, 29, 716 P. 2d 393, 398 (1986). After distinguishing the cases on which the Attorney General of Arizona relied, the State Supreme Court explained:

“Unlike the Narten cases and Summerlin, this is not a case where an officer accidentally overhears a conversation. Rather, here we have illicit custodial interrogation. At the time of the tape recording at issue, appellant was under arrest and being detained at a police station. There is no doubt that this constituted a custodial setting. However, besides being in a custodial setting, the conversation must constitute ‘interrogation.’
“Interrogation includes a ‘practice that the police should know is reasonably likely to evoke an incriminating response from a suspect.’ Rhode Island v. Innis, 446 U. S. 291, 301... (1980). ‘The focus in ascertaining whether particular police conduct amounts to interrogation, then, is not on the form of the words used, but the intent of the police officers and the perceptions of the suspect.’ State v. Finehout, 136 Ariz. at 230, 665 P. 2d at 574. An incriminating response is any response— whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial. Rhode Island v. Innis, 446 U. S., at 301 n. 5 . . . .
“The intent of the detectives is clear from their own testimony. They both knew that if the conversation took place, incriminating statements were likely to be made. With that in mind, they decided to take in a tape recorder, sit near appellant and his wife and allow the conversation to commence.
“Since the intent of the detectives is so clear, we need not address appellant’s perceptions. Whether the police knew that appellant was unusually disoriented or upset might have been an important factor in this case had the State’s intent not been so unambiguous. See id., 446 U. S. at 302-03 . . . (suspect’s peculiar susceptibility to the police appeal and whether the police knew that appellant was unusually disoriented or upset are factors to be examined in determining the perceptions of a suspect). We find, therefore, that in allowing the conversation to commence, the police did indirectly what they could not do directly — interrogate appellant.” Id., at 31-32, 716 P. 2d, at 400-401.

J — I I — H

The Court s proffered reasons for disturbing these cogent findings are unpersuasive. In Rhode Island v. Innis, the Court emphasized that the police “cannot be held accountable for the unforeseeable results of their words or actions.” 446 U. S., at 301-302. But there is a grand canyon between innocent unforeseeability and the mere lack of explicit police subterfuge that the Court now finds adequate to preclude a finding that an interrogation has taken place. It is, of course, true that the trial court found that the spousal conversation, which Detective Manson witnessed and recorded, “was not a ruse, nor a subterfuge by the police. . . . They did not create this situation as an indirect means of avoiding the dictates of Miranda.” App. 218. But this observation, as the Arizona Supreme Court correctly recognized, is not sufficient to satisfy the concerns of the Fifth Amendment.

It is undisputed that a police decision to place two suspects in the same room and then to listen to or record their conversation may constitute a form of interrogation even if no questions are asked by any police officers. That is exactly what happened here. The police placed respondent and his wife, who was also in police custody, in the same small area. Mr. and Mrs. Mauro were both suspects in the murder of their son. Each of them had been interrogated separately before the officers decided to allow them to converse, an act that surely did not require a tape recorder or the presence of a police officer within hearing range. Under the circumstances, the police knew or should have known that Mrs. Mauro’s encounter with respondent was reasonably likely to produce an incriminating response. Indeed, Officer Allen’s supervisor testified that the police had a reasonable expectation that the spousal conversation would provide information on the murder investigation. When asked, “what was the purpose in having Detective Manson present during any interview or confrontation . . . between the defendant, Mr. Mauro, and his wife . . . ?” Captain Latham replied:

“Well, one of the reasons would be to, for her protection, in case he attacked her or there was any violence that occurred. . . . The other reason would be to see what the conversation was about. She and he both were under investigation at that time, and any statements that she made or he made could shed light on our case.” App. 101 (emphasis added).

In my opinion, it was not only likely, but highly probable, that one of the suspects would make a statement that the prosecutor might seek to introduce at trial. It follows that the police conduct in this case was the “functional equivalent” of deliberate, direct interrogation.

The State should not be permitted to set aside this conclusion with testimony that merely indicates that the evidence-gathering purpose of the police was mixed with other motives. For example, it is irrelevant to the inquiry whether the police had legitimate security reasons for having an officer present that were “not related to securing incriminating statements.” Ante, at 528. Nor does it matter that the officers lacked a precise expectation of how the statements Mauro would make might be incriminating; much interrogation is exploratory rather than directed at the admission of a fact whose incriminatory import is already known to the officers.

The Court’s final proffered reason for disregarding the findings of the Supreme Court of Arizona is that the suspect may not have felt coerced to incriminate himself. The police did not compel or even encourage Mauro to speak with his wife. When they brought her into the room without warning Mauro in advance, however, they expected that the resulting conversation “could shed light on our case.” App. 101. Under the circumstances, the mere fact that respondent’s wife made the initial request leading to the conversation does not alter the correctness of the Supreme Court of Arizona’s analysis. The officers exercised exclusive control over whether and when the suspects spoke with each other; the police knew that whatever Mauro might wish to convey to his wife at that moment, he would have to say under the conditions unilaterally imposed by the officers. In brief, the police exploited the custodial situation and the understandable desire of Mrs. Mauro to speak with respondent to conduct an interrogation.

I respectfully dissent.

       The entire conversation proceeded as follows:
      “MRS. MAURO: Please — please, I don’t know what to do. We should have put David [the victim] in the hospital. Please — I don’t know what we’re going to do. We should have went for help — we should have went for help.
      “[MR. MAURO]: You tried as best you could to stop it.
      “MRS. MAURO: I-
      “[MR. MAURO]: Shut up.
      “MRS. MAURO: —taken him to a mental hospital or something. What’ll we do?

        “[MR. MAURO]: Shut up.
      “DET. MANSON: Do you know a reverend or a priest or someone you can talk to — take care of David?
      “MRS. MAURO: No.
      “[MR. MAURO]: Don’t answer questions until you get rights of attorney before you find out whats [sic] going on. You tried to stop me as best you can. What are you going to do, kill me? You tried the best you can to stop me.
      “MRS. MAURO: I don’t — we don’t — I don’t have money.
      “[MR. MAURO]: There’s a public attorney.
      “MRS. MAURO: I don’t know.
      “[MR. MAURO]: There’s a public attorney. Why don’t you just be quiet.
      “MRS. MAURO: I don’t have any money to bury him. I don’t have any money. All I got is enough money for the rent for the children and that’s it.
      “DET. MANSON: Did you want to talk to your husband any more?
      “MRS. MAURO: No, I can’t talk to him.
      “[MR. MAURO]: Then don’t talk to me — get out.
      “MRS. MAURO: I don’t know what to do. O.K.”
      149 Ariz. 24, 30-31, 716 P. 2d 393, 399-400 (1986).

       The court relied on testimony of the officers at the hearing in the trial court on the suppression motion. Sergeant Allen testified as follows:
      “Q. [C]ertainly when you sent an officer in there to listen to that conversation, you knew that it was possible that he might make incriminating statements?

        “A. That’s correct.
      “Q. And obviously, you wanted to record that conversation so as to have a record of those incriminating statements.
      “A. That’s correct.” Id., at 30, 716 P. 2d, at 399. Detective Manson’s testimony was as follows:
      “Q. [Detective Manson], certainly you were aware that during the conversation either [Mrs. Mauro] or my client may have given an incriminating statement?
      “A. Yes.
      “Q. And obviously one of the purposes of your tape recording the interview was to take down any such statements?

        “A. Yes, sir.” Ibid.

       In Malloy v. Hogan, 378 U. S. 1 (1964), the Court held that the Fourteenth Amendment requires observance of this privilege in state-court proceedings.

       In the course of the conversation, that apparently lasted only a few minutes, Manson made two statements, both apparently directed at Mauro’s wife. See n. 1, supra.

       Justice Stevens suggests that the officers “employed a powerful psychological ploy.” Post, at 531. He bases this statement on his reading of the record that the officers “failed to give respondent any advance warning that Mrs. Mauro was coming to talk to him, that a police officer would accompany her, or that their conversation would be recorded.” Ibid. This reading is difficult to reconcile with the trial court’s conclusion that the officers “told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on.” App. 218. This sentence seems to indicate that Mauro received advance warning. But accepting the facts as Justice Stevens states them, the opinion still makes it clear that Mauro was fully informed before the conversation began. Similarly, it may be that the officers did not give Mr. Mauro advance warning that they would record the eonversation, but the trial court noted that “[t]he officer who was present produced a tape recorder and told the couple that their conversation would be recorded and put that tape recorder down on the desk in plain sight and taped their conversation, so they had knowledge that that was going on.” Ibid. Justice Stevens also implies that respondent was forced against his will to talk to his wife. Post, at 581. But, as the trial court observed, “[t]he defendant, with knowledge that the police were listening, could have chosen not to speak to his wife. Instead, he chose to speak.” App. 219. In short, the trial court’s findings completely rebut the atmosphere of oppressive police conduct portrayed by the dissent.

       The dissent suggests that the Arizona Supreme Court found as a fact that the officers intended to interrogate Mauro and faults us for reversing this allegedly factual finding. With due respect, we disagree with this reading of the record. The Arizona Supreme Court did not conclude that the officers intended to interrogate Mauro. Rather it concluded that “[t]hey both knew that . . . incriminating statements were likely to be made.” 149 Ariz., at 31, 716 P. 2d, at 400. Taken in context, this is a determination that the facts known to the officers satisfied the legal standard we established in Rhode Island v. Innis. Our decision today does not overturn any of the factual findings of the Arizona Supreme Court. Rather, it rests on a determination that the facts of this case do not present a sufficient likelihood of incrimination to satisfy the legal standard articulated in Miranda v. Arizona and in Rhode Island v. Innis.

       Thus, the Arizona Supreme Court credited part, but not all, of the following testimony by Detective Manson:
      “Q. I’d like to ask you some questions concerning police interrogation techniques, if I might.
      “Do you have any experience in police interrogation techniques?
      “A. Yes, sir.
      “Q. Another technique, Byron, would be to, for example, if you are investigating a juvenile matter, to have the parents come down and speak to the juvenile in your presence?
      “A. That’s correct.
      “Q. Along those same lines, it’s not uncommon to ask a family member to come in and speak to someone in your presence?
      “A. That’s correct.
      “Q. And, in fact, that technique was utilized in this case, isn’t it true?

        “A. I don’t believe so, no, sir. That was not our purpose. That was not an interrogation method.” App. 79, 81.

       The trial court found that the police “told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe what was going on.” App. 218. This advice was not given to Mr. Mauro until Mrs. Mauro entered the room in which he was being held. The trial court did not dispute the testimony of Officer Manson, which establishes that up to the moment when Mrs. Mauro and Officer Manson entered the room with the tape recorder running, every effort was made to keep respondent from knowing that Mrs. Mauro was in the police station:
      “Q. When did Mrs. Mauro become aware that her husband was in custody at the Police Station?
      “A. I’m not sure. It was probably during our initial interview. I know that we had closed the door to the captain’s office and that we entered through the back door. We didn’t want them to see each other.” Id., at 111-112.
      There is nothing in the trial court’s opinion or elsewhere in the record to support the Court’s apparent assumption, see ante, at 527-528, n. 5, that Officer Manson separately advised respondent beforehand that his wife would be brought in to see him and that a police officer would monitor the conversation.

       The Arizona Supreme Court, after studying the trial record in light of our precedents, concluded that respondent’s Fifth Amendment rights had been violated. Its decision rests on a careful evaluation of the behavior of the local police. Justices of that court regularly review cases in which Arizona police officers have testified. The Arizona Supreme Court’s assessment of the actual intent of the Arizona police officers who testified in this ease is therefore a good deal more reliable than this Court’s. Indeed, whenever this Court reviews a state appellate court’s examination of a trial record there is a special risk of error resulting from lack of familiarity with local conditions and from the limited time the Members of this Court can devote to study of the trial record. In some instances, this risk of error is outweighed by the necessity of granting review to decide an “issue of general or recurring significance” or to resolve a split of authority. Connecticut v. Barrett, 479 U. S. 523, 536 (1987) (Stevens, J., dissenting). In my opinion, however, no trace of such necessity is present in this ease. The vote of four Members of this Court to grant certiorari in this case was surely an exercise of indiscretion.

        State v. Narten, 99 Ariz. 116, 407 P. 2d 81 (1965), cert. denied, 384 U. S. 1008 (1966); Narten v. Eyman, 460 F. 2d 184 (CA9 1969); State v. Summerlin, 138 Ariz. 426, 675 P. 2d 686 (1984).

       The regrettable irony in this case is that respondent endured the functional equivalent of interrogation while in the very process of advising his wife to exercise her own Fifth Amendment right to remain silent. See ante, at 522-523, n. 1.