source: Caselaw Access Project

author: Justice Blackmun Chief Justice Rehnquist,

license: Public Domain

text:
    DAUBERT et ux., individually and as guardians ad litem for DAUBERT, et al. v. MERRELL DOW PHARMACEUTICALS, INC.
    No. 92-102.
    Argued March 30, 1993
    Decided June 28, 1993

      Blackmun, J., delivered the opinion for a unanimous Court with respect to Parts I and II-A, and the opinion of the Court with respect to Parts II-B, II-C, III, and IV, in which White, O’Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 598.

      Michael H. Gottesman argued the cause for petitioners. With him on the briefs were Kenneth J. Chesebro, Barry J. Nace, David L. Shapiro, and Mary G. Gillick.

      Charles Fried argued the cause for respondent. With him on the brief were Charles R. Nesson, Joel I. Klein, Richard G. Taranto, Hall R. Marston, George E. Berry, Edward H. Stratemeier, and W Glenn Forrester

      Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Dan Morales, Attorney General of Texas, Mark Barnett, Attorney General of South Dakota, Marc Racicot, Attorney General of Montana, Larry EchoHawk, Attorney General of Idaho, and Brian Stuart Koukoutchos; for the American Society of Law, Medicine and Ethics et al. by Joan E. Bertin, Marsha S. Berzon, and Albert H. Meyerhoff; for the Association of Trial Lawyers of America by Jeffrey Robert White and Roxanne Barton Conlin; for Ronald Bayer et al. by Brian Stuart Koukoutchos, Priscilla Budeiri, Arthur Bryant, and George W. Conk; and for Daryl E. Chubin et al. by Ron Simon and Nicole Schultheis.

      Briefs of amici curiae urging affirmance were filed for the United States by Acting Solicitor General Wallace, Assistant Attorney General Gerson, Miguel A Estrada, Michael Jay Singer, and John P. Schnitker; for the American Insurance Association by William J. Kilberg, Paul Blankenstein, Bradford R. Clark, and Craig A Berrington; for the American Medical Association et al. by Carter G. Phillips, Mark D. Hopson, and Jack R. Bierig; for the American Tort Reform Association by John G. Kester and John W. Vardaman, Jr.; for the Chamber of Commerce of the United States by Timothy B. Dyk, Stephen A Bokat, and Robin S. Conrad; for the Pharmaceutical Manufacturers Association by Louis R. Cohen and Daniel Marcus; for the Product Liability Advisory Council, Inc., et al. by Victor E. Schwartz, Robert P. Charrow, and Paul F. Rothstein; for the Washington Legal Foundation by Scott G. Campbell, Daniel J. Popeo, and Richard A Samp; and for Nicolaas Bloembergen et al. by Martin S. Kaufman.

      Briefs of amici curiae were filed for the American Association for the Advancement of Science et al. by Richard A Meserve and Bert Black; for the American College of Legal Medicine by Miles J. Zaremski; for the Carnegie Commission on Science, Technology, and Government by Steven G. Gallagher, Elizabeth H. Esty, and Margaret A. Berger; for the Defense Research Institute, Inc., by Joseph A Sherman, E. Wayne Taff and Harvey L. Kaplan; for the New England Journal of Medicine et al. by Michael Malina and Jeffrey I. D. Lewis; for A Group of American Law Professors by Donald N. Bersoff; for Alvan R. Feinstein by Don M. Kennedy, Loretta M. Smith, and Richard A Oetheimer; and for Kenneth Rothman et al. by Neil B. Cohen.

   Justice Blackmun

delivered the opinion of the Court.

In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial.

I

Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers’ ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.

After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances. Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects — more than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.

Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent’s motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon “in vitro” (test tube) and “in vivo” (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the “reanalysis” of previously published epidemiological (human statistical) studies.

The District Court granted respondent’s motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is “‘sufficiently established to have general acceptance in the field to which it belongs.’” 727 F. Supp. 570, 572 (SD Cal. 1989), quoting United States v. Kilgus, 571 F. 2d 508, 510 (CA9 1978). The court concluded that petitioners’ evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence is not admissible to establish causation. 727 F. Supp., at 575. Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding causation. Ibid. Petitioners’ epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review. Ibid.

The United States Court of Appeals for the Ninth Circuit affirmed. 951 F. 2d 1128 (1991). Citing Frye v. United States, 54 App. D. C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community. 951 F. 2d, at 1129-1130. The court declared that expert opinion based on a methodology that diverges “significantly from the procedures accepted by recognized authorities in the field ... cannot be shown to be ‘generally accepted as a reliable technique.’ ” Id., at 1130, quoting United States v. Solomon, 753 F. 2d 1522, 1526 (CA9 1985).

The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F. 2d, at 1130-1131. Those courts had found unpublished reanalyses “particularly problematic in light of the massive weight of the original published studies supporting [respondent’s] position, all of which had undergone full scrutiny from the scientific community.” Id., at 1130. Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners’ reanalyses as “unpublished, not subjected to the normal peer review process and generated solely for use in litigation.” Id., at 1131. The court concluded that petitioners’ evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial.

We granted certiorari, 506 U. S. 914 (1992), in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony. Compare, e. g., United States v. Shorter, 257 U. S. App. D. C. 358, 363-364, 809 F. 2d 54, 59-60 (applying the “general acceptance” standard), cert. denied, 484 U. S. 817 (1987), with DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F. 2d 941, 955 (CA3 1990) (rejecting the “general acceptance” standard).

II

A

In the 70 years since its formulation in the Frye case, the “general acceptance” test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.

The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared:

“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 54 App. D. C., at 47, 293 F., at 1014 (emphasis added).

Because the deception test had “not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made,” evidence of its results was ruled inadmissible. Ibid.

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners’ primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree.

We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 163 (1988). Rule 402 provides the baseline:

“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”

“Relevant evidence” is defined as that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401. The Rules’ basic standard of relevance thus is a liberal one.

Frye, of course, predated the Rules by half a century. In United States v. Abel, 469 U. S. 45 (1984), we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, id., at 49, but, quoting Professor Cleary, the Reporter, explained that the common law nevertheless could serve as an aid to their application:

“ ‘In principle, under the Federal Rules no common law of evidence remains. “All relevant evidence is admissible, except as otherwise provided . . . .” In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers.’” Id., at 51-52.

We found the common-law precept at issue in the Abel case entirely consistent with Rule 402’s general requirement of admissibility, and considered it unlikely that the drafters had intended to change the rule. Id., at 50-51. In Bourjaily v. United States, 483 U. S. 171 (1987), on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded.

Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Nothing in the text of this Rule establishes “general acceptance” as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a “general acceptance” standard. The drafting history makes no mention of Frye, and a rigid “general acceptance” requirement would be at odds with the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” Beech Aircraft Corp. v. Rainey, 488 U. S., at 169 (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F. R. D. 631 (1991) (“The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts”). Given the Rules’ permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention “general acceptance,” the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.

B

That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” an expert “may testify thereto.” (Emphasis added.) The subject of an expert’s testimony must be “scientific . . . knowledge.” The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.” Webster’s Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science. See, e. g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 (“Indeed, scientists do not assert that they know what is immutably ‘true’ — they are committed to searching for new, temporary, theories to explain, as best they can, phenomena”); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8 (“Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement” (emphasis in original)). But, in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i. e., “good grounds,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.

Rule 702 further requires that the evidence or testimony “assist the trier of fact to understand the evidence or to determine a fact in issue.” This condition goes primarily to relevance. “Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” 3 Weinstein & Berger ¶ 702[02], p. 702-18. See also United States v. Downing, 753 F. 2d 1224, 1242 (CA3 1985) (“An additional consideration under Rule 702 — and another aspect of relevancy — is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute”). The consideration has been aptly described by Judge Becker as one of “fit.” Ibid. “Fit” is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. See Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 258 (1986). The study of the phases of the moon, for example, may provide valid scientific “knowledge” about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702’s “helpfulness” standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

That these requirements are embodied in Rule 702 is not surprising. Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledge — a rule which represents “a ‘most pervasive manifestation’ of the common law insistence upon ‘the most reliable sources of information,’ ” Advisory Committee’s Notes on Fed. Rule Evid. 602, 28 U. S. C. App., p. 755 (citation omitted) — is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.

C

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.

Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be capable of empirical test”); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”) (emphasis deleted).

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Reiman & Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United States v. Smith, 869 F. 2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique’s operation, see United States v. Williams, 583 F. 2d 1194, 1198 (CA2 1978) (noting professional organization’s standard governing spectrographic analysis), cert. denied, 439 U. S. 1117 (1979).

Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” United States v. Downing, 753 F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” Downing, 753 F. 2d, at 1238, may properly be viewed with skepticism.

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Judge Weinstein has explained: “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.” Weinstein, 138 F. R. D., at 632.

Ill

We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of “general acceptance” as the exclusive requirement for admission will result in a “free-for-all” in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. See Rock v. Arkansas, 483 U. S. 44, 61 (1987). Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. Cf., e. g., Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F. 2d 1349 (CA6) (holding that scientific evidence that provided foundation for expert testimony, viewed in the light most favorable to plaintiffs, was not sufficient to allow a jury to find it more probable than not that defendant caused plaintiff’s injury), cert. denied, 506 U. S. 826 (1992); Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F. 2d 307 (CA5 1989) (reversing judgment entered on jury verdict for plaintiffs because evidence regarding causation was insufficient), modified, 884 F. 2d 166 (CA5 1989), cert. denied, 494 U. S. 1046 (1990); Green 680-681. These conventional devices, rather than wholesale exclusion under an uncompromising “general acceptance” test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.

Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of “invalid” evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. See, e. g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment — often of great consequence — about a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.

IV

To summarize: “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence— especially Rule 702 — do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court of Appeals focused almost exclusively on “general acceptance,” as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom

Justice Stevens joins, concurring in part and dissenting in part.

The petition for certiorari in this case presents two questions: first, whether the rule of Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923), remains good law after the enactment of the Federal Rules of Evidence; and second, if Frye remains valid, whether it requires expert scientific testimony to have been subjected to a peer review process in order to be admissible. The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and II-A of its opinion. The second question presented in the petition for certiorari necessarily is mooted by this holding, but the Court nonetheless proceeds to construe Rules 702 and 703 very much in the abstract, and then offers some “general observations.” Ante, at 593.

“General observations” by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observations — they are not applied to deciding whether particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this, where the ultimate legal question depends on an appreciation of one or more bodies of knowledge not judicially noticeable, and subject to different interpretations in the briefs of the parties and their amici. Twenty-two amicus briefs have been filed in the case, and indeed the Court’s opinion contains no fewer than 37 citations to amicus briefs and other secondary sources.

The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory language — the sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer review — in short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how Rule 702 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp.

But even if it were desirable to make “general observations” not necessary to decide the questions presented, I cannot subscribe to some of the observations made by the Court. In Part II-B, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. Ante, at 590-592. Federal Rule of Evidence 402 provides, as the Court points out, that “[e]vidence which is not relevant is not admissible.” But there is no similar reference in the Rule to “reliability.” The Court constructs its argument by parsing the language “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,. . . an expert. . . may testify thereto . . . .” Fed. Rule Evid. 702. It stresses that the subject of the expert’s testimony must be “scientific ... knowledge,” and points out that “scientific” “implies a grounding in the methods and procedures of science” and that the word “knowledge” “connotes more than subjective belief or unsupported speculation.” Ante, at 590. From this it concludes that “scientific knowledge” must be “derived by the scientific method.” Ibid. Proposed testimony, we are told, must be supported by “appropriate validation.” Ibid. Indeed, in footnote 9, the Court decides that “[i]n a case involving scientific evidence, eviden tiary reliability will be based upon scientific validity.” Ante, at 591, n. 9 (emphasis in original).

Questions arise simply from reading this part of the Court’s opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of “technical or other specialized knowledge” — the other types of expert knowledge to which Rule 702 applies — or are the “general observations” limited only to “scientific knowledge”? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase “scientific, technical, or other specialized knowledge” be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Court speaks of its confidence that federal judges can make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Ante, at 592-593. The Court then states that a “key question” to be answered in deciding whether something is “scientific knowledge” “will be whether it can be (and has been) tested.” Ante, at 593. Following this sentence are three quotations from treatises, which not only speak of empirical testing, but one of which states that the “ ‘criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.’” Ibid.

I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its “falsifiability,” and I suspect some of them will be, too.

I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases.

       Doctor Lamm received his master’s and doctor of medicine degrees from the University of Southern California. He has served as a consultant in birth-defect epidemiology for the National Center for Health Statistics and has published numerous articles on the magnitude of risk from exposure to various chemical and biological substances. App. 34-44.

       For example, Shanna Helen Swan, who received a master’s degree in biostatistics from Columbia University and a doctorate in statistics from the University of California at Berkeley, is chief of the section of the California Department of Health and Services that determines causes of birth defects and has served as a consultant to the World Health Organization, the Food and Drug Administration, and the National Institutes of Health. Id., at 113-114, 131-132. Stuart A. Newman, who received his bachelor’s degree in chemistry from Columbia University and his master’s and doctorate in chemistry from the University of Chicago, is a professor at New York Medical College and has spent over a decade studying the effect of chemicals on limb development. Id., at 54-56. The credentials of the others are similarly impressive. See id., at 61-66, 73-80, 148-153, 187-192, and Attachments 12, 20, 21, 26, 31, and 32 to Petitioners’ Opposition to Summary Judgment in No. 84-2013-G(I) (SD Cal.).

       For a catalog of the many cases on either side of this controversy, see P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-5, pp. 10-14 (1986 and Supp. 1991).

       See, e. g., Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643 (1992) (hereinafter Green); Becker & Orenstein, The Federal Rules of Evidence After Sixteen Years — The Effect of “Plain Meaning” Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo. Wash. L. Rev. 857, 876-885 (1992); Hanson, James Alphonzo Frye is Sixty-Five Years Old; Should He Retire?, 16 West. St. U. L. Rev. 357 (1989); Black, A Unified Theory of Scientific Evidence, 56 Ford. L. Rev. 595 (1988); Imwinkelried, The “Bases” of Expert Testimony: The Syllogistic Structure of Scientific Testimony, 67 N. C. L. Rev. 1 (1988); Proposals for a Model Rule on the Admissibility of Scientific Evidence, 26 Jurimetrics J. 235 (1986); Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197 (1980); The Supreme Court, 1986 Term, 101 Harv. L. Rev. 7, 119, 125-127 (1987).
      Indeed, the debates over Frye are such a well-established part of the academic landscape that a distinct term — “Frt/e-ologist”—has been advanced to describe those who take part. See Behringer, Introduction, Proposals for a Model Rule on the Admissibility of Scientific Evidence, 26 Jurimetrics J. 237, 239 (1986), quoting Lacey, Scientific Evidence, 24 Jurimetrics J. 254, 264 (1984).

       Like the question of Frye’s merit, the dispute over its survival has divided courts and commentators. Compare, e. g., United States v. Williams, 583 F. 2d 1194 (CA2 1978) (Frye is superseded by the Rules of Evidence), cert. denied, 439 U. S. 1117 (1979), with Christophersen v. Allied-Signal Corp., 939 F. 2d 1106, 1111, 1115-1116 (CA5 1991) (en banc) (Frye and the Rules coexist), cert. denied, 503 U. S. 912 (1992), 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 702[03], pp. 702-36 to 702-37 (1988) (hereinafter Weinstein & Berger) (Frye is dead), and M. Graham, Handbook of Federal Evidence § 703.2 (3d ed. 1991) (Frye lives). See generally P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-5, at 28-29 (citing authorities).

       Because we hold that Frye has been superseded and base the discussion that follows on the content of the eongressionally enacted Federal Rules of Evidence, we do not address petitioners’ argument that application of the Frye rule in this diversity case, as the application of a judge-made rule affecting substantive rights, would violate the doctrine of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).

       The Chief Justice “do[es] not doubt that Rule 702 confides to the judge some gatekeeping responsibility,” post, at 600, but would neither say how it does so nor explain what that role entails. We believe the better course is to note the nature and source of the duty.

       Rule 702 also applies to “technical, or other specialized knowledge.” Our discussion is limited to the scientific context because that is the nature of the expertise offered here.

       We note that scientists typically distinguish between “validity” (does the principle support what it purports to show?) and “reliability” (does application of the principle produce consistent results?). See Black, 56 Ford. L. Rev., at 599. Although “the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen’s kick,” Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26 Jurimetrics J. 249, 256 (1986), our reference here is to evidentiary reliability— that is, trustworthiness. Cf., e. g., Advisory Committee’s Notes on Fed. Rule Evid. 602, 28 U. S. C. App., p. 755 (“ ‘[T]he rule requiring that a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact’ is a ‘most pervasive manifestation’ of the common law insistence upon ‘the most reliable sources of information’” (citation omitted)); Advisory Committee’s Notes on Art. VIII of Rules of Evidence, 28 U. S. C. App., p. 770 (hearsay exceptions will be recognized only “under circumstances supposed to furnish guarantees of trustworthiness”). In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.

       Rule 104(a) provides:
      “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) [pertaining to conditional admissions]. In making its determination it is not bound by the rules of evidence except those with respect to privileges.” These matters should be established by a preponderance of proof. See Bourjaily v. United States, 483 U. S. 171, 175-176 (1987).

       Although the Frye decision itself focused exclusively on “novel” scientific techniques, we do not read the requirements of Rule 702 to apply specially or exclusively to unconventional evidence. Of course, well-established propositions are less likely to be challenged than those that are novel, and they are more handily defended. Indeed, theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice under Federal Rule of Evidence 201.

       A number of authorities have presented variations on the reliability approach, each with its own slightly different set of factors. See, e. g., Downing, 763 F. 2d, at 1238-1239 (on which our discussion draws in part); 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42 (on which the Downing court in turn partially relied); McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L. Rev. 879, 911-912 (1982); and Symposium on Science and the Rules of Evidence, 99 F. R. D. 187, 231 (1983) (statement by Margaret Berger). To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, all these versions may well have merit, although we express no opinion regarding any of their particular details.

       This is not to say that judicial interpretation, as opposed to adjudicative factfinding, does not share basic characteristics of the scientific endeavor: “The work of a judge is in one sense enduring and in another ephemeral. ... In the endless process of testing and retesting, there is a constant rejection of the dross and a constant retention of whatever is pure and sound and fine.” B. Cardozo, The Nature of the Judicial Process 178-179 (1921).


author: Justice Blackmun Justice Scalia, Justice Kennedy,

text:
    AUSTIN v. UNITED STATES
    No. 92-6073.
    Argued April 20, 1993
    Decided June 28, 1993

      Blackmun, J., delivered the opinion of the Court, in which White, Stevens, O’Connor, and Souter, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 623. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 628.

      Richard L. Johnson argued the cause for petitioner. With him on the briefs was Scott N. Peters.

      Miguel A. Estrada argued the cause for the United States. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Keeney, and Thomas E. Booth

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Gerard E. Lynch, Steven R. Shapiro, and John A Powell; and for the National Association of Criminal Defense Lawyers by David B. Smith and Justin M. Miller.

        Roger L. Conner, Robert Teir, Edward S. G. Dennis, Jr., and Peter Buscemi filed a brief for the American Alliance for Rights and Responsibilities et al. urging affirmance.
      A brief of amici curiae was filed for the State of Arizona et al. by Grant Woods, Attorney General of Arizona, and Cameron H. Holmes and Sandra

        L. Jamen, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, and Gary W. Schons, Domenick Galluzzo, Acting Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Winston Bryant of Arkansas, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Robert A Marks of Hawaii, Larry EchoHawk of Idaho, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard R Ieyoub of Louisiana, Michael Carpenter of Maine, J Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Michael F. Easley of North Carolina, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Dan Morales of Texas, Jan Graham of Utah, Stephen D. Rosenthal of Virginia, Christine O. Gregoire of Washington, Joseph B. Meyer of Wyoming, and Rosalie Simmonds Ballentine of the Virgin Islands.

   Justice Blackmun

delivered the opinion of the Court.

In this case, we are asked to decide whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U. S. C. §§ 881(a)(4) and (a)(7). We hold that it does and therefore remand the case for consideration of the question whether the forfeiture at issue here was excessive.

I

On August 2,1990, petitioner Richard Lyle Austin was indicted on four counts of violating South Dakota’s drug laws. Austin ultimately pleaded guilty to one count of possessing cocaine with intent to distribute and was sentenced by the state court to seven years’ imprisonment. On September 7, the United States filed an in rem action in the United States District Court for the District of South Dakota seeking forfeiture of Austin’s mobile home and auto body shop under 21 U. S. C. §§ 881(a)(4) and (a)(7). Austin filed a claim and an answer to the complaint.

On February 4, 1991, the United States made a motion, supported by an affidavit from Sioux Falls Police Officer Donald Satterlee, for summary judgment. According to Satterlee’s affidavit, Austin met Keith Engebretson at Austin’s body shop on June 13, 1990, and agreed to sell cocaine to Engebretson. Austin left the shop, went to his mobile home, and returned to the shop with two grams of cocaine which he sold to Engebretson. State authorities executed a search warrant on the body shop and mobile home the following day. They discovered small amounts of marijuana and cocaine, a .22 caliber revolver, drug paraphernalia, and approximately $4,700 in cash. App. 13. In opposing summary judgment, Austin argued that forfeiture of the properties would violate the Eighth Amendment. The District Court rejected this argument and entered summary judgment for the United States. Id., at 19.

The United States Court of Appeals for the Eighth Circuit “reluctantly agree[d] with the government” and affirmed. United States v. One Parcel of Property, 964 F. 2d 814, 817 (1992). Although it thought that “the principle of proportionality should be applied in civil actions that result in harsh penalties,” ibid., and that the Government was “exacting too high a penalty in relation to the offense committed,” id., at 818, the court felt constrained from holding the forfeiture unconstitutional. It cited this Court’s decision in CaleroToledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), for the proposition that, when the Government is proceeding against property in rem, the guilt or innocence of the property’s owner “is constitutionally irrelevant.” 964 F. 2d, at 817. It then reasoned: “We are constrained to agree with the Ninth Circuit that ‘[i]f the constitution allows in rem forfeiture to be visited upon innocent owners . . . the constitution hardly requires proportionality review of forfeitures.’” Ibid., quoting United States v. Tax Lot 1500, 861 F. 2d 232, 234 (CA9 1988), cert. denied sub nom. Jaffee v. United States, 493 U. S. 954 (1989).

We granted certiorari, 506 U. S. 1074 (1993), to resolve an apparent conflict with the Court of Appeals for the Second Circuit over the applicability of the Eighth Amendment to in rem civil forfeitures. See United States v. Certain Real Property, 954 F. 2d 29, 35, 38-39, cert. denied sub nom. Levin v. United States, 506 U. S. 815 (1992).

II

Austin contends that the Eighth Amendment’s Excessive Fines Clause applies to in rem civil forfeiture proceedings. See Brief for Petitioner 10,19, 23. We have had occasion to consider this Clause only once before. In Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257 (1989), we held that the Excessive Fines Clause does not limit the award of punitive damages to a private party in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages. Id., at 264. The Court’s opinion and Justice O’Connor’s opinion, concurring in part and dissenting in part, reviewed in some detail the history of the Excessive Fines Clause. See id., at 264-268,286-297. The Court concluded that both the Eighth Amendment and § 10 of the English Bill of Rights of 1689, from which it derives, were intended to prevent the government from abusing its power to punish, see id., at 266-267, and therefore that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government,” id., at 268.

We found it unnecessary to decide in Browning-Ferris whether the Excessive Fines Clause applies only to criminal cases. Id., at 263. The United States now argues that

“any claim that the government’s conduct in a civil proceeding is limited by the Eighth Amendment generally, or by the Excessive Fines Clause in particular, must fail unless the challenged governmental action, despite its label, would have been recognized as a criminal punishment at the time the Eighth Amendment was adopted.” Brief for United States 16 (emphasis added).

It further suggests that the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal under Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), and United States v. Ward, 448 U. S. 242 (1980). Brief for United States 26-27. We disagree.

Some provisions of the Bill of Rights are expressly limited to criminal cases. The Fifth Amendment’s Self-Incrimination Clause, for example, provides: “No person ... shall be compelled in any criminal case to be a witness against himself.” The protections provided by the Sixth Amendment are explicitly confined to “criminal prosecutions.” See generally Ward, 448 U. S., at 248. The text of the Eighth Amendment includes no similar limitation. See n. 2, supra.

Nor does the history of the Eighth Amendment require such a limitation. Justice O’Connor noted in Browning-Ferris: “Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment. After deciding to confine the benefits of the Self-Inerimination Clause of the Fifth Amendment to criminal proceedings, the Framers turned their attention to the Eighth Amendment. There were no proposals to limit that Amendment to criminal proceedings ....” 492 U. S., at 294. Section 10 of the English Bill of Rights of 1689 is not expressly limited to criminal cases either. The original draft of § 10 as introduced in the House of Commons did contain such a restriction, but only with respect to the bail clause: “The requiring excessive Bail of Persons committed in criminal Cases, and imposing excessive Fines, and illegal Punishments, to be prevented.” 10 H. C. Jour. 17 (1688). The absence of any similar restriction in the other two clauses suggests that they were not limited to criminal cases. In the final version, even the reference to criminal cases in the bail clause was omitted. See 1 W. & M., 2d Sess., ch. 2, 3 Stat. at Large 441 (1689) (“That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted”); see also L. Schwoerer, The Declaration of Rights, 1689, p. 88 (1981) (“But article 10 contains no reference to ‘criminal cases’ and, thus, would seem to apply ... to all cases”).

The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government’s power to punish. See Browning-Ferris, 492 U. S., at 266-267, 275. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, “as punishment for some offense.” Id.¡ at 265 (emphasis added). “The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.” United States v. Halper, 490 U. S. 435, 447-448 (1989). “It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties.” Id., at 447. See also United States ex rel. Marcus v. Hess, 317 U. S. 537, 554 (1943) (Frankfurter, J., concurring). Thus, the question is not, as the United States would have it, whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.

In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish. We said in Halper that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” 490 U. S., at 448. We turn, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under §§ 881(a)(4) and (a)(7) should be so understood today.

Ill

A

Three kinds of forfeiture were established in England at the time the Eighth Amendment was ratified in the United States: deodand, forfeiture upon conviction for a felony or treason, and statutory forfeiture. See Calero-Toledo, 416 U. S., at 680-683. Each was understood, at least in part, as imposing punishment.

“At common law the value of an inanimate object directly or indirectly causing the accidental death of a King’s subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c. 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man’s soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries *300. When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness.” Id., at 680-681 (footnotes omitted).

As Blackstone put it, “such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture.” 1 W. Blackstone, Commentaries *301.

The second kind of common-law forfeiture fell only upon those convicted of a felony or of treason. “The convicted felon forfeited his chattels to the Crown and his lands es-cheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown.” Calero-Toledo, 416 U. S., at 682. Such forfeitures were known as forfeitures of estate. See 4 W. Blackstone, at *381. These forfeitures obviously served to punish felons and traitors, see The Palmyra, 12 Wheat. 1, 14 (1827), and were justified on the ground that property was a right derived from society which one lost by violating society’s laws, see 1 W. Blackstone, at *299; 4 id., at *382.

Third, “English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.” Calero-Toledo, 416 U. S., at 682. The most notable of these were the Navigation Acts of 1660 that required the shipping of most commodities in English vessels. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them. See generally L. Harper, English Navigation Laws (1939). The statute was construed so that the act of an individual seaman, undertaken without the knowledge of the master or owner, could result in forfeiture of the entire ship. See Mitchell v. Torup, Park. 227, 145 Eng. Rep. 764 (Ex. 1766). Yet Blackstone considered such forfeiture statutes “penal.” 3 W. Blackstone, at *261.

In Calero-Toledo, we observed that statutory forfeitures were “likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer.” 416 U. S., at 682. Since each of these traditions had a punitive aspect, it is not surprising that forfeiture under the Navigation Acts was justified as a penalty for negligence: “But the Owners of Ships are to take Care what Master they employ, and the Master what Mariners; and here Negligence is plainly imputable to the Master; for he is to report the Cargo of the Ship, and if he had searched and examined the Ship with proper care, according to his Duty, he would have found the Tea . . . and so might have prevented the Forfeiture.” Mitchell, Park., at 238, 145 Eng. Rep., at 768.

B

Of England’s three kinds of forfeiture, only the third took hold in the United States. “Deodands did not become part of the common-law tradition of this country.” CaleroToledo, 416 U. S., at 682. The Constitution forbids forfeiture of estate as a punishment for treason “except during the Life of the Person attainted,” U. S. Const., Art. III, § 3, cl. 2, and the First Congress also abolished forfeiture of estate as a punishment for felons. Act of Apr. 30, 1790, ch. 9, §24, 1 Stat. 117. “But ‘[l]ong before the adoption of the Constitution the common law courts in the Colonies — and later in the states during the period of Confederation — were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes.’ ” Calero-Toledo, 416 U. S., at 683, quoting C. J. Hendry Co. v. Moore, 318 U. S. 133, 139 (1943).

The First Congress passed laws subjecting ships and car-gos involved in customs offenses to forfeiture. It does not follow from that fact, however, that the First Congress thought such forfeitures to be beyond the purview of the Eighth Amendment. Indeed, examination of those laws suggests that the First Congress viewed forfeiture as punishment. For example, by the Act of July 31, 1789, ch. 5, § 12, 1 Stat. 39, Congress provided that goods could not be unloaded except during the day and with a permit.

“[A]nd if the master or commander of any ship or vessel shall suffer or permit the same, such master and commander, and every other person who shall be aiding or assisting in landing, removing, housing, or otherwise securing the same, shall forfeit and pay the sum of four hundred dollars for every offence; shall moreover be disabled from holding any office of trust or profit under the United States, for a term not exceeding seven years; and it shall be the duty of the collector of the district, to advertise the names of all such persons in the public gazette of the State in which he resides, within twenty-days after each respective conviction. And all goods, wares and merchandise, so landed or discharged, shall become forfeited, and may be seized by any officer of the customs; and where the value thereof shall amount to four hundred dollars, the vessel, tackle, apparel and furniture, shall be subject to like forfeiture and seizure.”

Forfeiture of the goods and vessel is listed alongside the other provisions for punishment. It is also of some interest that “forfeit” is the word Congress used for fine. See ibid. (“shall forfeit and pay the sum of four hundred dollars for every offence”). Other early forfeiture statutes follow the same pattern. See, e. g., Act of Aug. 4, 1790, ch. 34, §§ 13, 22, 27, 28, 1 Stat. 157, 161, 163.

C

Our cases also have recognized that statutory in rem forfeiture imposes punishment. In Peisch v. Ware, 4 Cranch 347 (1808), for example, the Court held that goods removed from the custody of a revenue officer without the payment of duties should not be forfeitable for that reason unless they were removed with the consent of the owner or his agent. Chief Justice Marshall delivered the opinion for a unanimous Court:

“The court is also of opinion that the removal for which the act punishes the owner with a forfeiture of the goods must be made with his consent or connivance, or with that of some person employed or trusted by him. If, by private theft, or open robbery, without any fault on his part, his property should be invaded, while in the custody of the officer of the revenue, the law cannot be understood to punish him with the forfeiture of that property.” Id., at 364.

The same understanding of forfeiture as punishment runs through our cases rejecting the “innocence” of the owner as a common-law defense to forfeiture. See, e. g., Calero-Toledo, 416 U. S., at 683; J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505 (1921); Dobbins’s Distillery v. United States, 96 U. S. 395 (1878); Harmony v. United States, 2 How. 210 (1844); The Palmyra, 12 Wheat. 1 (1827). In these cases, forfeiture has been justified on two theories — that the property itself is “guilty” of the offense, and that the owner may_ be held accountable for the wrongs of others to whom he entrusts his property. Both theories rest, at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence.

The fiction that “the thing is primarily considered the offender,” Goldsmith-Grant Co., 254 U. S., at 511, has a venerable history in our case law. See The Palmyra, 12 Wheat., at 14 (“The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing”); Harmony, 2 How., at 233 (“The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner”); Dobbins’s Distillery, 96 U. S., at 401 (“[T]he offence ... is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner”). Yet the Court has understood this fiction to rest on the notion that the owner who allows his property to become involved in an offense has been negligent. Thus, in Goldsmith-Grant Co., the Court said that “ascribing to the property a certain personality, a power of complicity and guilt in the wrong,” had “some analogy to the law of deodand.” 254 U. S., at 510. It then quoted Blackstone’s explanation of the reason for deodand: that “‘such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture.’” Id., at 510-511, quoting 1 W. Blackstone, at *301.

In none of these cases did the Court apply the guilty-property fiction to justify forfeiture when the owner had done all that reasonably could be expected to prevent the unlawful use of his property. In The Palmyra, it did no more than reject the argument that the criminal conviction of the owner was a prerequisite to the forfeiture of his property. See 12 Wheat., at 15 (“[N]o personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature”). In Harmony, the owners’ claim of “innocence” was limited to the fact that they “never contemplated or authorized the acts complained of.” 2 How., at 230. And in Dobbins’s Distillery, the Court noted that some responsibility on the part of the owner arose “from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery.” 96 U. S., at 401. The more recent cases have expressly reserved the question whether the fiction could be employed to forfeit the property of a truly innocent owner. See, e. g., Goldsmith-Grant Co., 254 U. S., at 512; Calero-Toledo, 416 U. S., at 689-690 (noting that forfeiture of a truly innocent owner’s property would raise “serious constitutional questions”). If forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner. Indeed, it is only on the assumption that forfeiture serves in part to punish that the Court’s past reservation of that question makes sense.

The second theory on which the Court has justified the forfeiture of an “innocent” owner’s property is that the owner may be held accountable for the wrongs of others to whom he entrusts his property. In Harmony, it reasoned that “the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs.” 2 How., at 234. It repeated this reasoning in Dobbins’s Distillery:

“[T]he unlawful acts of the distiller bind the owner of the property, in respect to the management of the same, as much as if they were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease; and, if he abuses his trust, it is a matter to be settled between him and his lessor; but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner.” 96 U. S., at 404.

Like the guilty-property fiction, this theory of vicarious liability is premised on the idea that the owner has been negligent. Thus, in Calero-Toledo, we noted that application of forfeiture provisions “to lessors, bailors, or secured creditors who are innocent of any wrongdoing ... may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” 416 U. S., at 688.

In sum, even though this Court has rejected the “innocence” of the owner as a common-law defense to forfeiture, it consistently has recognized that forfeiture serves, at least in part, to punish the owner. See Peisch v. Ware, 4 Cranch, at 364 (“[T]he act punishes the owner with a forfeiture of the goods”); Dobbins’s Distillery, 96 U. S., at 404 (“[T]he acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner”); Goldsmith-Grant Co., 254 U. S., at 511 (“'[S]uch misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture’ ”). More recently, we have noted that forfeiture serves “punitive and deterrent purposes,” Calero-Toledo, 416 U. S., at 686, and “impos[es] an economic penalty,” id., at 687. We conclude, therefore, that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.

IV

We turn next to consider whether forfeitures under 21 U. S. C. §§ 881(a)(4) and (a)(7) are properly considered punishment today. We find nothing in these provisions or their legislative history to contradict the historical understanding of forfeiture as punishment. Unlike traditional forfeiture statutes, §§ 881(a)(4) and (a)(7) expressly provide an “innocent owner” defense. See § 881(a)(4)(C) (“[N]o conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner”); § 881(a)(7) (“[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner”); see also United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 122-123 (1993) (plurality opinion) (noting difference from traditional forfeiture statutes). These exemptions serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less. In United States v. United States Coin & Currency, 401 U. S. 715 (1971), we reasoned that 19 U. S. C. § 1618, which provides that the Secretary of the Treasury is to return the property of those who do not intend to violate the law, demonstrated Congress’ intent “to impose a penalty only upon those who are significantly involved in a criminal enterprise.” 401 U. S., at 721-722. The inclusion of innocent-owner defenses in §§ 881(a)(4) and (a)(7) reveals a similar congressional intent to punish only those involved in drug trafficking.

Furthermore, Congress has chosen to tie forfeiture directly to the commission of drug offenses. Thus, under § 881(a)(4), a conveyance is forfeitable if it is used or intended for use to facilitate the transportation of controlled substances, their raw materials, or the equipment used to manufacture or distribute them. Under § 881(a)(7), real property is forfeitable if it is used or intended for use to facilitate the commission of a drug-related crime punishable by more than one year’s imprisonment. See n. 1, supra.

The legislative history of §881 confirms the punitive nature of these provisions. When it added subsection (a)(7) to §881 in 1984, Congress recognized “that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs.” S. Rep. No. 98-225, p. 191 (1983). It characterized the forfeiture of real property as “a powerful deterrent.” Id., at 195. See also Joint House-Senate Explanation of Senate Amendment to Titles II and III of the Psychotropic Substances Act of 1978, 124 Cong. Rec. 34671 (1978) (noting “the penal nature of forfeiture statutes”).

The Government argues that §§ 881(a)(4) and (a)(7) are not punitive but, rather, should be considered remedial in two respects. First, they remove the “instruments” of the drug trade “thereby protecting the community from the threat of continued drug dealing.” Brief for United States 32. Second, the forfeited assets serve to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade. Id., at 25, 32.

In our view, neither argument withstands scrutiny. Concededly, we have recognized that the forfeiture of contraband itself may be characterized as remedial because it removes dangerous or illegal items from society. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364 (1984). The Court, however, previously has rejected government’s attempt to extend that reasoning to conveyances used to transport illegal liquor. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 699 (1965). In that case it noted: “There is nothing even remotely criminal in possessing an automobile.” Ibid. The same, without question, is true of the properties involved here, and the Government’s attempt to characterize these properties as “instruments” of the drug trade must meet the same fate as Pennsylvania’s effort to characterize the 1958 Plymouth sedan as “contraband.”

The Government’s second argument about the remedial nature of this forfeiture is no more persuasive. We previously have upheld the forfeiture of goods involved in customs violations as “a reasonable form of liquidated damages.” One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972). But the dramatic variations in the value of conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7) undercut any similar argument with respect to those provisions. The Court made this very point in Ward: The “forfeiture of property . . . [is] a penalty that ha[s] absolutely no correlation to any damages sustained by society or to the cost of enforcing the law.” 448 U. S., at 254.

Fundamentally, even assuming that §§ 881(a)(4) and (a)(7) serve some remedial purpose, the Government’s argument must fail. “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Halper, 490 U. S., at 448 (emphasis added). In light of the historical understanding of forfeiture as punishment, the clear focus of §§ 881(a)(4) and (a)(7) on the culpability of the owner, and the evidence that Congress understood those provisions as serving to deter and to punish, we cannot conclude that forfeiture under §§ 881(a)(4) and (a)(7) serves solely a remedial purpose. We therefore conclude that forfeiture under these provisions constitutes “payment to a sovereign as punishment for some offense,” Browning-Ferris, 492 U. S., at 265, and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.

V

Austin asks that we establish a multifactor test for determining whether a forfeiture is constitutionally “excessive.” See Brief for Petitioner 46-48. We decline that invitation. Although the Court of Appeals opined that “the government is exacting too high a penalty in relation to the offense committed,” 964 F. 2d, at 818, it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. Prudence dictates that we allow the lower courts to consider that question in the first instance. See Yee v. Escondido, 503 U. S. 519, 538 (1992).

The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in part and concurring in the judgment.

We recently stated that, at the time the Eighth Amendment was drafted, the term “fine” was “understood to mean a payment to a sovereign as punishment for some offense.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 265 (1989). It seems to me that the Court’s opinion obscures this clear statement, and needlessly attempts to derive from our sparse case law on the subject of in rem forfeiture the questionable proposition that the owner of property taken pursuant to such forfeiture is always blameworthy. I write separately to explain why I consider this forfeiture a fine, and to point out that the exeessiveness inquiry for statutory in rem forfeitures is different from the usual excessiveness inquiry.

I

Whether any sort of forfeiture of property may be covered by the Eighth Amendment is not a difficult question. “Forfeiture” and “fine” each appeared as one of many definitions of the other in various 18th-century dictionaries. See ante, at 614, n. 7. “Payment,” the word we used in Browning - Ferris as a synonym for fine, certainly includes in-kind assessments. Webster’s New International Dictionary 1797 (2d ed. 1950) (defining “payment” as “[t]hat which is paid; the thing given to discharge a debt or an obligation”). Moreover, for the Eighth Amendment to limit cash fines while permitting limitless in-kind assessments would make little sense, altering only the form of the Star Chamber abuses that led to the provision of the English Bill of Rights, from which our Excessive Fines Clause directly derives, see Browning-Ferris, supra, at 266-267. Cf. Harmelin v. Michigan, 501 U. S. 957, 978-979, n. 9 (1991) (opinion of SCALIA, J.). In Alexander v. United States, ante, at 558, we have today held that an in personam criminal forfeiture is an Eighth Amendment “fine.”

In order to constitute a fine under the Eighth Amendment, however, the forfeiture must constitute “punishment,” and it is a much closer question whether statutory in rem forfeitures, as opposed to in personam forfeitures, meet this requirement. The latter are assessments, whether monetary or in kind, to punish the property owner’s criminal conduct, while the former are confiscations of property rights based on improper use of the property, regardless of whether the owner has violated the law. Statutory in rem forfeitures have a long history. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 680-686 (1974). The property to which they apply is not contraband, see the forfeiture Act passed by the First Congress, ante, at 613-614, nor is it necessarily property that can only be used for illegal purposes. The theory of in rem forfeiture is said to be that the lawful property has committed an offense. See, e. g., The Palmyra, 12 Wheat. 1, 14-15 (1827) (forfeiture of vessel for piracy); Harmony v. United States, 2 How. 210, 233-234 (1844) (forfeiture of vessel, but not cargo, for piracy); Dobbins’s Distillery v. United States, 96 U. S. 395, 400-403 (1878) (forfeiture of distillery and real property for evasion of revenue laws); J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505, 510-511 (1921) (forfeiture of goods concealed to avoid taxes).

However the theory may be expressed, it seems to me that this taking of lawful property must be considered, in whole or in part, see United States v. Halper, 490 U. S. 435, 448 (1989), punitive. Its purpose is not compensatory, to make someone whole for injury caused by unlawful use of the property. See ibid. Punishment is being imposed, whether one quaintly considers its object to be the property itself, or more realistically regards its object to be the property’s owner. This conclusion is supported by Blackstone’s observation that even confiscation of a deodand, whose religious origins supposedly did not reflect any punitive motive but only expiation, see Law of Deodands, 34 Law Mag. 188, 189 (1845), came to be explained in part by reference to the owner as well as to the offending property. 1W. Blackstone, Commentaries *301; accord, Law of Deodands, supra, at 190. Our cases have described statutory in rem forfeiture as “likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer.” Calero-Toledo, supra, at 682.

The Court apparently believes, however, that only actual culpability of the affected property owner can establish that a forfeiture provision is punitive, and sets out to establish (in Part III) that such culpability exists in the case of in rem forfeitures. In my view, however, the case law is far more ambiguous than the Court acknowledges. We have never held that the Constitution requires negligence, or any other degree of culpability, to support such forfeitures. See ante, at 616-617, and n. 10; Goldsmith-Grant, supra, at 512 (reserving question); Calero-Toledo, supra, at 689-690 (same). A prominent 19th-century treatise explains statutory in rem forfeitures solely by reference to the fiction that the property is guilty, strictly separating them from forfeitures that require a personal offense of the owner. See 1 J. Bishop, Commentaries on Criminal Law §§816, 824, 825, 833 (7th ed. 1882). If the Court is correct that culpability of the owner is essential, then there is no difference (except perhaps the burden of proof) between the traditional in rem forfeiture and the traditional in personam forfeiture. Well-established common-law distinctions should not be swept away by reliance on bits of dicta. Moreover, if some degree of personal culpability on the part of the property owner always exists for in rem forfeitures, see ante, at 614-618, then it is hard to understand why this Court has kept reserving the (therefore academic) question whether personal culpability is constitutionally required, see ante, at 617, as the Court does again today, see ante, at 617, n. 10.

I would have reserved the question without engaging in the misleading discussion of culpability. Even if punishment of personal culpability is necessary for a forfeiture to be a fine; and even if in rem forfeitures in general do not punish personal culpability; the in rem forfeiture in this case is a fine. As the Court discusses in Part IV, this statute, in contrast to the traditional in rem forfeiture, requires that the owner not be innocent — that he have some degree of culpability for the “guilty” property. See also United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 121-123 (1993) (plurality opinion) (contrasting drug forfeiture statute with traditional statutory in rem forfeitures). Here, the property must “offend” and the owner must not be completely without fault. Nor is there any consideration of compensating for loss, since the value of the property is irrelevant to whether it is forfeited. That is enough to satisfy the Browning-Ferris standard, and to make the entire discussion in Part III dictum. Statutory forfeitures under § 881(a) are certainly payment (in kind) to a sovereign as punishment for an offense.

II

That this forfeiture works as a fine raises the excessiveness issue, on which the Court remands. I agree that a remand is in order, but think it worth pointing out that on remand the excessiveness analysis must be different from that applicable to monetary fines and, perhaps, to in personam forfeitures. In the case of a monetary fine, the Eighth Amendment’s origins in the English Bill of Rights, intended to limit the abusive penalties assessed against the King’s opponents, see Browning-Ferris, 492 U. S., at 266-267, demonstrate that the touchstone is value of the fine in relation to the offense. And in Alexander v. United States, we indicated that the same is true for in personam forfeiture. Ante, at 558.

Here, however, the offense of which petitioner has been convicted is not relevant to the forfeiture. Section § 881 requires only that the Government show probable cause that the subject property was used for the prohibited purpose. The burden then shifts to the property owner to show, by a preponderance of the evidence, that the use was made without his “knowledge, consent, or willful blindness,” 21 U. S. C. § 881(a)(4)(C), see also § 881(a)(7), or that the property was not so used, see § 881(d) (incorporating 19 U. S. C. §1615). Unlike monetary fines, statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been “tainted” by unlawful use, to which issue the value of the property is irrelevant. Scales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal. But an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense — the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.

This inquiry for statutory forfeitures has common-law parallels. Even in the case of deodands, juries were careful to confiscate only the instrument of death and not more. Thus, if a man was killed by a moving cart, the cart and its horses were deodands, but if the man died when he fell from a wheel of an immobile cart, only the wheel was treated as a deodand, since only the wheel could be regarded as the cause of death. 1 M. Hale, Pleas of the Crown *419-*422; 1 W. Blackstone, Commentaries *301-*302; Law of Deodands, 34 Law Mag., at 190. Our cases suggest a similar instrumentality inquiry when considering the permissible scope of a statutory forfeiture. Cf. Goldsmith-Grant, 254 U. S., at 510, 513; Harmony, 2 How., at 235 (ship used for piracy is forfeited, but cargo is not). The relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, “guilty” and hence forfeitable?

I join the Court’s opinion in part, and concur in the judgment.

Justice Kennedy,

with whom

The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment.

I am in substantial agreement with Part I of Justice Scalia’s opinion concurring in part and concurring in the judgment. I share Justice Scalia’s belief that Part III of the Court’s opinion is quite unnecessary for the decision of the case, fails to support the Court's argument, and seems rather doubtful as well.

In recounting the law’s history, we risk anachronism if we attribute to an earlier time an intent to employ legal concepts that had not yet evolved. I see something of that in the Court’s opinion here, for in its eagerness to discover a unified theory of forfeitures, it recites a consistent rationale of personal punishment that neither the cases nor other narratives of the common law suggest. For many of the reasons explained by Justice Scalia, I am not convinced that all in rem forfeitures were on account of the owner’s blameworthy conduct. Some impositions of in rem forfeiture may have been designed either to remove property that was itself causing injury, see, e. g., Harmony v. United States, 2 How. 210, 233 (1844), or to give the court jurisdiction over an asset that it could control in order to make injured parties whole, see Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 87 (1992).

At some point, we may have to confront the constitutional question whether forfeiture is permitted when the owner has committed no wrong of any sort, intentional or negligent. That for me would raise a serious question. Though the history of forfeiture laws might not be determinative of that issue, it would have an important bearing on the outcome. I would reserve for that or some other necessary occasion the inquiry the Court undertakes here. Unlike Justice Scalia, see ante, at 625, I would also reserve the question whether in rem forfeitures always amount to an intended punishment of the owner of forfeited property.

With these observations, I concur in part and concur in the judgment.

       These statutes provide for the forfeiture of:
      “(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or conceálment of [controlled substances, their raw materials, and equipment used in their manufacture and distribution]
      “(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment. ..
      Each provision has an “innocent owner” exception. See §§ 881(a)(4)(C) and (a)(7).

       “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U. S. Const., Arndt. 8.

       In Browning-Ferris, we left open the question whether the Excessive Fines Clause applies to qui tam actions in which a private party brings suit in the name of the United States and shares in the proceeds. See 492 U. S., at 276, n. 21. Because the instant suit was prosecuted by the United States and because Austin’s property was forfeited to the United States, we have no occasion to address that question here.

       As a general matter, this Court’s decisions applying constitutional protections to civil forfeiture proceedings have adhered to this distinction between provisions that are limited to criminal proceedings and provisions that are not. Thus, the Court has held that the Fourth Amendment’s protection against unreasonable searches and seizures applies in forfeiture proceedings, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 696 (1965); Boyd v. United States, 116 U. S. 616, 634 (1886), but that the Sixth Amendment’s Confrontation Clause does not, see United States v. Zucker, 161 U. S. 475, 480-482 (1896). It has also held that the due process requirement that guilt in a criminal proceeding be proved beyond a reasonable doubt, see In re Winship, 397 U. S. 358 (1970), does not apply to civil forfeiture proceedings. See Lilienthal’s Tobacco v. United States, 97 U. S. 237, 271-272 (1878).
      The Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364 (1984); One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972); see generally United States v. Halper, 490 U. S. 435, 446-449 (1989) (Double Jeopardy Clause prohibits second sanction that may not fairly be characterized as remedial). Conversely, the Fifth Amendment’s Self-Incrimination Clause, which is textually limited to “criminal case[s],” has been applied in civil forfeiture proceedings, but only where the forfeiture statute had made the culpability of the owner relevant, see United States v. United States Coin & Currency, 401 U. S. 715, 721-722 (1971), or where the owner faced the possibility of subsequent criminal proceedings, see Boyd, 116 U. S., at 634; see also United States v. Ward, 448 U. S. 242, 253-254 (1980) (discussing Boyd).

      And, of course, even those protections associated with criminal cases may apply to a civil forfeiture proceeding if it is so punitive that the proceeding must reasonably be considered criminal. See Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963); Ward, supra.

       In Ingraham v. Wright, 430 U. S. 651 (1977), we concluded that the omission of any reference to criminal cases in § 10 was without substantive significance in light of the preservation of a similar reference to criminal cases in the preamble to the English Bill of Rights. Id., at 665. This reference in the preamble, however, related only to excessive bail. See 1 W. & M., 2d Sess., ch. 2, 3 Stat. at Large 440 (1689). Moreover, the preamble appears designed to catalog the misdeeds of James II, see ibid., rather than to define the scope of the substantive rights set out in subsequent sections.

       For this reason, the United States’ reliance on Kennedy v. Mendoza-Martinez and United States v. Ward is misplaced. The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required. See Mendoza-Martinez, 372 U. S., at 167, 184; Ward, 448 U. S., at 248. In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendoza-Martinez and Ward. See, e. g., United States v. Halper, 490 U. S., at 447. Since in this case we deal only with the question whether the Eighth Amendment’s Excessive Fines Clause applies, we need not address the application of those tests.

       Dictionaries of the time confirm that “fine” was understood to include “forfeiture” and vice versa. See 1 T. Sheridan, A General Dictionary of the English Language (1780) (unpaginated) (defining “fine” as: “A mulct, a pecuniary punishment; penalty; forfeit, money paid for any exemption or liberty”); J. Walker, A Critical Pronouncing Dictionary (1791) (unpaginated) (same); 1 Sheridan, supra (defining “forfeiture” as: “The act of forfeiting; the thing forfeited, a mulct, a fine”); Walker, supra (same); J. Kersey, A New English Dictionary (1702) (unpaginated) (defining “forfeit” as: “default, fine, or penalty”).

       In Peisch, the removal of the goods from the custody of the revenue officer occurred not by theft or robbery, but pursuant to a writ of replevin issued by a state court. See 4 Cranch, at 360. Thus, Peisch stands for the general principle that “the law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control.” Id., at 365.

       The Government relies heavily on this fiction. See Brief for United States 18. We do not understand the Government to rely separately on the technical distinction between proceedings in rem and proceedings in personam, but we note that any such reliance would be misplaced. “The fictions of in rem forfeiture were developed primarily to expand the reach of the courts,” Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 87 (1992), which, particularly in admiralty proceedings, might have lacked in personam jurisdiction over the owner of the property. See also Harmony v. United States, 2 How. 210, 233 (1844). As is discussed in the text, forfeiture proceedings historically have been understood as imposing punishment despite their in rem nature.

       Because the forfeiture provisions at issue here exempt “innocent owners,” we again have no occasion to decide in this case whether it would comport with due process to forfeit the property of a truly innocent owner.

       In the criminal context, we have permitted punishment in the absence of conscious wrongdoing, so long as the defendant was not “ ‘powerless’ to prevent or correct the violation.” United States v. Park, 421 U. S. 658, 673 (1975) (corporate officer strictly liable under the Food, Drug, and Cosmetic Act). There is nothing inconsistent, therefore, in viewing forfeiture as punishment even though the forfeiture is occasioned by the acts of a person other than the owner.

       The doubts that Justice Scalia, see post, at 625-627, and Justice Kennedy, see post, at 629, express with regard to the historical understanding of forfeiture as punishment appear to stem from a misunderstanding of the relevant question. Under United States v. Halper, 490 U. S. 435, 448 (1989), the question is whether forfeiture serves in part to punish, and one need not exclude the possibility that forfeiture serves other purposes to reach that conclusion.

       Although the United States omits any reference to this legislative history in its brief in the present case, it quoted the same passage with approval in its brief in United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111 (1993). See Brief for United States, O. T. 1992, No. 91-781, pp. 41-42.

       In Halper, we focused on whether “the sanction as applied in the individual case serves the goals of punishment.” 490 U. S., at 448. In this case, however, it makes sense to focus on §§ 881(a)(4) and (a)(7) as a whole. Halper involved a small, fixed-penalty provision, which “in the ordinary case . . . can be said to do no more than make the Government whole.” Id., at 449. The value of the conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7), on the other hand, can vary so dramatically that any relationship between the Government’s actual costs and the amount of the sanction is merely coincidental. See Ward, 448 U. S., at 254. Furthermore, as we have seen, forfeiture statutes historically have been understood as serving not simply remedial goals but also those of punishment and deterrence. Finally, it appears to make little practical difference whether the Excessive Fines Clause applies to all forfeitures under §§ 881(a)(4) and (a)(7) or only to those that cannot be characterized as purely remedial. The Clause prohibits only the imposition of “excessive” fines, and a fine that serves purely remedial purposes cannot be considered “excessive” in any event.

       Justice Scalia suggests that the sole measure of an in rem forfeiture’s excessiveness is the relationship between the forfeited property and the offense. See post, at 627-628. We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin’s property was excessive.

      Thus, contrary to the Court’s contention, ante, at 618-619, n. 12, I agree with it on this point. I do not agree, however, that culpability of the property owner is necessary to establish punitiveness, or that punitiveness “in part” is established by showing that at least in some cases the affected property owners are culpable. That is to say, the statutory forfeiture must always be at least “partly punitive,” or else it is not a fine. See ante, at 622, n. 14.